Corson And Gruman Co.

National Labor Relations Board - Board Decisions

Jul 24, 1987

284 N.L.R.B. 1316 (N.L.R.B. 1987)

1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Corson and Gruman Co. and Local 77, International
Union of Operating Engineers. Case 5-CA-
12571
24 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 18 June 1982 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The General Counsel and the Respondent filed ex-
ceptions and a supporting brief. Thereafter, the Re-
spondent filed cross-exceptions and a brief in re-
sponse to the General Counsel's exceptions and in
support of its cross-exceptions. The General Coun-
sel filed a motion to strike the Respondent's cross-
exceptions; and the Respondent filed an opposition
to the General Counsel's motion to strike.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions, 3 to modify her remedy, 4 and to adopt
the recommended Order as modified.
1 Because the Respondent filed exceptions to the judge's decision, It
could not thereafter properly file cross-exceptions In this regard, Sec
102 46(e) of the Board's Rules and Regulations restricts the filing of
cross-exceptions to parties who have not previously filed exceptions. Ac-
cordingly, we shall strike the Respondent's proffered cross-exceptions
We have, however, considered the arguments raised in the Respondent's
accompanying brief Insofar as it constitutes a reply brief to the General
Counsel's exceptions.
The Respondent has requested oral argument The request is dented as
the record, exceptions, and briefs adequately present the issues and the
positions of the parties
The judge's citation to Seattle Auto Glass v. NLRB in sec III, A,5, b,4
of her decision should read 669 F 2d 1332/(9th Cir. 1982) Also the
proper citation at fn. 50 of her decision is Georgia Highway Express, 165
NLRB 514, 516 (1967)
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cll. 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 We agree with the judge's conclusion that the Respondent violated
Sec 8(a)(3) in failing to reinstate striking mechanic Hamilton following
his unconditional offer to return to work. In so doing, we agree with the
judge's reasoning that the Respondent did not produce legitimate and
substantial business justification for not reinstating Hamilton on whatever
date It employed five or fewer mechanics. NLRB v. Fleetwood Trailer
Co, 389 U S 375 (1967) In these circumstances, we find it unnecessary
to rely on the judge's further reasoning that the Respondent did not es-
tablish that Hamilton had been permanently replaced prior to the conver-
sion of the strike to an unfair labor practice strike Member Babson relies
only on the finding that the Respondent did not show Hamilton had been
permanently replaced prior to the strike's conversion. Member Babson
also agrees with the judge's conclusion that the Respondent violated Sec
8(a)(1) by threatening employee Hall with arrest because of Hall's pro-
tected picketing at the Respondent's jobsile Although the complaint did
not specifically allege this matter to be violative of the Act, Member
Babson agrees that the judge properly found the above conduct to be
284 NLRB No. 130
1. We agree with the judge's conclusion that the
Respondent did not violate Section 8(a)(5) by with-
drawing from a multiemployer bargaining associa-
tion (the Association) and by refusing to execute
the agreement subsequently negotiated by the As-
sociation and the Union after the Union had exe-
cuted a separate, final agreement with one of the
member employers. In this regard, we agree that
the Union's execution of that separate, final agree-
ment fragmented the Association to the extent that
it was incapable of functioning as a unit and of ef-
fectively representing the interests of the four re-
maining member employers. Cf. American Bank
Note Co., 281 NLRB 617 (1986). Accordingly, we
agree with the judge that the Respondent was priv-
ileged to withdraw from the Association and was
not bound by the Association agreement.
We also agree with the judge's conclusion that
the Respondent thereafter unlawfully withdrew
recognition from the Union in violation of Section
8(a)(5). We find the violation evident in the entire
course of the Respondent's conduct following its
earlier proper withdrawal from the Association.
We set out our findings on this issue below. The
record shows that on the day after the Respond-
ent's withdrawal from the Association on 14 July
1980, 5 the Union's business manager, Clapsaddle,
telephoned the Respondent's vice president, Cox,
to ask about the significance of the withdrawal.
Cox replied that the Respondent had withdrawn
from the Association and would not be a party to
any further negotiations with the Association.
Clapsaddle asked if the Respondent was going non-
union and Cox said that the Respondent had with-
drawn from negotiations and was restaffing. That
same day, 15 July, Cox signed a memo for the at-
tention of its employees who had been on strike
since 1 July. The memo was directed "[t]o [a]ll
[p]rior [e]mployees" advising of the withdrawal
from the Association and that it would no longer
be a party to any Association agreement. The
memo advised that the Respondent was terminating
its longstanding relationship with the Union under
violative of Sec. 8(a)(1) Penn Color, 261 NLRB 395 (1982), enfd mem
716 F 2d 89 (3d Cir 1983).
Chairman Dotson does not agree with the judge's finding that the Re-
spondent threatened employee Hall in violation of Sec 8(a)(1) The Gen-
eral Counsel neither alleged this matter in the complaint nor raised it at
the hearing. The issue was raised for the first time in the General Coun-
sel's posttnal brief to the judge In these circumstances, Chairman Dotson
would find that the threat to employee Hall was not timely raised or
fully litigated and cannot, therefore, be found violative of Sec 8(a)(1).
Clement Bros Co., 165 NLRB 698 at 708, enfd 407 F 2d 1027 (5th Cir.
1967)
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U S C. § 6621
5 Hereafter all dates refer to 1980 unless otherwise noted
CORSON & GRUMAN CO. 1317
the Association agreement and that severe econom-
ic conditions in the industry precluded "the con-
tinuation of further negotiations." The memo fur-
ther stated that the Respondent intended immedi-
ately "to restaff all open positions" and invited
Iplrior employees" to apply for remaining posi-
tions with the understanding that there would be
no further relationship with the Union under the
Association agreement. The memo also indicated
that "as soon as possible" the Respondent would
institute hospitalization and retirement plans for
employees not covered under an existing contract.6
On 16 or 17 July Marvin Ausler, a union busi-
ness representative, asked Cox what had happened,
and Cox replied that the Respondent had with-
drawn from the Association and was restaffing. On
18 July Clappsaddle sent the Respondent two tele-
grams. The first was an unconditional request for
immediate reinstatement of all strikers. The second
advised the Respondent that its withdrawal from
the Association was illegal and ineffective and that
the Respondent was bound by the Association
agreement. By letter, Cox responded that the Re-
spondent did not accept the Union's position con-
cerning its withdrawal from the Association. On 23
July Clapsaddle asked Cox to sign the Association
agreement, but Cox responded that he had made
up his mind and was going "open shop" and asked
Clapsaddle if he would change his position. Clap-
saddle did not offer to negotiate separately with
the Respondent. Later, in July or early August, fol-
lowing notice to the Responaent of ratification of
the Association agreement, three union representa-
tives visited Cox to request again that he sign the
agreement. Cox indicated that the Respondent had
withdrawn from the Association. He refused to
sign the agreement, and he asked if there was any-
thing else to talk about. The union representatives
said that they had no authority to talk about any-
thing other than the Association agreement. Cox
did not offer to negotiate a separate agreement, and
the union representatives did not offer to discuss
any terms other than those of the Association
agreement.
In finding that the Respondent unlawfully with-
drew recognition from the Union in violation of
Section 8(a)(5), we initially note, as did the judge,
that an employer that timely withdraws from a
multiemployer bargaining association remains obli-
gated to bargain with the union on behalf of its em-
ployees. Jim Kelley's Tahoe Nugget, 227 NLRB 357
(1976). In the present case, it is evident that the
6 At an undetermined date after the parties' collective-bargaining
agreement had expired on 30 June, the Respondent ceased making contri-
butions into the medical, pension, and apprentice funds provided for in
that agreement.
Respondent did not fufill this obligation. To the
contrary it is evident that the Respondent with-
drew recognition from the Union in violation of
Section 8(a)(5). In this regard, we note that follow-
ing its withdrawal from the Association, the Re-
spondent, in its 15 July memo, addressed its strik-
ing employees as "[p]rior employees" even though
economic strikers (including replaced economic
strikers) clearly remain "employees" within the
meaning of Section 2(3) of the Act. 1 Laidlaw Corp.,
171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969). In its memo, the Respondent also invited its
"[p]rior employees" to apply for positions with
new health and retirement plans to be instituted by
the Respondent. These representations in the memo
establish that the Respondent was treating these
employees as prospective new hires, unrepresented
by the Union and subject to the institution of new
terms and conditions of employment as unilaterally
set by the Respondent. The Respondent's intent to
withdraw recognition from the Union is further
manifested in its unlawful unilateral discontinuance
of contributions into the fringe benefit trust funds,
as discussed more fully below.
In certain other respects, the memo further indi-
cates an intent to withdraw recognition from the
Union. Thus, although the memo at first indicates
that the Respondent was terminating its relation-
ship with the Union under the Association agree-
ment; it then adds that further negotiations are pre-
cluded by economic conditions in the industry. We
find it significant that this latter reference to the
discontinuance of negotiations is not limited to the
Respondent's further participation in the Associa-
tion, but is a blanket statement to the effect that
further negotiations would not occur. Arguably,
these statements, standing alone, appear ambiguous;
however, viewed in the context of the Respond-
ent's treating its striking employees as "prior em-
ployees" unrepresented by the Union and its un-
lawful change in their terms and conditions of em-
ployment, these statements are evidence of the Re-
spondent's intent to withdraw recognition from the
Union.
In this context, we agree with the judge's reason-
ing that Cox's subsequent representation to Clap-
saddle at a meeting that the Respondent was going
"open shop" reasonably can be construed to mean
"nonunion," and not merely that the Respondent
7 Although the Judge did not specifically address in the instant case the
implications flowing from the Respondent's memo to employees, in a re-
lated case, Marbro Co., 284 NLRB 1303, issued today the judge did con-
sider the implications m an identical memo to employees and concluded
that some of the language implied that the employer there had with-
drawn not only from the Association but also from further negotiations
with the Union.
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would insist that a union-security clause be ex-
cluded from any negotiated contract.
We find nothing that occurred between the par-
ties during their later meetings to detract from our
conclusion that the Respondent unlawfully with-
drew recognition from the Union. While we note
that Cox asked Clapsaddle if he would change his
position that the Respondent was bound by the As-
sociation agreement and asked other union repre-
sentatives if there was anything else to talk about,
we agree with the judge's finding that these re-
marks are ambiguous. We find, moreover, that
these ambiguous remarks do not show that the Re-
spondent was continuing to recognize the Union as
the collective-bargaining representative of its em-
ployees in light of the other evidence establishing
that the Respondent intended to, and did, with-
draw recognition from the Union. Indeed, we note
that when these statements were made, the Re-
spondent, by its 15 July memo, had already indicat-
ed an intent to change its employees' working con-
ditions without bargaining with the Union.
We also note the Union's failure to request indi-
vidual bargaining at these later meetings and its ad-
herence to its request that the Respondent sign the
Association agreement. Although the Respondent
was not obligated to sign that agreement, we find
that the Union's failure to present other alternatives
cannot be construed to be a disclaimer of its status
as the collective-bargaining representative of the
Respondent's employees. Consequently, the
Union's conduct did not relieve the Respondent of
its obligation to bargain or detract in any way from
the evidence establishing the Respondent's unlaw-
ful withdrawal of recognition from the Union. Ac-
cordingly, as explained above, we find that the Re-
spondent unlawfully withdrew recognition from
the Union in violation of Section 8(a)(5). See Cas-
cade Painting Co., 277 NLRB 926, 929 (1985).8
The judge found that the Respondent violated
Section 8(a)(5) by unilaterally discontinuing contri-
butions to the fringe benefit trust funds after the
parties' collective-bargaining agreement expired on
30 June 1980 and the employees went on strike the
following day. We agree with the judge's finding,
but only to the extent that the Respondent discon-
tinued the contributions on behalf of those of its
8 Contrary to the judge, however, we do not rely, as an element of the
violation, on the Respondent's failure to notify the Union of its willing-
ness to negotiate a separate agreement after its withdrawal from the As-
sociatiOn. See S. Freedman Electric, 256 NLRB 432 (1981). We do note
that Superior Sprinkler, 227 NLRB 204 (1976), relied on by the judge, in-
volves on that issue a set of facts significantly different from those here
and is not support for the broad proposition set out by the judge that an
employer that lawfully withdraws from a multiemployer association must
then affirmatively notify the union of its willingness to bargain separately
or violate Sec. 8(a)(5) for failing to do so
employees who were returning strikers. 8 In this
regard, it is well settled that even in the absence of
impasse, an employer may lawfully change the
terms and conditions of employment for strike re-
placements after a collective-bargaining agreement
terminates. Cap itol-Husting Co., 252 NLRB 43
(1980), enfd. 671 F.2d 237 (7th Cir. 1982); Imperial
Outdoor Advertising, 192 NLRB 1248 (1971), enfd.
470 F.2d 484 (8th Cir. 1972).
Accordingly, we shall modify the judge's recom-
mended remedy for the unlawful unilateral changes
by requiring the Respondent to make the requisite
contributions solely on behalf of those of its em-
ployees who were members of the bargaining unit
at the commencement of the strike and who there-
after worked for the Respondent as returning strik-
ers. We shall further modify the judge's recom-
mended remedy to conform it to the violation
found by requiring the Respondent to make whole
its employees who were returning strikers for any
losses suffered as a result of the unlawful unilateral
changes. David Ashcraft Co., 279 NLRB No. 94
(Apr. 30, 1986).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge, as modified below, and orders that the Re-
spondent, Corson and Gruman Company, Washing-
ton, D.C., its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(c).
"(c) Pay to the appropriate union benefit funds,
in the manner set forth in the remedy section of the
judge's decision, the contributions as required as of
and subsequent to 30 June 1980 on behalf of em-
ployees who were in the bargaining unit on 30
June 1980 and who returned to work thereafter
and make whole such employees for any losses
they may have suffered by reason of the Respond-
ent's unlawful unilateral changes, and continue to
make such contributions until the Respondent ne-
gotiates in good faith with the Union to an agree-
9 Chairman Dotson agrees that the Respondent violated Sec. 8(a)(5) by
urulaterally diScontmuing contributions to the fringe benefit trust funds
on behalf of those of its employees who were returning strikers on or
after 15 July 1980, the date on which the strike was converted to an
unfair labor practice strike He would, however, find no violation in the
Respondent's discontinuing such contnbutions dunng the period of 1 July
to 14 July 1980 when the employees were engaged in an economic strike
In such circumstances, Chairman Dotson would make no distinction be-
tween strike replacements and returning stnkers. In his view, the interests
of returning economic strikers are more closely aligned with those of
strike replacements than those of strikers and, accordingly, an employer
has no greater duty to bargain during the strike over their terms of em-
ployment than it does over those of the strike replacements. See Chair-
man Dotson's position in Service Electric Co., 281 NLRB 623 fn. 1 (1986).
CORSON & GRUMAN CO. 1319
ment or to a good-faith impasse or until the Union
refuses to bargain."
2. Substitute the attached notice for that of the
administrative law judge.
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 ordered us to post and abide by this notice.
WE WILL NOT threaten you with reprisals if they
honor a lawful primary picket line or threaten you
with arrest for engaging in lawful primary picket-
ing.
WE WILL NOT fail to reinstate unfair labor prac-
tice strikers upon their unconditional offer to
return to work.
WE WILL NOT refuse to recognize and bargain
with Local No. 77, International Union of Operat-
ing Engineers, AFL-CIO, as the representative of
our employees in the following unit:
All engineers, branch engineers, operators of
all equipment coming under the craft jurisdic-
tion of the International Union of Operating
Engineers, mechanics, apprentices, maintenan-
cemen, oilers and firemen employed by us.
WE WILL NOT unilaterally cease making contri-
butions to employee benefit trust funds.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed them in Section 7 of
the Act.
WE WILL, on request, bargain collectively with
Local 77, International Union of Operating Engi-
neers, AFL-CIO, as the representative of our em-
ployees in the unit found appropriate above.
WE WILL pay to the appropriate union benefit
funds the cfontributions required as of and subse-
quent to 30 June 1980 on behalf of employees who
were in the bargaining unit on 30 June 1980, and
who returned to work thereafter and make whole
such employees for any losses they may have suf-
fered by reason of our unlawful unilateral changes,
and confining to make such payments until we ne-
gotiate in good faith with the Union to an agree-
ment or to good-faith impasse or until the Union
refuses to bargain.
WE WILL offer James Richard Hamilton immedi-
ate and full, reinstatement to his former job, or to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges previ-
ously enjoyed, and WE WILL make him whole for
any loss of earnings he may have suffered as a
result of our discrimination against him.
CORSON AND GRUMAN COMPANY
Nelson A. Levin, Esq., for the General Counsel.
John William Mannix, Esq., and Patrick J. McArdle, Esq.,
of Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
The charge herein was filed on September 5, 1980,' by
Local 77, International Union of Operating Engineers,
AFL-CIO (the Union) against Corson and Gruman
Company (Respondent). On October 22, the complaint
was issued alleging, in substance, that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by its untimely
withdrawal from a multiemployer association during the
association's negotiations with the Union and statements
to the Union and to employees that it would not be
bound by any agreement negotiated between the associa-
tion and the Union, withdrawing recognition from the
Union as the exclusive collective-bargaining representa-
tive of Respondent's employees in an appropriate unit,
and unilaterally discontinuing payment of contributions
to fringe benefit trust funds; that Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to reinstate
an employee who had engaged in a lawful strike; and
that Respondent independently violated Section 8(a)(1)
of the Act by various conduct that interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed them in Section 7 of the Act. Respond-
ent filed an answer in which it denied the commission of
any unfair labor practices.
A hearing was held before me in Washington, D.C.,
on August 10-12 and 17-20, 1981. Following the hearing
the General Counsel and Respondent filed briefs, which
have been considered.
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is a District of Columbia corporation en-
gaged in underground construction from its Washington,
D.C., location. During the 12-month period preceding
the issuance of the complaint, a representative period,
Respondent, in the course and conduct of its business op-
erations, purchased and received, in interstate commerce,
materials and supplies valued in excess of $50,000 direct-
ly from points located outside the District of Columbia.
The answer admits and I find that Respondent is an em-
ployer engaged in commerce within the meaning of the
1 All dates herein are 1980 otherwise stated.
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act, and I find that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The answer alleges that Respondent is without suffi-
cient information to admit or deny the complaint allega-
tion that the Union is a labor organization within the
meaning of the Act. Jack R. Clapsaddle, the Union's
business manager and vice president, credibly testified
that mechanics and operators of heavy equipment em-
ployed by contractors are members of and particpate in
the organization and that it exists for the purpose of bar-
gaining collectively with employers concerning the
wages, hours, working conditions, and fringe benefits of
these employees. I therefore find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(5) and (1) Violations
1. Background
Respondent is a paving and underground utility con-
tractor and performs work in the District of Columbia,
Maryland, and Virginia. Respondent's paving and under-
ground utility operations are in separate divisions; the
operating engineers in the underground utility division
have been represented by the Union for an unspecified
number of years while employees in the paving division
are represented by the D.C. Paving Council, a joint
union council comprised of several construction craft
unions including the Union.
Until 1978; Respondent signed memorandums of agree-
ment with the Union covering the underground utility
division employees. These memorandums of agreement
were addenda to the collective-bargaining agreements
between the Union and the Construction Contractors
Council Inc., a group of contractors engaged in heavy
construction work. In 1977 or 1978, there was a strike,
apparently for the first time in at least 20 years, and as a
result the underground utility industry entered into sepa-
rate negotiations with the Union, and Respondent exe-
cuted a separate memorandum of understanding with the
Union effective August 4, 1978, This memorandum pro-
vided that the underground utility contractors and the
Union would negotiate and execute a collective-bargain-
ing agreement separate from that of the Construction
Contractors Council and that Respondent would be
bound by that contract. On November 27, 1979, the Un-
derground Utility Contractors Association of Maryland,
the District of Columbia and Virginia (the Association),
entered into an agreement (the 1979 contract) with the
Union effective until June 30. Respondent was not a
member of the Association but was bound by the terms
of that contract pursuant to the 1978 memorandum of
understanding.
On March 17, Union Business Manager Jack R. Clap-
saddle wrote to the four then members of the Associa-
tion 2 advising them of the Union's intention to reopen
the contract for modification. On April 23, John William
Mannix, counsel for the Association, responded and re-
quested a list of all contractors who had signed either
the 1978 memorandum of understanding or the 1979 con-
tract. On April 24, Clapsaddle sent Mannix a list of 23
contractors who had been notified of the intention to
reopen the contract, including Respondent. Mannix then
wrote to the contractors listed in Clapsaddle's letter and
invited them to a meeting of the Association and to
become members.
A meeting was held on June 3 and attended by repre-
sentatives of Respondent, Foster Trenching, J. A. La-
Porte, Inc. (LaPorte), San-Dot, Inc., Marbro, Stokely
Contracting, and A. J. Ellis Construction Company Inc.
(A. J. Ellis), all of whom joined the Association. 3 The
contractors discussed a set of proposed bylaws drafted
by Mannix4 and possible proposals to be made to the
Union, and authorized Mannix to act as the Association's
sole bargaining agent in the negotiations.
By letter dated June 3, Mannix advised Clapsaddle
which contractors were members of the Association and
suggested that Clapsaddle contact him to set a date to
begin negotiations. Upon receiving this letter Clapsaddle
telephoned Mannix and a meeting was scheduled for
June 12. At that meeting Mannix gave Clapsaddle a copy
of a written authorization, dated June 11, that he had re-
ceived from the members of the Association to negotiate
on their behalf, and the parties exchanged their initial
proposals. The Association's initial proposal did not in-
clude any provision for changing the wage rate or the
fringe benefit contribution rate but did propose making
fringe benefit contributions on the basis of hours actually
worked rather than on the basis in the 1979 contract of
"compensable hours of wages paid." The parties met
again on June 18, at which time both sides 3 responded to
the proposals proffered at the June 12 meeting, but no
agreement was reached. There was another meeting on
June 24; toward the end of the session, according to
Clapsaddle, Mannix said that the Association members
could not afford the increases in wages and fringe bene-
fits proposed by the Union and Kaiser requested an audit
of the Association members' books. On June 25, Clapsad-
dle wrote to the members of the Association stating that
Mannix had said that the Association offer was final and
that inasmuch as the Union could not accept that offer
"we are clearly at impasse." The letter further demanded
the right to audit the books of the Association members
2 Marbro Company, Inc (Marbro), J D. Stokely Contracting Compa-
ny (herein Stokely Contracting), D. A. Foster Trenching Company
(Foster Trenching), and Ventresca & Sons, Inc
3 It is not clear from the record whether representatives of Ventresca
& Sons, Inc., also attended, in any event that company did not retain its
membership in the Association or take part in the Association's subse-
quent negotiations with the Union.
4 Although it appears that the bylaws were not formally adopted they
were followed
5 At the bargaining sessions the Union was represented by Clapsaddle
and vanous business agents or representatives and, at some of the meet-
ings, by one of the Union's attorneys, Henry Kaiser. The Association was
represented by Manmx and sometimes an associate from his firm No
principals of any of the members of the Association attended any of the
negotiation sessions
CORSON & GRUMAN CO. 1321
in light of the claimed inability to pay the amounts pro-
posed by the Union. In response to this letter Mannix
sent a telegram dated June 26 rejecting the Union's
demand for an audit "since no proper basis whatsoever
exists for such a request." Also on June 26 San-Dot, Inc.,
sent a letter to Clapsaddle stating that it was withdraw-
ing "from any further contact with Local 77 IUOE or its
members effective 12 midnight June 30, 1980." San-Dot,
Inc., did not participate further in the negotiations.° No
further negotiations were held prior to the expiration of
the contract on June 30. 7 However, Mannix sent a tele-
gram dated June 30 to Clapsaddle, which read in perti-
nent part as follows:
The contractors comprising the [Association] have
met this date and request herewith that [the Union]
make a proposal which would break the inpasse
[sic] which Local 77 declared in the negotiations
between the parties on Tuesday June 24 1980. If so
please inform the undersign [sic] of any such pro-
posal forthwith.
Apparently, the Union did not reply to this telegram.
The strike began July 1.
2. Negotiations during the strike; the Union's
dealings with individual contractors
The Union initially struck all seven of the contractors
who had been association members as of June 3 and also
many of the other 16 contractors who had been party to
the expired contract.° During the strike the Union signed
written interim agreements with six of the contractors
who had been bound by the 1979 contract, including
A. J. Ellis, a member of the Association.° All of these
interim agreements provided that the contractors would
continue to pay the wage rates and abide by the other
terms and conditions of the expired contract and that the
contractors would pay whatever new rates were negoti-
ated retroative from July 1. The interim arguments also
provided an increase in fringe benefits of 23 cents per
compensable hour to the health and welfare fund and 13
cents per compensable hour to the pension fund.
On July 7, Mannix sent a mailgram to Clapsaddle with
the following text:
The [Association] reiterates its bargaining position.
We are willing to exceed [sic] to a break in the im-
6 Although Clapsaddle testified that the Union felt that San-Dot, Inc.,
was nonetheless bound by the Association agreement, it does not appear
from this record that San-Dot, Inc , ever executed the agreement ulti-
mately negotiatea or that any unfair labor practice charges involving
San-Dot, Inc., were filed.
7 Clapsaddle testified that a meeting with a Federal mediator was
scheduled for June 27 but that, although he, another representative of the
Union, and one of the Union's attorneys went to the mediator's office at
the appointed time, no one from the Association came.
a Clapsaddle testified that seven contractors who had been parties to
the 1979 contract were not struck because they had no work in the geo-
graphical area under the Union's jurisdiction. Clapsaddle further testified
that two other contractors were not struck because they had verbally
agreed to pay retroactively whatever the eventual Association contract
provided.
9 It appears that after signing the interim agreement on or about July
7, A. J. Ellis did not actively participate in the Association's negotiations.
passe declared by the Union provided your Union is
willing to bargain in good faith and provided that a
cooling off period be commenced immediately
whereby all employees shall return to work at the
regular time on Tuesday, July 8, 1980, and bargain-
ing be commenced immediately until a collective-
bargaining accord is reached.
In consequence, the negotiators met that day and the
Union asked for a 60-cent increase in fringe benefit con-
tributions spread out over a 2-year period. The Associa-
tion offered a 50-cent increase over the same period.
Also during this week, apparently on or about July 9,
Union Business Agent Paul Peacock met with Neil Mac-
Donald, vice president of LaPorte, and requested him to
sign an interim agreement. It is undisputed that MacDon-
ald told Peacock that Mannix was the Association nego-
tiator and the Union would have to go through him
Peacock and another business agent for the Union also
visited J. D. Stokely, the president and owner of Stokely
Contracting, and asked him to sit in on the negotiating
sessions and to sign an interim agreement. Stokely de-
clined to do either.
On July 8, Manna wrote to Clapsaddle reiterating the
offer of July 7 10 and stating that the contractors had re-
jected the Union's offer presented at the July 7 meeting.
The letter also stated, "please indicate by call or tele-
gram if you will formally communicate the above offer
of the Contractors to the membership of the bargaining
unit, namely, those employees of the six companies com-
prising the Contractors Association. Please indicate fur-
ther the time and date of any such meeting." Clapsaddle
replied by mailgram dated July 10, in which he rejected
the contractors' offer, reiterated the demand for an audit
of the Association members' books, and further stated,
"Finally, as to your request that we communicate your
offer to our members, how, when, and what we commu-
nicate to our members is none of your concern."
The members of the Association had been meeting
with Mannix regularly during the negotiations. 11 On
Friday, July 11, the contractors met with Mannix and,
apparently under the impression that the Union was
going to have a membership meeting that night, decided
to meet again the next Monday.
3. The Association meetings of July 14 and 15;
Respondent and Marbro withdraw from the
Association
On July 14, representatives of the five remaining
active members of the Association (Marbro, LaPorte,
Stokely Contracting, Foster Trenching, and Respondent)
met with Mannix at Respondent's offices. They discussed
This offer was for a 45-cent-per-hour wage increase and 10-cent-per-
hour increases in the health and welfare and pension contributions effec-
tive upon settlement of the strike, and a 35-cent-per-hour wage Increase
and 15-cent-per-hour increase in the health and welfare and pension con-
tributions effective July 1, 1981, with no fringe payments for holidays
and all other terms and conditions of the 1979 contract to remain in
effect.
11 As MacDonald credibly testified when asked if the contractors met
"from time to time:" "It seems like we met interminably It never ended
'From time to time' would be an understatement."
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the fact that there had been no developments over the
weekend and whether the Association was willing to
offer more than it had previously, but did not discuss any
specific proposals. D. A. Foster, the principal of Foster
Trenching, suggested that they wait another 24 hours
and meet again and the other contractors acquiesced in
the suggestion. Accordingly, another meeting was sched-
uled for the morning of Tuesday, July 15, again at Re-
spondent's offices.
The next morning, William Gruman Cox, Respond-
ent's vice president in charge of its water and sewer divi-
sion, Rosario Marinucci, the president of Marbro, James
Fitzpatrick, vice president of Marbro, Neil MacDonald,
the vice president of LaPorte, and J. D. Stokely, the
owner and president of Stokely Contracting, met again
with Mannix Someone asked where Foster was since he
had not arrived yet and it was at his insistence that the
meeting had been scheduled, and at that point Stokely
said that Foster had asked him to stop by his office that
morning and pick up a letter because Foster would not
be at the meeting. The letter that Stokely handed around
to the participants in the meeting was addressed to Sto-
kely and signed by Foster and read, in substance, as fol-
lows:
It is my understanding that the union will agree
to wage increases as follows:
1. NOW .50 Wages
.10 Health & Welfare
.10 Pension
2. 1/15/81 .05 Health & Welfare
.05 Pension
3. 7/15/81 .50 Wages
.02 Health & Welfare
.10 Pension
The work week provision changes to 6 A.M. to 4
P.M. Monday thru Friday.
Clarify the 40 hour per week, guaranty with 32
hours for 3 months.
This is acceptable to D. A. Foster Trenching
Company and I hope you see it this way also, so
that everyone can go back to work.
Stokely told the other contractors that it was his under-
standing that Foster's employees had gone back to work
and that this letter represented an agreement that Foster
had reached with the Union.
There can be no question that Foster's letter caused
considerable consternation among the contractors. 12 As
the consequences of Foster's agreement with the Union
were discussed among the remaining four active mem-
bers of the Association and Mannix, it became clear that
Stokely Contracting's and LaPorte's interests were at
variance from those of Marbro and Respondent. La-
Porte, Stokely Contracting, and Foster Trenching were
all headquartered in Virginia and were primarily en-
12 As Cox credibly testified, the letter and Stokely's explanation of it
had a "devastating effect" because the contractors had been negotiating
as a unit up until this point and then, having scheduled a meeting at Fos-
ter's request, were faced with Foster's negotiation of a separate agree-
ment.
gaged in working on natural gas pipelines for Washing-
ton Gas Light Company." At the time of the events at
issue here, Washington Gas Light Company had just
lifted a long moratorium on gas construction work and
was pressuring contractors to get this work performed.
According to Stokely's credible testimony, both Stokely
Contracting and LaPorte were concerned that their
equipment was idle and their employees were out on
strike while competitors who had signed interim agree-
ments were performing this work. Respondent and
Marbro, however, were in a different position. Those
companies performed primarily sewer and water main
construction and this industry was depressed in the
Washington, D.C., area in the summer of 1980. Appar-
ently, Respondent and Marbro were not direct competi-
tors of Foster Trenching and thus the adverse impact of
Foster's employees returning to work would not be as
severe for Marbro and Respondent as it would be for
Stokely Contracting and LaPorte. Consequently, as the
meeting progessed it became clear that Respondent's and
Marbro's interests diverged from those of Stokely Con-
tracting and LaPorte because the representatives of the
latter two firms took the position that they were forced
to meet the terms to which Foster and the Union had
agreed, while Marinucci and Cox took the position that
they could not meet the financial terms of that agree-
ment. In consequence, Marimicci and Cox asked the per-
mission of the other contractors to withdraw from the
Association and the other members consented; these ac-
tions with respect to Respondent were memorialized in a
document that read as follows:
TO THE UNDERGROUND UTILITY CONTRACTORS' AS-
SOCIATION OF MARYLAND, THE DISTRICT OF COLUM-
BIA, AND VIRGINIA
Please be informed that, effective immediately,
Corson and Gruman Company hereby withdraws
from the Underground Utility Contractors' Associa-
tion and shall no longer be represented by same.
Henceforth, Corson and Gruman Company shall
make no representations as a member of the Asso-
ciation nor shall it speak on behalf of the Associa-
tion or its individual members.
Corson and Gruman Company
10:00 a.m., July 15, 1980
By: /s/ William G. Cox
William G. Cox, Vice President
ACCEPTED:
THE UNDERGROUND UTILITY CONTRACTORS'
ASSOCIATION OF MARYLAND, THE DISTRICT
OF COLUMBIA, AND VIRGINIA
By: /s/ J. D. Stokely J. D. Stokely, President, J. D.
Stokely Contracting Company
13 It appears that work with natural gas pipelines requires special train-
ing and certification by the utility company of employees who perform
that work. Thus, there is a tendency for contractors to either specialize in
gas work or not do it at all
CORSON & GRUMAN CO. 1323
By: In Neil MacDonald
Neil MacDonald, Vice President, J. A. LaPorte,
Inc.
A similar document was prepared indicating Marbro's
withdrawal from the Association. Following the formal
withdrawal of Respondent and Marbro, Cox and Marin-
ucci left the meeting. Stokely and MacDonald remained
at the meeting with Mannix and eventually worked out a
proposal with terms similar to those in the agreement be-
tween Foster and the Union. 14 This offer was communi-
cated to the Union by a letter from Mannix dated July
15 and apparently hand delivered to the Union, in which
Mannix also advised the Union that Respondent and
Marbro had withdrawn from the Association recog-
nition of the existing impasse" and "are restaffing." Clap-
saddle replied via a hand-delivered letter dated July 17 in
which he accepted the offer and advised that he would
instruct the employees to return to work the next morn-
ing, and that he would recommend ratification at a union
meeting to be held on July 22. Clapsaddle also wrote a
letter dated July 18 advising all of the contractors who
had been signatory to the 1979 agreement that a new
contract had been negotiated and that it would be sub-
mitted to the Union's members for ratification.
4. Respondent's conduct subsequent to its
withdrawal from the Association
On July 15, having received notice of Respondent's
withdrawal from the Association, Clapsaddle telephoned
Cox and asked what was meant by the withdrawal
notice; Cox indicated that Respondent had withdrawn
from the Association and would not be party to any fur-
ther negotiations with the Association. Clapsaddle asked
whether Respondent was going nonunion and Cox said
that Respondent "had withdrawn from negotiations [and
was] restaffing." 16 Clapsaddle did not in that conversa-
tion offer to bargain separately with Respondent. Also
on July 15, Cox signed a memorandum which read, in
pertinent part, as follows:16
To All Prior Employees of Corson & Gruman
Company Striking Under Local 77, I.U.O.E.,
Sewer, Water, and Gas Agreement
Gentlemen:
Effective this date Corson & Gruman Company
and Marbro Company, Inc. have withdrawn from
the Underground Utility Contractors Association of
Maryland, D.C., and Virginia and will no longer be
a party to any agreements between the U.U.C.A.
and Local 77, I.U.O.E. This action is a result of the
impasse created when the Union rejected the Asso-
The Association offer proposed a renewal of the 1979 contract with
no changes except for the increase in wages and fnnge benefit contribu-
tions to which Foster had agreed It did not provide for the change in
workweek or the workweek guarantee to which Foster had also agreed.
15 This finding is based on the credited testimony of Cox; Clapsaddle
did not testify about this conversation
" Although the document is dated July 14, Cox credibly testified that
this date was a typographical error and that the memorandum was pre-
pared July 15.
elation's offer of July 7, 1980 in their telegram of
July 10, 1980.
It is with great reluctance that we must terminate
our long standing relationship with Local 77,
I.U.O.E. in the Sewer, Water, and Gas Agreement.
However, the severe economic conditions that exist
in our industry today preclude the continuation of
further negotiations.
Effective immediately Corson & Gruman Compa-
ny will begin to restaff all open positions. Prior em-
ployees are welcome to apply for remaining posi-
tions but do so with the understanding that no fur-
ther relationship will be maintained with Local 77,
I.U.O.E. under the Sewer, Water, and Gas Agree-
ment. As soon as possible, the company will insti-
tute hospitalization and retirement programs for
those employees not covered under an existing col-
lective-bargaining agreement. Details will be forth-
coming.
Finally, for those prior employees who choose to
seek employment elsewhere, I would like to express
management's sincere appreciation of the effort and
high level of commitment that you have brought to
your jobs and to Corson & Gruman. It has been my
personal pleasure to work with you throughout
these past 12 years and your professionalism will be
sorely missed I harbor no grudges in your collec-
tive decision to strike for better wages and only
regret that a mutually agreeable settlement could
not have been reached. Best wishes in your future
employment.
Sincerely,
Corson and Gruman Company
/s/ William a Cox
William G. Cox
Vice President
On July 18, Clapsaddle sent Respondent two telegrams.
The first contained the following text
On behalf of and as representative of all striking
employees, we hereby and unconditionally request
immediate reinstatement. Please advise the under-
signed of your response in writing as quickly as
possible.
The second read as follows:
Your reported withdrawal from the Underground
Contractors Association is illegal and ineffectual.
Since that unlawful act we have reached agreement
with the Association. Under applicable law you are
bound to the terms of the Association agreement_
Please advise the undersigned immediately and in
writing of your intention to comply with your legal
obligations or we will take appropriate legal action.
This demand does not affect my earlier request for
reinstatement of all strikers [sici that request was
unconditional.
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated July 22, Cox advised CIapsaddIe that
Respondent did not accept the Union's position as to Re-
spondent's withdrawal from the Association.
Cox credibly testified that on July 16 or 17 Marvin
Ausler, a union business representative, asked him what
had happened, and that Cox replied that Respondent had
withdrawn from the Association and was , restaffing.
Clapsaddle testified that he talked to Cox on July 23 and
asked him to sign the Association agreement, but Cox re-
plied that he had made up his mind and was going "open
shop." Cox testified that in that conversation he told
Clapsaddle that Respondent had withdrawn from the As-
sociation and was "restaffing," but Cox was not asked at
the hearing specifically whether he had said that Re-
spondent was going to operate as an open shop. I credit
Clapsaddle on this point, and I find that Cox told him
that he would go "open shop." According to Clapsaddle,
Cox asked him if he would "change [his] position," pre-
sumably referring to the Union's view that Respondent
was bound by the agreement negotiated by the Union
and the Association. 17 It is undisputed that Clapsaddle
did not offer in that conversation to negotiate a contract
for Respondent's employees separately.
By letter dated July 24 and addressed to James Bran-
son, executive vice president of Respondent, Clapsaddle
advised that the agreement reached between the Union
and the Association had been ratified. Thereafter, in late
July or early August, Peacock and Union Representa-
tives Wyatt and Garrett went to Cox's office and talked
with him for about an hour. They asked Cox to sign the
Association agreement and Cox replied that he had com-
municated Respondent's position that it had withdrawn
from the Association and that he could not sign the
agreement. Cox asked if there was anything else to talk
about and the union representatives said that they had no
authority to talk about anything other than the Associa-
tion agreement. is It is undisputed that the union repre-
sentatives did not offer to discuss any terms other than
those negotiated by the Association with the Union, and
Cox did not request separate negotiations for a contract
covering Respondent's own employees. Respondent has
not, as far as this record shows, ever executed the con-
tract embodying the agreement negotiated between the
Union and the Association in July.
5. Analysis and conclusions
a. The appropriate bargaining unit
The complaint, as amended at the hearing, alleges that
the appropriate collective-bargaining unit consists of "en-
gineers, branch engineers, operators of all equipment
coming under the craft jurisdiction of the International
Union of Operating Engineers, mechanics, maintenance
men, apprentices, oilers, and firemen employed by the
Employers who are bound by the collective-bargaining
agreement negotiated by the Association."
The reference to the unit as comprised of employees
of "Employers who are bound by the collective-bargain-
17 Cox was not asked whether he had made such a query.
18 I credit Cox's testimony, which is substantially corroborated by that
of Peacock, as to what occurred in this conversation
ing agreement negotiated by the Association" is some-
what vague, even without taking into consideration that
the question of whether Respondent was bound by the
1980 agreement is a central issue in this case. However,
the General Counsel clarified his position at the hearing
to contend that the appropriate unit is employees in the
classifications listed above who are employed by the
seven contractors who formed the Association as of June
3, i.e., Respondent, A. J. Ellis, Foster Trenching, La-
Porte, Marbro, San-Dot, Inc., and Stokely Contracting.
Respondent, on the other hand, contends that the appro-
priate bargaining unit is comprised of all employees (in
the classifications listed in the amended complaint) of all
of the 23 contractors who were bound by the 1979 con-
tract. The record establishes and it is essentially undis-
puted that at all material times the Union represented a
majority of employees in either unit.
The General Counsel cites Ruan Transport Corp., 234
NLRB 241 (1978), for the proposition that a multiem-
ployer bargaining unit is consensual in nature; therefore,
an employer that adopts a multiemployer collective-bar-
gaining agreement but did not participate in its negotia-
tion does not become a member of the multiemployer
unit merely because the agreement provides that all em-
ployees under its coverage constitute one bargaining
unit. In the instant case, there is no evidence that any of
the contractors (other than those who explicitly joined
the Association in June) who were parties to the 1979
agreement, all of whom were invited by Mannix to join
the Association prior to the commencement of negotia-
tions in 1980, clearly expressed an intent to be part of a
multiemployer unit. As the Board said in Ruan Transport,
supra:
[W]e find that something in addition to a mere im-
plied' delegation of authority is needed in order to
constitute clear evidence of an unequivocal intent on
the part of an employer to be bound by group bar-
gaining."
The June 11 letter from the Association members
naming Mannix as the Association negotiator specified
that Mannix was authorized "to negotiate on behalf of
the association and on behalf of each company listed
below on any and all negotiations on the renewal of the
Agreement between the [Association] and [the Union];"
there is no evidence that any of the other contractors
who had signed the 1979 contract gave similar authority
to Mannix to negotiate on their behalf. I therefore find
that this document establishes a multiemployer group
comprised of the seven contractors who as of June 11
comprised the Association.
Further, and significantly, Mannix's July 8 letter to
Clapsaddle in which he notified Clapsaddle that the As-
sociation had rejected the Union's offer of July 7 specifi-
cally referred to "the membership of the bargaining unit,
namely, those employees of the six companies comprising
the Contractors' Association." Thus, although Respond-
ent contends that the bargaining unit consisted of all 23
contractors who had signed the 1979 agreement, Man-
so 234 NLRB at 242.
CORSON & GRUMAN CO 1325
nix's own words establish that as of July 8 the unit was
considered to be comprised of the employees of the
members of the Association as of that time, i.e., the origi-
nal seven contractors minus San-Dot, Inc. 20 According-
ly, I find that the appropriate unit was comprised of em-
ployees in the classifications listed above who were em-
ployed by members of the Association, and that as of
July when the strike began, there were six contractors
in the Association; Respondent, Foster Trenching, Stoke-
ly Contracting, Marbro, LaPorte, and A. J. Ellis.
b. Respondent's withdrawal from the Association and
refusal to execute the collective-bargaining agreement
between the Association and the Union
The complaint alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by withdrawing from the
Association and stating to the Union and to its employ-
ees that it would not be bound by any agreement negoti-
ated by the Association and the Union, and by refusing
to honor the terms of the agreement negotiated subse-
quent to Respondent's withdrawal. As the General
Counsel contends, an employer's withdrawal from multi-
employer bargaining without the consent of the union
that represents its employees is untimely once negotia-
tions have commenced and may be justified only by "un-
usual circumstances." This standard has long been ap-
plied by the Board and was recently approved by the
Supreme Court of the United States." The General
Counsel contends that no "unusual circumstances"
within the meaning of Board decisions existed in this
case and that therefore Respondent's withdrawal from
the Association was not privileged and Respondent was
bound by the agreement subsequently negotiated be-
tween the Association and the Union. Respondent con-
tends, on the other hand, that its withdrawal was privi-
leged because (1) an impasse existed at the time of the
withdrawal; (2) the Union had negotiated interim agree-
ments with various contractors in the industry, including
A. J Ellis, a member of the Association; (3) the Union
had refused to recogmze Mannix as the designated repre-
sentative of the contractors; and (4) the Union had nego-
tiated a separate final agreement with Foster Trenching,
which caused the bargaining unit to be fragmented.
1. The impasse issue
In Bonanno Linen Service, supra, the Supreme Court
upheld the Board's view that impasse alone does not jus-
tify an employer's unilateral withdrawal from multiem-
ployer bargaining. In any event, as discussed above, al-
though the Union declared an impasse in its June 25
letter to members of the Association, the parties in fact
met again on July 7 and at that meeting both sides modi-
fied their proposals. The Union's telegram of July 10 re-
jected the Association's July 7 offer but specifically
stated that the Union "will prepare to meet any time and
any place in an effort to negotiate a contract. We contin-
20 Thus, Manna's letter also demonstrates that the Association had ac-
quiesced to the withdrawal of San-Dot, Inc , from the Association
" Charles D. Bonanno Linen Service, 454 U.S. 404 (1982) The Court
Issued its decision about a month after briefs were filed in the instant
case.
ue to be willing to meet any time at any place with or
without a mediator from the FMCS." In these circum-
stances, and in view of the fact that there were only four
negotiation sessions prior to July 15, when Respondent
withdrew from the Association, I conclude that there
was no impasse at that time.22
2. The interim agreements
Respondent contends that the interim agreements ne-
gotiated by the Union with contractors who are not
members of the Association and with A. J. Ellis caused
the Association to lose its viability as a bargaining entity
and that therefore the withdrawal of Respondent was
privileged. The Board has taken the position that the ne-
gotiation of an interim agreement that binds an employer
of a multiemployer group to the contract ultimately ne-
gotiated between the group and the Union is not incon-
sistent with group bargaining and thus does not consti-
tute an unusual circumstance justifying the withdrawal
from the group of other employers."
Having found that the unit was comprised of employ-
ees of the six contractors who continued as members of
the Association after the strike began, I find that the
Union's efforts to negotiate interim agreements with
those contractors who were not members of the Associa-
tion have no relevance to this proceeding. And, although
the Union also executed an interim agreement with A, J.
Ellis, in light of the principles stated above such an
agreement did not constitute unusual circumstances justi-
fying Respondent's withdrawal from the Association.
22 The General Counsel asserts in his brief that with respect to the
question of whether the negotiations were at impasse as of July 15, an
adverse inference should be drawn from the failure of Mannix to testify
At the hearing, the General Counsel, who had previously had a subpoena
served on Manna, called him as a witness Maniux refused to testify on
grounds that to do so would violate the attorney-client privilege, and the
General Counsel stated that he would introduce his case through second-
ary evidence if necessary and would move at the appropriate time that
any evidence relating to Mannix's conduct during the time period at issue
be stricken Later in the hearing, at a pomt when the General Counsel
was ready to rest his case, I advised the parties that I had concluded that
Manna's refusal to testify was not protected by the attorney-client privi-
lege The General Counsel then, although refusing to call Manna again
as a witness, requested that I draw an adverse inference from his failure
to testify on grounds that because of Manna's initial refusal to testify the
General Counsel was required to modify his manner of presenting his
case. I declined to draw an adverse inference, with leave to the General
Counsel to renew his request m his brief
I adhere to my ruling. Although I explicitly stated at the hearing that
in my view Mannix could be required to testify pursuant to subpoena, the
General Counsel refused to call him as a witness but did not demonstrate
specifically how he was prejudiced by my requirement that he again call
Mannix to testify Further, in Marbro Co., Case 5-CA-12572, which was
heard following the closing of the hearing in the instant case and in-
volves identical allegations of violations of Sec 8(a)(5) and (1) to those of
the instant case arising out of similar events, and in which my Decision
also issues today, the General Counsel, although on notice as to my
views regarding Mannix's obligation to testify pursuant to subpoena, did
not call him as a witness In these circumstances I find that no adVerse
inference from Mannix's failure to testify is warranted In any event, an
adverse inference is not necessary in order to make the finding that at the
time of Respondent's withdrawal from the Association no Impasse exist-
ed
23 Teamsters Local 378 (Capitol Chevrolet Co), 243 NLRB 1086, fn 1
(1979). This position was cited with approval by the Supreme Court in
Bonanno Linen Service, supra.
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The alleged refusal to recognize the contractors'
representative
Respondent contends that by negotiating interim
agreements with some contractors, negotiating a separate
final agreement with Foster, the action of union officials
in contacting MacDonald and Stokely to discuss the ne-
gotiations and asking Stokely to participate personally in
them, and by a meeting on July 10 of union trustees of
the fringe benefit trust funds with contractors who were
not members of the Association, the Union demonstrated
a refusal to recognize the Association as the bargaining
representative of and Manna as the negotiator for the
contractors. In addition, Respondent points to Stokely's
testimony that during conversations with Peacock, when
Stokely referred to Mannix as the Association's negotia-
tor, Peacock said, "Where won't be any contracts with
Local 77 until you get rid of that damn lawyer." I credit
Stokely's testimony that Peacock made this statement.24
There are cases in which the Board has found that a
union intentionally undermined the integrity of a multi-
employer bargaining unit and that in these circumstances
the withdrawal from the group of individual employers
was justified.25 However, the union officials' discussions
with Stokely and MacDonald, Peacock's statement to
Stokely that there would be no contract as long as
Mannix remained the negotiator, and Peacock's request
that Stokely personally attend the negotiation sessions,
while not particularly admirable, do not constitute con-
duct that can fairly be said to undermine the integrity of
the Association. I further conclude that this conduct,
considered in conjunction with the negotiation of interim
agreements with various contractors, is still insufficient
to warrant a fmding that the Union intentionally under-
mined the integrity of the Association and/or refused to
recognize Mannix as the Association's negotiator.26
4. The Union's agreement with Foster Trenching
As described above, the record establishes that at the
July 15 meeting Foster's letter split the other four con-
24 Peacock testified that he did not think that he had made this state-
ment to Stokely. Regardless of what Peacock thinks he said, I credit Sto-
kely, who was both a more disinterested witness and a more candid one
than Peacock, and I find that the statement was made.
25 See, e.g., Typographic Service Go, 238 NLRB 1565 (1978)
26 It is undisputed that on or about July 10 there was a meeting attend-
ed by representatives of two contractors who had been parties to the
1979 agreement but were not members of the Association during the 1980
negotiations, the administrator of the trust funds, the union trustees of the
fringe benefit funds, and Peter J Ellis, an employer trustee, and that the
subject of the meeting was whether the contributions from the under-
ground utility contractors were adequate to sustain the level of benefits
paid to their employees. Ellis credibly testified that he viewed the meet-
ing as a negotiation session and objected to being called to attend it
Respondent contends that the Union, by conducting negotiations in this
manner with contractors who were not members of the Association but
whose employees were included, in the bargaining urnt, refused to bargain
with the representative of the employers and thus bargained in bad faith.
However, inasmuch as the July 10 meeting did not include Association
members, it did not serve to undermine the integrity of the Association. I
am mmdful, in so finding, that Stokely and MacDonald were invited to
that meeting; however, they did not attend, nor did any other representa-
tive of contractors who were members of the Association, and there is no
evidence that the events of that meeting had any impact whatsoever on
the Association or the course of bargaining. Accordingly, I find no merit
to Respondent's contention.
tractors into two factions whose interests were diametri-
cally opposed: Stokely and MacDonald were anxious to
settle, even if it required meeting the terms to which
Foster had agreed, so that they could put their employ-
ees back to work and minimize the adverse consequences
of Foster's reaching an accommodation with the Union
before they did. Cox and Marinucci, on the other hand,
were not as concerned about the consequences of Foster
Trenching's employees going back to work because they
were not in direct competition with that Company, but
were concerned because they could not afford to pay the
wages and fringe benefits to which Foster had agreed.
Consequently, when it became clear that Stokely and
MacDonald saw no alternative to offering the Union es-
sentially the same terms as those negotiated by Foster,
Respondent and Marbro withdrew from the Associa-
tion. 2 7
The General Counsel contends that the separate and
final agreement negotiated by Foster Trenching 28 did
not constitute unusual circumstances sufficient to justify
Respondent's withdrawal from the Association because
(1) Foster Trenching accounted only for 18 of the 157
employees in the unit; 29 (2) it is undisputed that Foster
Trenching initiated the contract with the Union by in-
forming it on July 14 that the company had withdrawn
from the Association, and (3) the only reason proffered
by Respondent for its withdrawal from the Association
was the alleged impasse. In support of his position the
General Counsel cites as his principal authorities, Tobey
Fine Papers, 245 NLRB 1393 (1973), enfd. on other
grounds 659 F.2d 841 (8th Cir. 1981); and Birkenwald
Distributing Co., 243 NLRB 1151 (1979), enf. denied sub
nom. Seattle Auto Glass v. NLRB 634 F.2d 1332 (9th Cir.
1982). In Tobey Fine Papers, the multiemployer group
was comprised of 14 employers who together employed
approximately 130 employees. A strike began about 2-
1/2 weeks after the union rejected the association's final
offer and 2 days after the commencement of the strike
one of the employers withdrew from the association with
the union's consent and subsequently negotiated a sepa-
rate contract with the union covering the employer's 12
27 It is undisputed that within the Association each contractor had one
vote. Thus, as there were four active members represented at the July 15
meeting, a vote would simply have deadlocked the group. The General
Counsel contends that it is fallacious to assume that there were only four
Association members at that time. However, San-Dot, Inc, had with-
drawn from the Association in June, and Mannix's July 8 letter makes it
clear that the Association considered that contractor no longer to be a
participant in the negotiations. Further, although A. J. Ellis had signed
only an interim agreement, it appears from the record that thereafter
A. J. Ellis did not further participate in the negotiations. It is therefore
reasonable that the four remaining active members of the Association as-
sumed that a decision as to what action the Association should take in
the wake of Fostees agreement was up to them.
28 There is no contention or evidence that this was merely an interim
agreement, and it appears from the face of Foster's letter to Stokely that
the agreement was a separate and final one.
29 According to the General Counsel, as of June 1980 LaPorte had 40
employees, Stokely Contracting had 29, Marbro had 23, A. J. Ellis had
13, and Respondent had 27. The General Counsel also includes 6 employ-
ees of San-Dot, Inc., to bring the total to 157 My review of the record
indicates that Stokely Contracting, A. J. Ellis, Foster Trenching, San-
Dot, Inc., and Respondent each had a slightly different number of em-
ployees than that stated by the General Counsel; however, this discrepan-
cy between the General Counsel's calculations and mine is immaterial
CORSON & GRUMAN CO. 1327
to 14 employees. Six weeks after the first withdrawal an-
other employer withdrew and executed an agreement
covering its approximately 40 employees. Two weeks
after that, respondent and two other employers with-
drew. The union subsequently accepted the offer that
had been made by the association prior to the strike. The
Board found that even though the union had entered into
separate final agreements with two members of the asso-
ciation prior to respondent's withdrawal, the withdrawal
was untimely and ineffective. In reaching this conclusion,
the Board stated,
[I]t does not follow ipso facto that execution of indi-
vidual separate final contracts with former Associa-
tion members either proves an intention to destroy,
or necessarily causes the fragmentation of, a multi-
employer unit. Rather, the facts of each case must
be assessed in order to ascertain the impact of the
parties' conduct upon the continued viability of
multiemployer bargaining.30
The Board went on to note that the first employer's
withdrawal had no discernible impact upon the associa-
tion and the union and that the Board viewed the contin-
ued bargaining after the withdrawal "as a forceful rebut-
tal to Respondent's charge that the Union's earlier con-
duct manifested a rejection of multiemployer bargaining
and had a fatal impact upon it."" The Board further
noted that respondent's withdrawal from the association
was tied to an expression of doubt as to the union's ma-
jority status rather than based upon the bargaining situa-
tion.
In Birkenwald, supra, the multiemployer association
was comprised of 11 members who bargained on behalf
of their total of some 200 employees. The member with
the largest number of employees, about 60, arrived at a
separate agreement with the union. The following day
the other members met and, with the exception of re-
spondent, agreed to negotiate further with the union. Re-
spondent, however, withdrew. Relying on the fact that
after the one separate agreement was signed there were
still 70 percent of the original number of employees re-
maining in the bargaining unit, the Administrative Law
Judge found that there was not sufficient fragmentation
of the multiemployer group to constitute an unusual cir-
cumstance justifying respondent's withdrawal. The
Board agreed, also relying on its finding that there was
no impasse. However, it is noteworthy that the Adminis-
trative Law Judge commented that "it appears to be a
matter [of1 judgment as to what degree of fragmentation
is sufficient," 32 and that in adopting the Administrative
Law Judge's conclusions the Board relied on the specific
circumstances of the case.
Both Tobey and Birkenwald stand for the proposition
that whether a multiemployer group has become so frag-
mented that an individual employer's withdrawal is privi-
leged must be determined from the facts of each case. In
the instant case, as the General Counsel emphasizes, Fos-
ter's employees comprised a comparatively small per-
30245 NLRB at 1395.
31 245 NLRB at 1396.
32 243 NLRB at 1154.
centage of the bargaining unit and thus, in terms of sheer
numbers, his separate agreement with the Union had
little impact. However, the analysis does not stop there.
The credible testimony of the representatives of the four
contractors who were present at the July 15 meeting es-
tablishes that Foster's separate agreement had a "devas-
tating effect," not because of the number of employees
affected but because it split the four remaining contrac-
tors into two equal and diametrically opposed camps. In
these circumstances, the finding is warranted, which I
make, based on the credited testimony discussed above,
that the ability of the Association to act as a unit was
destroyed. 3 3
Inasmuch as I have found that the Association was in-
capable of acting as a unit after Foster Trenching negoti-
ated a separate final agreement with the Union, it is im-
material that the negotiations leading to that agreement
were initiated by Foster rather than by the Union, for
the issue is the impact of the agreement on the Associa-
tion, not how the agreement came about. Similarly, I
find no merit to the General Counsel's contention that
since the only reason given for Respondent's withdrawal
from the Association was the alleged impasse," Re-
spondent should therefore be found to have withdrawn
for that reason and that, inasmuch as impasse does not
justify withdrawal from multiemployer bargaining and,
in any event, there was no impasse at the time of the
withdrawal, the withdrawal was not privileged. It is
clear from the record that Foster Trenching's separate
agreement with the Union caused the Association to
cease being a viable entity for bargaining purposes, and
that the inability of the Association to continue to repre-
sent all four of its active members was the real reason for
Respondent's withdrawal. In these circumstances it is ir-
relevant whether Respondent properly identified the
cause of its withdrawal in its correspondence with the
Union.
Having found that as of July 15 the Association was so
fragmented that it could not operate effectively as a bar-
gaining representative, I find that Respondent's with-
drawal from the Association was privileged, and that,
therefore, Respondent did not violate Section 8(a)(5) and
(1) of the Act by either its withdrawal from the Associa-
33 I further note that in Bonnano, supra, which, as noted above, was
decided by the Supreme Court subsequent to the filing of the briefs in the
instant case, the Court noted with approval that "where the union, not
content with interim agreements that expire with the execution of a
unitwide contract, executes separate agreements that will survive unit ne-
gotiations, the union has so 'effectively fragmented and destroyed the in-
tegrity of the bargammg unit,' id., as to create an 'unusual circumstance'
under Retail Associates [120 NLRB 388 (1958)] rules." OM $ Ct at 726.)
Although Bonanno did not involve a separate final agreement, the Court's
comments on such agreements may cast some doubt on the continuing
validity of the Board's holdings in Birkenwald and Tobey Fzne, supra
34 As discussed above, I have found that there was no impasse at the
time of Respondent's withdrawal from the Association However, none
of the cases cited to me by the parties or uncovered in the course of my
own research state that impasse is a necessary condition for justification
of a withdrawal precipitated by fragmentation of the unit. Inasmuch as
the concept that fragmentation of the multiemployer unit may justify
withdrawal is based on the premise that a fragmented group is incapable
of acting as a viable bargaining entity, it would seem that the qtrestion of
whether there was also an impasse in negotiations at the time of the frag-
mentation is irrelevant
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion, its statements to the Union and to employees that it
had withdrawn and would not be bound by the Associa-
tion agreement, or its subsequent refusal to sign that
agreement. I shall therefore recommend that these alle-
gations of the complaint be dismissed.
c. The alleged withdrawal of recognition
The complaint alleges that following Respondent's
withdrawal from the Association it withdrew recognition
from the Union as collective-bargaining representative of
its employees and thereby violated Section 8(a)(5) and
(1) of the Act.
It is well established that an employer that lawfully
withdraws from a multiemployer group is nonetheless re-
quired to bargain with the union that represents its em-
ployees, 35 if they constitute an appropriate unit in which
the union enjoys majority status, and to notify the union
of its willingness to bargain separately from the multiem-
ployer group." In the instant case, documentary evi-
dence establishes that a majority of Respondent's em-
ployees at the time the strike began were members of the
Union and Respondent does not contend that at any time
the Union lost its status as majority representative. Thus,
there is no real question that Respondent was obligated
to continue to recognize and bargain with the Union—
the issue is whether recognition was withdrawn.
As quoted above, on July 15 Respondent told its em-
ployees that "we must terminate our long standing rela-
tionship with Local 77 in the Sewer, Water and Gas
Agreement. However, the severe economic conditions
that exist in our industry today preclude the continuation
of further negotiations," and in the same letter also stated
that Respondent would restaff all open positions and that
"prior employees" were welcome to apply but with the
understanding that there would be no further relationship
with the Union "under the Sewer, Water and Gas agree-
ment." That same day, Cox had a conversation with
Clapsaddle in which Cox, in response to Clapsaddle's
question as to whether Respondent was going nonunion,
stated that Respondent had "withdrawn from negotia-
tions" and was "restaffing." On July 16 Cox talked to an-
other union representative and said that Respondent had
withdrawn and was restaffing, but did not ask if or when
separate negotiations covering Respondent's employees
would commence. Thereafter, in the July 23 conversa-
tion with Clapsaddle, Cox said that he was "going open
shop," a term that in this context could reasonably be
construed to mean "nonunion," and not merely that Re-
spondent was going to insist on not having a union-secu-
rity clause in the contract. The only times that Cox indi-
cated any willingness to talk to the Union about Re-
spondent's employees were in his July 23 conversation
with Clapsaddle when he asked Clapsaddle if the latter
would change his position, and in the conversation with
Garrett and Peacock in late July or early August when,
having stated that he would not sign the Association
agreement, Cox asked the two union representatives if
there was anything else to talk about. I find that these
two ambiguous statements either separately or together
35 Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976).
36 Superior Sprinkler, 227 NLRB 204, 208 (1976).
did not constitute a statement by Respondent that it
wished to bargain for its employees in a separate bargain-
ing unit. Inasmuch as I find that Respondent did not
notify the Union that it was ready and willing to bargain
for a separate agreement covering Respondent's employ-
ees, and particularly in light of Cox's reference to going
"open shop,"37 I therefore find that following its with-
drawal from the Association Respondent withdrew rec-
ognition from the Union as bargaining representative of
Respondent's employees and thereby violated Section
8(a)(5) and (1) of the Act."
d. Respondent's failure to make contributions to fringe
benefit trust funds
The 1979 contract required Respondent to make
monthly contributions to the Operating Engineers Trust
Fund of Washington, D.C., a joint management—union
fund that provides medical and disability benefits, to the
Operating Engineers Local No. 77 Pension Trust Fund,
a similar fund that provides pension benefits to employ-
ees covered, and to the Joint Apprenticeship Training
and Skill Improvement Fund It is undisputed that after
the 1979 contract expired, Respondent ceased making
such contributions on behalf of its employees." Re-
spondent contends that it is not required to make such
contributions because (1) the collective-bargaining agree-
ment under which contributions were required has ex-
pired; and (2) Respondent has established its own pro-
gram of employee benefits equal to those provided under
that contract.
It is well established that in the absence of impasse an
employer may not normally make unilateral changes in
its employees' terms and conditions of employment with-
out notice to our consultation with the union that repre-
sents them. It is also well established that although Sec-
tion 302(c)(5)(B) of the Act makes unlawful payments by
an employer to the representative of its employees
except, inter alia, when paid to a trust fund meeting cer-
tain requirements including that "(B) the detailed basis
on which such payments are to be made is specified in a
written agreement with the employer . . ." this require-
ment does not preclude an employer from making contri-
butions to a trust fund where the collective-bargaining
agreement has expired,4 ° unless the trust agreement con-
tains language that might limit the employer's obligation
to bargain regarding the cessation of payments into the
fund. In the instant case, there is no evidence that the
trust fund agreements specified that an employer's obli-
gations under them expired with the 1979 contract; I
therefore find no merit to Respondent's contention that
37 Superior Sprinkler, supra.
38 Respondent points out, correctly, that union representatives never
offered to bargain with Respondent separately but insisted during all of
their conversations with Respondent's representatives on and after July
15 that Respondent sign the Association agreement However, Respond-
ent had the initial obligation, once it had withdrawn from the Associa-
tion, to offer to bargain on a single-employer basis, but not do so.
39 The precise date on which the contributions ceased is not in the
record, but the trust fund administrator's employer contribution report
for August lists no contributions from Respondent for that month, and
bears the notation "No longer in sewer agreement"
40 SAC Construction Co, 235 NLRB 1211, 1219 (1978).
CORSON & GRUMAN CO. 1329
the expiration of that agreement terminated its obliga-
tions to continue to make payments to the funds.41
With respect to Respondent's contentions that it insti-
tuted a plan that provided benefits equal to those en-
joyed by the employees under the 1979 contract, there is
no documentary evidence to support this assertion. Re-
spondent cites no page of the transcript on which testi-
mony to this effect appears, and I am not aware of any
testimony in this proceeding on that issue. In any event,
inasmuch as I have found that there was no impasse as of
July 15, Respondent's unilateral change in benefit plans,
if indeed it implemented another plan, cannot be justified
on grounds that it provided equivalent benefits to those
that the employees had previously enjoyed. I therefore
fmd that by unilaterally ceasing its payments into the
fringe benefit trust funds, Respondent violated Section
8(a)(5) and (1) of the Act.42
B. The Alleged 8(a)(1) Violations
1. The sign posted at the gate to Respondent's yard
Cox testified that soon after the strike began his broth-
er, Arthur Cox, Jr., vice president for Respondent's
paving division, posted a sign at the entrance to Re-
spondent's premises with the following language: "Only
Local 77 sewer and water employees are on strike. All
other employees are expected to report to work as usual
or appropriate corrective action will be taken." The
General Counsel contends that the reference to "correc-
tive action" was a threat of unspecified reprisals to em-
ployees for engaging in protected activity. Respondent
contends that the sign cannot be found to violate Section
8(a)(1) of the Act because it was not directed to those
employees who were on strike. In support of this posi-
tion. Respondent cites the testimony of Arthur Cox, Jr.,
that paving division employees were confused as to
whether or not they should honor the picket line and the
sign was posted solely to clarify who was striking.
As the General Counsel points out in his brief, in de-
termining whether conduct violates Section 8(a)(1) of the
Act, "the test is not the employer's intent or motive, but
whether the conduct is reasonably calculated or tends to
interfere with the free exercise of the rights guaranteed
by the Act. . . ."4 3 It is also well established that an em-
ployee who refuses to cross a lawful primary picket line
at his place of employment is engaging in protected con-
certed activity, and it is immaterial whether that employ-
ee is a member of the bargaining unit represented by the
Union on strike." 44 Accordingly, I find that the sign's
Cauthorne Trucking, 256 NLRB 721 (1981)
42 Peerless Roofing Go, 247 NLRB 500 (1980) Respondent cites NLRB
v Porter County Farm Bureau Co-Operative Association, Inc , 314 F.2d 133
(7th Cir 1963), for the proposition that unilateral institution of insurance
benefits that are the same as those previously available to employees
under the union contract does not constitute an unlawful refusal to bar-
gain. However, in that case the court found that respondent lawfully
withdrew recognition from the union and in any event, as found above,
there is no showing that the benefits provided by Respondent subsequent
to itS withdrawal from the Association were equivalent to those previous-
ly enjoyed by the employees Thus, that case is clearly inapposite
42 a E. Nichols Marcy Corp, 229 NLRB 75, 80 (1977).
44 Southerh Greyhound Lines, 169 NLRB 627, 628 (1968). I note that
there is neither contention nor evidence that the paving division employ-
ees were covered by a collective-bargaining agreement that prohibited
reference to "appropriate corrective action" to be taken
against employees who did not report to work would
reasonably be construed as a threat of discipline for en-
gaging in a sympathy strike. I therefore find that Re-
spondent's posting of the sign violated Section 8(a)(1) of
the Act.
2. The alleged threat to have Hall arrested
Employee Charles Hall testified that during the first
week of the strike he was picketing one of Respondent's
jobsites where Respondent was performing some sewer
and water work when Cox arrived al the site and told
him that he could not picket the job. Hall replied "yes, I
can," and Cox said "I will have you arrested for this."
Cox testified that paving work rather than sewer and
water work was being done at this site and that he went
to the site because he had been told that Hall was telling
some of the employees who were operating machinery
that if they continued to do so they would have prob-
lems with their union status. According to Cox, when he
arrived at the site he asked Hall what he was doing and
Hall said he was picketing. Cox said "Do you know that
this is a paving site?" and Hall said he did, but that Re-
spondent was performmg sewer work elsewhere on the
site. Cox further testified that he then told Hall that he
had inquired of counsel and that Respondent would uti-
lize whatever legal remedy it could to prevent him from
picketing in front of the paving operations. Cox denied,
however, that he threatened Hall with arrest.
There can be little question that Hall had a right pro-
tected by Section 7 of the Act to picket Respondent's
jobsite, whether or not the work being performed at the
precise area where he was picketing was sewer and
water work or paving division work." I credit Hall,
who testified in a straightforward manner, and therefore
find that, by threatening him with arrest for engaging in
protected activity, Respondent violated Section 8(a)(1) of
the Act. 4 6
3. The alleged threat to Hamilton
It is undisputed that, on several occasions during the
strike, Hall and employee James Hamilton went to job-
sites where Respondent was using foremen and superin-
tendents to operate the equipment normally operated by
bargaining unit personnel. On these occasions Hall and
Hamilton called the police and, when a police officer ar-
rived at the site, explained that the District of Columbia
required a license to operate heavy machinery. If the
police officer asked an equipment operator for his license
and he did not have one, the police would shut down the
job.
sympathy strikes. In any event, it is undisputed that Respondent has some
employees who are not covered by any collective-bargaining agreement
and these individuals would also have a protected right to honor the
picket line.
45 See Scott Hudgens, 230 NLRB 414, 416 (1977)
45 Although this threat was not specifically alleged in the complaint,
lilt is well established that where, as here, the facts underlying the viola-
tion are fully developed at the hearing, an unfair labor practice finding
can be based on the issues litigated as well as those specifically alleged in
the complaint." Keystone Pretzel Bakery, 242 NLRB 492 fn. 2 (1979)
1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Cox, whom I credit on this point, in the
past when an operator from Maryland or Virginia was
going to work in the District and did not have a District
operating license, he filled out an application and paid
the fee; the receipt for his payment then operated as a
temporary permit while the application was processed.
Respondent therefore reacted to Hall's and Hamilton's
activity by having those men who did not have District
of Columbia permits apply for them. When Hall and
Hamilton were unable to close down jobsites because the
police allowed the operators to continue operating equip-
ment with a temporary permit, they went to the licens-
ing bureau and obtained a document from H. R. Wil-
liams, chairman of the Steam and Other Operating Engi-
neers Board, which stated that a paid application receipt
did not authorize an applicant to operate any type of
equipment.
On July 10, Hall and Hamilton went to a site known
as the 12th and Otis Street job and, apparently, told the
foreman or superintendent that those men who did not
have permits must stop running the equipment, display-
ing the document they had received from Williams. Con-
sequently, a foreman called Respondent's offices and Cox
and Underground Division Superintendent Stanley
Zombro went to the site. Hamilton and Hall testified, in
substance, that when Cox came on the site and saw the
two men waiting for the police he called Hall off to the
side. After a moment Hamilton approached Hall and
Cox; Cox turned, pointed to Hamilton, and said "I will
take care of you later," or "I will get you later." Cox
and Zombro then left. Cox, corroborated by Zombro,
who testified that he was close enough to Cox and Ham-
ilton to hear what was said, denied that Cox made any
threatening statement. I credit Hamilton and Hall and
find that Cox told Hamilton that he would get him later
or words to that effect. However, this comment is as sus-
ceptible of a lawful interpretation as of a coercive one:
there is no evidence that Cox's conversation with Hall
was conducted in an angry tone or that Cox's manner or
tone when he spoke to Hamilton was threatening. In
these circumstances, and as Cox had finished his conver-
sation with Hall and was preparing to leave the site, it is
as likely that Cox was merely acknowledging Hamilton's
presence by a comment to the effect of "I'll talk to you
later," as it is that Cox was conveying a threat. Accord-
ingly, I find that Cox's remark to Hamilton did not rea-
sonably tend to restrain, interfere with, or coerce him in
the exercise of rights protected by Section 7 of the Act
and I shall therefore recommend that this allegation of
the complaint be dismissed.
C. The Alleged 8(a)(3) and (1) Violation
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to reinstate
Hamilton on or about July 18 upon his unconditional
offer to return to work. In support of this contention, the
General Counsel asserts that the strike—which was eco-
nomic at its inception—was converted to an unfair labor
practice strike by Respondent's withdrawal from the As-
sociation and withdrawal of recognition of the Union on
July 15, and that Hamilton was therefore entitled to rein-
statement upon his unconditional offer to return unless
he was replaced prior to the time the strike became an
unfair labor practice strike. The General Counsel further
asserts that even if the strike was an economic strike,
there is no evidence that Hamilton was replaced prior to
his offer to return to work. Respondent contends, on the
other hand, that Hamilton was replaced on July 14, and
is therefore not entitled to reinstatement.
At the outset, having found that Respondent withdrew
recognition from the Union and so advised its employees
on July 15, I further find that the strike was converted to
an unfair labor practice strike as of that date.47
It is undisputed that Hamilton was a mechanic in the
sewer and water division and worked in Respondent's
shop, and that he was the junior mechanic hired prior to
the strike. Hamilton telephoned Shop Superintendent
Roy Daniels on July 18 and asked for his job back and
Daniels told him that he had been replaced and the posi-
tion had been filled but if something came up Respond-
ent would recall him. Cox and Daniels testified that Jesse
McClenny was hired to replace Hamilton on July 14 and
started to work on July 15, and Daniels testified that an-
other replacement mechanic, Jim Joseph, was hired on
July 15 and started the same day. 48 Daniels also testified
that no mechanics had left the sewer division since the
end of the strike and that as of the date Daniels testified
at the instant hearing there were five mechanics in the
sewer division and five in the paving division. Cox testi-
fied that at the time of the strike there had been six me-
chanics and welders in the sewer division. No documents
to support this testimony were offered into evidence, nor
is there any evidence as to how many of the shop em-
ployees in the sewer and water division were mechanics
and how many welders, nor whether Hamilton could
weld.
An employee who participates in an economic strike
that is converted to an unfair labor practice strike is enti-
tled to reinstatement upon his unconditional offer to
return to work unless he was permanently replaced prior
to the conversion of the strike." In the instant case, I
credit the testimony that McClenny replaced Hamilton
on July 14, prior to the date the strike was converted,
and that Joseph was hired on July 15. However, this
finding does not resolve the issues regarding Hamilton's
right to reinstatement. First, as the General Counsel
points out in his brief, Respondent has the burden of
showing that strike replacements "were regarded by
themselves and the Respondent as having received their
jobs on a permanent basis." 5° In the instant case, al-
47 Although I have also found that Respondent violated Sec. 8(a)(1) of
the Act by posting the sign discussed above at its premises and by the
threat to have Hall arrested earlier in the strike, there is no allegation or
evidence of any causal connection between his conduct and the strike
Although the Board has held that it is not necessary to adduce specific
proof of the causal connection between an employer's unlawful conduct
and the subsequent strike, such a connection must be inferable from the
record as a whole I conclude that in the instant case such an inference is
not warranted See, e.g., Burlington Homes, Inc , 246 NLRB 1029, 1031-
1032 (1979)
48 Cox testified that two mechanics were hired the afternoon of July
14 I credit Daniels, who did the actual hiring, appeared to have a better
recollection of the hinngs, and teshfied with greater specificity.
48 Randle-Eastern Ambulance Service, 230 NLRB 542, 553 (1977).
5 ° Georgia Highway Express, 156 NLRB 514, 516 (1967)
CORSON & GRUMAN CO. 1331
though Daniels and Cox testified that McClenny and
Joseph were hired, they did not testify as to the circum-
stances under which they were hired or whether they
were hired as permanent replacements, nor, with respect
to Joseph, whether he was hired before Respondent's
withdrawal of recognition of the Union, 51 and, signifi-
cantly, there is no documentary evidence on this issue at
all. I therefore find that Respondent has not sustained its
burden of showing that Hamilton was permanently re-
placed prior to the conversion of the strike to an unfair
labor practice strike. 5 2
In addition, as noted above, Cox testified that (appar-
ently as of the beginning of the strike) there were six me-
chanics and welders in the shop working under the
sewer division agreement, and Daniels testified that there
were five mechanics in that division as of the time of his
testimony. It thus appears that there was one less em-
ployee working in the shop in the sewer division at the
time of the hearing than there had been prior to the
strike, 53 but Respondent adduced no evidence that there
was a business justification for the smaller employee
complement. As the Supreme Court stated in NLRB v.
Fleetwood Trailer Co., supra.
If and when a job for which the striker is qualified
becomes available, he is entitled to an offer of rein-
statement. The right can be defeated only if the em-
ployer can show "legitimate and substantial business
justifications."
It is Respondent's burden to show that prior to the con-
version of the strike to an unfair labor practice strike
Hamilton had been permanently replaced, and that subse-
quently no job for which he was qualified became avail-
able. I have already found that Respondent has not es-
tablished that McClenny or Joseph were permanent re-
placements or that Joseph was hired prior to the time the
strike became an unfair labor practice strike. However,
even if McClenny and Joseph were permanent replace-
ments, Hamilton was entitled to reinstatement as of
whatever date Respondent had five or fewer mechanics
in the sewer division. I therefore find that by failing to
reinstate Hamilton upon his unconditional offer to return
to work, Respondent violated Section 8(a)(3) and (1) of
the Act.
D. The Alleged Misconduct by Board Agents
Respondent contends that qa]ny objective reading of
the record in this proceeding can only lead to the con-
clusion that Region 5 of the NLRB brought charges that
51 Los Angeles Chemical Co, 204 NLRB 245, 250 (1973)
52 Although Cox and Daniels testified that McClermy replaced Hamil-
ton, if there was a vacancy after McClenny was hired, i e., that position
allegedly filled by Joseph the next day, Hamilton was entitled to the job
if he was qualified for it Fleetwood Trailer Co., 389 U.S. 375, 381 (1967).
52 I note that Cox referred to "mechanics and welders" and Daniels
referred to "mechanics" The record does not show whether mechanics
and welders are separate job descriptions or whether mechanics also do
welding work. I therefore conclude that as far as this record shows there
were six shop employees in the sewer and water division prior to the
strike and five at the time of the hearing. This conclusion is not contra-
dicted by Daniels' testimony that no mechanics had left the sewer divi-
sion since the end of the strike, for there is no testimony as to how many
mechanics came back after the strike.
the General Counsel was completely unable to establish
or substantiate," and that Board agents improperly solic-
ited the inclusion in the instant charge of the allegation
that Respondent withdrew recognition from the Union.
As fully discussed above, I have found that Respondent
committed certain unfair labor practices as alleged in the
complaint, and, although I have not found certain other
unfair labor practices for reasons discussed above, the
General Counsel adduced evidence in support of these
allegations. I thus find no merit to Respondent's first
contention and, indeed, find it unworthy of further con-
sideration.
In support of its second contention, Respondent sub-
poenaed the two Board agents primarily responsible for
the investigation of the charges, field attorney Arlene
Celotto Thorne and her then supervisor, Thomas Lucas,
but subsequently withdrew the subpoenas. Consequently,
no evidence was adduced in this proceeding relating to
this issue. However, in Marbro Co., 5-CA-12572, which,
as noted above, is a companion case heard before me and
involving many of the same substantive issues as the in-
stant case, this issue was litigated. The same attorneys
represented the General Counsel and Respondent, re-
spectively, in Marbro as in the instant case, and the par-
ties stipulated in Marbro that so much of the record in
the instant case as was relevant would be considered part
of the record in that case; however, there was no recip-
rocal stipulation to consider any of the Marbro record in
the instant case. Notwithstanding, in view of the serious-
ness of Respondent's allegations, the facts that the same
Board agents investigated both cases and the attorneys
were identical in both cases, and as it appears that the
failure to request that this evidence be considered in the
instant case as well as in Marbro was probably inadvert-
ent, I deem it appropriate to consider Respondent's con-
tentions.54
Respondent introduced into evidence, among other
documents relating to this issue, the charge in Case 5-
CA-12445, which was filed by the Union against Marbro
on July 24. That same day a charge was filed against Re-
54 As noted above, the subpenas addressed to Lucas and Thorne in the
instant case were withdrawn Respondent's subpoena duces tecum to the
same agents in Marbro were initially revoked because Respbndent had
not requested permission from the General Counsel of the Board for
them to testify as required by Sec. 102.118(a)(1) of the Board's Rules and
Regulations, Series 8, as amended Subsequently, Respondent sought per-
mission from General Counsel William A Lubbers for Thorne and Lucas
to testify and to produce certain documents General Counsel Lubbers'
reply stated, in pertinent part
Permission is granted . . to Thomas Lucas and Arlene Celotto
Thorne for the limited purpose of testifying with respect to the
Agency's involvement in the acceptance of the charge which result-
ed in the complaint in [Marbro], and to produce any documentation
regarding their conversations with representatives of the charged
and charging parties in this area.
and quoted sec 10064 5 of the Casehandlmg Manual, supra. Accordingly,
Thorne and Lucas testified, as described above, and certain documents
were produced. Pursuant to an in camera inspection, I ruled that vanous
documents were not required to be turned over to Respondent because
they either were not prepared during the time period specified in the sub-
poenas or contained nothing pertaining to the possible withdrawal of the
charge in Case 5-CA-12445 or the acceptance of a new charge Re-
spondent filed a special appeal to the Board from this ruling; the Board
denied the appeal "without prejudice to Respondent's right to renew his
contention through the filing of appropriate exceptions."
1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent in Case 5-CA-12436, containing identical alle-
gations to those in Case 5-CA-12445. These charges al-
leged, in substance, as follows:55
[Respondent] . . . has violated Sections 8(a)(1), (3)
and (5) of the Act by:
1. Refusing to meet at reasonable times and
places;
2. Refusing to supply information relevant to col-
lective bargaining;
3. Engaging in take-it-or-leave-it bargaining;
4. Threatening employees with disciplinary action
and discharging employees for engaging in protect-
ed concerted activity;
5. Threatening employees with physical violence
for engaging in protected concerted activity;
6. Promising employees increased benefits if they
abandon the Union and return to work;
7. Refusing to agree to be bound by the collec-
tive bargaining agreement reached between the
Union and the multi-employer association which is
the lawful bargaining agent for the employer
Thorne, with the aid of documents prepared by her
during her investigation of this charge, testified that on
August 26 she informed the Union's attorney, Jeffrey
Freund, who had been on vacation since July 31, that
there was insufficient evidence to substantiate certain al-
legations of the charge. Thorne did not recall whether in
that conversation she and Freund also discussed the pos-
sibility of amending the charge to delete certain allega-
tions. Thorne further testified that on August 28 she dis-
cussed with Freund the issues arising from Respondent's
withdrawal from the Association and that at some time
during the last week of August or the first week of Sep-
tember she talked to Lucas about her conversations with
Freund and "most likely" told Lucas that she had dis-
cussed with Freund that there was evidence of a possible
withdrawal of recognition. On September 2, according
to Thorne, she told Mannix that there was a possible
problem about withdrawal of recognition and Mannix
told her that he wanted to address the issue and would
set up appointments for her with Cox and Marinucci,
and that appointments were in fact made on September 3
for the following day. However, according to Thorne, at
3 p.m. on September 3, Freund informed Thorne that he
wanted to withdraw the charge and file another that in-
cluded a withdrawal-of-recognition allegation, and she
then called Mannix to tell him that the Union wished to
present evidence on the issue and that it made more
sense for her to have the Union's evidence before obtain-
ing Respondent's. On September 4, Thorne talked to
Mannix and canceled the appointment with his clients
and told him that the Union was going to file an amend-
ed charge. 56 The Union filed the instant charge on Sep-
55 Although the charge in Case 5-CA-I2436 was not made a part of
the record, since I have concluded that it is appropriate to consider the
issue of alleged Board agent misconduct in the instant case, I further take
official notice of the charge in Case 5-CA-12436, which, of course, is a
public document
56 Lucas testified to a conversation with Manrux in which they dis-
cussed the withdrawal of recognition issue, but did not remember the
tember 5, which differed from the earlier one only in
that it modified the allegations of threats of disciplinary
action and violence, did not include the allegation of
promise of benefits, and added an allegation that Re-
spondent withdrew recognition from the Union.
Section 10064.5 of the NLRB Casehandling Manual
(Part One), Unfair Labor Practice Proceedings, provides,
in pertinent part:
In cases where investigation uncovers unfair labor
practices not specified in a charge, regional person-
nel responsible for the handling of a given case
must determine whether the charge is broad enough
to support complaint allegations covering the appar-
ent unfair labor practices found. If the allegations of
the charge are too narrow, the charging party (or
attorney of record) should be apprised of the defi-
ciency in the existing charge and should be in-
formed that it can be remedied by amendment. . .
I found Thorne and Lucas to be credible witnesses
who testified to the best of their recollection." Nothing
in their testimony suggested that their communications to
any of the parties or their attorneys went beyond the
boundaries of that deemed appropriate under section
10064.5 and Respondent has neither cited any decisions
for the proposition that Thorne and Lucas engaged in
any misconduct, nor, indeed, has it referred to any spe-
cific actions by either of them that were allegedly im-
proper. I therefore find no merit to Respondent's conten-
tions that the instant charge was improperly solicited by
Board agents.
On the basis of the foregoing findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Corson and Gruman Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 77, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees with unspecified reprisals
if they honored a lawful primary picket line, and by
threatening employee Charles Hall with arrest for engag-
ing in lawful primary picketing, Respondent violated
Section 8(a)(1) of the Act.
4. The following unit is appropriate for purposes of
collective bargaining:
All engineers, branch engineers, operators of all
equipment coming under the craft jurisdiction of
the International Union of Operating Engineers, me-
date and otherwise had little recollection of his involvement in the, inves-
tigation of the charges filed July 24.
57 Although Respondent impliedly argues that Lucas' failure to recall
events surrounding the investigation of these charges was incredible, I
find no merit to such a contention Lucas was the supervisor, not the
principal investigator of the charges, and there is no apparent reason why
he should remember his conversations with the parties' representatives
and with regional office personnel during the mvestigation of the charges
more than a year after such conversations occurred.
CORSON & GRUMAN CO. 1333
chanics, apprentices, maintenantemen, oilers and
firemen employed by Respondent.
5. By withdrawing recognition from the Union at a
time when it represented a majority of Respondent's em-
ployees and by unilaterally discontinuing the payment of
employer contributions to the Operating Engineers Trust
Fund of Washington, D.C., the Operating Engineers
Local No. 77 Pension Trust Fund, and the Operating
Engineers Joint Apprenticeship and Skill Improvement
Fund, Respondent has violated Section 8(a)(5) and (1) of
the Act.
6. The strike that began against Respondent on July 1,
1980, was converted to an unfair labor practice strike on
July 15, 1980.
7. By failing to reinstate employee Richard Hamilton
upon his unconditional offer to return to work on July
18, 1980, Respondent has violated Section 8(a)(3) and (1)
of the Act.
8. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act.
Having found that Respondent unlawfully withdrew
recognition from the Union, I shall recommend that Re-
spondent be ordered to recognize and bargain with the
Union upon the latter's request and, if an agreement is
reached, to embody its terms in a signed contract.
Having found that Respondent failed to make required
contributions to the Operating Engineers Trust Fund of
Washington, D.C., the Operating Engineers Local No.
77 Pension Trust Fund, and the Operating Engineers
Joint Apprenticeship and Skill Improvement Fund, I
shall recommend that it be required to make its employ-
ees whole by paying the required contributions for these
funds, as provided in the collective-bargaining agreement
that expired June 30, 1980, which have not been paid
and which would have been paid absent Respondent's
unlawful unilateral discontinuance of such payments."
As employee James Richard Hamilton was unlawfully
denied reinstatement as of July 18, 1980, I shall recom-
mend that Respondent be ordered to offer him immedi-
ate and full reinstatement to his former job, discharging
any replacements if necessary, or if that job no longer
exists, to a substantially equivalent job, without prejudice
58 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
fully withheld fund payments I therefore recommend that the question of
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy the "make whole" remedy be left to the compli-
ance stage of this proceeding. These additional amounts may be deter-
mined, depending upon the circumstances of each case, by reference to
provisions in the documents governing the funds at issue and where
there are no governing provisions, to evidence of any loss directly attrib-
utable to the unlawful action, which might include the loss of return on
investment of the portion of funds withheld, additional administrative
cost, etc., but not collateral losses. Merryweather Optical Co, 240 NLRB
1213, 1216, fn 7 (1979)
to his seniority or other rights and privileges previously
enjoyed. I shall further recommend that Respondent be
ordered to make Hamilton whole for any loss of earnings
he may have suffered as a result of the discrimination
against him by payment to him of the amount he normal-
ly would have earned from the date of his unconditional
offer to return, July 18, 1980, to the date of Respondent's
offer of reinstatement, less net earnings, in accordance
with E W. Woolworth Co., 90 NLRB 298 (1950), to
which shall be added interest, to be computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977).59
On the foregoing findings of fact and conclusions of
law and the entire record, I issue the following recom-
mended 6 °
ORDER
The Respondent, Corson and Gruman Company,
Washington, D.C., its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with specified reprisals if
they honor a lawful primary picket line or threatening
employees with arrest for engaging in lawful primary
picketing.
(b) Failing and refusing to recognize or bargain with
Local 77, International Union of Operating Engineers,
AFL-CIO, as representative of its employees in the fol-
lowing appropriate unit:
All engineers, branch engineers, operators of all
equipment coming under the craft jurisdiction of
the International Union of Operating Engineers, me-
chanics, apprentices, maintenancemen, oilers and
firemen employed by Respondent.
(c) Unilaterally ceasing payments to the Operating En-
gineers Trust Fund of Washington, D.C., the Operating
Engineers Local No. 77 Pension Trust Fund, and the
Operating Engineers Joint Apprenticeship and Skill Im-
provement Fund.
(d) Failing to reinstate unfair labor practice strikers
who have made an unconditional offer to return and
who have not been permanently replaced prior to the
conversion of the strike to an unfair labor practice strike.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer James Richard Hamilton immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed, and make him whole for any loss of earn-
59 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962).
89 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings he may have suffered as a result of Respondent's
discrimination against him, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Upon request, recognize and bargain collectively
with Local 77, International Union of Operating Engi-
neers, AFL-CIO, as the representative of Respondent's
employees in the unit found appropriate above.
(c) Make whole its employees, in the manner set forth
in the section of this Decision entitled "The Remedy,"
for Respondent's unlawful failure to transmit by paying
all contributions to the Operating Engineers Trust Fund
of Washington, D.C., the Operating Engineers Local No.
77 Pension Trust Fund, and the Operating Engineers
Joint Apprenticeship and Skill Improvement Fund, as
provided in the collective-bargaining agreement between
Respondent and the Union, which expired on June 30,
1980, which have not been paid and which would have
been paid absent Respondent's unlawful unilateral dis-
continuance of such payments, and continue such pay-
ments until such time as Respondent negotiates in good
faith a new agreement or to an impasse.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay and trust fund
contributions due under the terms of this Order.
(e) Post at its Washington, D.C., facility copies of the
attached notice marked "Appendix." 61 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being signed by Respondent's authorized
representative, shall be posted by it immediately upon re-
ceipt and be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint allegations
not specifically found herein are dismissed.
61 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."