Frederick H. Zurmuhlen & Associates

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 463 (N.L.R.B. 1971)

FREDERICK H. ZURMUHLEN ASSOC.
Frederick H. Zurmuhlen and Edward Thomas Hicks,
d/b/a Frederick H. Zurmuhlen & Associates and
International Union of Operating Engineers, Local
15-D, AFL-CIO. Case 29-CA-1888
March 31, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 30, 1970 , Trial Examiner Morton D.
Friedman issued his Decision in the above -entitled
proceeding , finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner ' s Decision.
Thereafter , the Respondent filed exceptions to the
Trial Examiner 's Decision , the General Counsel and
the Charging Party filed answers to the exceptions,
and the Respondent filed a reply to the General
Counsel's answer.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner's Decision , the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions , and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Frederick H. Zurmuhlen and Ed-
ward Thomas Hicks, d/b/a Frederick H. Zurmuhlen
& Associates, Staten Island, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Ord-er.2
i The Respondent's exceptions, which are limited to the question of
whether Respondent is presently capable of offering reinstatement to the
three employees unlawfully discharged by it, clearly raise matters which
cannot be resolved by the Board at this time and which are appropriately a
subject for the compliance stage of this proceeding
2 In footnote 25 of the Trial Examiner's Decision, substitute "20" for
"10" clays
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
463
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on December 24, 1969, by International Union of
Operating Engineers, Local 15-D, AFL-CIO, herein called
the Union, the Regional Director for Region 29 of the
National Labor Relations Board, herein called the Board,
issued a complaint on March 26, 1970, against Frederick H.
Zurmuhlen and Edward Thomas Hicks, d/b/a Frederick
H. Zurmuhlen & Associates, herein called the Respondent,
alleging violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended (29 U.S.C. Sec.
151, et seq. ), herein called the Act. In its duly filed answer
to the complaint the Respondent, while admitting certain
allegations of the complaint, denied jurisdiction and the
commission of any unfair labor practices.
Pursuant to notice, the hearing in this case was held
before me at Brooklyn, New York, on July 13 and 14, 1970.
All parties were represented and were afforded full
opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs. Beefs were filed
by counsel for the General Counsel, the Charging Party,
and the Respondent. Upon consideration of the entire
record,' including the briefs of the parties, and upon my
observation of the witnesses as they appeared before me, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
In essence, the Respondent contends that its operations
do not fall within the Board's jurisdiction because they are
primarily intrastate.
Respondent, a partnership, maintains its principal office
and place of business at Staten Island, New York. It is
engaged at various building and construction sites located
in the States of New York, New Jersey, and Vermont, in
providing and performing surveying, design and inspection
services, and related civil engineering services.2
The Respondent admits that during the year immediately
preceding the issuance of the complaint, a representative
period, in the course of its conduct of its business
operations, it performed services valued in excess of
$400,000 of which services valued in excess of $200,000
were performed for the Department of Transportation, an
agency of the State of New York. The services were
performed in connection with the construction of the
Richmond Parkway in Staten Island, New York City,
presently under construction, a 20 million highway
construction project financed on a matching financial basis
by the State of New York and by the United States
Department of Transportation, Bureau of Public Roads.
The Board considers the services rendered by an
I Counsel for the General Counsel moves that various typographical
errors contained in the transcript be corrected There being no opposition,
the corrections were made as ordered
2 This matter is alleged in the complaint and admitted by the
Respondent
189 NLRB No. 63
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to such projects to constitute indirect outflow
and, as inasmuch as the value of the services performed by
the Respondent towards this project are in excess of the
Board's $50,000 indirect outflow standard for nonretail
enterprises, I find and conclude that it would effectuate the
policies of the Act to assert jurisdiction herein.3
Accordingly, I further find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is and has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Preliminary Statement, Pleadings, and Issues
John W. Toth, Henry R. Kunath, and John J. Walsh, Jr.,
employees of the Respondent, who were allegedly engaged
in surveying work and were allegedly the only ones so
employed by the Respondent with the exception of the son
of one of the partners, signed union authorization cards.
The day after Walsh and Kunath signed cards, the Union
allegedly made a demand for recognition and bargaining
upon the Respondent. Several days thereafter Toth,
Kunath, and Walsh were discharged. The Respondent has
never acknowledged or responded to the alleged demand
for bargaining.
The complaint alleges, in substance, that the Union is the
majority representative of the Respondent's employees
engaged in surveying, an appropriate unit; the Union made
a demand for bargaining upon the Respondent; and the
Respondent has at all times failed and refused to bargain
with the Union. The complaint further alleges that the
Respondent discharged Toth, Kunath, and Walsh discnmi-
natorily because of their activity on behalf of and their
adherence to the Union. The complaint further alleges that
by refusing to bargain with the employees' majority
representative the Respondent has engaged in activities
violative of Section 8(a) (5) of the Act and that by the
discharge of Toth, Kunath, and Walsh the Respondent has
engaged in activities violative of Section 8(a)(3) and (1) of
the Act. The complaint also alleges that the Respondent
unlawfully interrogated and threatened its employees, in
violation of Section 8(a)(1) of the Act.
The Respondent's answer, as noted above, denies that the
Respondent is engaged in commerce within the meaning of
the Act. Respondent further denies and contends that it
employs persons engaged in the surveying arts and,
therefore, the alleged unit is inappropriate. It further denies
that it ever received a demand for recognition and
bargaining and that therefore it has never unlawfully
refused to bargain with the Union. Additionally, Respon-
dent denies that it interrogated and threatened its
employees and denies that it discharged Toth, Kunath, and
3 Browne and Buford, Engineers and Surveyors, 145 NLRB 765, 766,
Truman Schlup, Consulting Engineer, 145 NLRB 768, 769-770
4 From credited, uncontroverted testimony of Maguire
5 From the credited, uncontroverted testimony of Kunath and Toth On
cross-examination by Zurmuhlen, both of these employees denied that
Walsh, contending that the employees left its employ by
mutual consent.
Thus the issues, as framed by the pleadings and the
contentions of parties, are as follows:
1. Whether the Board has jurisdiction over Respon-
dent's operations. This issue has been resolved hereinabove.
2. Whether the "field surveyors" unit is a unit
appropriate for the purposes of collective bargaining.
3. Whether the Union is the majority representative of
the Respondent's field surveyors unit and entitled to
recognition and bargaining.
4. Whether the Respondent unlawfully interrogated
and threatened employees.
5. Whether Respondent unlawfully and discriminaton-
ly discharged and failed to reinstate employees Toth,
Kunath, and Walsh.
6. Whether the Respondent at all times herein has failed
and unlawfully refused to bargain with the Union as the
majority representative of the Respondent's employees
engaged in surveying.
The Facts
B. Background
During 1967 or 1968 Thomas Maguire, the Union's
business representative, spoke to Frederick Zurmuhlen, the
Respondent's partner, whose activities are the subject of
this proceeding. Maguire told Zurmuhlen that Maguire
represented survey engineers in the Union and that he
wanted to sit down to negotiate an agreement for the
survey people in Zurmuhlen's employ. Zurmuhien replied
that he would rather go out of business than affiliate with a
union; he was a professional man; and he saw no reason to
lower his standards by negotiating with a local union.
Maguire told Zurmuhlen that the latter's fears of the Union
were unfounded. However, Zurmuhlen refused to have any
part of the Union.4
Thereafter, about 8 months before the events which are
the subject of this proceeding, there was talk of the
surveyors in the Respondent's employ joining a union. At
that time Zurmuhlen called a meeting of all the employees
engaged in surveying in the Respondent's office. Zurmuh-
len told the assembled employees how, if they stayed with
the Respondent, they would receive company benefits and
that he would not accept the Union. He stated that he
would go out of business in New York State before
accepting a union and that he would have his partners do
the field work themselves.5
C. The Events
We come now to the events that are alleged to constitute
the unfair labor practices. These events occurred between
December 9 and 15 , 1969.6 During this time , Respondent
maintained its main office on Dumont Avenue, Staten
Island , New York City and a field office at a job being
constructed elsewhere in Staten Island on the Richmond
Zurmuhlen stated that he would abide by the results of an election and that
he would not object to an election being held with the employees if they
requested an election This testimony is uncontroverted and I credit it
6 Except as otherwise stated , all dates are in 1969
FREDERICK H. ZURMUHLEN ASSOC.
Park=way, section 3. At that Richmond Parkway site,
Respondent was engaged in consulting work for the State
of New York, checking the work of the contractor on the
job in order to certify to the State that payment might be
made based on proper work completion. Kunath and
Walsh were engaged at that site constantly checking the
work of the contractor while the contractor was working in
grading and laying the road. In the course of this work, in
order to insure that the contractor was performing his work
properly, the Respondent's surveying employees were
required to take measurements of such items as curves,
roads, service ramps, and to check the line and grade on the
sewer system. This was necessary to ascertain that the
contractor's own surveying parties were taking correct
measurements and that the contractor was properly
excavating, laying out lanes and bridges, and pouring the
necessary concrete or asphalt.? It should be noted that at
the time of the events herein the Richmond Parkway
construction was only partially completed and that much
work was yet to be done. In fact, the work on that Parkway
was still being performed at the time of the hearing herein,
and the Respondent was still engaged as the supervising
engineer of that Parkway construction.
In their work on the Richmond Parkway, Walsh and
Kunath worked as part of a surveying field party. The party
chief was Arturo Martini, whom Respondent admits was a
supervisor at that time. Kunath was the instrumentman and
Walsh the rodman.8
At the same time , Toth was engaged in other surveying
work along with one Billy Hicks, son of one of the
Respondent's partners. These two worked out of the
Respondent's main office and were engaged at that time
surveying a proposed job for the planned Broadway Mall in
the Borough of Manhattan, city of New York, for the New
York City Department of Parks. Their work consisted of
gathering material such as looking up various reference
points as monuments and bench marks from which could
be taken elevations. This is the type of work done at the
beginning of each new surveying job. At that time,
according to Toth, there were at least 2 month's additional
work to prepare the Broadway Mall job9
At the union hall, on December 9, Toth signed a union
authorization card and 2 days later, on December 11,
Kunath and Walsh also signed such cards. It should be
noted in connection therewith that the Respondent does
not contest the validity of these cards which were
introduced and received in evidence.
At the time that Kunath and Walsh signed their cards,
they were told by Business Representative Maguire that the
Union then represented a majority of the Respondent's
T From credited testimony of Kunath and Walsh which was
uncontroverted
8 From the uncontroverted testimony of Kunath which I credit
9 From the uncontroverted credited testimony of Toth
iS From credited, uncontroverted testimony of Kunath, Toth, Walsh
and Maguire
ii From the uncontroverted testimony of Maguire which I credit The
Respondent contends that Maguire should not be credited in this respect
because this was hardly a businesslike way for a union to make contact
with an employer for the first time The Respondent points out that
Maguire never followed up this telephone call with any written demand or
any further telephone calls to the Respondent The Respondent further
465
men doing line and grade, that is, survey work, and that
Maguire intended to telephone Zurmuhlen the next day,
December 12, to tell him this and to demand recognition
and bargaining.io
Thereafter, during the morning of December 12, a
Friday, Maguire telephoned Respondent's office. A female
employee answered the telephone and, after she stated that
it was Zurmuhlen's office, Maguire identified himself
saying that he was the business representative for Local
15-D of the International Union of Operating Engineers
and that he wanted to speak to Zurmuhlen. The lady told
Maguire that Zurmuhlen was not in, but that she would
have Zurmuhlen call Maguire back. Maguire then request-
ed that Zurmuhlen call him back and told the lady that the
purpose of his call was to notify Zurmuhlen that Maguire
represented a majority of Zurmuhlen's employees doing
survey work. He further demanded recognition as the
bargaining representative of these people and he also stated
that he desired to set up a meeting to negotiate an
agreement on behalf of the employees whom he represent-
ed. Maguire left his name and his telephone number but he
never heard from Zurmuhlen or anyone connected with the
Respondent firm."
During the morning of December 12, the same morning
that Maguire called the Respondent to demand recogni-
tion, Supervisor Martini asked Walsh and Kunath, with
whom he worked as a surveying party, if they "had signed
for the Union." Martini explained to the two that he was
asking this question because Zurmuhlen had telephoned
him earlier asking if any of Martini's men were involved
with the Union. Walsh and Kunath both admitted that they
had signed cards and when Martini asked why they did so
they explained to him that they wanted additional benefits
and higher wages. Thereupon, Martini told them that they
would have to return to the field office, out of which they
worked, so that Martini could call Zurmuhlen and tell him
that Walsh and Kunath had joined the Union. Walsh and
Kunath followed Martini to the office where Martini made
a telephone call to Zurmuhlen. Martini told Zurmuhlen
that Kunath and Walsh had joined the Union. Martini
hung up the telephone at the end of this conversation and
told Walsh and Kunath that Zurmuhlen would be out to see
them that afternoon.
However, Zurmuhlen did not arrive at the field office that
afternoon. But, Martini went for a very long lunch leaving
Kunath and Walsh in the office. This was very unusual
inasmuch as Martini normally ate lunch with the two
employees in the field office. When Martini returned late
that afternoon he told Kunath and Walsh that he had
lunched with Zurmuhlen and Zurmuhlen told him, Martini,
argues that it is hardly believable that a union business agent, who is
knowledgeable in the ways of business and in the ways of unions, would
leave a demand for recognition and a request for bargaining with a minor
employee of the Respondent without further correspondence The
Respondent also argues, in its brief, that only one lady was employed in
the office on the day that the alleged telephone call by Maguire was
made, and that an affidavit was submitted to the Regional Director in
which this female employee denied ever having received such a telephone
call from Maguire However, this affidavit was not placed in evidence, was
not offered in evidence, and was not produced at the heanng Moreover,
the lady employee was not produced by the Respondent at the hearing
Accordingly, in consideration of all of the foregoing, I find and conclude
that Maguire's testimony is believable
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Zurmuhlen would never "join the Union." Martini
further informed Kunath and Walsh that Zurmuhlen and
Supervisor George De Benedicty would be out to the field
office to see Kunath and Walsh on the morning of the next
workday, Monday, December 15.12
At approximately the same time that these matters were
occurring with regard to Kunath and Walsh, employee
Toth who was working out of the main office came into the
main office on that Friday to make out a report on his
previous day's activities. He waited for his supervisor, De
Benedicty, to furnish him with instructions as to his next
assignment, but De Benedicty did not give Toth any work.
Toth waited in the office all day that Friday. Although
there was work to be done on the Broadway Mall job, no
work was assigned to Toth. Nor was any explanation given
to Toth for this failure to assign him work. Thereafter, on
Monday, December 15, Toth again reported to the
Respondent's main office while Kunath and Walsh
reported to their usual assignment in the field office.
After arriving at the main office, Toth was called into the
office of De Benedicty where both De Benedicty and
Zurmuhlen were present. De Benedicty then asked Toth
"What's this I hear about the Union?" Toth told De
Benedicty and Zurmuhlen that he had joined the Union.
Zurmuhlen then stated "Well, at least we know who the
third person is." Then the question was asked of Toth why
he had joined the Union. The record does not disclose
whether it was De Benedicty or Zurmuhlen who asked this
question. When Toth answered that he joined the Union to
obtain a higher salary and more benefits, Zurmuhlen said
that he knew that Toth had always been loyal to the
Respondent and had always attempted to do his job
properly. Then Zurmuhlen reminded Toth that the latter
had advanced a long way since starting to work for the
firm, which Toth acknowledged. Zurmuhlen then dismissed
Toth saying that he would talk to him later. Toth then
returned to his work station in the main office but no
instructions had been left for him although, again, there
was work remaining to be done. He waited all morning but
no assignment was given him.i3
On that Monday morning, December 15, Kunath and
Walsh, except for one small minor job, were not assigned
any work by Martini and they awaited the assignment of
work during the entire morning. Finally, around 1 p.m. of
that day, Zurmuhlen and De Benedicty arnved at the field
office and went into the office of resident engineer
Fernandez who was in charge of the office. About a half
hour or an hour after De Benedicty and Zurmuhlen
arrived at the field office they called in Kunath and Walsh.
Zurmuhlen immediately asked them why they had joined
the Union. Kunath and Walsh answered that they wanted
higher wages and more benefits. Zurmuhlen then told them
that employees could not work for the Union and for him at
the same time because, he explained, they could not be
loyal to two bosses. Zurmuhlen then told Kunath and
12 All of the foregoing from credited, uncontroverted testimony of
Kunath and Walsh Martini did not testify
13 From the credited uncontroverted testimony of Toth It is significant
that although De Benedicty testified he did not deny any of the foregoing
conversation between Toth and De Benedicty and Zurmuhlen It is also
significant that with regard to the testimony of Kunath and Walsh in
relating the events of Friday, December 12, and the conversation with
Walsh that they had grown with the Respondent; they had
received bonuses and paid vacations even though partners
themselves did not receive such benefits; employees
received time off; and the Respondent permitted employees
to work throughout the year without layoff. Zurmuhlen
stated then that if the Union came into the picture the
Respondent would lay off employees during winter months
when work was slow. Then, resident engineer Fernandez
broke into the conversation and stated to Zurmuhlen "Let's
get this over with." Zurmuhlen told Martini that he could
have the "honors," whereupon Zurmuhlen handed Martini
two payroll checks which had evidently been prepared and
signed before Walsh and Kunath came into the room and
which Zurmuhlen had had openly in his possession while he
was speaking to the two employees. Martim handed the
checks to Kunath and Walsh who immediately left. The
time that they left was 3 hours before the normal 4:30
quitting time.14
At sometime before 3:30 on the same afternoon De
Benedicty, who had returned from the field office to the
main office, called Toth to his office. When Toth came into
the office he saw a check already filled in and signed lying
on De Benedicty's desk. De Benedicty then told Toth that
he hated to do what he had to do, that the Company did
the best it could for Toth, and that De Benedicty had
taught Toth a lot. He further told Toth that the Company
could offer Toth a $100 raise a month but that it would not
compare with what the Union could offer. Then, De
Benedicty handed Toth the check without any further
conversation. Upon receipt of the check Toth told De
Benedicty that he guessed he was fired and that he knew it
was coming. De Benedicty did not deny in that conversa-
tion that Toth was fired. The discussion revolved around
Toth's saying he would attempt to get a job at the World
Trade Center. Toth mentioned that he would like to get
more schooling. With that Toth left several hours earlier
than his normal quitting time.15
The checks given Kunath, Walsh, and Toth on December
15, included termination pay and the vacation pay.
Additionally, as hereinbefore noted, December 15 was not
a regular payday. Additionally, Respondent's own records
with regard to Toth note that Toth was "terminated."
On the night of January 15 Toth received a telephone
call from De Benedicty at Toth's home. De Benedicty told
Toth that the Respondent had not actually terminated
Toth as yet and that Toth could come back to work for the
Respondent as an inspector on a pool job It should be
noted that this was a different job than that which was
normally performed by Toth who had been doing the work
of a surveyor. Toth pointed out that De Benedicty did not
offer him surveying work and he explained that he would
not return to work as an inspector. De Benedicty then
asked Toth not to contact union delegate Maguire but
instead report the next morning to his inspector'sjob. Toth
did not answer definitely but said only that he would
Martini, that Respondent did not call upon Martini to testify to deny any
of the content of this conversation
14 From the uncontroverted testimony of Walsh and Kunath which I
credit Neither De Benedicty nor Fernandez denied any of this testimony
when they testified Zurmuhlen did not testify
15 From the credited testimony of Toth which was not denied by De
Benedicty
FREDERICK H. ZURMUHLEN ASSOC.
discuss the matter with Kunath and Walsh who were also
terminated on that day. After speaking to Kunath, Walsh,
and Maguire, Toth decided not to return to the inspector's
job and told this to the Company's inspection supervisor
who telephoned Toth the next morning, Tuesday, Decem-
ber 16. This was the last contact that Toth had with the
Respondent. However, Kunath did attend the
Respondent's subsequent Christmas party. Walsh had no
further contact with the Respondent whatsoever after
December 15.16
Noteworthy in connection with these terminations, as
related above, is the testimony of Kunath and Toth, as
stipulated to by Zurmuhlen at the hearing, that in prior
years no employee had been laid off when work was slow
during the winter months but that Respondent had, on the
contrary, made work for these employees so that they could
work 12 months out of the year. Of additional significance
is the testimony, again uncontroverted, of Toth, Kunath,
and Walsh that there was still work to be done on the
various assignments to which they were directed at the time
of the terminations.
D. Respondent's Explanation of the Terminations
As noted above, in its answer, the Respondent alleges
that the termination of the three employees, Toth, Kunath,
and Walsh, was the result of economic conditions and that
the men were laid off by reason of mutual agreement. The
answer further states that the Respondent had been
considering the termination of the three discrimmatees for
some time prior to December 15, 1969, inasmuch as the
Respondent had no further work for them to do and had
been carrying them on the payroll to avoid terminating
their employment prior to the Christmas holiday season.
On i he other hand, Respondent also states it had previously
implored discriminatee Toth to reconsider his decision to
accept other employment and asked him to continue his
employment with Respondent. It is evident on the face of
this pleading that there is a patent inconsistency in that the
Respondent alleges that it decided to lay the people off for
economic reasons but that the layoff was mutually agreed
upon. Moreover there is an inconsistency in stating that it
considered the layoff of Toth at the same time it implored
him to stay on as an employee with the Respondent.
In support of the allegations in its answer that the
termination of the three alleged discriminatees was for
economic reasons only, the Respondent offered two
witnesses, Edward Fernandez and George De Benedicty,
both associates in the Respondent's firm.
Fernandez testified that in August 1969 the Respondent,
as consulting engineer on the Richmond Parkway job,
approved payment to the contractor in the amount of
$680,000 which sum steadily decreased each month to but
$35,000 in December 1969, and only $23,000 in January
1970 Moreover, Fernandez testified that for 2 months
prior to the time of the termination of Toth, Walsh, and
Kunath, in reviewing the Respondent's budget, Fernandez
recommended the dismissal of Kunath and Walsh and the
reassignment of duties for Toth. Additionally, De Benedic-
16 From credited portions of the testimony of Toth, Kunath, and Walsh,
which portions went unrefuted by any Respondent witness
467
ty testified that at the time that these employees were
terminated the Respondent had bid on contracts on a
number of major jobs on which proposals were submitted.
However, De Benedicty further testified that the Respon-
dent was not awarded any of these contracts.
Moreover, Fernandez testified that in the period prior to
December 15, 1969, the Respondent, in order to keep the
employees occupied, engaged them in duties not essential at
that time of the year and that the same duties could have
been performed many months later in the spring of the
following year. Additionally, some of the employees in
question took vacations around this time because of the
slack nature of the Respondent's business. This was
admitted by employee Kunath. Also, De Benedicty testified
that Toth was engaged during the months of September,
October, November, and December, 1969 gathering
information for contracts which were never received by the
Respondent and his salary was charged to overhead or to
projects never awarded to the Respondent Additionally, all
three discriminatees admitted, in testifying, that they knew
that work was slow and that they could not see any more
work coming into the Respondent's shop at that time of the
year.
On the other hand, Fernandez testified, as did the three
discriminatees, that in prior years there had been slow-
downs, but, Fernandez admitted, in December 1969 there
was a normal slack work period similar to that which
occurred every preceding year. Nevertheless, Kunath and
Toth, who had worked for the Respondent in previous
years had never been laid off before, according to
Fernandez. This testimony was agreed to by Toth and
Kunath. Also, as noted above, Toth's current job on which
he was working at the time of the termination had at least 2
months to go according to Toth, and the Richmond
Parkway job, on which both Kunath and Walsh were
engaged, was still in progress as of the date of the hearing
herein.
E. Concluding Findings as to the Terminations
Zurmuhlen, although he did not testify, admitted at the
hearing in representing the Respondent that the Respon-
dent was "making work today for certain of our people"
because Respondent ordinarily keeps people in its employ
and has their services charged to various contracts which
"we will assume will be coming in some future date at
which time we will be able to bill." Moreover, heretofore set
forth immediately above is the testimony of Fernandez in
which he admits that the slack period was normal for that
time of the year and that Kunath and Toth had not been
laid off during similar slack periods in prior years.17
With regard to the Respondent's contention that the
terminations were mutually agreed on, there is nothing in
the record to show that any one of the alleged discrimina-
tees told anyone in the Respondent's supervisory hierarchy
that they were looking for other jobs and were thinking of
leaving the Respondent's employ. Thus, I find and
conclude, inasmuch as there was no testimony to the effect
that there was a mutual agreement to terminate, the
it Walsh had not worked for the Respondent long enough to have been
affected by any prior years business
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were discharged as of December 15, 1969, and
they had no part in deciding whether they would terminate
their employment.
Heretofore recited at length is the manner in which the
terminations occurred. As noted, the Union made its
demand upon the Respondent on December 12, the day
after Walsh and Kunath had signed their union authoriza-
tion cards and 3 days after Toth had signed his. That the
Respondent knew of the signing of the cards and the
joining of the Union and the Union demand is apparent
from the manner in which the employees were interrogated
on December 12 both by Martini and by De Benedicty and
Zurmuhlen. Thus, it is established, and I find, that the
Respondent had full knowledge of the employees' joining
the Union to which Zurmuhlen had expressed such
vehement opposition at prior times. In fact, Martini stated
to Kunath and Walsh, after he had lunch with Zurmuhlen
on December 12 and had informed Zurmuhlen that Kunath
and Walsh had joined the Union, that Zurmuhlen would
never stand for having a union in his shop, or, to use
Martini's own words, that Zurmuhlen "would never join
the union."
While it is entirely possible that work was slack as of the
time of the terminations of the three alleged discrimmatees,
I also find and conclude that work had been slack in prior
years and, under the same circumstances, the Respondent
had found work for its employees and had not laid them
off. Moreover, the terminations within a few days after the
employees had signed union authorization cards, and only
3 days after the Union had made its demand upon the
Respondent, could not, under all the circumstances, have
been motivated solely by the fact that the Respondent was
not enjoying a profitable economic period Indeed, I
conclude that the Respondent would not have terminated
the employment of these individuals had it not been for the
advent of the Union and the employees' advocacy of the
same.
I further conclude, therefore, that the Respondent's
defense that it was an economic necessity to terminate these
employees is of no avail in the circumstances presented.
Finally, I find and conclude that the Respondent
discriminatorily discharged employees Toth, Kunath, and
Walsh because of their advocacy of the Union and because
they joined the Union and, additionally, because the Union
made a demand for recognition and bargaining upon the
Respondent. Such discharges are violative of Section
8(a)(3) and (1) of the Act and I so find.
With regard to the telephone call to Toth by De
Benedicty on the night of Monday, December 15, offering
Toth a job as an inspector, and stating that Toth had not
been fully terminated as of that time , I do not find that this
was an offer of reinstatement to the same or equivalent
position which Toth had enjoyed prior to the discharge that
occurred that morning. Accordingly, I find that none of the
three discriminatees has ever been offered reinstatement to
their former or equivalent positions
F. Conclusions as to the Interference, Coercion, and
Restraint
As set forth above, during the morning of the same day
that Union made its demand, Supervisor Martini asked
Kunath and Walsh if they had signed cards for the Union
and explained that he was asking because Zurmuhlen had
telephoned asking him if any of Martini's men were
involved with the Union. This is a classic case of unlawful
interrogation which constitutes interference, coercion, and
restraint in violation of Section 8(a)(1) of the Act. I so find.
When, on that same afternoon, Martini told Walsh and
Kunath that Zurmuhlen would never join the Union, he
engaged in discouraging union activities in violation of
Section 8(a)(1) of the Act.
When on the morning of December 15 De Benedicty
asked Toth "What's this I hear about the Union" he
engaged in interrogation which was violative of Section
8(a)(1) of the Act as constituting interference with the
employees' Section 7 rights.
Additionally, when Zurmuhlen at the exit interview of
Walsh and Kunath told them that the Respondent
permitted employees to work throughout the year without
layoff, but that if the Union came in the picture
Respondent would lay off employees without pay during
the winter months, he threatened them with regard to their
Section 7 rights in violation of Section 8(a)(1) of the Act.
G. The Refusal To Bargain
1. The appropriate unit
The Respondent contends that it is not engaged in the
surveying profession but that rather its function is that of
consultant or consultant engineer. Respondent states that
the obligations imposed upon the engineer are not the same
as those imposed upon a contractor who must survey the
job before any of the work can be completed. Respondent
argues that, under the State of New York Department of
Public Works and Specification, the stake out survey is the
obligation of the contractor and that the engineer
permissively may check any or all portions of the survey
stake out or work notes. Respondent also states that such
checking does not relieve the contractor of any of the
responsibilities for the accuracy or completeness of his
work and that it is therefore unreasonable to conclude that
the mere use of surveying instruments makes one a
surveyor.
On the other hand, all three discriminatees testified that
about 95 percent of their worktime with the Respondent
was spent in performing surveying work, with the use of
surveying instruments such as the theoadlite, the level, the
rod, and the chain. Moreover, Respondent's witness,
Fernandez, testified that the titles given the employees,
although not engineering titles, were only generalization
titles used to satisfy payment requirements of the State of
New York.
On the other hand, it is apparent from the record that the
surveying work was organized in the manner in which
surveying work generally is. Thus the employees were
organized in field survey parties. In fact, the record
affirmatively shows that Walsh and Kunath worked in a
field survey party consisting of themselves and Supervisor
Party Chief Martini, whereas Toth worked with Hicks
under De Benedicty's supervision performing surveying
work. Thus Walsh, Kunath, Toth, and Hicks were fulltime
surveying employees who did only surveying work except
FREDERICK H. ZURMUHLEN ASSOC. 469
for the small percentage of the time when they worked in
the Respondent 's office during bad weather.
The discriminatees testified, without contradiction, that
they all started as rodmen and through schooling and
on-the-job training they acquired additional skills. Thus,
Kunath became an instrumentman and Toth became a
highly skilled mstrumentman and also an assistant chief of
party.18
Thus, I conclude that the Respondent at all material
times employed field survey employees having a mutuality
of interest separate and apart from Respondent's other
employees.
Accordingly, I find and conclude that all field survey
employees of the Respondent, employed at its New York
State operations, exclusive of inspectors, draftsmen,
professional employees, office clerical employees, all other
employees, guards, and all supervisors as defined in the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.19
2. The Union's majority status
Although there is some testimony in the record to the
effect that other employees beside the three discriminatees
and the son of one of the partners, Hicks, were engaged or
had been engaged at some time or other in the surveying
processes, the testimony of Kunath, Walsh, and Toth
establishes that as of the time of the Union's demand herein
the only employees so engaged were the three discrimina-
tees and Hicks.
Thus, during the relevant time, the Respondent had only
four nonsupervisory surveying employees, of whom one,
Hicks, was the son of a copartner and he is, therefore,
excluded from the unit heretofore found appropriate.20
As fully set forth earlier in this decision, on December 9
Toth signed a union authorization card and Kunath and
Walsh signed similar cards of December 11. These cards
were signed at the union hall. The Respondent does not
attack the validity of any of these cards and I therefore
conclude that the cards were valid union authorization
cards sufficient to support the Union's assertion that it is a
majority representative of the Respondent's employees in
the appropriate unit.
Accordingly, I find that on or about December 11, 1969,
a majority of the employees of the Respondent, in the unit
described above, designated and selected the Union as their
representative for the purposes of collective bargaining with
the Respondent, and at all times since that date, the Union,
by virtue of Section 9(a) of the Act, has been and is now the
exclusive representative of all the employees in said unit for
the purpose of collective bargaining.
party to whom he spoke that the Union was the majority
representative of the Respondent 's employees engaged in
surveying and that the Union requested recognition and
bargaining . Although it is rather unusual that a union
representative would not follow up such a telephone call
with a letter of demand or a call back to speak to one of the
principles of the partnership , or at least to someone in
authority, it is clearly apparent, from the record, that the
Respondent's actions which followed Maguire's telephone
call were indicative that the Respondent 's partner,
Zurmuhlen, received the message and was fully cognizant
of the Union's representations and demand. Thus, the
Respondent immediately , through Zurmuhlen , Martini,
and De Benedicty began to interrogate the employees as to
their union membership and made it clear to the employees
that Respondent would not tolerate the Union or recognize
it.
In fact, in addition to the interrogation and threats, as
found above, the Respondent began, and did succeed in,
destroying the Union's majority by discharging the three
employees eligible for inclusion in the appropriate unit.
In circumstances such as these the Supreme Court has
held 21 that where an employer rejects a union card majority
while at the same time committing unfair labor practices
that tend to undermine the union's majority and make a
fair election among employees an unlikely possibility, the
Board is authorized to order recognition and bargaining as
a remedy for the refusal to bargain.
In the instant case , the Respondent , as soon as it was
apprised of the fact of the Union's majority and its demand
for recognition and bargaining, set out on a course of unfair
labor practices constituting interference , coercion, and
restraint and then culminated its activity with the
immediate discharge of all of the employees in the unit,
thus destroying the Union's majority.
Under these circumstances , I find and conclude that the
Respondent unlawfully refused to bargain with the Union,
its employees' majority representative, in violation of
Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activity of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
3. Concluding findings as to the demand and the
refusal
It has been found, above, that on December 12 Maguire,
the Union 's business representative , called the Respon-
dent's place of business on the telephone and informed the
11 From the uncontroverted testimony of Kunath and Toth
19 See Browne and Buford, Engineers and Surveyors, 145 NLRB 765,
Truman Schlup, Consulting Engineer, 145 NLRB 768
Having found that the Respondent has engaged in
certain unfair labor practices it will be recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that the Respondent has engaged in
20 See Sec 2(3) of the Act
21 NLRB v Gissell Packing Co, 395 U S 575
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interference , coercion , and restraint in violation of Section
8(a)(1) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom.
It having been found that the Respondent has discrimina-
torily discharged John W. Toth, Henry R. Kunath, and
John J. Walsh, Jr., I shall recommend that Respondent
offer the said employees immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges. In addition, I shall recommend that Respondent
make these employees whole for any loss of earnings they
may have suffered by reason of the discrimination against
them by payment to each of a sum of money equal to that
which each would normally have earned from the date of
his discharge, less net earnings during said period. Backpay
shall be computed with interest on a quarterly basis in the
manner described by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-295, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Having found that Respondent has unlawfully refused to
bargain with the Union in good faith and has thereby
violated Section 8(a)(5) of the Act, I shall recommend that
the Respondent cease and desist from refusing to so
bargain and shall further recommend that the Respondent
bargain, upon request, with the Union and, if an
understanding is reached, embody such understanding in a
signed agreement.
In view of the nature of the unfair labor practices herein
found, including discrimination, which goes to the very
heart of the Act,22 there exists the danger of commission by
the Respondent of other unfair labor practices proscribed
by the Act Accordingly, I recommend that Respondent be
directed to cease and desist from in any other manner
infringing upon the rights guaranteed employees in Section
7 of the Act.23
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in Section
7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminatorily discharging employees John W.
Toth, Henry R. Kunath, and John Walsh, Jr., the
Respondent has violated Section 8(a)(3) and (1) of the Act.
5. All field survey employees of the Respondent,
employed at its New York State operations, exclusive of
inspectors, draftsmen, professional employees, office
clerical employees, all other employees, guards, and all
supervisors as defined in Section 2(11) of the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
6. At all times since December 11, 1969, the Union has
been the exclusive representative of all the employees in the
aforesaid unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, or
other terms and conditions of employment.
7. By refusing on December 12, 1969, and thereafter, to
bargain collectively with the aforesaid labor organization,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting 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, I hereby issue the following recommended:
ORDER
Respondent, Frederick H. Zurmuhlen and Edward
Thomas Hicks, d/b/a Frederick H. Zurmuhlen & Associ-
ates, its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their membership
in the Union, and threatening employees with reprisals
should Respondent's employees select the Union as their
bargaining representative.
(b) Discouraging membership in International Union of
Operating Engineers, Local 15-D, AFL-CIO, or any other
labor organization, by discharging any employee for
engaging in protected union or concerted activity, or by
discriminating against employees in any other manner in
regard to their hire and tenure of employment or any term
or condition of employment.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights to form,
join, assist , or be represented by International Union of
Operating Engineers, Local 15-D, AFL-CIO, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing , or to engage in other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activity.
(d) Refusing to bargain collectively with International
Union of Operating Engineers , Local 15-D, AFL-CIO, as
the exclusive representative of its employees in the
following appropriate unit:
All field survey employees of the Respondent employed
at its New York State operations, exclusive of
inspectors, draftsmen , professional employees , office
clerical employees, all other employees, guards, and all
supervisors as defined in Section 2(11) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer John W. Toth, Henry R. Kunath, and John J.
Walsh , Jr., immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges enjoyed, and
make each whole for any loss of earnings each may have
22 N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4)
23 N L R B v Express Publishing Company, 312 U S 426, 433
FREDERICK H. ZURMUHLEN ASSOC.
suffered by reason of discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Notify John W. Toth, Henry R. Kunath, and John J.
Walsh, Jr., if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and
reports, and all other reports necessary to analyze the
amount of backpay due under this recommended Order.
(d) Upon request, bargain collectively with International
Union of Operating Engineers, Local 15-D, AFL-CIO, as
the exclusive bargaining representative of the Respondent's
employees in the unit found appropriate with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) Post at its main office in Staten Island, New York, and
in its field offices in the State of New York, copies of the
attached notice marked "Appendix."24 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees 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. No other material relative to this
matter shall be posted during this period.
(f) Notify the Regional Director for Region 29, in writing,
within 20 days from receipt of this Decision, what steps the
Respondent has taken to comply herewith.25
24 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, recommendations, 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 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 by order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
25 In the event that this recommended Order is adopted by the Board,
this provisions shall read "Notify said Regional Director, in writing,
within 10 days from the date of this Order, what steps the Respondent has
taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United State Government
471
WE WILL NOT question any employees about their
union activities or their membership in the Union.
WE WILL NOT make any threats to our employees
regarding the lessening of working conditions in the
event the Union represents our surveying employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to form, join, or assist or be represented by the
International Union of Operating Engineers, Local
15-D, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing, or engage in other concerted activities
for purpose of collective bargaining or other mutual aid
or protection or to refrain from any and all such
activities.
WE WILL offer to John W. Toth, Henry R. Kunath,
and John J. Walsh, Jr., immediate and full reinstate-
ment to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and we will make each whole for
any loss of earnings that each may have suffered as a
result of our discrimination against him.
WE WILL, upon request, bargain collectively with
International Union of Operating Engineers, Local
15-D, AFL-CIO, as the exclusive bargaining represent-
ative of our employees in the unit found appropriate
herein with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement:
All field survey employees employed at our New
York State operations, exclusive of inspectors,
draftsmen, professional employees, office clerical
employees, all other employees, guards, and all
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of
Section 9(b) of the Act.
WE WILL notify John W. Toth, Henry R. Kunath,
and John J. Walsh, Jr., if any are presently serving in
the Armed Forces of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or
refrain from becoming or remaining, members of Interna-
tional Union of Operating Engineers , Local 15-DD
AFL-CIO, or any other labor organization , except to the
extent that this right may be affected by an agreement in
conformity with Section 8(a)(3) of the amended Act.
FREDERICK H. ZURMUHLEN
& ASSOCIATES
,(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 16
Court Street , Fourth Floor, Brooklyn, New York 11201,
Telephone 212-596-3535.
Dated By
(Representative) (Title)