Associated Constructors

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 998 (N.L.R.B. 1998)

998
325 NLRB No. 187
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall also modify the judge’s recommended Order in accord-
ance with our decision in Excel Container, Inc., 325 NLRB 17
(1997).
Peter O’Dovero d/b/a Associated Constructors and
O’Dovero Construction, Inc. and International
Union of Operating Engineers, Local 324. Case
30–CA–13325
June 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On September 2, 1997, Administrative Law Judge
William G. Kocol issued the attached decision. The
General Counsel and the Respondents filed exceptions,
supporting briefs, and answering briefs, and the Re-
spondents filed a reply brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order and to adopt the recommended Order
as modified and set forth in full below.1
The judge found that the Respondents, Associated
Constructors (Associated) and O’Dovero Construction,
Inc., (O’Dovero) are a single employer and that they
violated the Act in numerous ways. Specifically, he
found that the Respondents made several statements
that violated Section 8(a)(1). He further found that the
Respondents violated Section 8(a)(3) and (5) by divert-
ing bargaining unit work from employees of
O’Dovero, who are represented by the Union, to the
nonunion employees of Associated, for antiunion rea-
sons, and without affording the Union an opportunity
to bargain. The judge found that the Respondents also
violated Section 8(a)(5) by refusing to bargain with the
Union for a successor collective-bargaining agreement,
by dealing directly with the union-represented employ-
ees of O’Dovero, and by failing to afford the Union
a meaningful opportunity to bargain over the effects of
the Respondents’ decision to terminate the operations
of O’Dovero. He found, however, that the cessation of
O’Dovero’s operations itself and the Respondents’ fail-
ure to bargain over that decision were not unlawful.
The judge also found, contrary to the General Coun-
sel’s allegations, that the direct dealing and refusal to
bargain for a new contract did not violate Section
8(a)(3). Finally, he found that the identification of the
employees who were prejudiced by the Respondents’
unlawful conduct could properly be left to compliance.
We agree with the judge on all issues except for those
arising from the alleged termination of O’Dovero’s op-
erations.
The Respondents are Marquette, Michigan construc-
tion firms owned by members of the O’Dovero family.
O’Dovero is primarily engaged in the laying of under-
ground pipe. Associated is a larger and apparently
more diversified firm. It does building construction and
concrete work, and at times has also done some pipe
work.
O’Dovero’s equipment operators have long been
represented by the Union. Associated’s employees are
not represented by the Union. In December 1993, sepa-
rate representation elections were held among the em-
ployees of each Company. The Union won the election
in the O’Dovero unit and was certified as the bargain-
ing representative of those employees. The parties en-
tered into a collective-bargaining agreement that was
effective through April 30, 1996.
The election in the Associated unit ended in a tie
vote, and the Union, therefore, was not certified as the
bargaining representative. In 1995, after withdrawing
its representation petition for the Associated unit, the
Union filed an unfair labor practice charge alleging
that the Respondents were alter egos. The charge was
dismissed by the Regional Director on August 22,
1995, and the Union’s appeal was denied by the Gen-
eral Counsel on October 23, 1995.
From May through November 1995, O’Dovero em-
ployees were engaged in laying water pipe in Caspian,
Michigan. Associated had bid on the project, but when
it was awarded the contract, it assigned the work to
O’Dovero. The O’Dovero employees were paid the
wages and benefits contained in the Union’s collective-
bargaining agreement with O’Dovero while working
on the Caspian project.
The Caspian project was not completed in 1995.
When the weather permitted the resumption of work in
April 1996, the work was performed by nonunion em-
ployees of Associated, rather than by O’Dovero em-
ployees. The project was completed in early 1997.
As discussed in detail in the judge’s decision, the
judge found that the work on the Caspian project was
bargaining unit work covered by the contract between
the Union and O’Dovero. He also found that the Re-
spondents diverted that work to the nonunion employ-
ees of Associated at least in part out of anger at the
Union for having attempted to organize the Associated
employees, and because they wanted to escape the col-
lective-bargaining agreement. The judge found that this
conduct violated Section 8(a)(3) and (5), and we agree
with those findings.
The judge found no evidence that, after the Caspian
project ended, the Respondents continued to perform
the work O’Dovero had previously done. He also
found that the Respondents had stopped bidding on
union jobs and that there was no showing that Associ-
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999ASSOCIATED CONSTRUCTORS
2 452 U.S. 666 (1981).
3 Ferragon Corp., 318 NLRB 359 (1995); ‘‘Automatic’’ Sprinkler
Corp of America, 319 NLRB 401 (1995), enf. denied 120 F.3d 612
(6th Cir. 1997); Compu-Net Communications, 315 NLRB 216
(1994); and A-1 Fire Protection, 273 NLRB 964 (1984).
4 The General Counsel is correct in contending that, although an
employer may close a portion of its business for purely economic
reasons without bargaining over the decision, it violates both Sec.
8(a)(3) and (5) if the decision is motivated by antiunion consider-
ations. Coronet Foods, 305 NLRB 79, 91–92 (1991), enfd. and peti-
tion for rev. denied on other grounds 981 F.2d 1284 (D.C. Cir.
1993). However, because we find below that the Respondents did
not actually terminate the operations of O’Dovero, we need not
reach this issue.
5 See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263
(1965). The General Counsel argues in the alternative that
O’Dovero’s cessation of operations violated Sec. 8(a)(3) because it
was ‘‘inherently destructive’’ of the employees’ Sec. 7 rights. This
argument would appear to be incompatible with Darlington’s re-
quirement that, to violate Sec. 8(a)(3), a partial closing must be mo-
tivated by a desire to chill unionism in the employer’s other oper-
ations and must foreseeably have that effect. Id. at 273–275. Again,
however, because we find that the O’Dovero operations were not ter-
minated, we need not address this argument.
6 James O’Dovero, president of O’Dovero, testified that O’Dovero
had ceased operations, evidently meaning that it was not doing con-
struction work.
ated was performing work that O’Dovero traditionally
would have done. He therefore found that O’Dovero
had ceased operations on completion of the Caspian
project.
The judge further found that the cessation of
O’Dovero’s operations was a managerial decision con-
cerning which the Respondents had no duty to bargain
under First National Maintenance Corp. v. NLRB.2 He
rejected the General Counsel’s contention that the Re-
spondents should be ordered to resume O’Dovero’s op-
erations. The judge distinguished several decisions re-
lied on by the General Counsel on the ground that
those cases, unlike this one, involved either continued
subcontracting or continuing diversions of unit work
rather than genuine cessations of operations.3 Accord-
ingly, he recommended that this allegation of the com-
plaint be dismissed. The judge did, however, find that
the Respondents violated Section 8(a)(5) by not afford-
ing the Union a meaningful opportunity to bargain
over the effects of the decision to cease O’Dovero’s
operations.
The General Counsel has excepted to the judge’s
failure to find that the cessation of O’Dovero’s oper-
ations was unlawful and to order that those operations
be restored. He argues that that action was taken for
antiunion reasons, and therefore that the Respondents
are not excused from bargaining over that decision by
First National Maintenance.4 The General Counsel
also contends that the action was a partial closing mo-
tivated by a desire to chill unionism among employees
in the Respondents’ other operations, and therefore
violated Section 8(a)(3).5 The Respondents have ex-
cepted to the judge’s finding of an effects bargaining
violation. They also argue, contrary to the General
Counsel, that the conduct in question was not a partial
closing, but a complete cessation of O’Dovero’s oper-
ations.
We are unable to fully agree with either the judge,
the General Counsel, or the Respondents. For the rea-
sons discussed below, we find that the record does not
support the conclusion that O’Dovero actually ceased
operations, even after the completion of the Caspian
project.
First, it is clear that O’Dovero has not gone out of
existence. Peter O’Dovero, the sole owner of Associ-
ated and 40-percent owner of O’Dovero, testified that
O’Dovero (a corporation) was never dissolved; it was
not performing work but was still in existence and
could do a project immediately.6
Next, the judge correctly found that the Respondents
constitute a single employer, with common ownership,
common management, centralized control of labor rela-
tions, and highly interrelated operations. In fact, the
operations of O’Dovero and Associated are so inter-
related as to make it difficult to tell where one firm
ends and the other begins. Both companies are en-
gaged in the construction business, and Associated has
done some underground pipe work, which is the focus
of O’Dovero’s operations. James O’Dovero, the presi-
dent of O’Dovero, has the authority to hire on behalf
of Associated and to schedule equipment for jobs done
by Associated. The Respondents share office facilities
and office personnel. Associated has regularly loaned
O’Dovero money for working capital which has not
been shown to have been paid back. The two firms
have leased equipment from each other; on the Caspian
project itself, O’Dovero employees used equipment
that carried the name ‘‘Associated.’’ Although Associ-
ated historically bid on nonunion projects and
O’Dovero on union projects, at times, as on the Cas-
pian project, O’Dovero performed the work on projects
as to which Associated had been the successful bidder.
On the Caspian project, O’Dovero employees were su-
pervised by Craig Dufresne, who is an employee of
Associated but who was carried on O’Dovero’s payroll
for a time. Finally, when the Respondents later took
the Caspian work away from the O’Dovero employees,
they assigned it to Associated employees.
When the operations of two construction firms,
owned and managed by members of the same family,
have historically been intertwined to this extent, it is
not entirely clear what it means to say that one of
them, but not the other, has ceased operations. Here,
in particular, O’Dovero and Associated have leased
equipment from each other, and Associated has loaned
working capital to O’Dovero and assigned work to the
employees of O’Dovero. There is no showing, and no
contention, that the Respondents could not continue
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1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 As we find below, there also is no showing that it would be un-
duly burdensome for O’Dovero to resume doing the kind of work
it historically performed.
8 Since we find that O’Dovero did not in fact cease operations, we
dismiss the complaint allegation that the Respondents violated the
Act by terminating the operations of O’Dovero or by failing to bar-
gain over the decision to do so or its effects.
9 Lear Siegler, Inc., 295 NLRB 857, 861 (1989).
10 See A-1 Fire Protection, supra, 273 NLRB at 967.
11 We Can, Inc., 315 NLRB 170, 175 (1994).
these practices in the future. Indeed, Peter O’Dovero
testified that O’Dovero still existed as a corporate en-
tity that could resume work in short order.7 Thus, the
owners and managers of the two firms have treated
their operations as virtually interchangeable (when it
suited them to do so), neither firm has gone out of ex-
istence, and there is no contention that the operations
of Associated have been altered in any significant re-
spect. Far from supporting a finding that O’Dovero has
ceased operations, the record indicates only that, hav-
ing unlawfully diverted unit work from O’Dovero to
Associated, the Respondents have simply continued the
diversion.
The factors relied on by the judge and our dissenting
colleague do not persuade us otherwise. Although there
is no showing that, at the time of the hearing, Associ-
ated was performing work that traditionally would
have been performed by O’Dovero, there is no evi-
dence and no contention that Associated has given up
doing underground pipe work. That no such work was
being performed by the Respondents at the time of the
hearing could be simply because no work of that sort
was available at that time. The industry, after all, is
one in which work is often not continuous, but bid for
and performed on a project-by-project basis; con-
sequently, the fact that one or both firms currently may
not be doing a particular kind of work does not estab-
lish that they have abandoned that kind of work. And
even if the Respondents have ceased bidding on union
work, Associated (which assertedly bid on nonunion
jobs) nevertheless has formerly bid on projects that
were then assigned to O’Dovero’s union-represented
employees, and there is no contention that it could not
do so again. Most important, the record does not indi-
cate that, even if the kind of work traditionally per-
formed by O’Dovero employees were to become avail-
able, neither firm would attempt to acquire such
work—unless the Respondents chose not to make such
an attempt out of the same antiunion animus that moti-
vated their unlawful diversion of the Caspian work.
Thus, even though the Caspian project has been com-
pleted and there may have been no pipe work for
O’Dovero employees to perform at the time of the
hearing, all that the record establishes in this regard is
a hiatus between projects, not a complete cessation of
O’Dovero’s operations.
In these circumstances, we find, contrary to the
judge, that O’Dovero has not been shown to have
ceased its construction operations. The most that can
be said in this regard is that, after unlawfully diverting
the work on the Caspian project to employees of Asso-
ciated, the Respondents temporarily stopped doing the
kind of work traditionally performed by O’Dovero em-
ployees. There is no evidence that either or both of
them could not resume such work in the future.8
We further find that as part of the remedy for the
Respondent’s unlawful diversion of work, the Re-
spondents should be required to resume the operations
of O’Dovero. The record establishes that O’Dovero
could begin work again in short order, and there is no
showing, and no contention, that it would be unduly
burdensome for it to do so.9 Thus, although O’Dovero
had sustained operating losses for several years prior
to the hearing, the judge rejected the Respondents’
contention that their actions were impelled by eco-
nomic considerations, and we agree with his finding.
The Respondents do not contend that a resumption of
work by O’Dovero would entail significant costs of,
for example, moving, renovation, or acquiring plant or
equipment. Accordingly, we find that the appropriate
remedy for the Respondents’ unlawful diversion of
unit work is to order them to cease and desist and to
restore the status quo ante by resuming bidding for
work traditionally performed by O’Dovero employees
on the same basis as they bid for such work before the
unlawful diversion of the work on the Caspian
project.10
In imposing this remedy, we note that our Order
does not prohibit the Respondents from abandoning
any operations, or from declining to bid on projects,
for legitimate business reasons. Thus, we are not re-
quiring them to engage in unprofitable operations; we
are simply ordering them not to make work assignment
decisions based on antiunion animus.11
ORDER
The National Labor Relations Board orders that the
Respondents, Associated Constructors and O’Dovero
Construction, Inc., Marquette, Michigan, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that bargaining unit work will
be done on a nonunion basis.
(b) Indicating to employees that their support for
International Union of Operating Engineers, Local 324
(the Union), would be futile.
(c) Diverting work from one group of employees to
another in order to discourage union activity.
(d) Diverting unit work from employees represented
by the Union to nonunion employees without first giv-
ing the Union an opportunity to bargain concerning
that decision.
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1001ASSOCIATED CONSTRUCTORS
12 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Because of the proviso to Sec. 8(e), it is lawful for a general
contractor to require that all contractors on a job have union con-
tracts.
2 My colleagues suggest that O’Dovero has not gone out of busi-
ness, and that it continues to be involved in bidding on union jobs.
There is no evidence to support this assertion.
3 Although there may have been a Sec. 8(a)(5) obligation to bar-
gain about the effects of this decision, there is no showing that the
Union demanded such bargaining.
4 Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 275–276
(1965).
(e) Refusing to bargain with the Union for a succes-
sor contract covering unit employees.
(f) Dealing directly with unit employees concerning
terms and conditions of employment.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time construction
equipment operators employed by O’Dovero Con-
struction, Inc., at or out of its facility located at
Midway Industrial Park, Marquette, Michigan; ex-
cluding clerical employees, guards and supervisors
as defined in the Act.
(b) Resume bidding for jobs to be performed by unit
employees under bidding practices as they existed
prior to the unlawful diversion of unit work.
(c) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the
remedy section of the judge’s decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Marquette, Michigan, copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondents’ au-
thorized representative, shall be posted by the Re-
spondents 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 Respondents to ensure that the
notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency
of these proceedings, the Respondents have gone out
of business or closed the facility involved in these pro-
ceedings, the Respondents shall duplicate and mail, at
their own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondents at any time since April 16, 1996.
(f) Within 21 days after service by the Region, file
with the Regional director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
MEMBER HURTGEN, dissenting.
The Respondent was a single employer engaged in
the construction industry. It consisted of two parts—a
unionized company (O’Dovero) and a nonunion com-
pany (Associated). I agree with my colleagues that,
during the Caspian project, the Respondent diverted
work from O’Dovero to Associated, and that it did so
unilaterally and for unlawful reasons. Accordingly,
such conduct was unlawful under Section 8(a)(3) and
(5).
However, I part company from my colleagues with
respect to events after the Caspian project. After that
project, the Respondent went out of the business of
bidding on construction jobs where union contracts are
required.1 It would remain in the business of bidding
on construction jobs where union contracts are not re-
quired. The judge found, and I agree, that this was a
partial going out of business.2
For the reasons set forth in First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666 (1981), this deci-
sion was not a mandatory subject of bargaining. It fol-
lows that there was no violation of Section 8(a)(5)
with respect to this decision.3 Further, since the
O’Dovero unit has ceased to exist, there is no obliga-
tion to bargain for a new contract for that unit. Finally,
since the Associated unit was never unionized, it fol-
lows that there is no bargaining obligation in that unit.
In addition, even if the decision to go partially out
of business was discriminatorily motivated, there
would be no 8(a)(3) violation, unless it is established
that the purpose of the decision was to chill unionism
in the remaining operation and the Employer reason-
ably foresaw that the partial closing would have that
effect.4 In the instant case, there is neither showing.
The Respondent simply wanted to get out of the busi-
ness of bidding on union jobs. There is no evidence
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1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1996 unless otherwise indicated.
2 Although the complaint does not so indicate, the record shows
that the Union is affiliated with the AFL–CIO.
that the Respondent intended to cause Associated em-
ployees to eschew unionism. Indeed, there is no sug-
gestion that any union was seeking to organize the As-
sociated employees. In sum, the decision did not focus
on the Associated employees at all. It was entirely di-
rected to the dissolution of the O’Dovero unit. Accord-
ingly, a violation is not established under the Darling-
ton test.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell you that bargaining unit work will
be done on a nonunion basis.
WE WILL NOT tell you that your support for the
International Union of Operating Engineers, Local 324
(the Union) will be futile.
WE WILL NOT divert work from one group of em-
ployees to another in order to discourage union activ-
ity.
WE WILL NOT refuse to bargain with the Union for
a successor contract covering unit employees.
WE WILL NOT divert unit work from employees rep-
resented by the Union to nonunion employees without
first giving the Union an opportunity to bargain con-
cerning that decision.
WE WILL NOT deal directly with employees rep-
resented by the Union concerning terms and conditions
of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time construction
equipment operators employed by O’Dovero Con-
struction, Inc., at or out of its facility located at
Midway Industrial Park, Marquette, Michigan; ex-
cluding clerical employees, guards and supervisors
as defined in the Act.
WE WILL resume bidding for jobs to be performed
by unit employees under bidding practices as they ex-
isted prior to the unlawful diversion of unit work.
WE WILL make the unit employees who were de-
prived of employment as a result of our unlawful con-
duct whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim
earnings, plus interest.
PETER O’DOVERO D/B/A ASSOCIATED
CONSTRUCTORS AND O’DOVERO CON-
STRUCTION, INC.
Rocky L. Coe and Percy Courseault, Esqs., for the General
Counsel.
R. Scott Summers and Stephen D. LePage, Esqs. (R. T.
Blankenship & Associates), of Greenwood City, Indiana,
for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Ishpeming, Michigan, on May 27 and 28, 1997.
The original charge was filed May 10, 1996,1 by the Inter-
national Union of Operating Engineers, Local 3242 (the
Union), the first amended charge was filed May 22, the sec-
ond amended charge was filed June 26, and the third amend-
ed charge was filed August 23. The complaint was issued
September 4. The complaint alleges that Associated Con-
structors (Respondent Associated) and O’Dovero Construc-
tion, Inc. (Respondent O’Dovero) jointly referred to as Re-
spondents, are a single employer and/or joint employer. The
substantive allegations of the complaint may best be summa-
rized at this point as alleging that Respondents violated Sec-
tion 8(a)(5), (3), and (1) of the Act by withdrawing recogni-
tion from the Union after assigning unit work to their non-
union operation.
Respondent filed a timely answer which admitted the alle-
gations in the complaint concerning the filing and service of
the charge and amended charges, labor organization status,
agency status of Peter O’Dovero and James O’Dovero, and
appropriate unit. It denied all other allegations of the com-
plaint. Respondents also alleged as an affirmative defense
that res judicata precluded the Board from finding that Re-
spondent Associated and Respondent O’Dovero were a single
or joint employer. At the hearing Respondents admitted juris-
diction.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondents, I make the
following
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1003ASSOCIATED CONSTRUCTORS
3 Although the complaint alleges and Respondents admit that As-
sociated Constructors is a corporation, the evidence shows that it is
a sole proprietorship owned by Peter O’Dovero. I find it appropriate
to correct the record sua aponte.
4 For background see Associated Constructors, 315 NLRB 1255
(1995).
5 Peter O’Dovero has a son, Peter O’Dovero Jr., who is not di-
rectly involved in these proceedings. Unless otherwise specifically
indicated, all references to Peter O’Dovero will be to the father.
6 Respondents rent their office facility from O’Dovero Develop-
ment, which is also owned by Peter.
FINDINGS OF FACT
I. JURISDICTION
Respondent O’Dovero, a corporation, is engaged in the
construction business at its facility in Marquette, Michigan,
where it annually purchases and receives goods valued in ex-
cess of $50,000 directly from suppliers located outside the
State of Michigan. Respondent Associated, a sole proprietor-
ship,3 is engaged in the construction business at its facility
in Marquette, Michigan, where it annually purchases and re-
ceives goods valued in excess of $50,000 directly from sup-
pliers located outside the State of Michigan. Respondents
admit and I find that each individually is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent O’Dovero had for many years recognized the
Union as the collective-bargaining representative of its em-
ployees. Respondent Associated employs approximately 100
persons of whom about 60 percent are seasonal employees.
The nonseasonal employees do maintenance work and
snowplowing during the winter season. Respondent Associ-
ated never had a collective-bargaining relationship with the
Union.
On December 3, 1993, separate elections were held for
employees of Respondent Associated and Respondent
O’Dovero. The Union won the election in the O’Dovero unit;
it was certified by the Board as the collective-bargaining rep-
resentative for a unit of construction equipment operators at
or out of Respondent O’Dovero’s facility located at Midway
Industrial Park, Marquette, Michigan. On March 3, 1994, the
Union and Respondent O’Dovero signed a ‘‘short form’’
agreement whereby Respondent O’Dovero adopted a master
agreement the Union had with the Michigan Chapter Associ-
ated General Contractors of America. The ‘‘short form’’
agreement was signed by James O’Dovero on behalf of Re-
spondent O’Dovero; the master agreement was effective May
1, 1993, through April 30, 1996.
The election in the Associated unit ultimately resulted in
a tie vote and the results of the election were certified.4 On
February 27, 1995, the Acting Regional Director approved
the Union’s request to withdraw the petition it had filed in
that case. The Union thereafter filed an unfair labor practice
charge alleging that Respondent Associated was an alter ego
to Respondent O’Dovero. That charge was dismissed by the
Regional Director on August 22, 1995, and the Union’s ap-
peal was denied by the General Counsel on October 23,
1995.
B. The Single-Employer Issue
Peter O’Dovero5 is the sole owner of Respondent Associ-
ated, which was formed by Peter in 1980. Peter also owns
40 percent of Respondent O’Dovero, his wife owns 50 per-
cent, and his son, James O’Dovero, owns the remaining 10
percent. James is president, Peter is treasurer, and Peter’s
wife is secretary of Respondent O’Dovero. Respondent
O’Dovero was originally incorporated in the 1960s by Peter,
who with his wife, were 100-percent owners of the corpora-
tion. It was not until the late 1980s that James began manag-
ing the day-to-day affairs of Respondent O’Dovero when he
became a part owner and its president.
Respondents both are engaged in the construction business.
Both Peter and James have the authority to, and regularly
have, disciplined employees of Respondent Associated.
James and Peter each have the authority to sign checks on
behalf of both Respondents. James has the authority to
schedule equipment for jobs performed by Respondent Asso-
ciated, and he had authority to move equipment from jobsite
to jobsite for work performed by both Respondents. James
also had the authority to hire employees for Respondent As-
sociated, including operators. As James O’Dovero stated at
the hearing, in the absence of Peter O’Dovero ‘‘I help my
father out with the family business. If he asks for help I al-
ways help my father.’’ Respondent O’Dovero leases some of
its equipment from Respondent Associated. Respondent As-
sociated leases some equipment from Respondent O’Dovero.
Respondent O’Dovero has sold some of its equipment to Re-
spondent Associated. Respondent Associated has been mak-
ing loans to Respondent O’Dovero approximately every 3
months whenever Respondent O’Dovero needed money for
working capital. These loans have ranged from $5000 to
$10,000 each. At the hearing, Peter testified that he was not
sure whether the loans have been paid back.
Respondents use the same individual to handle their work-
ers’ compensation and unemployment compensation matters,
the same auditor to process financial statements and tax re-
turns, and the same controller up to December 1995. Re-
spondents are located at the same facility,6 where James has
a desk and office. Personnel files for employees of both Re-
spondents are kept at the facility. Peter’s wife, who works
at the office as an irregularly employed part-time office
worker, is paid by Respondent O’Dovero. Except for James,
all other employees in the office are employed by Respond-
ent Associated, including a payroll clerk, receptionists, ac-
counts billing clerk, bookkeeper, and engineer. These em-
ployees, however, perform their work for both Respondents.
Respondents share the same fax number and post office box.
While Respondents each have different telephone numbers,
the same receptionist answers the telephone.
Customarily Respondent Associated bid on nonunion
projects while Respondent O’Dovero bid on union projects.
In addition, Respondent O’Dovero performed large jobs in-
volving the laying of pipe, regardless of who bid the job.
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1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The testimony of employees was that five or six operators were
employed at the project; a report sent by Respondent O’Dovero to
the Union for June 1995 indicates that nine operators were employed
at the project that month.
8 At the hearing Respondents stipulated that Defresne was a super-
visor within the meaning of Sec. 2(11) and an agent within the
meaning of Sec. 2(13) of Respondent Associated.
9 On two occasions during the course of the year employees com-
plained that they were not getting contractual benefits regarding
show up time. Defresne told these employees that the project was
nonunion. However, when the employees persisted in their claim for
the contractual benefits, Defresne relented and the employees were
paid. This supports my finding that, notwithstanding Defresne’s oc-
casional protestations to the contrary, Respondent O’Dovero’s con-
duct as a whole indicates that it applied the contract to the project
and recognized the Union as the employees’ representative.
10 More precisely, the parties stipulated that while he was super-
intendent of the Caspian project, Defresne was an employee of Re-
spondent Associated. The parties also stipulated that during some of
that time at least Defresne’s name appeared on the payroll of Re-
spondent O’Dovero.
11 Caspian and Old Caspian are apparently separated by a river.
12 These findings are based on the testimony of Beauchamp, who
I found to be a credible witness. I reject Defresne’s unconvincing
testimony concerning these events.
13 Harris had not only worked on the Caspian project in 1995; he
also had worked on the Iron Mountain project as an operator for Re-
spondent O’Dovero in 1994. This project also was a union recog-
nized site that was covered by the contract between the Union and
Respondent O’Dovero. Respondent Associated had won the bid on
that project and Peter assigned it to Respondent O’Dovero for com-
pletion. A report sent by Respondent O’Dovero to the Union for the
month of July 1994 indicates that Respondent O’Dovero employed
14 employees that month on the Iron Mountain project.
C. The Caspian Project
From May through November 1995, employees of Re-
spondent O’Dovero were engaged in laying water pipe in the
city of Caspian. However, it was Respondent Associated that
bid on and was awarded the contract to perform this work;
Respondent Associated in turn assigned the work to employ-
ees of Respondent O’Dovero. Employed at the project were
approximately five or six to nine7 equipment operators as
well as a number of other employees. The operators ran con-
struction equipment such as a backhoe, dozer, end loader,
grader, dump truck, water truck, and roller. Some of this
equipment carried the name ‘‘Associated,’’ none of the
equipment carried the name of Respondent O’Dovero. Craig
Dufresne was the project foreman.8 Unit employees who
worked on this project received the wages and benefits speci-
fied in the contract between Respondent O’Dovero and the
Union, and Respondent O’Dovero recognized the Union as
the employees’ collective-bargaining representative.9 Among
the employees working on the project were Harold
Beauchamp, James Harris, and Arnie Frizzell. The employees
were paid with paychecks from Respondent O’Dovero.
Defresne, however, was an employee of Respondent Associ-
ated who was paid for at least part of the time by Respond-
ent O’Dovero.10
The work on the Caspian project was not completed in
1995. In late 1995, equipment was moved to the Old Cas-
pian11 area in preparation for the work that was to be done
in that part of the project, and the employees were told by
Defresnes that they would resume work on the project in the
spring when weather conditions permitted. In 1996, after the
normal winter shutdown, work resumed in the Old Caspian
area, where approximately 10,000 additional feet of pipe
were laid. The work performed here was identical to the
work performed in 1995—laying pipe. The employees used
the same equipment that had been used in 1995.
On about April 9 or 10, before work actually resumed on
the project, employee Beauchamp received a call from
Defresne, who asked if Beauchamp was ready to go to work;
Beauchamp replied that he was. Defresne said that it would
be a nonunion job. Beauchamp did not reply. Approximately
1 week later, Beauchamp received another call from
Defresne. Defresne said that Beauchamp should report to the
worksite since they were going to start to clean up from the
1995 work season. Beauchamp reported to the worksite;
however the area was flooded from spring runoff and there
had been snowfall the night before and equipment was being
used for snow removal. Since work was impossible that day,
Beauchamp and Defresne went to a restaurant for coffee.
During conversation over coffee Defresne said that ‘‘we
weren’t going to have any union work this year, that our
business agent, Bill Gray, had screwed us out of union
jobs.’’ Defresne said that Gray had ‘‘tried to take O’Dovero
to court’’ and that O’Dovero was mad at him. Defresne ex-
plained that employee Harris would not be working at the
project that year because there was no union contract for
1996, and that another employee, Arnie Frizzell, was work-
ing on a different job. That evening Beauchamp called Gray,
who explained that the Union was still trying to negotiate a
contract with Respondent O’Dovero but it was not yet suc-
cessful. Later, Defresne called Beauchamp in another attempt
to start work on the project. Defresne said that there was ‘‘a
lot of work for 1996.’’ This time Beauchamp told Defresne
that he would not be able to go to work if there was no
union contract, that he had too much time invested in the
Union to give that up. Defresne offered that there would be
no problem with the money, but Beauchamp explained that
he did not want to jeopardize his pension with the Union.12
Harris also spoke with Defresne in April.13 Harris asked
what the work picture looked like, and Defresne said that
they were going to start work in a week or two, weather per-
mitting. Defresne said, ‘‘This year . . . we are going to be
100 percent nonunion.’’ Defresne continued, stating that
Peter O’Dovero ‘‘was really pissed off at Bill Gray and the
union and he’d go to the Supreme Court if he had to get out
of that contract.’’ Harris said that under those circumstances
he could not work there. Defresne explained that money was
no object, but Harris said that money was not the only prob-
lem, there were the health benefits and pension. Defresne
said that something might be done about the pension and
Harris asked about the health benefits. When Defresne could
give no assurance about that matter Harris again repeated
that he could not work there. About 2 days later, Harris re-
ported this conversation to Gray, who said that he would
look into the matter and that he was still working on trying
to get a new contract with Respondent O’Dovero. Later, Har-
ris had another conversation with Defresne; this concerned
unemployment compensation for Harris. Near the end of the
conversation Harris said that if they ever became union
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1005ASSOCIATED CONSTRUCTORS
14 These findings are based on the testimony of Harris, who I
found to be a credible witness. I have considered but rejected the
hesitant and generally unconvincing testimony of Defresne concern-
ing these events.
15 These facts are based on the credited testimony of Gray, the
notes he kept of the June 20 meeting, and the June 24 letter. Re-
spondents argue that Gray’s credibility was seriously undermined
when he testified that he never received Respondent O’Dovero’s
June 24 letter, yet the letter was discovered in the Union’s files that
were turned over to Respondents pursuant to subpoena. I disagree.
This minor failure of recollection does not significantly detract from
what was otherwise detailed and persuasive testimony that was con-
sistent with likely probabilities based on the record as a whole.
James O’Dovero’s testimony, on the other hand, to the extent that
it is inconsistent with Gray’s, was not persuasive.
again, he would be happy to work for them again. Defresne
replied that he did not think that would ever happen.14
The operator work on the Caspian project in 1996 was
performed by nonunion employees of Respondent Associ-
ated. Work continued on the project until around November.
The project was not completely finished in 1996; in 1997 3
or 4 weeks of cleanup work was performed. At the hearing
when Peter O’Dovero was asked why employees of Re-
spondent O’Dovero were not recalled to complete the project
in 1996, he responded that the job was ‘‘tapering down,’’
and that it was an ‘‘Associated project to start with.’’ When
asked to explain how the fact that the project was dwindling
down would impact who completed the work, Peter an-
swered, ‘‘It was an Associated project to start with so on As-
sociated projects we do give preference to Associated peo-
ple.’’ Defresne, however, testified that in 1995 there had
been problems on the Caspian project such as OSHA con-
cerns, a broken telephone line, and chlorine getting into the
water system; he explained that these problems led to the
conclusion that changes had to made in 1996 on the Caspian
project.
D. The Bargaining Issues
By letter dated February 26, James O’Dovero notified the
Union of Respondent O’Dovero’s intent to terminate the con-
tract set to expire on April 30. By letter dated March 26, the
Union notified Respondent O’Dovero that it was prepared to
meet for the purpose of negotiating a new contract; the
Union requested that Respondent O’Dovero provide the dates
and times that it was available to meet. Respondent
O’Dovero never responded to this letter. On about April 26,
Business Representative Gray visited Respondents’ facility
and spoke with James O’Dovero. Gray said that they needed
to negotiate a contract. James responded that he did not
know if that was possible since his father was ‘‘pissed’’ that
the Union had tried to organize Respondent Associated. Gray
reminded James that the Union had sent him a letter request-
ing bargaining. James replied that he had a written response
to the letter, but when Gray requested a copy of the written
response, James said that he would mail it to Gray. Gray,
however, never received the written response. The Union,
thereafter, filed a refusal to bargain charge against Respond-
ent O’Dovero.
Respondent O’Dovero and the Union agreed to meet. On
June 20 Gray and his attorney, Nino Green, met with James
O’Dovero and his attorney, Stephen LePage. LePage advised
the Union that the purpose of the meeting was to negotiate
the effects of closing because Respondent O’Dovero was
ceasing to do business. James said that Respondent
O’Dovero was going to stop bidding on jobs. He stated that
the corporation had not been dissolved and that if in future
Respondent O’Dovero resumed performing work it would be
with union members. This was the first time that the Union
had been advised that Respondent O’Dovero had ceased op-
erations. Green replied that the Union was not prepared to
negotiate on that matter since the Union thought the parties
were going to negotiate a new contract and that this was the
first that the Union had heard about Respondent O’Dovero’s
closing. The parties agreed to hold another meeting. On June
24 LePage sent Gray a letter inviting the Union to a bargain-
ing session on July 9; however, no further bargaining ses-
sions were held because the Union chose to file an unfair
labor practice charge instead.15
Peter O’Dovero testified that for 2 or 3 consecutive years,
he had discussions with his son James concerning Respond-
ent O’Dovero’s inability to make a profit, and that James fi-
nally decided that Respondent O’Dovero should cease per-
forming work and go out of business in 1996. Later, how-
ever, Peter O’Dovero testified that the decision to cease op-
erations was made by the board of directors of Respondent
O’Dovero, and that James ‘‘went along with it.’’ Respondent
O’Dovero, however, has continued its corporate existence
and Peter O’Dovero conceded it could resume operations
quickly if that was desirable. At the hearing James O’Dovero
admitted that at no time during his meetings with the Union
in 1996 did he ever tell the Union that the reason that Re-
spondent O’Dovero was ceasing operations was due to finan-
cial difficulties.
Financial records show that for 1993, Respondent
O’Dovero sustained an operating loss of $20,367 but due to
interest income and the sale of equipment, it realized an after
tax income of $13,686. In 1994, Respondent O’Dovero sus-
tained an operating loss of $4630 but, due to interest income
and the sale of equipment, it realized an after tax income of
$97,340. In 1995, Respondent O’Dovero sustained an operat-
ing loss of $32,398 but again due to interest income and the
sale of equipment, it realized an after tax income of $35,478.
For 1996, which is the year Respondent O’Dovero allegedly
ceased operations, it sustained an operating loss of $97,689
and an after tax loss of $29,343.
Finally, there is no evidence that Respondent O’Dovero
bid on or was awarded any work since it was assigned the
Caspian project in 1995. Nor is there any evidence that Re-
spondent Associated is performing any work that in the past
had traditionally been done by Respondent O’Dovero. From
this I conclude that upon the completion of the Caspian
project Respondent O’Dovero ceased operations.
III. ANALYSIS
A. The Single-Employer Issue
The General Counsel asserts that Respondents are a single-
integrated enterprise. The test for resolving this issue has re-
cently been set forth as follows:
The law is well settled that the controlling criteria in
determining whether two or more employing entities
constitute a single employer are (1) common ownership,
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1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 In light of this finding I conclude that is unnecessary to decide
whether Respondents constitute a joint employer.
(2) interrelation of operations, (3) common manage-
ment, and (4) centralized control of labor relations.
Radio & Television Broadcast Technicians Local Union
1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255,
256 (1965) (per curiam); Walter N. Yoder & Sons, Inc.
v. NLRB, 754 F.2d 531, 535–36 (4th Cir. 1985). No one
factor is determinative, and the Board need not find ex-
tensive evidence that all four criteria are satisfied in
order to find single employer status. I.B.E.W., Local
613 v. Fowler Indus., Inc., 884 F.2d 551, 553 n. #3
(11th Cir 1989), cert. denied, 494 U.S. 1066 (1990);
NLRB v. Don Burgess Constr. Corp., 596 F.2d 378 384
(9th Cir 1979), cert. denied, 444 U.S. 940 (1979). Ulti-
mately, single employer status is characterized by the
absence of an ‘‘arm’s length relationship found among
the integrated companies.’’ Local No. 627, Int’l Union
of Operating Eng’rs v. NLRB, 518 F.2d 1040, 1046
(D.C. Cir. 1975), aff’d in pertinent part sub nom, South
Prairie Constr. Co., v. Local No. 627, Int’l Union of
Operating Eng’rs, 425 U.S. 800 (1976).
D & J Trucking v. NLRB, 71 F.3d. 486, 490, (4th Cir. 1995).
Applying this standard, the facts set forth in detail above
so clearly indicate a single-integrated relationship that they
need only be highlighted again here. It is apparent Respond-
ents share common ownership. Peter O’Dovero is the sole
owner of Respondent Associated, and he is a 40-percent
owner of Respondent O’Dovero. Peter’s wife owns 50 per-
cent of Respondent O’Dovero and his son James owns the
remaining 10 percent. Common ownership is established
where it is shared among members in a close family relation-
ship. H. A. Green Decorating Co., 299 NLRB 157 (1990),
enfd. mem. 983 F.2d 1073 (1992). It is also readily apparent
that Respondents have common management and centralized
control of labor relations through Peter and James O’Dovero.
Respondents’ operations are highly interrelated as seen by
the fact that they share equipment, have common supervision
use the same office facility, etc. The absence of an arm’s-
length relationship between Respondents is highlighted by
the fact that Respondent Associated makes periodic ‘‘loans’’
to Respondent O’Dovero, yet there is no evidence that these
loans have ever been repaid. The presence of a close family
run integrated business is demonstrated by James O’Dovero’s
commendable admission that he will always help his father
with the family business.
Respondents do not directly argue that the facts fail to
show a single-employer relationship. Instead, they argue at
length that because the Regional Director earlier dismissed a
charge filed by the Union alleging a single-employer rela-
tionship between Respondents, and that dismissal was upheld
by the General Counsel, the Board is now precluded from
making a contrary finding under the doctrine of res judicata.
This argument is without merit. Ball Corp., 322 NLRB 948
(1997). Respondents’ reference to Jefferson Chemical Co.,
200 NLRB 992 (1972), is also inapposite. That case deals
with a situation where there are multiple litigations involving
the same respondent. Here, there has been only a single liti-
gation because the administrative investigation conducted by
the Regional Director in the earlier charge was just that and
no more. Finally, Respondents argue that the processing of
the single-employer issue at this point is contrary to ‘‘the
language and spirit’’ of Section 10(b) of the Act. In this re-
gard Respondents argue that since the Union surely knew
that Respondents were a single employer long before it filed
the charge in this case, the Union’s case is time barred. As-
suming arguendo that the facts are as Respondents assert,
this argument distorts the meaning of Section 10(b). That
section precludes the issuance of a complaint alleging an un-
fair labor practice occurring more than 6 months prior to the
filing and service of a charge covering that allegation. The
mere fact that Respondents are a single-integrated enterprise
does not constitute an unfair labor practice; it is only with
the addition of other events that an unfair labor practice can
be established. The evidence shows that the charges filed by
the Union in this case were timely when compared to the un-
fair labor practices alleged in the complaint. Having rejected
all Respondents defenses on this issue, I conclude that Re-
spondents constitute a single-integrated enterprise.16
It follows from this conclusion that Respondents are re-
sponsible for commission of any unfair labor practices here-
inafter found and are jointly and severally liable to remedy
such violations of the Act. Pathology Institute, 320 NLRB
1050 (1996); and Denart Coal Co., 315 NLRB 850 (1994),
sub nom D & J Trucking v. NLRB, enfd. 71 F.3d 486, (4th
Cir. 1995).
B. The Caspian Project
Before resolving the specific allegations of the complaint,
it is necessary to determine whether the operation of the
heavy construction equipment by employees on the Caspian
project was unit work covered by the contract that was in ef-
fect between the Union and Respondent O’Dovero. As more
fully described above, the Caspian project was assigned to
Respondent O’Dovero and its employees in 1995. These em-
ployees were covered by a collective-bargaining agreement,
and the work performed on the project was within the de-
scription of unit work set forth in that contract. Moreover,
the employees were paid the contractual benefits and Re-
spondent O’Dovero filed the requisite forms with the Union
indicating hours worked by unit employees. As described
above, when employees complained that they had not re-
ceived the contractual show up time pay, Defresne, although
claiming that the project was nonunion, paid the employees
in accordance with the contract. Under these circumstances
I conclude that the work performed by Respondent
O’Dovero’s employees on the Caspian project in 1995 was
unit work covered by the contract it had with the Union.
Respondents appear to argue that because Respondent As-
sociated originally bid on and was awarded the Caspian
project, that work was therefore never unit work covered by
Respondent O’Dovero’s contract with the Union. I disagree.
When the work was assigned to Respondent O’Dovero’s em-
ployees and was work that fit within the unit description, it
became unit work. The fact that Respondent O’Dovero there-
after paid contractual benefits and filed reports with the
Union establishes that Respondent O’Dovero itself recog-
nized that the work was covered by the contract. Respond-
ents also point to evidence in the record that some nonunion
employees of Respondent Associated performed work on the
Caspian project in 1995 as demonstrating that the project was
nonunion. I again disagree. First, I do not credit the summary
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1007ASSOCIATED CONSTRUCTORS
17 As indicated above, when Harris said in this same conversation
that he would be happy to work again for Respondent O’Dovero if
it became union, Defresne replied that he did not think that would
ever happen. In his brief the General Counsel asserts that this state-
ment violates Sec. 8(a)(1) of the Act as an expression of futility. In
light of my finding indicated above, I conclude it is unnecessary to
determine whether Defresne’s statement rose to the level of a viola-
tion of the Act since any such finding would not impact the remedy
in this case.
18 Respondents in their brief argue that employees Harris and
Beauchamp, by virtue of their conduct described above, quit their
employment from Respondent O’Dovero. I disagree. I find below
that Respondents could not lawfully operate the Caspian project on
a nonunion basis. Respondents informed Harris and Beauchamp that
the project would be nonunion, and the employees decided not to
work there under those circumstances. However, employees are not
required to relinquish their statutory rights in order to continue to
work for an employer. The Board has held that this amounts to a
constructive discharge of employees. RCR Sportswear, 312 NLRB
513 (1993), enfd. mem. 37 F.3d 1488 (3d Cir. 1994). However, be-
cause the General Counsel has neither alleged this matter in the
complaint nor argues it in his brief, I conclude that it is inappropri-
ate to make unfair labor practice findings on this issue. It is suffi-
cient that I reject Respondents’ contention that the employees quit.
19 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
testimony given in support of this contention. It was totally
unsupported by documentary evidence and was at least par-
tially inconsistent with other documentary evidence in the
record showing that at least nine employees were reported to
the Union as being employed on the project. In any event,
there is no evidence that the Union knew or reasonably
should have known that some nonunit employees were per-
forming work on the project. To the contrary, the reports Re-
spondent O’Dovero filed tend to show that employees work-
ing on the project were receiving the contractual benefits.
Thus, the fact that nonunit employees may have performed
work on the project unbeknownst to the Union is of no legal
significance to this issue.
I further conclude that the work performed on the Caspian
project after 1995 continued to be unit work. The evidence
shows that this work was identical to the work performed
earlier. It was the same type of work, involving use of the
same equipment and requiring the same skills. In sum, at all
relevant times the work performed on the Caspian project by
the heavy equipment operators was unit work covered by the
contract between Respondent O’Dovero and the Union. The
fact that the work was assigned from Respondent O’Dovero
to Respondent Associated did not serve to destroy the appro-
priateness of the unit or Respondents’ bargaining obligations
to the Union as the collective-bargaining representative of
those employees. Pathology Institute, supra.
C. The Unlawful Statements
The General Counsel alleges in the complaint that
Defresne made unlawful statements to employees during the
month of April. I have found above that on about April 9
or 10, Defresne told employee Beauchamp that the Caspian
project would be nonunion. About a week later Defresne re-
peated this statement to Beauchamp. Around that same time
Defresne made a similar statement to employee Harris. I con-
clude below that Respondents were not privileged to operate
the Caspian project on a nonunion basis. Under these cir-
cumstances the Board has held that statements such as those
made by Defresne to employees Harris and Beauchamp indi-
cating that certain work will be performed only on a non-
union basis violate Section 8(a)(1) of the Act. American
Automatic Sprinkler Systems, 323 NLRB No. 160, slip op. p.
2 (June 11, 1997). Respondents contend in their brief that
there is no evidence that the employees in fact felt coerced
or threatened by this conduct. However, the test is not a sub-
jective one; it is whether, based on objective facts, the con-
duct has a reasonable tendency to interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights.
Miami Systems Corp., 320 NLRB 71 fn. 4 (1995). I, there-
fore, conclude that Respondents conduct in this regard vio-
lated Section 8(a)(1) of the Act.
During the same conversation with Harris, Defresne said
that Peter O’Dovero was angry with the Union and would
take the matter to Supreme Court to escape the union con-
tract. This statement indicates to employees that their support
for Union would be futile in that Respondent would take ex-
traordinary measures to frustrate the employees’ efforts on
behalf of the Union. L & L Wine & Liquor Corp., 323
NLRB No. 151, slip op. at 2 (May 30, 1997); Woodline, Inc.,
233 NLRB 97, 100 (1977).17 Respondents in their brief as-
sert that Standard Products Co., 281 NLRB 141 (1986),
compels the conclusion that Defresne’s statements did not
violate the Act. I conclude that Standard Products is not on
point. In that case the statement that the judge found not un-
lawful concerned the fact that the respondent in that case
would engage in hard bargaining and the employees could
end up with more, the same, or less as a result of the bar-
gaining process. That was a lawful statement of the realities
of the bargaining process; it is not at all like the statement
that I have found unlawful in this case.
I conclude that Respondents violated Section 8(a)(1) of the
Act by indicating to employees that their support for the
Union would be futile.18
D. The Diversion of Work
The General Counsel alleges that Respondents unlawfully
diverted work from the union-represented employees of Re-
spondent O’Dovero to the nonunion employees of Respond-
ent Associated in violation of Section 8(a)(5) and (3) of the
Act. Subsumed within this allegation must be the assertion
that Respondents unlawfully failed to employ employees
from Respondent O’Dovero as part of the diversion of work
process.
Turning first to the 8(a)(3) allegation, the general analysis
set forth in Wright Line19 governs this determination. The
Board has restated that analysis as follows:
Under Wright Line, the General Counsel must make
a prima facie showing that the employee’s protected
union activity was a motivating factor in the decision
to discharge him. Once this is established, the burden
shifts to the employer to demonstrate that it would have
taken the same action even in absence of the protected
union activity.7 An employer cannot simply present a
legitimate reason for its actions but must persuade by
a preponderance of the evidence that the same action
would have taken place even in the absence of the pro-
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1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tected conduct.8 Furthermore, if an employer does not
assert any business reason, other than one found to be
pretextual by the judge, then the employer has not
shown that it would have fired the employee for a law-
ful, nondiscriminatory reason.9
7 NLRB v. Transportation Management Corp., 462 U.S. 393, 400
(1983).
8 See GSX Corp. v. NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990)
(‘‘By assessing a legitimate reason for its decision and showing by a
preponderance of the evidence that the legitimate reason would have
brought about the same result even without the illegal motivation, an
employer can establish an affirmative defense to the discrimination
charge.’’)
9 See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993).
T & J Trucking Co., 316 NLRB 771 (1995). This was fur-
ther clarified in Manno Electric, 321 NLRB 278 (1996).
I examine the facts to assess whether the General Counsel
has met his initial burden on this issue. In 1995 the work on
the Caspian project was done by union-represented employ-
ees of Respondent O’Dovero. In 1996 that same work was
assigned to the nonunion employees of Respondent Associ-
ated. In April Defresne told employee Beauchamp that the
project had gone nonunion because the Union had ‘‘tried to
take O’Dovero to court.’’ In that conversation Defresne di-
rectly blamed Union Representative Gray for the loss of jobs.
Similarly, Defresne told employee Harris that the project was
going nonunion because Peter O’Dovero was angry with
Union Representative Gray and that Peter would pursue the
matter to the Supreme Court in order to escape the contract
that Respondent O’Dovero had with the Union. These state-
ments were made in a context where the Union had unsuc-
cessfully attempted to organize Respondent Associated em-
ployees by filing a petition for an election which was finally
resolved February 27, 1995, and then the Union persisted in
its efforts by filing a charge involving Respondent Associ-
ated which was not finally disposed of until October 23,
1995. Also in April James O’Dovero told Gray that Peter
O’Dovero was angry at the Union because it had attempted
to organize the employees of Respondent Associated. These
facts show that a reason why Respondents refused to con-
tinue to employ union-represented employees of Respondent
O’Dovero to perform work on the Caspian project in 1996
was because Respondents were angry at the Union’s attempt
to organize the nonunion employees of Respondent Associ-
ated and in order to escape the contract that Respondent
O’Dovero had with the Union. Thus the General Counsel has
met his initial burden.
I examine the evidence to assess whether Respondents
have established that they would have assigned the work to
the nonunion employees for reasons unrelated to union activ-
ity. As more fully described above, at the hearing Peter
O’Dovero testified that the reason Respondent O’Dovero em-
ployees were not called back to the Caspian project in 1996
was because the project was ‘‘tapering down’’ and that it had
been a Respondent Associated project to begin with. These
reasons are patently unconvincing. First, the project contin-
ued throughout the 1996 construction season and even into
1997. In any event, assuming that the project was slowing
down, that does not explain a failure to recall employees
who had the skill and experience of working on the project
the previous year. At the hearing I asked the witness to ex-
plain his testimony in this regard. His response then shifted
by asserting that preference was given to employees of Re-
spondent Associated. In sum, Peter O’Dovero’s explanation
as to why the work was shifted is entirely unconvincing and
I do not credit it.
Defresne gave different reasons to explain the shift of
work from employees of Respondent O’Dovero to Respond-
ent Associated. I note that the very fact that Peter O’Dovero
and Defresne gave differing reasons itself seriously, if not fa-
tally, undermines Respondents’ case on this issue. Defresne’s
testimony, more fully described above, was that there had
been certain problems with the work performed on the
project in 1995 that resulted in Respondents making changes
in 1996. I do not credit this testimony. In addition to
Defresne’s unpersuasive demeanor as a witness, his testi-
mony is not corroborated by other witnesses and it is not
supported by documentary evidence.
Respondents also assert that the diversion of work to Re-
spondent Associated was part of the process whereby Re-
spondent O’Dovero ceased operations, and that this was done
for financial reasons. The financial records introduced in sup-
port of this contention have been described above. They
show that for the years 1993, 1994, and 1995 Respondent
O’Dovero had experienced operating losses of $20,367,
$4630, and $32,398, respectively, but that for each of those
years it was to realize after income primarily due to the sale
of equipment of $13,686, $97,340, and $35,478, respectively.
Missing from these numbers is any credible explanation as
to why what had been a tolerable operation became intoler-
able in 1996. This is especially the case where I have con-
cluded that Respondents operated as a single integrated en-
terprise and as a family owned business with intermingled
operations. In the absence of more compelling evidence, I do
not credit the testimony that financial reasons caused Re-
spondent O’Dovero to cede its work to Respondent Associ-
ated. Having discredited the reasons asserted by Respondents
to explain why it transferred the work from Respondent
O’Dovero to Respondent Associated, it follows that Re-
spondent has failed to meet its burden on this issue.
Respondents in their brief argue that there was no diver-
sion of work from Respondent O’Dovero to Respondent As-
sociated since the project always was a Respondent Associ-
ated project. However, for reasons already stated I have
found that the work on the Caspian project became unit work
for Respondent O’Dovero employees despite the fact that
Respondent Associated had won the contract on the project.
I conclude that Respondents violated Section 8(a)(3) and (1)
of the Act in approximately April 1996 by failing to continue
to assign employees employed by Respondent O’Dovero to
perform unit work on the Caspian project in and instead as-
signing employees of Respondent Associated to perform that
work. Ferragon Corp., 318 NLRB 359 (1995).
I turn now to examine whether Respondents conduct also
violated Section 8(a)(5) and (1) of the Act. It is uncontested
that Respondents made and implemented the decisions not to
continue to use Respondent O’Dovero employees and instead
to use Respondent Associated employees without first either
giving notice to or bargaining with the Union. Thus, the
issue turns on whether transfer of unit work from Respond-
ent O’Dovero to Respondent Associated and the consequent
failure to continue to use Respondent O’Dovero’s employees
was a mandatory subject of bargaining. General instruction
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1009ASSOCIATED CONSTRUCTORS
20 When questioned about this and other novel allegations in the
complaint, counsel for the General Counsel represented that he had
case authority to support the allegations. In his brief, counsel for the
General Counsel again asserts that the direct dealing violated Sec.
8(a)(3) as well as Sec. 8(a)(5). In support of that contention, counsel
for the General Counsel cites L & L Wine, supra. River City Me-
chanical, 289 NLRB 1503 (1988), and Johnstown Corp., 313 NLRB
170 (1993). In light of these representations, I have read and reread
these cases; they do not support the contention that direct dealing
violates Sec. 8(a)(3). Counsel for General Counsel would be well ad-
vised to be more careful in assuring that his representations are ac-
curate.
on this issue is derived from First National Maintenance
Corp., v. NLRB, 452 U.S. 666 (1981), and Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203 (1967). Here, since
I have concluded that Respondents are a single-integrated en-
terprise the transfer of work involved in this case amounts
to transfer from Respondents’ union represented employees
to its nonunion employees. Dahl Fish Co., 279 NLRB 1084
(1986), enf. 813 F.2d 1254 (D.C. Cir. 1987). Extensive anal-
ysis, however, is not required on this matter, since I have al-
ready concluded that Respondents engaged in this conduct
from discriminatory reasons, and the Board has consistently
held that such discrimination may not serve as entrepreneur-
ial decision immune from bargaining obligations. Ferragon
Corp., supra at 362. I therefore conclude that Respondents
violated Section 8(a)(5) and (1) of the Act by unilaterally di-
verting unit work from Respondent O’Dovero to Respondent
Associated and thereby failing to continue to employ Re-
spondent O’Dovero’s employees.
E. The Refusal to Bargain for a New Contract
As indicated above, on March 26 when the contract was
about to expire, the Union advised Respondent O’Dovero
that it desired to commence bargaining for a successor con-
tract. Respondent O’Dovero refused, asserting that it had
ceased operations. The General Counsel contends that this
conduct violated Section 8(a)(3), (5), and (1). As I have
found above, Respondent O’Dovero had not lawfully ceased
operations at that point. Instead, it had unlawfully diverted
unit work to Respondent Associated. Had it not engaged in
this unlawful conduct it would have used unit employees for
at least the remainder of the construction year. Under those
circumstances the Union was entitled to bargain a new con-
tract for the unit employees. Because Respondents had no
lawful basis for refusing to bargain for a new contract, I con-
clude that they thereby violated Section 8(a)(5) and (1) of the
Act. ‘‘Automatic’’ Sprinkler Corp., 319 NLRB 401, 402
(1995), enf. denied 120 F.3d 612 (6th Cir. 1997).
The General Counsel has presented no case authority to
support the allegation in the complaint that the refusal to bar-
gain for a successor contract also violates Section 8(a)(3) of
the Act; I shall dismiss that allegation.
F. The Direct Dealing Issue
The General Counsel contends that Respondents violated
Section 8(a)(5), (3), and (1) of the Act by engaging in direct
dealing with employees. I have described above in detail the
last conversations employees Beauchamp and Harris had
with Defresne in April. It was during one of those conversa-
tions that Beauchamp told Defresne that he was unwilling to
work on the Caspian project since it was to be run as a non-
union site. Defresne then told Beauchamp that there would
be no problem with ‘‘the money,’’ but Beauchamp explained
that he did not want to jeopardize his union pension. In a
conversation with employee Harris, Defresne was more ex-
plicit. When Defresne told Harris that money was no object,
Harris replied that he was concerned about pension and
health care benefits in addition to money. Defresne replied
that something might be done about the pension. Ultimately
since nothing could be done about health care benefits, Har-
ris was not persuaded to return to work at the Caspian
project. I find that these conversations show that Defresne
was dealing directly with the employees concerning the wage
rates and benefits that the employees would be paid if they
returned to work on the Caspian project. I have already con-
cluded above that the Union represented the employees per-
forming unit work on the Caspian project, such as Harris and
Beauchamp. Under these circumstances Respondent
O’Dovero was not free to deal directly with employees about
terms and conditions of employment; instead Respondent
O’Dovero had to deal with the representative of the employ-
ees—the Union—concerning such matters. L & L Wine &
Liquor Corp., 323 NLRB No. 151, slip op. at 2 (May 30,
1997).
Respondents contend that no violation occurred because
there is no evidence that Defresne had the authority to deal
with employees concerning working conditions. I disagree; it
is apparent that Dufresne had broad authority to deal with
employees concerning working conditions. Respondents rely
on Mount Hope Trucking Co., 313 NLRB 262 (1993), in
support of their contention that Defresne’s conduct did not
amount to direct dealing. In that case, however, in finding
no violation the Board pointed out that a representative of
the union was present during the meeting concerning the al-
leged direct dealing. Here, it is clear that no union represent-
ative was present during the discussions between the employ-
ees and Defresne. Thus, Mount Hope is not on point. I con-
clude that Respondents violated Section 8(a)(5) and (1) of
the Act by engaging in direct dealing with employees.
The General Counsel also alleges that by virtue of this
conduct, Respondents also violated Section 8(a)(3) of the
Act. I find absolutely no support for the allegation that direct
dealing constitutes a violation of Section 8(a)(3). I shall
therefore dismiss this allegation.20
G. The Cessation of Operations Issue
The General Counsel contends that Respondent O’Dovero
unlawfully ceased operations and requests that Respondent
O’Dovero be ordered to resume its operations. As indicated
above, Respondent O’Dovero told the Union on June 20 that
it had ceased operations. I have already concluded that this
was neither accurate nor lawful since Respondents continued
to perform work on the Caspian project. There is no evi-
dence, however, that after the Caspian project ended that Re-
spondents continued to perform the work that Respondent
O’Dovero had done in the past. Respondents have ceased
bidding on union jobs and there is no showing that Respond-
ent Associated is performing work that traditionally would
have been performed by Respondent O’Dovero. In the ab-
sence of such evidence I conclude that Respondent O’Dovero
has ceased operations. I am aware of the fact that Respond-
ent O’Dovero has continued its corporate existence and may,
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1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 As noted above, during the June 20 meeting Respondent
O’Dovero promised the Union that if it should resume operations it
would use union-represented employees.
22 I note that there is no evidence or allegation that the decision
to cease operations was designed to chill unionism elsewhere.
23 This explains the otherwise inexplicable references in the record
to Respondents’ hiring hall practices.
some time in the future, resume operations. In the event that
such a development occurs in the future, it may trigger an
obligation by Respondents to recognize and bargain with the
Union, as well as other obligations.21 However, that situation
does not detract from my finding that so far as this record
shows, Respondent O’Dovero ceased operations upon the
completion of the Caspian project.
I further conclude that the decision to cease operations of
the union portion of a double-breasted operation is a manage-
rial decision of the type for which there is no obligation to
bargain. First National Maintenance, supra.22
The General Counsel cites ‘‘Automatic’’ Sprinkler Corp.,
supra; Ferragon Corp., supra; and Compu-Net Communica-
tions, 315 NLRB 216 (1994). However, those cases involved
the continued subcontracting of unit work, clearly a manda-
tory subject of bargaining. I have also considered A-1 Fire
Protection, 273 NLRB 964 (1984), where the Board ordered
a resumption of operations remedy for an unlawful diversion
of unit work. That case is distinguishable in one critical re-
spect. There the facts showed that respondents were continu-
ing to divert work from the union portion of their operation
to the nonunion portion; thus they had not genuinely ceased
operation of the union portion. That is unlike here where I
have concluded that after the Caspian project Respondent
O’Dovero ceased operations. Accordingly, I shall dismiss
this allegation of the complaint.
H. The Effects Bargaining Issue
The General Counsel contends that Respondents failed to
bargain over the effects of the decision of Respondent
O’Dovero to cease its operations. In this regard the Supreme
Court has held that even in situations where an employer
need not bargain over a decision to terminate a portion of
its operations, an employer is required to bargain over the ef-
fects that decision has upon unit employees. ‘‘And, under
Section 8(a)(5), bargaining over the effects of a decision
must be conducted in a meaningful manner and at a mean-
ingful time, and the Board may impose sanctions to insure
its adequacy.’’ First National Maintenance Corp. v. NLRB,
452 U.S. at 681–682. As indicated above, Respondent
O’Dovero made its decision to cease operations in December
1995 and January 1996. Despite this decision, Respondents
continued to perform unit work since the work on the Cas-
pian project was merely diverted to Respondent Associated.
On June 20 Respondent O’Dovero advised the Union that it
had ceased operations and offered to bargain over the effects
of that decision. However, the Union chose not to engage in
effects bargaining at that time.
The General Counsel argues that the Union was excused
from bargaining with Respondent O’Dovero over the effects
of its cessation of operation because the Union was presented
with a fait accompli. More specifically, the General Coun-
sel’s contention is that the Union was never given a chance
to bargain before Respondents ceased operations, since ac-
cording to the General Counsel, the cessation of operations
occurred in January and the Union was not advised of that
fact until June. This argument is not supported by the evi-
dence the General Counsel himself has presented; he appears
to be confusing the decision Respondent O’Dovero made to
cease operations with the actual termination of operations.
The decision to terminate operations was made in December
1995 and January 1996; the actual cessation of operations did
not occur until the completion of the Caspian project in early
1997. Thus, when Respondent O’Dovero offered to engage
in effects bargaining in June Respondents had not already
ceased to perform work Respondent O’Dovero has tradition-
ally performed.
Although I reject the General Counsel’s fait accompli ar-
gument, I nonetheless conclude that Respondents have failed
to satisfy their obligations concerning effects bargaining. As
indicated above, this bargaining must occur in a meaningful
manner and at a meaningful time. Respondents’ conduct in
this case satisfied neither aspect of this test. This is so be-
cause at the very time that Respondent O’Dovero was offer-
ing to engage in effects bargaining it was falsely claiming to
the Union that it had actually ceased operations when in fact
it had merely diverted the unit work to Respondent Associ-
ated. This basic deception precluded meaningful bargaining
at a meaningful time and justified the Union’s failure to bar-
gain at that time until the unfair labor practice charges had
been resolved. Accordingly, I conclude that Respondents vio-
lated Section 8(a)(5) and (1) by failing to provide the Union
with a meaningful opportunity to bargain over the effects of
the decision terminate the operations of Respondent
O’Dovero.
I. Respondents’ Motion to Dismiss
At the conclusion of the hearing Respondents moved to
dismissed certain allegations in the complaint. I denied that
motion in part because counsel for the General Counsel had
indicated earlier that he had case authority to support the al-
legations. I have since read the briefs filed by the parties.
Respondents again move to dismiss certain allegations. Spe-
cifically, Respondents seek the dismissal of the 8(a)(3) alle-
gations since the General Counsel has failed to name the al-
leged discriminatees in the complaint. In support of this ar-
gument Respondents correctly point out that it is the policy
of the General Counsel to identify by name the alleged
discriminatees where they are known. In this case counsel for
the General Counsel explained the failure to name the al-
leged discriminatees by stating that Respondent O’Dovero
hired under a hiring hall arrangement and thus he was unable
to identify the alleged discriminatees.23 However, this rep-
resentation was not supported by the General Counsel’s own
evidence. As described above, employees Beauchamp and
Harris both testified that they were hired directly by Re-
spondents for the Caspian project in 1995 and they were
again contacted directly by Respondents for work in 1996.
Thus, as Respondents again correctly point out, counsel for
the General Counsel must have known the names of at least
some of the alleged discriminatees, yet he failed to identify
them in the complaint. Despite counsel for the General
Counsel’s inaccurate representation as to why the names of
at least some of the discriminatees were not alleged and the
consequent failure to follow normal pleading policy in this
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1011ASSOCIATED CONSTRUCTORS
24 The complaint suffered from a variety of flaws, some of which
have have already been described. In addition, pars. 1(a) and (c) al-
lege that the charges were served, but fail to allege who the charges
were served upon. Par. 7 contains four subparagraphs, two of which
are identified as par. 7(b); the fourth subparagraph is identified as
par. 7(c). Par. 6(a), the unit description, refers to a ‘‘union appro-
priate for purposes of collective-bargaining.’’ The complaint was
confusingly organized. Par. 7 contains the allegations of independent
8(a)(1) conduct; inexplicably, it also contains the allegation of direct
dealing which, if proven, constitutes a violation of Sec. 8(a)(5). Par.
12, the conclusionary 8(a)(3) paragraph refers back not only to the
8(a)(3) allegations, but also to pars. 10(a) and (b) which are the
withdrawal of recognition and failure to bargain allegations. The
complaint had legally unnecessary and potentially confusing allega-
tions. Specifically, par. 8 alleges that Respondents engaged in the
independent 8(a)(1) conduct in order to discourage union and con-
certed activity. Of course, improper motive is unnecessary to estab-
lish the type of independent 8(a)(1) statements alleged in this case.
The complaint makes allegations that are contrary to the General
Counsel’s own records. Par. 6(b) alleges that Respondents, as op-
posed to Respondent O’Dovero, recognized the Union and that later
the Union was certified. The complaint fails to follow the basic rules
of pleading. For example, par. 7 fails to plead the location at which
the alleged unlawful statements were made. Typically, allegations
concerning recognition and Section 9(a) status are plead separately;
here those allegations are merged into one less than clear allegation.
Missing from the complaint is the usual allegation that subjects of
the alleged unilateral conduct are mandatory subjects of bargaining.
Despite the fact that I have concluded that Respondent was not prej-
udiced by these problems, when considered together these short-
comings have caused unnecessary confusion and expenditure of time.
regard, I conclude that it is inappropriate to dismiss the
8(a)(3) allegations of the complaint thereby extinguishing the
rights of the discriminatees. This is so because, as more fully
described below, I shall leave for the compliance portion of
this case the identification of the specific discriminatees. Re-
spondent at that time will have the opportunity to litigate the
identification of the employees harmed by its unlawful con-
duct. Under these circumstance I conclude that Respondents
will not be prejudiced by the failure to identify the alleged
discriminatees.
Respondents also seek the dismissal of paragraphs 9(d)
and 10(b) of the complaint since they are ‘‘inherently incon-
sistent.’’ Paragraph 9(d) alleges in pertinent part that on June
20 Respondents informed the Union that they would only
meet to negotiate the effects of the decision to cease oper-
ations. Paragraph 10(b) alleges in pertinent part that Re-
spondents made the decision to cease operations without hav-
ing afforded the Union to meaningfully engage in effects
bargaining. This wording is clearly confusing. From the evi-
dence, it is apparent what the General Counsel was attempt-
ing to plead was a refusal to bargain for a successor contract
as well as failure to bargain over the effects of the decision
to cease operations. Nonetheless, in the absence of evidence
that Respondents were prejudiced by these pleadings, I will
not grant the motion to dismiss.24
CONCLUSIONS OF LAW
1. Respondent O’Dovero is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Associated is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Respondents constitute a single-integrated enterprise and
are a single employer.
4. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
5. The following employees of Respondent O’Dovero (the
unit), constitute a unit appropriate for the purpose of collec-
tive-bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time construction equip-
ment operators employed by the Employer at or out of
its facility located at Midway Industrial Park, Mar-
quette, Michigan; excluding clerical employees, guards
and supervisors as defined in the Act.
6. At all times since December 14, 1993, the Union has
been the exclusive bargaining representative of the employ-
ees in the unit under Section 9(a) of the Act.
7. By telling employees that unit work would be done on
a nonunion basis, Respondents violated Section 8(a)(1) of the
Act.
8. By indicating to employees that their support for the
Union would be futile, Respondents violated Section 8(a)(1)
of the Act.
9. By discriminatorily diverting work on the Caspian
project from employees of Respondent O’Dovero to employ-
ees of Respondent Associated, Respondents violated Section
8(a)(3) and (1) of the Act.
10. By unilaterally diverting work on the Caspian project
from unit employees to nonunit employees, Respondents vio-
lated Section 8(a)(5) and (1) of the Act.
11. By refusing to bargain with the Union for a successor
collective-bargaining agreement for employees in the unit,
Respondents violated Section 8(a)(5) and (1) of the Act.
12. By dealing directly with unit employees concerning
terms and conditions of employment, Respondents violated
Section 8(a)(5) and (1) of the Act.
13. By failing to engage in meaningful bargaining with the
Union concerning the effects of the decision to have Re-
spondent O’Dovero cease operations, Respondents violated
Section 8(a)(5) and (1) of the Act.
14. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7).
15. Respondents have not violated the Act in any other
manner alleged in the complaint.
REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I have found that Respondents unlawfully refused to bar-
gain with the Union for a successor contract to cover em-
ployees in the unit. I shall therefore order Respondents to
bargain with the Union, on request, for such a contract.
I have found that Respondents discriminatorily and unilat-
erally diverted unit work on the Caspian project from em-
ployees of Respondent O’Dovero to employees of Respond-
ent Associated. As a consequence of this unlawful conduct
Respondents failed to continue to employ employees of Re-
spondent O’Dovero. I shall not order reinstatement of those
employees because the project has been completed and Re-
spondents are no longer performing unit work. However, I
shall order Respondents to make them whole for any loss of
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1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Transmarine Navigation Corp., 170 NLRB 389 (1968).
earnings and other benefits, computed on a quarterly basis
from date of the failure to employ to the date they would
have worked upon the completion of the project, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I shall fur-
ther order that Respondents make whole any fringe benefit
funds in the manner prescribed in Merryweather Optical Co.,
240 NLRB 1213 (1979), and reimburse employees for any
loss of expenses they may have incurred because of Re-
spondents failure to make payments to those funds, in the
manner prescribed in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1991),
with interest computed in the manner prescribed in New Ho-
rizons for the Retarded, supra. I shall leave the identification
of the employees prejudiced by Respondents unlawful con-
duct, as well as the exact dates the employees would have
been employed, for determination in compliance proceedings.
I have found that Respondents unlawfully failed to bargain
with the Union concerning the effects on unit employees of
the decision to have Respondent O’Dovero cease operations.
I conclude that Transmarine25 remedy is appropriate and nec-
essary. Accordingly, Respondents shall be ordered to pay
each unit employee who would have been on its payroll per-
forming work on the Caspian project in 1996 or 1997, back-
pay at the rate of their normal wages from 5 days after the
Board issues its Order on this case until the occurrence of
the earliest of the following conditions: (1) the date Respond-
ents bargain to agreement with the Union concerning the ef-
fects of the cessation of operations on unit employees; (2) a
bona fide impasse in bargaining; (3) the failure of the Union
to request bargaining within 5 days of the issuance of the
Board’s Order, or to commence negotiations within 5 days
of Respondents’ notice of desire to bargain with the Union;
or (4) the subsequent failure of the Union to bargain in good
faith; but in no event shall the sum paid to the employees
exceed the amount he or she would have earned as wages
from the date Respondent O’Dovero ceased operations to the
time he or she secured equivalent employment elsewhere, or
on the date on which Respondents offer to bargain in good
faith; provided, however, that in no event shall this sum be
less than what the employees would have earned for a 2-
week period at the normal rate of their normal wages when
last Respondent O’Dovero’s employ. Interest on all such
sums shall be paid in the manner prescribed in New Horizons
for the Retarded, supra.
Because of the Respondents’ widespread and serious mis-
conduct, demonstrating a general disregard for the employ-
ees’ fundamental rights, I find it necessary to issue a broad
Order requiring the Respondent to cease and desist from in-
fringing in any other manner on rights guaranteed employees
by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357
(1979).
[Recommended Order omitted from publication.]
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