Davis Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1977

232 N.L.R.B. 946 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Industries, Inc.; Stag Construction, Inc.; and
Add Miles, Inc. and United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
Local 798, AFL-CIO and United Mine Workers of
America and its District 4 and Local Union 1846,
Parties to the Contract. Case 6-CA-8691
October 6, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 7, 1977, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Davis Indus-
tries, Inc.; Stag Construction, Inc.; and Add Miles,
Inc., Monongahela and Stockdale, Pennsylvania,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all parties represented, was heard on September
29, 1976, in Pittsburgh, Pennsylvania, on the complaint of
the General Counsel issued on February 27, 1976,1 and the
answer of Davis Industries, Inc.; Stag Construction, Inc.;
and Add Miles, Inc., herein individually referred to as
Davis Industries, Stag, and Add Miles, respectively, and as
the Respondents collectively. In issue are questions
whether the Respondents, as a single or joint employer,
violated Section 8(a)(l), (2), (3), and (5) of the National
Labor Relations Act, as amended,2 in various respects: (a)
by withdrawing recognition from United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local
798, AFL-CIO, herein called Local 798, as the exclusive
I The onginal charge was filed by the Charging Party on October 14,
1975. a copy of which was duly served on the Respondent Davis Industries
by registered mail on the same day. An amended charge was filed by the
Charging Party on February 25, 1976, copies ofwhich were duly served on
the Respondents and United Mine Workers of Amenca and its District 4
and Local Union 1846, by registered mail on February 27, 1976, together
with the complaint herein.
2 Sec. 8(aX I) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain. or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent. Sec. 7 provides that
"le Jmployees shall have the right to self-organization, to form, join. or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection ... ."
Sec.
8
(aX2) makes it an unfair labor practice for an employer. "to
dominate or interfere with the formation or administration of any labor
organization or contnbute financial or other support to it ... ."
Sec. 8(aX3), with certain qualifications not material herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization: Provided, That nothing in this Act
. shall preclude an employer from making an agreement with a labor
organization (not established, maintained, or assisted by any action defined
in section 8(a) of this Act as an unfair labor practice) to require as a
condition of employment membership therein on or after the thirtieth day
following the beginning of such employment or the effective date of such
agreement, whichever is later, (i) if such labor organization is the
representative of the employees as provided in section 9(a), in the
appropnate collective-bargaining unit covered by such agreement when
made . . "
Sec. 8(aX5) makes it an unfair labor practice for an employer "to refuse
to bargain collectively with the representatives of his employees, subject to
the provisions of section 9(a)."
Relevant to the application of the foregoing statutory provisions to the
facts of this case is Sec. 8(f) of the Act which provides:
It shall not be an unfair labor practice under subsections (a) and (b)
of this section for an employer engaged primarily in the building and
construction industry to make an agreement covenng employees
232 NLRB No. 158
946
DAVIS INDUSTRIES, INC.
bargaining representative of the Respondents' pipeline
employees in an appropriate unit 3 and refusing to honor
their agreement covering such unit employees; by furnish-
ing unlawful assistance and support to United Mine
Workers of America and its District 4 and Local Union
1846, herein collectively referred to as the UMW, by
recognizing these labor organizations as the bargaining
representative of the pipeline employees, including them in
a union-security agreement, which was enforced, and
deducting dues and initiation fees from these employees
and paying them to the UMW; and by discharging
employees James H. Strickland, Kenneth L. Finnegan, and
Jesse A. Hunnell and refusing to hire Melvin G. Hull
because of their membership in Local 798. At the close of
the hearing, all parties waived oral argument. Briefs,
however, were subsequently submitted by the General
Counsel and the Respondents.
Upon the entire record and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENTS
The Respondent Davis Industries, a Pennsylvania
corporation with its principal office in Monongahela,
Pennsylvania, is a contractor engaged in the business of
pipeline construction. During the 12-month period imme-
diately preceding the issuance of the complaint herein,
Davis Industries received goods valued in excess of $50,000
directly from points outside Pennsylvania for use at its
construction sites located within the State.
The Respondent Add Miles, with its principal office
located in Stockdale, Pennsylvania, was incorporated in
Pennsylvania about 1974. Initially, it was engaged in strip
mining operations until after a period of inactivity it
undertook to perform pipeline construction work on the
Kirby Mine project here involved in September 1975. The
Respondent Stag, also a Pennsylvania corporation with its
principal office in Monongahela, Pennsylvania. is engaged
in highway paving and restoration work.
As will later be discussed, the three Respondents are
family-owned and interrelated corporations which, I find,
constitute a single or joint employer for the purposes of the
Act. I further find, as the Respondents concede, that they
are employers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
engaged (or who, upon their employment, will be engaged) in the
building and construction industry with a labor organization of which
building and construction employees are members (not established.
maintained, or assisted by any action defined in section 8(a) of this Act
as an unfair labor practice) because ( I ) the majority status of such labor
organization has not been established under the provisions of section 9
of this Act prior to the making of such agreement, or (2) such
agreement requires as a condition of employment, membership in such
labor organization after the seventh day following the beginning of
such employment or the effective date of the agreement, whichever is
later, or (3) such agreement requires the employer to notify such labor
organization of opportunities for employment with such employer, or
gives such labor organization an opportunity to refer qualified
applicants for such employment .... Provided, further, That any
11. THE LABOR ORGANIZATIONS INVOLVED
Local 798 and the UMW are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
I. Introduction
Involved in the resolution of the issues raised by the
pleadings is the question of the right of an employer
engaged primarily in the building and construction
industry to repudiate a valid prejob agreement with a
construction trades union and to execute and enforce a
subsequent collective-bargaining agreement with another
construction trades union claiming jurisdiction over the
construction project. The material facts relating to the
parties' relationship and the events leading up to the
alleged statutory violations herein are substantially undis-
puted and are set forth below.
2. The bargaining relationship between Davis
Industries and Local 798; their February 26, 1975,
prejob agreement
Since its incorporation in 1969, Davis Industries has
been in the pipeline construction business. That year it
became signatory to Local 798's National Pipeline Agree-
ment covering employees performing pipeline work. When
that contract expired, Davis Industries did not sign the
successor contract which became effective from May 1,
1974, to April 30, 1977, and yearly thereafter absent timely
notice of termination. Nevertheless, Davis Industries and
Local 798 continued their amicable relationship, entering
into different prejob agreements covering the employment
of welders, journeymen pipefitters, helpers and graded
helpers on specific pipeline construction jobs under the
terms and working conditions therein prescribed. In
addition, even in the absence of such prejob agreements,
Davis Industries utilized Local 798 members on pipeline
construction work because it considered them to be the
best qualified to perform such jobs and applied that
union's prevailing wages, fringe benefits and other condi-
tions of employment.
By letter dated January 29, 1975, 4 Davis Industries was
informed by Solomon & Teslovich, Inc., the general
contractor for U.S. Steel Corporation, that it intended to
agreement which would be invalid, but for clause (1) of this subsection.
shall not be a bar to a petition filed pursuant to section 91c) or
9
(e).
3The complaint alleges, and the answer denies, that the following
employees constitute an appropriate unit for bargaining purposes:
All welders, pipeline journeymen and welder helpers employed by
Respondents at Respondents' Kirby. Pennsylvania, site: excluding all
other employees, guards, professional employees and supervisors as
defined in the Act.
4All dates hereinafter mentioned relate to 1975 unless otherwise
indicated.
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
award it a subcontract to perform certain pipeline work on
U.S. Steel Corporation's Kirby Mine project.5 Thereafter,
Roy Davis, the vice president of Davis Industries, commu-
nicated with Louin (Sonny) Norris, Local 798's business
representative, to arrange a meeting to discuss the
employment of Local 798 members on the Kirby Mine
project. At the scheduled meeting on February 26, the
parties reviewed the job, its scope, and the number of
pipeliners needed and signed a prejob agreements which
expressly bound the parties to "all of the terms and
conditions of the current National Pipe Line Agreement
for the United States of America." In addition, the prejob
agreement, among other things, covered such matters as
the nature of the job; the number of employees in each
classification needed and their rates of pay; the name of
the pipe foreman; the starting date of the job (April 21);
the name of the union steward and his reporting date
(April 22); and the reporting date of the other employees
(May 5).7 The National Pipe Line Agreement mentioned
above contained a union-security clause providing for
membership in Local 798 beginning the eighth day
following the individual's employment or the effective date
of the National Agreement, whichever was later.
On April 2, Solomon & Teslovich, the general contractor,
executed a subcontract with Davis Industries for "Con-
struction Service for Water Lines." Although a clause in
this contract provided that, since the project was on "coal
grounds," the project "must be represented by the United
Mine Workers," 8 Davis Industries was evidently not
deterred from signing the agreement. A few weeks later,
probably the latter part of April, Davis Industries com-
menced pipeline work on the Kirby Mine project with
several qualified pipeliner employee-members of Local
798.9
3. The UMW's jurisdictional claim over Davis
Industries' pipeline work; its ultimate adjustment
At about the time Davis Industries began to perform the
pipeline work on the Kirby Mine project with pipeliner-
members of Local 798 pursuant to the Local 798 prejob
agreement, the UMW claimed jurisdiction over the project
and the right to represent Davis Industries' pipeline
employees, as well as the other employees of Davis
Industries working on this job. UMW based its jurisdic-
tional claim on the fact that the job was on coal property
covered by various UMW labor contracts to which
Solomon & Teslovich and U.S. Steel Corporation were
signatories. However, it is quite clear from the testimony of
Roy Davis, the vice president of Davis Industries, that he
5 The Kirby Mine appears to be a part of U.S. Steel Corporation's
Cumberland "C" Mine mentioned in vanous documents in evidence.
6 The exact title of this document is "United Association Pipeline Pre-job
Conference Report."
I Under the item of Remarks, the prejob agreement stated that "Benefits
and dues check to be paid weekly to Benefit Fund Office, Tulsa, Okla. This
job has not started with full crew as of yet. When pipe starts Union #798
will be notified."
The full text of this provision states:
XV. Solomon and Teslovich, Inc is signatory to the Association of
Bituminous Contractors and this project is awarded to Solomon &
Teslovich, Inc. by U.S. Steel Corporation with the understanding that
this is a project on "coal grounds" and must be represented by the
United Mine Workers.
preferred to use Local 798 members on the Kirby Mine
project, not only because of his good working relationship
with their organization, but more importantly because of
their well demonstrated qualification to do pipeline work.
In fact, he doubted that the UMW even had qualified men
to do the type of pipeline work required on this job.
Upon learning of the UMW's jurisdictional demands,
which the general contractor, Solomon & Teslovich,
supported by reason of its contractual obligation to U.S.
Steel Corporation and the UMW, Roy Davis met with
Norris, Local 798's business representative, to see what
could be done to iron out this problem. Davis pointed out
to Norris that, despite their prejob agreement, Davis
Industries was obligated under its subcontract with
Solomon & Teslovich to recognize the UMW's jurisdiction
and to deal with that organization as the representative of
the pipeline employees. Norris, however, insisted on Local
798's rights under its prejob agreement which Davis had
originally sought and secured from Local 798. When Davis
proposed that Local 798 members on the job obtain a
UMW book (meaning to join the UMW), Norris rejected
the idea as "strictly illegal" under union rules. The
discussion ended with Norris agreeing to attend a sched-
uled meeting at which all interested parties would be
present.
The scheduled meeting was subsequently held in the
office of John DiBiase, president of UMW District 4. In
addition to DiBiase, Norris, Roy Davis, and representa-
tives of Solomon & Teslovich were in attendance. After the
nature of the pipeline work required on the project was
reviewed, and the jurisdictional claims of the UMW and
Local 798 were discussed, it was clear that neither union
was disposed to recede from its position and that Davis,
without objection from any participant, expressed his
preference that Local 798 members continue to perform
the pipeline work. To resolve these difficulties, it was
proposed that the UMW's jurisdiction be recognized but
that Local 798 members obtain UMW membership books
in order to work on the job. As expected, this proposal was
unacceptable to Norris who abruptly left the meeting.
Still determined to resolve the jurisdictional dispute and
to employ and retain Local 798 members for the pipeline
work, Roy Davis again took the initiative to confer with
Norris a few days later. After further discussions and
appeals by Davis, Norris agreed, as a favor to Davis and in
order to restore harmony on the job, to Davis' proposition
that Local 798 members working on the job secure a UMW
Another clause in the subcontract (Paragraph VI) bound Davis Industries,
as subcontractor, to "ta ]11 general conditions and requirements of ... . [the]
contract between U. S. Steel Corporation . . . and Solomon & Teslovich,
Inc . . ."
" The Respondent also used on this project other employees in different
classifications not covered by Local 798 prejob or National Pipe Line
agreements or supplied by Local 798. These employees were equipment
operators, laborers, and truckdrivers who were members of their own
respective unions. However, it appears that when the UMW subsequently
assumed junsdiction over the Kirby Mine project, they fell under the
UMW's contract. No question is here raised concerning the UMW's right to
represent these employees.
948
DAVIS INDUSTRIES, INC.
book which would be treated as a work permit familiar in
the construction industry.' 0 However, Norris conditioned
his consent on Davis Industries' agreement to pay the
UMW initiation fee of $100; that the pipeline employees
would receive the wages and benefits, and that Davis
Industries would make the benefit fund contributions,
required by Local 798's contract, which would govern the
pipeliners' working conditions; that Local 798 members
would not be otherwise bound to the UMW contract; and
that Davis Industries would enter into individual, notarized
agreements with Local 798 member-employees on the
Kirby job, acknowledging that the UMW book was only
intended as a permit to be paid for by Davis Industries.
Thereafter, on May 2, Stag, obviously on behalf of Davis
Industries, signed with DiBiase, a copy of the UMW's
National Coal Mine Construction Agreement of 1974
covering construction work on coal mine property. Among
other things, the contract provided for recognition of the
UMW as "the exclusive bargaining agency representing the
employees of the [employer] . . . within the scope and
coverage of this Agreement . . ." and for union member-
ship, as a condition of employment, not later than 7 days
after the beginning of employment or the effective date of
this agreement, whichever was later.
The next day, May 3, Davis Industries entered into
separate agreements with members of Local 798 perform-
ing pipeline work on the Kirby Mine project. The
agreement, which was prepared by Davis Industries, read,
as follows:
AGREEMENT
It is hereby agreed that the purpose for obtaining
United Mine Workers Union membership books is
actually intended to serve as a work permit to allow a
more harmonious relationship between the U. M. W.
and U. A. Local Union 798. It is neither the intend (sic)
nor the purpose to bind the undersigned employee
beyond the scope and jurisdiction of the work involved
for U.S. Steel Corporation Cumberland "C" Mine
Project. It is further agreed that the employer, Davis
Industries, Inc., will be responsible to pay the $100.00
cost of securing such books.
Although Local 798 members were initially reluctant to
sign this agreement or secure a UMW membership book,
they acceded after Norris explained the arrangement he
had made with Davis Industries and assured them that
they would not be bound by the terms of the UMW
contract; that the UMW book was equivalent to a work
permit; and that they would be reimbursed by Davis
Industries for the cost of the book.
It appears that, in accordance with the foregoing
arrangement, four Local 798 members working on the
project, James H. Strickland, Kenneth L. Finnegan, Jesse
A. Hunnell, and Ralph Suter, were subsequently reim-
'o It appears that the UMW did not have any welders, pipefitters, or
helpers available to refer to this job.
" The payroll record shows this employee's name as Allshouse rather
than Alhouser as it appears in the transcript of testimony. The record
indicates that Allshouse worked on the Kirhby Mine project in July until
August and that Willard signed the individual agreement on May 3 Local
bursed for the initiation fees and dues deducted from their
pay and remitted to the UMW. However, it also appears
that at least two other pipeline employee-members of Local
798, Marvin Willard and Joseph Allshousel" were not
reimbursed for such deductions. Moreover, it is undisputed
that during the employment of Local 798 members on the
project they were paid by Davis Industries the pipeline
wage rates and benefits required by the Local 798's prejob
agreement and the incorporated National Pipeline Agree-
ment. In addition, Davis Industries complied with the
benefit fund contributions provided for in these agree-
ments and also remitted to Local 798 dues deducted from
its members pursuant to checkoff authorizations.
4. The August 25 prejob agreement between
Local 798 and Davis Industries; the latter's
subsequent suspension of operations on the Kirby
Mine project
With the jurisdictional dispute between Local 798 and
the UMW adjusted, Davis Industries proceeded with the
performance of its subcontract apparently without experi-
encing any problems. However, toward the latter part of
August, a point was reached in the pipeline work which
necessitated a reduction in force. Roy Davis, who super-
vised the job for Davis Industries, communicated with
Norris and advised him of the need to lay off several
employees. In recognition of this development, Norris and
Davis conferred and on August 25 executed a second
prejob agreement calling for a smaller crew of pipeline
employees to work on this job. In all other significant
respects, this agreement was similar to the parties' earlier
prejob agreement, incorporating by reference "all of the
terms and conditions of the current National Pipe Line
Agreement." 12 Thereupon, several pipeline employees
were laid off, while Strickland, Finnegan, Hunnell, and
Suter were retained.
With the passage of time Davis Industries came to the
realization that the arrangement it had made with Local
798 and the UMW several months earlier did not make its
operation a profitable venture and that something had to
be done about it. Consequently, on September 12, Roy
Davis wrote Solomon & Teslovich, the general contractor,
that, while at the inception of their contract
. . . we felt our bid price would be sufficient to allow
our company to realize a fair profit, . . . it has now
become apparent that we are legally bound to pay
double benefits i.e.-the United Mine Workers and
AFL-CIO Crafts-creating a hardship which we
cannot absorb at our current bid schedule.
We, therefore, are forced to request an increase in our
price equal to 7 1/2%. It is our fervent hope that you
grant this request in the light of current developments.
798's prejob agreement with Davis Industries shows that James Shamlin.
also a member, was referred to the jobsite by Norns as job steward, being
scheduled to report for work on April 22.
12 The August 25 prejob agreement also specifically provided for the
weekly remittance of benefits and dues to the "benefit office in Tulsa.
Oklahoma."
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated September 15, Solomon & Teslovich
replied that it was unable to grant the 7-1/2 percent price
increase and that "Davis Industries, Inc., is therefore
released of their contractual responsibilities and obliga-
tions on this project." In its letter of September 17 to
Solomon & Teslovich, Davis Industries answered that it
regretted that it had to accept the offer to release it from its
contractual obligations because "operating under the
present bidding schedule would be impossible."
About September 18, Roy Davis notified Norris that
Davis Industries was withdrawing from the job and that all
its employees would be permanently laid off. On Septem-
ber 21, Davis Industries terminated all its employees on the
project, including Strickland, Finnegan, and Hunnell, the
alleged discriminatees herein. Previously, on September 17,
Suter, another Local 798 member who worked on the
pipeline, had voluntarily quit. To replace him, Norris
referred another journeyman pipefitter, Melvin Hull, the
same day. However, Hull was not allowed by the UMW
steward to take Suter's job because UMW rules required
the job to be posted for bidding and to be filled by the most
senior eligible employee working on the project. This
denial of employment, apparently with the acquiescence of
Davis Industries, is alleged in the complaint, as amended,
to be discriminatory.
5. Add Miles' assumption of the Kirby Mine
pipeline work; its collective-bargaining agreement
with the UMW
Upon releasing Davis Industries from its contract,
Solomon & Teslovich solicited bids from various contrac-
tors for the completion of the pipeline work on the Kirby
Mine project. Among those contractors was Add Miles,
who Roy Davis informed Solomon & Teslovich was
interested in taking over the job. As indicated previously,
Add Miles is one of three corporations owned by the Davis
family, which was originally engaged in strip mine
operations but was inactive at the time of the events herein.
On September 18, Add Miles submitted its bid to Solomon
& Teslovich for the pipeline work which was not signifi-
cantly different from that specified in the cancelled Davis
Industries subcontract, although it included additional
pipeline work. After some negotiations with Roy Davis
regarding Add Miles' bid, Solomon & Teslovich's vice
president Gearhart awarded the job to Add Miles and so
formally notified it by letter dated September 22. Gearhart
testified that he selected Add Miles because several of its
personnel were already familiar with the job.
On September 25, Roy Davis notified the UMW that
Add Miles had taken over the Kirby Mine pipeline work
and the same day Add Miles signed a copy of the UMW's
National Coal Mine Construction Agreement of 1974,
which was the same agreement Stag had signed on behalf
of Davis Industries on May 2 when the latter was the
subcontractor. Thus, Local 798 was effectively excluded
from the project as the bargaining representative of the
pipeline employees whose wages, benefits, union member-
ship, and other terms and working conditions would
La In addition, with Local 798 no longer the pipeliners' representative on
the job, Add Miles would not be obligated to make contributions to Local
7
98's benefit fund on behalf of Strickland, Finnegan, and Hunnell had these
thenceforth be governed by the provisions of the UMW
contract.
On or about September 27, Add Miles commenced
operations on the Kirby Mine project with Roy Davis
managing the job as he had done when Davis Industries
was the subcontractor. The equipment Add Miles used in
performance of its subcontract was that owned and used
by Davis Industries which had remained on the job. On
September 29, Davis Industries entered into a formal rental
agreement with Add Miles for the lease of this equipment.
Recruitment of employees was accomplished through
referral by the UMW or through clearance of employees
directly hired by Add Miles. In accordance with the UMW
practices, preference in employment was given to the
employees who had seniority by reason of their prior
employment on the job by Davis Industries. While an
undisclosed number of former Davis Industries employees
not in the pipeline craft returned to work for Add Miles,
Local 798 members Strickland, Finnegan, and Hunnell, the
last pipeliners to be terminated by Davis Industries on
September 21, neither requested the UMW or Add Miles to
reemploy them nor were they offered their jobs back.
While there is testimony that they would have been hired
had they affirmatively sought employment, it is undisputed
that they would have had to be cleared under UMW
procedures and that they would have been subject to the
terms of the UMW contract, including lower wage rates
than those prescribed by Local 798's contract, the mainte-
nance of UMW membership, and the payment to the
UMW of dues and other membership fees and assess-
ments.13 To perform the pipeline work, Add Miles hired
Floyd Pettit, John Allshouse, Marvin Willard, and Marlyn
Costello who were either referred by the UMW or
otherwise were cleared in conformity with UMW proce-
dures. It appears that several of these pipeline employees
had on prior occasions worked for Davis Industries and
were and might still be Local 798 members. It also appears
that during their employment, dues and probably other
deductions were made by Add Miles from their pay and
were remitted to the UMW pursuant to checkoff authoriza-
tions. According to Roy Davis' testimony, the Kirby job
was completed on August 25, 1976.
6. The Respondents' single or joint employer
relationship; Add Miles as the alter ego of Davis
Industries
The record discloses that Davis Industries, Add Miles,
and Stag are commonly owned and operated by the Merle
Davis, Sr., family. The sons of Merle Davis, Sr.-Merle, Jr.,
Roy, and Robert-are the officers of Davis Industries and
Add Miles, respectively holding the office of president, vice
president, and secretary-treasurer in each company. Merle
Davis, Sr., Roy Davis, and Merle Davis, Jr., each owns a
one-third interest in Davis Industries, while the stock
ownership in Add Miles is equally divided among the same
three individuals and Robert Davis. As for Stag, Robert
Davis and Helen Davis, the wife of one of the brothers not
otherwise identified, are respectively the president and vice
individuals applied and accepted employment under the terms of the
UMW's contract.
950
DAVIS INDUSTRIES, INC.
president of that company and together with Marie Davis,
the wife of Merle, Sr., and the mother of the three brothers,
and Eleanor Davis, the wife of Robert, are the sole
stockholders in that company. Davis Industries and Add
Miles occupy the same premises in Monongahela, Pennsyl-
vania, while Stag has its business offices in Stockdale,
Pennsylvania. Robert Davis is responsible for maintaining
the books and records of all the corporations. A single
automatic data processing system for payroll purposes is
utilized for the three companies with separate accounts
being kept for each one.
As indicated above, although Davis Industries was the
pipeline contractor on the Kirby Mine job, it was Robert
Davis as president of Stag as employer, who signed the
labor contract on May 2 with the UMW covering this job,
using Davis Industries' address as Stag's. Moreover, Roy
Davis, who managed the pipeline project for Davis
Industries until it ostensibly relinquished the latter's
subcontract, expressed Add Miles' interest to the general
contractor, Solomon & Teslovich, in taking over the Kirby
pipeline job and then negotiated with the general contrac-
tor on Add Miles' behalf. Moreover, when Add Miles was
subsequently awarded the subcontract, Roy Davis resumed
his managerial duties on that job. It was also Roy Davis
who notified the UMW of Add Miles' contract and
arranged for the execution of the UMW labor contract in
Add Miles' name, as employer. Moreover, in performing its
pipeline contract, Add Miles utilized Davis Industries'
equipment, which had never been removed from the
project, pursuant to a lease agreement from Davis
Industries which Roy Davis signed on behalf of the lessee,
Add Miles.
All these factors combined persuade me that the three
Respondents form a closely knit and commonly owned and
managed business enterprise with inherent centralized
control over the labor relations policy of each company.
Accordingly, I find the the three Respondents constitute a
single or joint employer for the purposes of the Act.
Moreover, I find that all the facts previously related in the
decision demonstrate that Add Miles was actually the alter
ego of Davis Industries with respect to the performance of
the pipeline work on the Kirby Mine project.
B. Concluding Findings
In substance, it is the position of the General Counsel
that the Respondent Davis Industries withdrew recognition
from Local 798 as the exclusive representative in an
appropriate unit of the company's welders, pipeline
journeymen, and helpers at the Kirby Mine jobsite and
refused to honor its bargaining contract with that union
when, following a brief suspension of operations on
September 21, it resumed pipeline work on the project on
September 27 under the name of Add Miles, a part of the
Davis family single or joint employer enterprise, and as
Davis Industries' alter ego,' that Davis Industries took that
action in order to avoid paying fringe benefits to Local 798
and the higher Local 798 wage rates to the pipeline
employees; that to accomplish this objective, the pipeline
14 As I have previously lound that the Respondents constituted a single
or joint employer enterprise and that Add Miles was also the alter ego of
employees heretofore represented by Local 798 were
included in the union-security contract Add Miles entered
into with the UMW on September 25, thereby effectively
excluding Local 798 from the project as the bargaining
agent of the pipeline employees; that the effect of the
above conduct of Davis Industries and Add Miles was to
discriminate in employment against pipeline employees
Strickland, Finnegan, and Hunnell who were terminated at
the time when Davis Industries temporarily ceased opera-
tions but were not subsequently recalled because of their
Local 798 membership; and that on September 17, prior to
Davis Industries' suspension of operations, it discriminato-
rily denied employment to Hull because he was referred to
the job by Local 798 instead of being cleared through the
UMW procedures. By reason of the foregoing, the General
Counsel contends that the Respondents14 violated Section
8(a)(l), (2), (3), and (5) of the Act. The Respondents, on the
other hand, deny that Davis Industries or Add Miles was
under any statutory obligation to bargain with Local 798.
They further contend that Davis Industries' action in
discontinuing its Kirby pipeline operations and terminat-
ing the employees was taken in good faith for legitimate
business reasons and without antiunion motivation and
therefore was permissible. Moreover, the Respondents
argue that, even assuming that Add Miles was the alter ego
of Davis Industries, the resumption of operations and the
inclusion of the pipeline employees in the union-security
agreement between Add Miles and the UMW were not
discriminatorily motivated or otherwise violative of the
Act. The Respondents, accordingly, request dismissal of
the complaint. I find no merit in the Respondents'
contentions but find, on the contrary, that the commission
of the alleged unfair labor practices was established.
A good starting point for discussion is the nature of the
Respondents' bargaining obligation to Local 798. Section
8(f) of the Act, in pertinent part, provides:
(f) It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction
industry to make an agreement covering employees
engaged (or who, upon their employment, will be
engaged) in the building and construction industry with
a labor organization of which building and construc-
tion employees are members (not established, main-
tained, or assisted by any action defined in section 8(a)
of this Act as an unfair labor practice) because (I) the
majority status of such labor organization has not been
established under the provisions of section 9 of this Act
prior to the making of such agreement, or (2) such
agreement requires as a condition of employment,
membership in such labor organization after the
seventh day following the beginning of such employ-
ment or the effective date of the agreement, whichever
is later, . . . Provided, That . . . any agreement which
would be invalid, but for clause (1) of this subsection,
shall not be a bar to a petition filed pursuant to section
9(c) or 9(e).
Davis Industries. the term Respondents will be used at times to designate
Davis Industries or Add Miles or both.
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guided by its reading of the legislative history and the
purpose this provision was designed to serve, the Board has
held that, although a prehire agreement in the construction
industry is valid under Section 8(f), an employer may
withdraw recognition from the union and repudiate his
agreement without violating Section 8(a)(5) of the Act,
unless the union had in the meantime achieved majority
status as a result of the employment of its members on the
construction project involved or the application of a union-
security provision to the employees there employed or,
unless its majority status was established by other accept-
able means.' 5 As the Board explained in its Ruttmann
decision, 6 "In essence, . . . this prehire agreement is
merely a preliminary step that contemplates further action
for the development of a full bargaining relationship: such
actions may include the execution of a supplemental
agreement for certain projects or covering a certain area
and the hiring of employees who are usually referred by the
union or unions with whom there is a prehire agreement."
Therefore, where the union has attained majority status,
the employer is then under the statutory duty to recognize
and bargain with the union as the employees' exclusive
representative.
Applying these principles to the instant case, I find that
the Respondent Davis Industries breached its bargaining
obligation in withdrawing recognition from Local 798 as
the exclusive representative of the pipeline employees
employed on the Kirby Mine project and repudiating the
prejob agreement which incorporated Local 798's current
National Pipeline Agreement. There is no question that
Davis Industries is an employer primarily engaged in the
construction industry and that the pipeline employees,
members of Local 798 covered by the parties' prejob
agreement, are construction employees. Clearly then, the
February 26 prejob agreement entered into between Local
798 and Davis Industries at the latter's initiative because it
considered Local 798 members to be the best qualified
employees to perform the pipeline work on the Kirby Mine
job was a valid prehire agreement contemplated by Section
8(f). It is equally beyond doubt that from the moment
Davis Industries began its operations at this project in the
latter part of April with the employment of job steward
Shamlin, who reported for work April 22, and the pipe
foreman Hunnell, both Local 798 members, until Davis
Industries temporarily ceased operations on September 21,
only Local 798 members were hired to perform the
required pipeline work. During this period, Davis Indus-
tries observed the various terms and conditions of
employment embodied in its agreement with Local 798,
including the pipeline wage rates, contributions to Local
798's benefit fund, union-security requirements, and the
I, R. J Smith Construction Co., Inc.. 191 N.RB 693. 694 (1971), reversed
480 F.2d 1186. 1188 (C.A.DC.. 1973). ruh nom. Local vo. 150, International
Union of Operating Engineers. AFI.- ('10 v. N.L R. B.: Ruttmmnn (Conntruction
Company, and Rutrmann Corporation, Joint Employers, 191 NL.RB 701, 702
(1971). David F. Irvin and James B. McKelvv, partners. d b ai The Irvin-
McKelvv Company, 194 NLRB 52. 53 (1971). enforcement denied for other
reasons 475 F.2d 1265, 1267 (C.A. 3, 1973): Feniv & Sci'son, Inc, 207 NL.RB
752. 758 (1973), enfd. 506 F.2d 1404 (C.A. 7): lxxal Union No. 103,
International A.ssociation of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (Higdon Contracting Companv. Inc.4A 216 NL.RB 45, 46 (1975),
reversed 535 F.2d 87. 90 (C.A.D.C.). The Courts of Appeals for the District
deductions and remittance to Local 798 of dues and other
moneys pursuant to individual checkoff authorizations.
Having thus acquired majority status as the representa-
tive of the pipeline employees composed of welders,
pipeline journeymen, and helpers-certainly an appropri-
ate bargaining unit of skilled craftsmen 1--Local 79 8's
prehire arrangement with Davis Industries, under settled
law,' 8 blossomed into a full, traditional collective-bargain-
ing relationship which Davis Industries was no longer
privileged to ignore for the duration of the pipeline job
without running afoul of the Act. The fact that, as a favor
to Davis Industries and as a gesture of appeasement to the
UMW's jurisdictional claim to the pipeline work, Local 798
reluctantly yielded to Davis Industries' appeals to allow its
members working on the Kirby project to obtain UMW
membership books-viewed simply as job permits-upon
Davis Industries' consent to pay the UMW's $100
initiation fee,'9 did not impair Local 798's majority status.
Indeed, as a further condition of the foregoing arrange-
ment, Davis Industries conceded the continued vitality of
its bargaining agreement with Local 798, and accordingly
complied with its provisions dealing with the pipeline wage
scale, benefit fund contributions, union-security require-
ments and the remittance to Local 798 of dues and other
moneys deducted from the pipeliners' pay until Davis
Industries suspended operations. Moreover, when a reduc-
tion in the pipeline force became necessary in the latter
part of August, Davis Industries, in evident recognition of
Local 798's continuing representative status, notified Local
798 and executed a second "prejob" agreement providing
for a curtailed crew of pipeline employees to do the job.
Nor am I able to find that Local 798 automatically lost
its majority status as a consequence of Davis Industries'
cancellation of its subcontract and its ostensible discontin-
uance of its pipeline operations on the Kirby project
because the job proved to be unprofitable. The Respon-
dents argue, in effect, that Davis Industries was privileged
permanently to shut down its operations on the project
under the Supreme Court's decision in Darlington 20 and
therefore to withdraw recognition from Local 798 and
abrogate their bargaining contract. It is true that the
Supreme Court held that an employer has the absolute
right to terminate his entire business permanently, regard-
less of the reason. However, as found above, this is not
what had actually occurred at the Kirby project. Shortly
after the suspension of operations, Davis Industries
resumed work under the name of Add Miles, which was
part of the Davis family single employer enterprise, and as
Davis Industries' alter ego. In these circumstances, Local
798's status as the pipeline employees' exclusive representa-
tive continued on this project, as did its contract with
Davis Industries as a binding commitment.
of Columbia and Third Circuit held in the preceding cases that prehire
agreements were enforceable regardless whether the union had attained
majority status.
16 Ruttmon. supra, 702.
"1 Hychem Constructors, Inc., et al., 169 NLRB 274, 276 (1968).
'i The Irvin-McKelvy Company, supra, Fenix & Scisson, supra, 760.
19 Davis Industries also reimbursed at least four pipeline employees for
the dues paid to the UMW.
20 Textile Workers Union of America v. Darlington Manufacturing Co., et
al. 380 U.S. 263. 268. 273-274 (1965).
952
DAVIS INDUSTRIES, INC.
By the same token, I find that Add Miles' inclusion of
the pipeline employees in the union-security contract
which it signed with the UMW about 2 days before
resuming operations served, not only to deprive the
pipeline employees of representation by the union of their
choice,21 but also to change their wages, fringe benefits,
and other working conditions in derogation of Local 798's
right as their exclusive bargaining representative to be
consulted about such changes. Unquestionably, such
conduct constituted a clear breach by Davis Industries and
Add Miles of their statutory bargaining obligation owing to
Local 798,22 which cannot be excused by their assertion
that otherwise they would continue to be burdened with
the payment of fringe benefits to both Local 798 and the
UMW and with an unprofitable business venture. As one
court had the occasion to observe, the Act "permits no
immunity because the employer may think that the
exigencies of the moment require infraction of the
statute."23 Similarly untenable as justification for with-
drawing recognition from Local 798 and conferring it on
the UMW is the latter's asserted superior jurisdictional
claim.24
In sum, I find that the Respondents' withdrawal of
recognition from Local 798, their repudiation of Davis
Industries' contract with that union, and the inclusion of
the pipeline employees in Add Miles' contract with the
UMW, thereby unilaterally imposing lower wages and
different fringe benefits and terms and conditions of
employment from those prevailing under Local 798's
contract, violated Section 8(a)(5) and (1) of the Act.25 I
further find that, by Add Miles' recognition of the UMW
as the exclusive representative of the pipeline employees, in
disregard of these employees' duly designated bargaining
agent, Local 798, and by including these employees in the
UMW contract and enforcing the UMW contract with
respect to them, the Respondents illegally assisted and
supported the UMW in violation of Section 8(a)(2) and (I)
of the Act.26 Since the Add Miles' contract also required
the pipeline employees to join the UMW as a condition of
employment on the project, the Respondents also violated
Section 8(a)(3) and (1) of the Act. 27
Finally, I find that Davis Industries and Add Miles
discriminated in employment against Strickland, Finnegan,
and Hunnell, members of 798 who were the last pipeline
employees on the project when Davis Industries suspended
operations on September 21. Admittedly, neither Davis
Industries nor Add Miles recalled them when operations
resumed a few days later. I find that the obvious reason for
not recalling them was that Davis Industries and Add
21 Even if the UMW contract were viewed as a prehire agreement, it
would not be valid under Sec. 8(f) which bars such an agreement with a
labor organization "established, maintained. or assisted by any action
defined in section 8(a) of the Act as an unfair labor practice . '
22 Also untenable is the Respondents' suggestion that Davis Industries
was never under any duty to bargain with Local 798 with respect to the
pipeline employees because its prejob contract with Local 798 mistakenly
described the work involved as "mainline" work rather than "station-to-
station" work. Whatever language the contract used to describe the job,
there is no question that the parties knew that it referred to the pipeline
work on the Kirby Mine project which Davis Industries undertook to
perform pursuant to its subcontract with Solomon & Teslovich. the general
contractor.
23 NL.R B. v. Star Publishing (o., 97 F. 2d 465. 470 (C A 9. 1938); see
also Fenix & Scisson. Inc.. supra. 760.
Miles preferred to deal with the UMW, the unlawfully
imposed bargaining representative of the pipeline employ-
ees, rather than to bargain with Local 798, the exclusive
statutory representative of such employees. In this way,
Davis Industries and Add Miles expected to escape liability
for benefit fund contributions to Local 798 and the
payment of higher wages to pipeline employees as required
by Local 798's contract. Clearly, the treatment thus
accorded Strickland, Finnegan, and Hunnell was discrimi-
natory and necessarily encouraged support and member-
ship in the UMW and discouraged support and member-
ship in Local 798 within the meaning of Section 8(a)(3) of
the Act. I find without merit the Respondents' contention
that these individuals were not subjected to any discrimina-
tion because they could have returned to work had they
exercised their project seniority rights. Such seniority
rights, if they existed at all and if these individuals were
aware of them, which was not shown, derived from the
hiring procedures of the UMW, an unlawfully assisted
labor organization. Certainly, the rights of the pipeline
employees to their former jobs cannot be made to depend
on submission to such unlawfully imposed procedures and
working conditions or, as is also the case here, to the
acceptance of the UMW as their bargaining representative.
In any event, relying on the principles enunciated by the
Supreme Court in Great Dane Trailers, 28 the Respondents
argue that the General Counsel failed to prove that the
discrimination practiced against Strickland, Finnegan, and
Hunnell was motivated by antiunion considerations. On
the contrary, they urge, the evidence establishes that the
conduct of Davis Industries and Add Miles was dictated
solely by legitimate business reasons to eliminate the
unprofitable payment of fringe benefits to both Local 798
and the UMW. However, applying the principles of the
cited case, it is perfectly clear from what has been found
above that the Respondents' conduct was "inherently
destructive of important employee rights" as to obviate the
necessity of proof of antiunion motivation.2 At any rate,
the antiunion motive is well demonstrated by the fact that
the Respondents' conduct was directed against Local 798
which they sought to eliminate from the project as the
exclusive representative of the pipeline employees and to
supplant that union with the UMW.
With respect to the denial of employment to Hull, I find
that he, too, was discriminated against by Davis Industries.
As previously found, when Hull reported for work on the
project on September 17, a few days before the suspension
of operations, on referral by Local 798 to replace another
member who had voluntarily quit his job, a UMW steward
24 Star Publishing Co.. supra, 470.
25 The Irvin-McKelvy Commany, supra, Fenix d Scisson, supra, 760.
2 Ibid However, insofar as Add Miles' contract with the UMW applied
to employees other than the pipeline employees on the Kirby project. no
violation is alleged or found. Moreover. I find it unnecessary to determine
whether unlawful assistance was given to the UMW during the period from
May 2 to September 21 when Davis Industries suspended operations on the
project. As indicated above, the parties had adjusted their differences on
May 2, and dunng the ensuing period Davis Industries continued to
recognize and deal with Local 798 as the pipeline employees' exclusive
representative.
27 Ibid
e2 N' LR B. v. Great Dane Trailers, Inc., 388 U.S. 26(1967).
29 N.L R.B. v. Great Dane Trailers, supra, 34.
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not permit him to begin work because he had not
cleared through UMW hiring procedures, although the
UMW was not the pipeline employees' bargaining repre-
sentative. It appears that Davis Industries acquiesced in
this action. In these circumstances, I find that Davis
Industries discriminatorily denied employment to Hull as
to discourage support of and membership in Local 798 and
to encourage support of and membership in the UMW in
violation of Section 8(aX3) and (1) of the Act.30
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondents be ordered to cease
and desist from engaging in the unfair labor practices
found and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondents unlawfully
withdrew recognition from Local 798 as the exclusive
bargaining representative of the pipeline employees on the
Kirby Mine project and repudiated their bargaining
contract with Local 798 which was effective until the
completion of the pipeline work there. It has also been
found that the Respondents unlawfully assisted the UMW
by recognizing it as the exclusive representative of the
pipeline employees; by including those employees in the
UMW union-security contract which the Respondents
signed shortly before the resumption of pipeline operations
and by enforcing the UMW contract with respect to the
pipeline employees. Normally, the effectuation of the
policies of the Act would require that affirmative provi-
sions be embodied in the recommended order to remedy
the foregoing conduct, which, in substance, would direct
the Respondents to bargain on request with Local 798; to
honor their Local 798 contract until the completion of the
pipeline work; to withdraw recognition from the UMW;
and to cease giving effect to their UMW contract as it
applies to the pipeline employees. However, since, accord-
ing to Roy Davis' testimony, the Respondents' Kirby
pipeline job was completed on August 25, 1976, there
manifestly is no need for such relief. For the same reason,
no provision is made for the reinstatement on the Kirby
Mine project of pipeline employees Strickland, Finnegan,
and Hunnell and for the employment of Hull, all of whom
were found to have been discriminated against. However,
to remedy the loss of earnings suffered by them by reason
of the discrimination against them, the Respondents will be
ordered to make the named employees whole for any such
loss of earnings by payment to each of them of a sum of
money equal to that which each one normally would have
earned from about September 27, 1975, the date the
Respondents resumed operations at the Kirby Mine
project to August 25, 1976, the date the Respondents
assertedly completed their pipeline work, less his net
earnings during the said period. Backpay shall be comput-
ed with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). To facilitate the computation, the
30 N.L.R.B. v. Hudson Motor Car (omparn. 128 F.2d 528, 532 (C.A. 6,
19421. entg. 34 Nt.RB 815, 825 (1941)
:I Fenir & ScUison, Inc., supra, 761: 77e lnirn-M.cKelvs ('mpoany, upra.
Respondents shall make available to the Board, upon
request, payroll and other records necessary and appropri-
ate for such purposes.
As the previously mentioned agreement between the
Respondents and the UMW unlawfully provided for
membership in the UMW by the pipeline employees as a
condition of employment on the Kirby Mine project, it is
also recommended that the Respondents reimburse the
pipeline employees for the initiation fees, dues, and other
moneys they were required to pay by reason of such union-
security provision. The reimbursement of dues and fees
shall include interest at 6 percent per annum in accordance
with Isis Plumbing, supra. However, pipeline employees
who were already members of the UMW when employed
by the Respondents on the project shall not be entitled to
reimbursement. Identification of such employees will be
made in compliance proceedings, if necessary.31 The
posting of appropriate notices is also recommended.
In view of the nature of the discrimination found herein
which "goes to the very heart of the Act," 32 there exists the
danger of the commission by the Respondents of other
unfair labor practices proscribed by the Act. Accordingly, I
recommend that the Respondents be ordered to cease and
desist from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act. 33
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents are a single or joint employer and
Add Miles is the alter ego of Davis Industries, an employer,
all of whom are engaged primarily in the building and
construction industry and in commerce within the meaning
of Sections 2(6) and (7) and 8(f) of the Act.
2. Local 798 and the UMW are labor organizations of
which building and construction employees are members
within the meaning of Sections 2(5) and 8(f) of the Act.
3. All welders, pipeline journeymen, and helpers em-
ployed by the Respondents at the Respondents' Kirby
Mine jobsite, Kirby, Pennsylvania, excluding all other
employees, guards, professional employees, and supervi-
sors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, Local 798 was the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By withdrawing recognition from Local 798 as the
exclusive representative of the employees in the aforesaid
appropriate unit; by repudiating its collective-bargaining
agreement with Local 798 and refusing to honor the wages,
fringe benefits, and other terms and conditions of employ-
ment therein provided before the completion of the
pipeline work at the Kirby project; by changing the wages,
fringe benefits, and other terms and conditions of employ-
ment of the pipeline employees while pipeline work was
still being performed, without consulting and bargaining
2 .L. R. B v. Entwistle Manufacruring Company, 120 F. 2d 532, 536 (C.A.
4, 1941).
:':' N. L. R. B. v. Express Publishing (Company, 312 U.S. 426.433 (1941).
954
DAVIS INDUSTRIES, INC.
with Local 798, the Respondents engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act.
6. By recognizing the UMW as the exclusive represen-
tative of the pipeline employees; by including those
employees in a union-security agreement entered into with
the UMW; and by enforcing this agreement with respect to
the pipeline employees, all events occurring after the
Respondents resumed pipeline operations at the Kirby
project and while Local 798 was still the exclusive
bargaining representative of such employees pursuant to a
valid collective-bargaining contract, the Respondents
engaged in unfair labor practices in violation of Section
8(a)(1), (2), and (3) of the Act.
7. By discriminating in regard to the hire and tenure of
employment of pipeline employees Strickland, Finnegan,
Hunnell, and Hull to discourage membership in, and
support of Local 798 and to encourage membership in, and
support of the UMW, the Respondents engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of the
Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 34
The Respondents, Davis Industries. Inc., Add Miles,
Inc., and Stag Construction, Inc., Monongahela and
Stockdale, Pennsylvania, their officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain with, or honor any
labor agreement reached with United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local
798, AFL-CIO, as the exclusive representative of employ-
ees in an appropriate unit, concerning rates of pay, wages,
hours of employment, and other conditions of employ-
ment, at any time when that labor organization is entitled
to recognition on any of the Respondent's construction
projects.
(b) Assisting or giving support to United Mine Workers
of America and its District 4 and Local Union 1846 by
recognizing or entering into or enforcing collective-bar-
gaining agreements with those labor organizations as the
exclusive representatives of employees on any of the
Respondents' projects when the above-mentioned Local
798 or any other labor organization is the lawfully
designated bargaining representative of such employees or
holds a valid collective-bargaining agreement covering
such employees, or by otherwise recognizing or contracting
with the above-mentioned United Mine Workers labor
34 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes
organizations where such unions are not entitled to
recognition under the Act.
(c) Discouraging membership in United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local
798, AFL-CIO, or any other labor organization, or
encouraging membership in United Mine Workers of
America and its District 4 and Local Union 1846 by
discharging employees, or refusing to recall them to work
or refusing to hire job applicants, or in any other manner
discriminating against employees or job applicants in their
hire or tenure of employment or any term or condition of
employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole James H. Strickland, Kenneth L.
Finnegan, Jesse A. Hunnell, and Melvin D. Hull for any
loss of earnings they may have suffered by reason of the
discrimination practiced against them in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay
due under the terms of this recommended Order.
(c) Reimburse the pipeline employees who were em-
ployed on the Kirby Mine project after the Respondents
resumed operations on or about September 27, 1975, and
who were not then members of United Mine Workers of
America and its District 4 and Local Union 1846, for all
initiation fees, dues, and other moneys they were required
to pay under the terms of the Mine Workers union-security
agreement with Add Miles, Inc., in effect at that time.
(d) Post at their offices in Monongahela and Stockdale,
Pennsylvania, the attached notice marked "Appendix."3 s
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondents' authorized representatives, shall be posted
by the Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
"I In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted bh
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of those activities.
WE WILL NOT refuse to recognize and bargain with,
or honor any labor agreement reached with United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 798, AFL-CIO, as the
exclusive representative of employees in an appropriate
unit, concerning rates of pay, wages, hours of employ-
ment, and other conditions of employment, at any time
when that labor organization is entitled to recognition
at any of our construction projects.
WE WILL NOT assist or give support to United Mine
Workers of America and its District 4 and Local Union
1846 by recognizing or entering into or enforcing
collective-bargaining agreements with those labor
organizations as the exclusive representatives of em-
ployees on any of the Respondents' projects when
Local 798 or any other labor organization is the
lawfully recognized bargaining representative of such
employees or holds a valid collective-bargaining agree-
ment covering such employees, or by otherwise recog-
nizing the above-mentioned United Mine Workers
labor organizations where such unions are not entitled
to recognition under the Act.
WE WILL NOT discharge employees or refuse to recall
them to work or refuse to hire job applicants or in any
other manner discriminate against employees or job
applicants in their hire or tenure of employment or any
term or condition of employment because of their
membership in, or support of the above-mentioned
Local 798.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form, join or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the
Act.
WE WILL compensate James H. Strickland, Kenneth
L. Finnegan, Jesse A. Hunnell, and Melvin D. Hull for
any loss of earnings they suffered by reason of their
discriminatory treatment.
WE WILL reimburse our pipeline employees, who
worked on the Kirby Mine project after we resumed
operations under our contract with United Mine
Workers and its District 4 and Local Union 1846 and
who were not then members of those unions, for all
initiation fees, dues, and other moneys which they were
required to pay under the terms of our union-security
contract with the United Mine Workers which was in
effect at that time at this project.
DAVIS INDUSTRIES, INC.:
ADD MILES, INC.; STAG
CONSTRUCTION, INC.
956