Achilles Construction Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1987

283 N.L.R.B. 87 (N.L.R.B. 1987)

ACHILLES CONSTRUCTION CO. 87
Achilles Construction Co,, Inc . and Shopmen's Local
Union No. 455 , International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO. Case 29-CA-12015
26 February 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 26 August 1986 Administrative Law Judge
Thomas D. Johnston issued the attached decision.
The Respondent filed' exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,`- and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law,
judge and orders that the Respondent, Achilles
Construction Co., Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
In adopting the judge's finding that the Respondent lacked a good-
faith and reasonably grounded doubt that the Union enjoyed majority
support when it refused to bargain with the Union on 8 August 1985, we
emphasize that majority support is determined with reference to the
unit's size at the time of the Respondent's refusal. There were then four
employees in the unit.
Beatrice Kornbluh, Esq., for the General Counsel.
Stanley Israel, Esq.,-9f New York, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge.
This case was heard at Brooklyn, New York, on 27 June
and 22 July 1986 pursuant to a charge filed on 20 August
19851 by Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (the Union) and a complaint issued
on 9 April 1986.
The complaint alleges that Achilles Construction Co.,
Inc. (the Respondent) violated Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended (the Act)
by withdrawing its recognition of the Union as, the ex-
clusive bargaining representative of the unit employees
and refusing to recognize and bargain with the Union.
i All dates referred to are in 1985 unless otherwise stated.
The Respondent in its answer filed on Zit April 1986
denies having violated the Act and asserts as an affirma-
tive defense the Union is not the representative for the
purposes of collective bargaining of any of the unit em-
ployees.
The issues involved are whether the Respondent un-
lawfully withdrew recognition of and refused to recog-
nize and bargain with the Union as the exclusive bargain-
ing representative of the unit employees thereby violat-
ing Section 8(a)(5) and (1) of the Act.
On the entire record in the case and from my observa-
tions of the witnesses and after due consideration of the
oral argument made by, the General Counsel and the
brief filed by the Respondent2 I make the following3
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent; a New York corporation with its
principal office and place of business located at Brook-
lyn, New York, is engaged in the manufacture, sale, dis-
tribution, and installation - of various products made by
iron, steel, and other metals and related products. During
the 12-month period preceding 9 April 1986, a represent-
ative period, the Respondent in the course of its oper-
ations purchased and received iron, steel, metal) products,
and other goods and materials, valued in excess of
$50,000, which was transported and delivered to its
Brooklyn, New York facility in interstate commerce di-
rectly from States located outside the Slate of New
York.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Shopmen's Local Union No. 455, International Asso-
ciation of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and the Bargaining Unit
The Respondent operates a facility located at Brook-
lyn, New York, where it is engaged in the manufacture,
sale, distribution, and installation of various products
made of iron, steel, and other metal and related products.
Mora Braunstein is the president of the Respondent
and she has operated the Company since her husband
died in 1983. Up until his death he was in charge of Re-,
spondent's operations.
The Following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees of Re-
spondent, including plant clerical employees, em-
2 The General Counsel and the Union did not submit briefs.
8 Unless otherwise indicated the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
283 NLRB No. 17
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployed at the plant, exclusive of office clerical em-
ployees, guards and supervisors as defined in the
Act.
On 30 September 1980 the Board issued its decision in
Kuno- Steel Products Corp., 252 NLRB 904 (1980), in
which it found the respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and bargain
with the union as the exclusive bargaining representative
of the unit employees. It ordered the respondent to cease
and desist from refusing, on request, to recognize, and
bargain with the union and ordered it, on request, to rec-
ognize and bargain with the union as the exclusive col-
lective-bargaining representative of the unit employees.
The Board, in finding the respondent violated the Act,
reversed the administrative law judge's finding that the
respondent had a rationally grounded belief that the
union no longer represented a majority of respondent's
unit employees at the time of the union's request to bar-
gain in July 1978 because of the lapse of time, the lack of
picketing, and the fact two of the seven employees re-
tired on pension during the strike and two other employ-
ees had terminated their membership in the union.4
On 7 June 1982 the Board's decision was enforced by
the United States Court of Appeals for the Second Cir-
cuit. Koenig Iron Works, 681 F.2d 130 (2d Cir. 1982).
Commencing in July 1982 and continuing thereafter in-
cluding 1983, 1984, and 1985 the Union requested the
Respondent to bargain collectively with it as the repre-
sentative of the unit employees for a collective-bargain--,
ing contract covering those employees. During 1982 and
1983 the Respondent and the Union met at various times
for, purposes of negotiating the collective-bargaining
agreement. These negotiations were unsuccessful. Union
President William Colavito was the chief negotiator for
the Union. Colavito's reasons given at the hearing for
not having Respondent's employees present at the bar-
gaining sessions were that they were working under con-
ditions substandard to those in existence prior to the
strike and having the employees present would not serve
the purpose of bolstering negotiations because the em-
ployees were insecure and he did not know whether
they would even come.
On 20 March the Board issued its Order in Achilles
Construction Co. in Case 29-CA-10585 adopting the deci-
sion of Administrative Law Judge Raymond P. Green
issued on 30 January, to which no exceptions had been
filed, in which he found the respondent had violated
Section 8(a)(1) and (5) of the Act by unilaterally grant-
ing wage increases to employees without prior notice to
and consultation with the union during the collective-
bargaining negotiations. The respondent was ordered to
cease and desist from refusing to bargain collectively
with the union by unilaterally granting wage increases to
employees during the course of collective-bargaining ne-
gotiations, without prior notice to and consultation with
the union, and in the event the respondent and the union
resumed negotiations respondent was to notify the union
as to all proposed wage increases to unit employees and
4 Louis Douda was identified as one of the two employees who had
terminated his union membership
not to implement such wage increases absent an impasse
in negotiations or consent by the union.5
B. The Respondent's Withdrawal of Recognition of the
Union as the Exclusive Collective-Bargaining
Representative of the Unit Employees
About 29 March, Union President Colavito had a
meeting with Respondent's attorney, Stanley Israel, who
also represented certain other companies, including
Koenig Iron Works, Inc. (Koenig), Roman Iron Works,
Inc. (Roman), and Peelle Company (Peelle). During this
meeting , as described by President Colavito, Attorney
Israel informed Colavitd that he did not feel Roman,
Koenig, or Peelle had`any obligation to bargain with the
Union. Upon Colavito asking Israel about a meeting with
the Respondent, Israel said he would contact the Compa-
ny and get back to them. Attorney Israel did not testify
and I credit Colavito's undisputed testimony regarding
this conversation.
Following this meeting Colavito stated Attorney Israel
did not get back to him about a meeting with the Re-
spondent as promised. Colavito then sent Israel a letter
dated 24 July requesting Israel on receipt of the letter to
call him to set up a negotiating session regarding the Re-
spondent.
Colavito's explanation given at the hearing for the
delay in sending this letter was because the Union had
filed charges in April against Koenig and Roman for
their withdrawing recognition of the Union and the
Union was awaiting action on the charges which resulted
in complaints being issued against those companies on 28
June by the Regional Office.
Attorney Israel responded to Colavito's request by
letter dated 8 August advising Colavito as follows:
In light of the recent decision of the Board and the
further fact that all prior offers made by this Com-
pany have been rejected and are no longer applica-
ble, and in fact have been revoked, and in light of
the further fact that this Company does not believe
that' Local 455 currently represents the employees
of the Company, I believe it would be inappropriate
and indeed unlawful to schedule any new negotiat-
ing session.
-President Colavito denied there was any further con-
tact with Attorney Israel after receiving his letter.
C. Respondents Defense
Respondent's president, Braunstein, testified she made
the decision not to bargain with the Union. She stated it
was made in July or August when Attorney Israel con-
tacted her, informed her he had received a letter from
the Union, and asked if she was interested in bargaining
with the Union on behalf of the men in their shop. She
informed Israel the Union was not representing them,
there were no union members working there, and she
was definitely not interested.
5 An allegation alleging the Respondent bargained in bad faith with no
intention of reaching an agreement was dismissed
ACHILLES CONSTRUCTION CO. 89
At the hearing Braunstein described that the basis for
her decision was they had no representation of any union
members and the employees were not interested in the
Union. Her knowledge that the employees were not in-
terested in the Union was based on statements made to
her by Louis Douda that he felt no loyalty to the Union,
wanted no part of the Union , and was not interested6
and a statement by Charles Douda7 that he was not in-
terested in becoming - or being a member of the Union.
On being asked when these conversations with the
Doudas occurred , Braunstein said it was an ongoing dis-
cussion with the Doudas since the beginning of the
strike. According to Braunstein the Doudas initiated
those conversations.
Braunstein , who stated that in the summer of 1985 the
Respondent employed a maximum of five employees, ac-
knowledged she did not have any discussions with any
of the other three employees concerning the Union.
Although Braunstein stated Louis Douda was a union
member prior to the strike and worked during part of
the strike , she denied that Charles Douda, who started
work after the strike began , was ever a union member.
Union President Colavito denied knowing whether either
Louis Douda or Charles Douda was a union member in
1985 or whether the Union collected dues from any of
Respondent 's employees in 1985.
Louis Douda stated he was a member of the Union
when the strike started . However , he ceased paying dues
and drew a pension from the Union , but his pension was
stopped after he returned to work during the 'strike.
Douda did not resume paying his dues while he worked
for the Respondent.
Although Braunstein denied any of Respondent's em-
ployees were members of the Union in 1984, she ac-
knowledged she had assumed this because no one spoke
about the Union at all. Braunstein also claimed the only
former employee of the Respondent who she had seen
around the premises the last couple of years was Joe
Chopko, who lived in the ,area and occasionally came in
to say hello . Chopko had worked there up until the
strike. Braunstein acknowledged Chopko's name was
listed in a backpay specification hearing at which she tes-
tified . According to Braunstein , Chopko had been ill a
number of years and had also stated he was not interest-
ed in working.
Respondent records reflect that in July the Respond-
ent employed four unit employees . They were Louis
Do>lda,8 Charles Douda, Lancelot Brotherson, and
Joseph Prusein . Louis Douda was hired during the early
1970s and his son , Charles Douda, was hired about 1976.
Lancelot Brotherson began work in 1984 and Joseph
Prusein started about June 1985. During August these
same four unit employees worked there along with an-
other unit employee , Ras Singh , who began ' work on
6 Louis Douda denied remembering whether he discussed the Union
with President Braunstein after she took over the Company.
7 Charles Douda did not testify.
8 Although the General Counsel on rebuttal contended for the first
time that Louis Douda was a supervisor under the Act, an earlier stipula-
tion entered into by her at the hearing , which I find is binding, places
him in the unit Moreover , Douda stated he was a working foreman and
"working foremen" were included in the unit
August 26 . From January to July there were four unit
employees employed each week except for 6 weeks in
May and June when there were only three . During
August through November 1984 the Respondent also
employed four unit employees each week except for 3
weeks in August 1984 when it employed five. After
August 1985 the Respondent continued to employ five
unit employees up through the week beginning 6 No-
vember except for 1 week in October when it employed
seven. From 13 November up until the week beginning
19 March 1986 the number of unit employees varied
from four to six, after which the number of unit employ-
ees dropped to three or four up until 25 June 1986.
The records also reflect Charles Douda last worked
for the Respondent during the week beginning 18 De-
cember and Louis Douda last worked the week begin-
ning 19 'February 1986. According to President ]Braun-
stein, Joseph Prusein is also no longer working for the
Respondent while Lancelot Brotherson is still employed
there.
Respondent's attorney , Israel, in a letter to the Region-
al Office dated 18 September regarding the Respondent's
position on the charge in the instant case stated as fol-
lows:
As previously advised, we have absolutely no
reason to believe that Local 455, in fact , represent-
ed the employees of the above-named company in
August 1985 . In none of the numerous bargaining
sessions commencing in 1982 , was a member of the
bargaining unit present . Inquiries addressed to the
Union on this point have been responded to with
such comments as "the men don 't have to be here"
or "we represent the people" or "that is not a
matter for your concern."
While the Union is correct in asserting that no law
requires the presence of bargaining unit members at
negotiation sessions, it is nevertheless apparent to
any objective observer that the Union has no con-
tact with the employees , the employees do not
regard the Union as their representative and most
significantly the employees have not had any par-
ticipation (or even say in the bargaining process).
The Company even doubts that they know anything
about the bargaining.
Surely, at this point, the Region must realize that
the Company has a good faith doubt of representa-
tion status. In light of the fact that this Company
was not one which signed with Local 810 I.B.T.
and has at the Administrative Law Judge level been
absolved of the surface bargaining charges, the new
charges should be dismissed.
Union President Colavito denied Attorney Israel ever
informed him to the effect that because Respondent's
employees were not present at the negotiating sessions it
proved they did not want the Union.
The strike by the Union against the Respondent began
on 1 July 1975 . According to both Respondent 's presi-
dent, Braunstein , and Union President Colavito the last
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time picketing actually occurred at Respondent's prem-
ises was 5 or 6 years ago.
D. Analysis and Conclusions
The General, Counsel contends the Respondent violat-
ed Section 8(a)(1) and (5) of the Act by unlawfully with-
drawing recognition of and refusing to recognize -and
bargain with the- Union as the exclusive bargaining repre-
sentative of the unit employees. The Respondent denies
having violated the Act and asserts as an affirmative de-
fense the Union is not the representative for purposes of
collective bargaining of the unit employees. It argues in
its brief that the evidence supports both a finding of a
loss of majority status as well as a good-faith objectively
based doubt of majority status.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise; of their rights guaranteed in Section 7 of the
Act. Section 8(a)(5) of the Act prohibits an employer
from refusing to bargain collectively with the representa-
tive of its employees. The findings supra establish the
Union represented Respondent's unit employees and had
a collective-bargaining agreement covering them which
had expired. On 30 September 1980 the Board issued its
decision, enforced by the court on 7 June 1982, in which
it found Respondent had violated the Act by unlawfully
refusing to recognize and bargain with' the Union as the
exclusive bargaining representative of the unit employees
and ordered it to recognize and bargain with the Union
as the exclusive collective-bargaining representative of its
unit employees. The Board also rejected a finding' that
the Respondent had a rationally grounded belief the
Union no longer represented the unit employees. There-
after, the Respondent and the Union entered into negoti-
ations for a new collective-bargaining' agreement. These
negotiations were unsuccessful. However, on 20 March
the Board issued its Order adopting an administrative
law judge's decision finding the Respondent during those
negotiations violated the Act by refusing to bargain with
the Union by unlawfully granting wage increases, to the
unit employees without consulting or'bargaining with the
Union. An allegation the Respondent also engaged in
bad-faith bargaining was dismissed. It ordered the Re-
spondent to cease and desist from such unlawful conduct
and ordered that if the Respondent and the Union re-
sumed negotiations the Respondent was to notify the
Union as to all proposed wage increases to the unit em-
ployees and not to implement such wage increases absent
an impasse in negotiations or consent by the Union. Al-
though'about 29 March, shortly after the Board's Order
issued, the Union requested a bargaining meeting with
the Respondent, but the Respondent did not respond as
it had promised to do. Upon the Union renewing its bar-
gaining request on 24 July the Respondent, by a letter
dated 8 August, denied this request claiming it would be
both inappropriate and unlawful. Its reasons contained in
the letter were the Board's recent Order; the fact all
prior offers made by the Respondent had been rejected,
were no longer applicable, and had been revoked; and
that the Respondent did -not believe the Union currently
represented the -unit employees. Respondent in its 18
September response to the charge in the instant case
claimed the Union did not represent the employees by
asserting no employees were present at the negotiation
sessions and claimed the Union had no contact with the
employees, employees did not regard the Union as their
representative, and the employees did not have any say
in the bargaining process and it doubted the employees
knew anything about the bargaining.
Respondent's president, Braunstein , who made -the de-
cision not to bargain ,with the Union, based her decision
on statements made to her by Louis Douda that he felt
no loyalty to the union and wanted no part of the union
and was not interested, and statements made by Charles
Douda that he was not interested in becoming or being a
member of the union . Braunstein placed these statements
as ongoing discussions with the Doudas since the begin-
ning of the strike which was in July 1975,
When the Respondent questioned the Union's majority
status on 8 August it employed four unit employees in-
cluding, Louis and- Charles Douda. However, on 26
August it hired an additional employee, and its work
force, which consisted of seven unit employees during
the time of the initial Board Decision referred to above,
varied in number from three to seven unit employees
during 1985.
A union enjoys a rebuttable presumption of majority
status upon the expiration of a collective-bargaining
agreement. However, an employer who refuses to bar-
gain with an incumbent union may rebut the presumption
of majority status by establishing either (1) that at the
time of the refusal to bargain the union in fact did not
enjoy majority status, or (2) that the refusal was predi-
cated on a good-faith and reasonably grounded doubt
supported by objective considerations of the union's ma-
jority status. Burger Pits, Inc., 273 NLRB 1001 (1984),
enfd. 785, F.2d 796 (9th Cir. 1986). An employer may not
question a union's majority status in the context of cer-
tain types of unfair labor practices. Colonial Manor Con-
valescent & Nursing Center, 188 NLRB 861 (1971). The
principles applicable to those cases are set forth in Celan-
ese Corp., of America, 95 NLRB 664, 673 (1951), as fol-
lows:
And, secondly, the majority issue must not have
been raised by the employer in the context of illegal
antiunion activities, or other conduct by the em-
ployer aimed at causing disaffection from the union
or indicating that in raising the majority issue the
employer was merely seeking to gain time in which
to undermine the union.
Both the Board's decision and its most recent Order
recognized the-Union, which also enjoyed a presumption
of majority status, as, the collective-bargaining represent-
ative of Respondent's unit employees. The evidence pre-
sented'here fails to show that at the time of Respondent's
admitted refusal to recognize and bargain with the Union
that the Union did not enjoy majority status or, that Re-
spondent's refusal was 'predicated on' a good-faith and
reasonably grounded doubt of the Union's majority
status supported by objective considerations.
President Braunstein in questioning the Union's majori-
ty status relied on statements made by only two unit em-
ACHILLES CONSTRUCTION CO. 91
ployees out of a work force that fluctuated between
three and seven unit employees. One of those two em-
ployees only stated he was not interested in becoming or
being a member of the Union. The Board has held that
such statements by employees about their not wanting to
join the union fail to distinguish between wanting to be a
union member and desiring to have union representation.
Club Cal-Neva, 231 NLRB 22, 24 (1977), enfd. 604 F.2d
606 (9th Cir . 1979). Thus, such statement cannot be
relied on to support a good-faith and reasonably ground-
ed doubt of the Union's majority status. Moreover, Presi-
dent Braunstein placed such statements as occurring
since the beginning of the strike in July 1975, which
would have included the period of the prior unfair labor
practices found against the Respondent . As they were
raised during and in the context of unfair labor practices
and were of a nature sufficient to cause disaffection from
or to undermine the Union , the Respondent cannot now
rely on such statements to support its doubt of the
Union 's majority status. Insofar as the Respondent also
hired new unit employees , they are presumed to support
the Union in the same ratio as those employees whom
they replaced. W & W Steel Co., 232 NLRB 74, 75
(1977), enf. denied on other grounds 599 F.2d 934 (10th
Cir. 1979).
The other reasons advanced by the Respondent for re-
fusing to recognize and bargain with the Union also lack
merit. The fact the Respondent was absolved of bad-faith
bargaining in' ,the most recent Decision adopted by the
Board and the Union had rejected Respondent's prior
contract offers would not relieve the Respondent of its
legal obligation to continue to recognize and bargain
with the Union. The claim no employees were present at
the negotiation sessions showed the Union did not repre-
sent them is rejected. The general rule is the parties have
the right to select their own representative for bargain-
ing and negotiations and the duty to deal - with the
chosen representative of the other party. Fitzsimons Mfg.
Co., 251 NLRB 375, 379 (1980), enfd. 670 F.2d 663 (6th
Cir. 1982). The Respondent's further ' assertion the Union
had no contact with the employees and the employees
did not regard the .Union as their representative is unsup-
ported by any probative evidence.
For those reasons stated I am persuaded and find the
Respondent about 8 August unlawfully withdrew recog-
nition of and refused to recognize and bargain with the
Union as the exclusive bargaining representative of the
unit employees and thereby violated-Section 8(a)(5) and
(1) of the Act.
Additionally , even assuming the Union had lost its ma-
jority status I would find under the circumstances pre-
sented here the Respondent violated Section 8(a)(5) and
(1) of the Act by withdrawing recognition of and refus-
ing to recognize and bargain with the Union as the ex-
clusive bargaining representative of the unit employees.
The law is well settled that in cases involving certifica-
tions, Board orders, and settlement agreements the par-
ties must be afforded a reasonable time to bargain. Bren-
nan's Cadillac, Inc., 231 NLRB 225, 226 (1977). Here the
withdraw of recognition occurred without any bargain-
ing although requested by the Union, only shortly after
the Board had issued its Order adopting the administra-
tive law judge's decision finding the Respondent had vio-
lated the Act by refusing to bargain with the Union by
unlawfully granting wage increases to employees during
the course of collective-bargaining negotiations and or-
dered that in the event negotiations resumed the Re-
spondent shall notify the Union as to all proposed wage
increases and not implement them absent an impasse in
negotiations or consent by the Union . To now permit the
Respondent to question the Union's majority status with-
out first affording the Union a reasonable time to bargain
would violate those principles of law and render the
effect of the most recent Board 's Order against the Re-
spondent a nullity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of the Respondent
described in section I, above , have a close , intimate, and
substantial relationship to trade , traffic , and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. Achilles Construction Co., Inc ., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2. Shopmen's Local Union No: 455, International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the
Respondent, including plant clerical employees, em-
ployed at its plant, exclusive of office clerical employees,
guards, and supervisors as defined in the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Union at all times material herein has been, and
is now , the exclusive representative of all the employees
in the above-described appropriate unit for the purposes
of collective bargaining within the meaning of Section
9(a) of the Act.
5. By withdrawing recognition from the Union about 8
August 1985 and thereafter refusing to recognize and
bargain with the Union as the exclusive bargaining repre-
sentative of its unit employees, Respondent : has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act.
To remedy the Respondent's unlawful withdrawal of
recognition and its refusal to recognize and bargain with
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union, I shall recommend that the Respondent rec-
ognize -the Union and, on request , bargain collectively
with the Union as the exclusive representative of all the
employees in the aforesaid appropriate unit and , if an un-
derstanding is reached, embody such understanding in a,
signed written agreement.
The General Counsel's request that the remedial order
include a visitatorial clause authorizing the Board to
engage in discovery under the Federal Rules of Civil
Procedure to enable it to monitor compliance with the
Board's Order as enforced by the court of appeals is re-
jected on the grounds the Board does not provide for
discovery procedures in its proceedings and there is no
showing that under the circumstances presented here
such a clause is necessary.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondent, Achilles Construction Co., 'Inc.,
Brooklyn, New York, its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Withdrawing recognition of and refusing to recog-
nize and bargain collectively with Shopmen's Local
Union No . 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO as
the exclusive representative of its employees in the fol-
lowing appropriate unit concerning wages, hours, and
other terms and conditions of employment.
All production and maintenance employees of the
Respondent , including plant clerical employees, em-
ployed at its plant, exclusive of office clerical em-
ployees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) ^ Recognize and, on request, bargain collectively
with the Shopmen 's Local Union No. 455 , International
Association of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO as the exclusive representative of
the employees in the above -described appropriate unit
with respect to wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody the terms of such understanding in 'a' signed
written agreement.
9 If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall , as provided in Sec. 102.48 of the Rules, be adopted by the
Board and, all objections to them shall be deemed waived for all pur-
poses
(b) Post at its facility located in Brooklyn , New York,
copies , of the attached notice marked "Appendix."10
Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent's authorized representative ,. shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by' the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any,other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is hereby
dismissed insofar as it alleges unfair labor practices not
specifically found herem.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing in Order of the National
Labor Relations Board." - -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT withdraw recognition of and refuse to
recognize and bargain collectively' with' Shopmen's Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO as
the exclusive bargaining representative of our employees
in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed under Section 7 of the Act.
WE WILL recognize and, on request , bargain with
Shopmen's Local Union No. 455, International Associa-
tion of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, as the exclusive representative' of our em-
ployees in the appropriate unit described below with re-
spect to wages, hours, and other terms and conditions of
employment and if an understanding is reached , embody
such understanding in a signed written agreement. The
appropriate unit is:
All production and maintenance employees of the
Respondent , including plant clerical employees, em-
ployed ' at its plant, exclusive of office clerical em-
ployees, guards and supervisors as defined in the
Act.
ACHILLES CONSTRUCTION CO., INC.