Incisa, U.S.A., Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1999

327 N.L.R.B. 563 (N.L.R.B. 1999)

INCISA, U.S.A., INC. 563
Incisa, U.S.A., Inc. and United Steelworkers of Amer-
ica, AFL–CIO–CLC and Laborers’ Local 265,
affiliated with the Laborers’ International Un-
ion of North America, AFL–CIO

Laborers’ Local 265, affiliated with the Laborers’
International Union of North America, AFL–
CIO (Incisa, U.S.A., Inc.) and Granville Tackett
and J. C. Barker. Cases 9–CA–30158–1, 9–CA–
30158–2, 9–CB–8406, and 9–CB–8411
February 10, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On October 5, 1994, Administrative Law Judge Don-
ald R. Holley issued the attached decision. The General
Counsel, Respondent Incisa, and Respondent Laborers’
Local 265 (Laborers) filed exceptions and supporting
briefs. Charging Party United Steelworkers of America,
AFL–CIO–CLC (Steelworkers) filed exceptions and an
answering brief to Respondent Incisa’s exceptions. The
General Counsel and Respondent Incisa filed answering
briefs.
On October 23, 1998, the General Counsel, Respon-
dent Employer, and Charging Party Steelworkers filed an
unopposed Motion to Sever Cases and to Remand Cases
9–CA–30158–1 and 9–CA–30158–2. Thereafter, the
General Counsel, Charging Party Steelworkers, and the
Respondent Employer filed motions to withdraw their
exceptions in Cases 9–CA–30158–1 and 9–CA–30158–
2. On November 20, 1998, the Board granted the mo-
tions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified2 and to adopt the recommended Order as modi-
fied.
In view of our order remanding Cases 9–CA–30158–1
and 9–CA–30158–2 to the Regional Director for Region
9 for further appropriate action, we pass only on those
findings by the judge remaining before us in Cases 9–
CB–8406 and 9–CB–8411. Specifically, in Case 9–CB–
8406, we adopt the judge’s finding that Respondent Union
violated Section 8(b)(1)(A) by seeking and accepting 9(a)
recognition at a time when a valid petition by Charging
Party Steelworkers was pending before the Board.3 In Case
9–CB–8411, we adopt the judge’s findings that, by refusing
Charging Party Granville Tackett’s request not to join the
Union and by thereafter causing the Employer to terminate
Tackett, the Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act.

1 The Respondent Union has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951 ). We have carefully examined the record and
find no basis for reversing the findings.
2 We have modified the judge’s recommended Order and notice to
comport with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
The complaint in Case 9–CB–8411 also alleges a fail-
ure to give nonmember unit employee Granville Tackett
(and only Tackett) notice of his rights under Communi-
cations Workers v. Beck, 487 U.S. 735 (1988), in viola-
tion of Section 8(b)(1)(A).4 After having been offered
reinstatement following a 9-day strike in July 1992,
Tackett reported to the Incisa jobsite and told Laborers’
field representative Tony Youngblood that Tackett
wanted to be a “financial core participant” and “not join
the Union.” On July 21, Youngblood obtained clearance
from a project superintendent for Tackett to work at 3-
percent dues checkoff.5 The same day, Laborers’ stew-
ard Barry Williams, asked Tackett to sign two cards—
one for the Respondent’s 3-percent dues checkoff, and
one for the Ohio Labor Council. Respondent Laborers
never informed Tackett that he could object to having his
dues or fees spent on nonrepresentational activities, or
that individuals who objected would be charged only for
representational activities.
On July 30, 1992, Williams told Tackett “that [the La-
borers] couldn’t live with the deal . . . that [Tackett]
would have to join the Union.” When Tackett refused,
Incisa’s project manager told Tackett that he would be
laid off. The following day, Tackett was laid off because of
“Conflicts with Article IX of the project agreement with
Local #265 Regarding Union Membership in #265.” By
letter dated August 4, Respondent Laborers’ confirmed that
it had asked Incisa to enforce the 7-day union-security
clause in its 8(f) agreement.
3 In Case 9–CB–8406, the judge also recommended dismissal of the
allegation that, by obtaining 9(a) recognition while a valid petition was
pending and simultaneously maintaining a collective-bargaining agree-
ment which contained a union-security clause, Respondent Union vio-
lated sec. 8(b)(2). No exception has been filed to this dismissal.
4 The complaint also alleges that the Respondent Union violated Sec.
8(b)(1)(A) by misinforming Tackett about his right under NLRB v.
General Motors Corp., 373 U.S. 734 (1964), to be a nonmember—i.e.,
by telling Tackett that he would have to join the Union as a condition of
his continued employment with Incisa. The judge did not pass on this
allegation, and no exception has been filed to his failure to do so.
Nonetheless, as stated in California Saw & Knife Works, 320 NLRB
224 (1995), “Beck rights accrue only to nonmembers. Thus, in order to
fully inform nonmember employees of their Beck rights, a union must
tell them of this limitation and must tell them of their General Motors
right to be and remain nonmembers.” Paperworkers Local 1033 (Wey-
erhauser Paper Co.), 320 NLRB 349 (1995), revd. on other grounds
sub nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated 119
S.Ct. 442 (1998), expressly extended this concomitant notice obligation
to all employees, including “those who are still full union members and
did not receive those notices before they became members.” 320 NLRB
at 349.
5 Respondent Laborers’ members paid 3 percent of gross wages as
working dues and $16 a month as monthly dues.
327 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
The judge found no evidence that Respondent Union
sought to cause Tackett to pay money for nonrepresenta-
tional activities, he dismissed the allegation that it had
violated Section 8(b)(1)(A) by failing to give Tackett
Beck notice. The General Counsel excepts. We reverse.
In Beck, the Supreme Court held that the Act does not
permit a collective-bargaining representative, over the
objection of dues-paying nonmember employees, to ex-
pend funds collected under a union-security agreement
on activities unrelated to collective bargaining, contract
administration, and grievance adjustment. 487 U.S. at
752–754. In California Saw & Knife Works, 320 NLRB
224 (1995), enfd. sub nom. Machinists v. NLRB, 133
F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang
v. NLRB, 119 S. Ct. 47 (1998), the Board found that a
union breached its duty of fair representation by failing
to provide notice of Beck rights to employees covered by
a union-security agreement. Specifically, California Saw
requires that

when or before a union seeks to obligate an employee
to pay fees and dues under a union-security clause, the
union should inform the employee that he has the right
to be or remain a nonmember and that nonmembers
have the right (1) to object to paying for union activities
not germane to the union’s duties as bargaining agent
and to obtain a reduction in fees for such activities; (2)
to be given sufficient information to enable the em-
ployee to intelligently decide whether to object; and (3)
to be apprised of any internal union procedures for fil-
ing objections. Id at 233 [footnote omitted].

California Saw explained that these notice require-
ments furnish significant protection to the interests of the
individual nonmember unit employee vis-à-vis Beck
rights, without compromising the countervailing collec-
tive interests of bargaining unit employees in ensuring
that every unit employee contributes to the cost of collec-
tive bargaining. The Board further emphasized that a
union is afforded a wide range of reasonableness under
the duty of fair representation in satisfying its notice ob-
ligation. Id. at 235. A union meets its notice obligation
as long as it takes reasonable steps to ensure that all em-
ployees whom the union seeks to obligate to pay dues
under a union-security clause are given notice of their
Beck rights. Id. at 233.
The record reflects that Respondent Union failed to
notify Tackett of his Beck rights at the time it first sought
to obligate him to pay dues, as required under California
Saw. It thereby violated Section 8(b)(1)(A).6
AMENDED CONCLUSIONS OF LAW
1. Add the following as Conclusion of Law 7.

6 Contrary to the judge, the Union’s obligation to provide Beck no-
tice to Tackett is not contingent on a showing that part of his dues were
used for nonrepresentational purposes. Teamsters Local 738 (E.J.
Brach Corp.), 324 NLRB 1193 (1997).
“7. By failing to notify employee Granville Tackett of
his Beck rights at the time it sought to obligate him to
pay fees and dues under the union-security clause, Re-
spondent Laborers has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(A) and Section 2(6) and (7) of the Act.”
AMENDED REMEDY
Having found that Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2), we shall order it to cease and desist
therefrom and to take certain affirmative action necessary
to effectuate the policies of the Act. Having found that
Respondent Union caused the Employer, Incisa, U.S.A.,
Inc. to unlawfully discharge Granville Tackett, we shall
order Respondent Union to notify the Employer in writ-
ing, with copies to Tackett, that it has no objection to his
reinstatement and that it affirmatively requests his rein-
statement. We shall also order Respondent Union to
make Tackett whole for any loss of wages and benefits
he may have suffered as a result of the Respondent Un-
ion’s conduct until such time as he either is reinstated by
the Employer to his former or substantially equivalent
position, or until he obtains substantially equivalent em-
ployment elsewhere, less interim earnings. Electrical
Workers IBEW Local 3 (Fishbach & Moore), 309 NLRB
856 (1992); Sheet Metal Workers Local 355 (Zinsco
Electrical Products), 254 NLRB 773 (1981). The
amount of backpay shall be computed with interest as
provided for in New Horizons for the Retarded, 283
NLRB 1173 (1987).
In accordance with the Board’s decision in California
Saw & Knife, we shall order Respondent Union to notify
Tackett of his rights under Beck and General Motors.
The Beck notice shall contain sufficient information, for
the accounting period or periods covered by the com-
plaint, to enable Tackett to decide intelligently whether
to object. See, e.g., California Saw, supra, 320 NLRB at
253.
We shall also order Respondent Union to accept Tack-
ett’s tendered resignation from the Union. If Tackett has
paid dues or fees since he was subjected to the union-
security clause or about July 20, 1992,7 and if, with rea-
sonable promptness after receiving his notices, he makes
a Beck objection with respect to those dues or fees, we
shall order Respondent Union, in the compliance stage of
the proceeding, to process his objection, nunc pro tunc,
as it would otherwise have done, in accordance with the
principles of California Saw. Respondent Union shall
then be required to reimburse Tackett for the reduction of
his dues and fees, if any, for nonrepresentational activi-
ties that occurred for the accounting period or periods
covered by the complaint. Interest on the amount of
proportionate back dues and fees owed to Tackett shall
7 The record does not definitively establish whether or not Tackett
was ever charged any dues or fees.
INCISA, U.S.A., INC. 565
shall be computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that Re-
spondent Laborers’ Local 265, affiliated with the Labor-
ers’ International Union of North America, AFL–CIO, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Seeking and obtaining 9(a) recognition as the ex-
clusive representative of Incisa, U.S.A., Inc.’s employees
while a valid petition seeking an election among those
employees is pending before the Board.
(b) Refusing to permit employees, including Granville
Tackett, to exercise their right not to join the Union and
causing their employer to terminate them because they
refuse to join the Union.
(c) Failing to notify employees of their Beck and Gen-
eral Motors rights when it first seeks to obligate them to
pay fees and dues under a union-security clause.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employee Granville Tackett whole for losses
he suffered as a result of discrimination against him, to-
gether with interest, in the manner set forth in the
amended remedy section of this Decision and Order.
(b) Notify Incisa, U.S.A., Inc., in writing, with a copy
to Granville Tackett, that it has no objection to his em-
ployment and that it requests that he be reinstated.
(c) Accept Granville Tackett’s resignation from the
Union.
(d) Notify Granville Tackett of his rights under Com-
munications Workers v. Beck, 487 U.S. 735 (1988), in-
cluding that he has the right to be or remain a nonmem-
ber and that nonmembers have the right to object to pay-
ing for dues activities not germane to the Union’s duties
as bargaining agent and to obtain a reduction in fees for
such activities. In addition, this notice must provide suf-
ficient information to enable Tackett to intelligently de-
cide whether to object, as well as a description of any
internal union procedures for filing objections.
(e) Process Granville Tackett’s objections in the man-
ner prescribed in the amended remedy section of this
Decision.
(f) Reimburse Granville Tackett with interest if he files
an objection under Communications Workers v. Beck,
supra, for any dues and fees exacted from him for non-
representational activities, in the manner prescribed in
the amended remedy section of this Decision.
(g) Within 14 days from the date of this Order, remove
from its files, and ask Incisa, U.S.A., Inc. to remove from
its files, any reference to the discharge of Granville
Tackett, and within 3 days thereafter notify Tackett in
writing that it has done so and that it will not use the dis-
charge against him in any way.
(h) Within 14 days after service by the Region, post at
its union hall copies of the attached notice marked “Ap-
pendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by
Respondent Union’s authorized representative, shall be
posted by Respondent Union immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent Union has taken to
comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT seek and obtain recognition as the ex-
clusive 9(a) representative of Incisa, U.S.A., Inc.’s em-
ployees while a valid petition seeking an election among
such employees is pending before the Board.
WE WILL NOT cause employees to be discharged for
exercising their right not to join the Union.
WE WILL NOT fail to notify employees of their Beck
and General Motors rights when we first seek to obligate
them to pay fees and dues under a union-security clause.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL notify Incisa, U.S.A., Inc., that we have no
objection to the employment of Granville Tackett and
that we do not object to Tackett’s reinstatement and WE
WILL request that Incisa reinstate him.
WE WILL make employee Granville Tackett whole
for losses he suffered as a result of his discharge together
with interest.
WE WILL notify Granville Tackett, in writing, of his
rights under Communications Workers v. Beck, 487 U.S.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
735 (1988), including that he has the right to be or re-
main a nonmember and that nonmembers have the right
to object to paying for union activities not germane to the
Union’s duties as bargaining agent, and to obtain a
reduction in fees for such activities. In addition, this
notice must include sufficient information to enable the
employee to intelligently decide whether to object, as
well as a description of any internal union procedures for
filing objections.
WE WILL accept Granville Tackett’s resignation from
the Union and WE WILL process Beck objections to
nonrepresentational expenditures for the accounting pe-
riod or periods covered by the complaint.
WE WILL reimburse Granvill Tackett with interest if
he files an objection under Communications Workers v.
Beck, supra, for any dues and fees exacted from him for
nonrepresentational activities.

LABORERS’ LOCAL 265, AFFILIATED
WITH THE LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA, AFL–CIO

Donald A. Becher, Esq., for the General Counsel.
Andrew J. Russell, Esq. (Smith & Smith Attorneys), of Louis-
ville, Kentucky, and David D. Dibari, Esq., of Washington,
D.C., for the Respondent.
Samuel H. Heldman, Esq., of Birmingham, Alabama, for the
Steelworkers.
Lawrence M. Oberdank, Esq., of Cleveland, Ohio, for Labor-
ers’ Local 265.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. Original
charges were filed in Cases 9–CB–30158–1 and 9–CA–30158–
2 on November 18, 1992. Thereafter, on December 31, 1992,
the Regional Director for Region 9 of the National Labor Rela-
tions Board issued a complaint in Case 9–CA–30158–1 that
alleged, in essence, that Incisa, U.S.A., Inc. (Respondent Em-
ployer or Respondent Incisa), violated Section 8(a)(1) and (2)
of the National Labor Relations Act by recognizing Laborers’
Local 265, affiliated with the Laborers’ International Union of
North America, AFL–CIO (Respondent Union), as the exclu-
sive bargaining representative of specified employees at a time
when a valid petition requesting an election among such em-
ployees was pending in Case 9–RC–16074. Respondent Em-
ployer filed timely answer denying it had engaged in the unfair
labor practices alleged in the complaint. On January 11, 1993,
the original charge in Case 9–CB–8406 was filed by Granville
Tackett, an individual, and on January 14, 1993, the original
charge in Case 9–CB–8411 was filed by J. C. Barker, an indi-
vidual. Thereafter, on February 25, 1993, Cases 9–CB–8406
and 9–CB–8411 were consolidated for trial and a complaint
was issued that alleged, in substance, that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act by: obtaining
recognition from Respondent Employer on August 8, 1993, as
the exclusive collective-bargaining agent of named unit em-
ployees although a valid petition seeking an election in such
unit had been previously filed by the United Steelworkers of
America, AFL–CIO (Steelworkers); denying Tackett financial
core membership on or about July 7, 1992, by telling him he
would have to join Respondent Union as a condition of contin-
ued employment at Respondent Employer; and failing to notify
Tackett during his period of employment with Respondent
Employer of the percentage of Respondent Union’s funds spent
for nonrepresentational purposes. On the same date, Cases 9–
CB–8406, 9–CB–8411, and 9–CA–30158–1 were consolidated
for trial. Respondent Union filed timely answer denying that it
had engaged in the unfair labor practices alleged in the Febru-
ary 25, 1993 complaint.
On April 7, 1993, the Regional Director consolidated Cases
9–CA–30158–1 and 9–CA–30158–2 for trial and he issued an
amended complaint that realleged the allegations contained in
the December 31 complaint against Respondent Employer and
additionally alleged that Respondent Employer violated Section
8(a)(1) and (3) of the Act by refusing since July 8, 1992, to
reinstate strikers who had made an unconditional offer to return
to work, and by subordinating, since July 13, 1992, the recall
rights of such strikers to the referral provisions of a collective-
bargaining agreement between Respondent Employer and Re-
spondent Union. On April 15, 1993, Cases 9–CA–30158–1, 9–
CA–30158–2, 9–CB–8406, and 9–CB–8411 were consolidated
for trial. Respondent Employer filed timely answer denying it
had engaged in the unfair labor practices alleged in the April 7,
1993 amended complaint. Thereafter, Respondent Employer
filed affirmative defenses to the allegations contained in the
April 7, 1993 amended complaint.
Trial was held in the designated cases in Cincinnati, Ohio, on
September 28 and 29, 1993. All parties appeared and were
afforded full opportunity to participate. On the entire record,
including careful consideration of posthearing briefs filed by
the parties, and from my observation of the demeanor of the
witnesses who appeared to give testimony, I make the follow-
ing1
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer, a corporation, is engaged in heavy
and highway construction and, during times material, was en-
gaged in the reconstruction and rehabilitation of a 4-mile
stretch of highway in Kenton County, Kentucky. During the 12-
month period preceding issuance of the original complaint in
Case 9–CA–30158–1 it purchased and received at its Kenton
County, Kentucky jobsite goods valued in excess of $50,000
directly from points outside the Commonwealth of Kentucky. It
is admitted, and I find, that Respondent Employer is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATIONS
It is admitted, and I find, that United Steelworkers of Amer-
ica, AFL–CIO, and Laborers’ Local 265, affiliated with the
Laborers’ International Union of North America, AFL–CIO,
are labor organizations within the meaning of Section 2(5) of
the Act.

1 The General Counsel’s unopposed motion to correct the record at
p. 3 of the brief is granted.
INCISA, U.S.A., INC. 567
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On or about March 21, 1991, Respondent Incisa and Steel-
workers entered a prehire agreement that was to govern the
terms and conditions of employment of employees to be util-
ized on a highway project located in Kenton County, Kentucky.
The work to be performed at the project entailed the reconstruc-
tion and rehabilitation of a 4-mile stretch of Interstate 75 be-
tween Covington, Kentucky, and Cincinnati, Ohio. As a dan-
gerous curve in the highway was to be removed, the project
became known as the “Death Hill Project.” The above-
described agreement was to be effective through June 30, 1992,
and it contained a provision for automatic renewal if not termi-
nated by one of the parties in accordance with its terms.
By certified letter (return receipt requested) dated April 17,
1992, Steelworkers notified Respondent Incisa it wished to
terminate their agreement. The letter was returned to Steel-
workers with indication that Respondent Incisa had been noti-
fied to pick up a certified letter on three dates but the letter had
remained unclaimed. Initially, Respondent Incisa disputed
Steelworkers’ claim that it had given appropriate termination
notice, but by June 22, 1992, Incisa accepted the termination
notice.
The record reveals that during late spring 1992 Respondent
Incisa wanted to extend their current 8(f) agreement with
Steelworkers through the duration of the Kenton County Pro-
ject. Steelworkers, on the other hand, were then negotiating
with an employer association called Highway Contractors, Inc.,
and they notified Respondent Incisa they wanted to replace
their current 8(f) agreement with a statewide rather than a pro-
ject agreement. In early June 1992, Stuart Rothman, Incisa’s
attorney, proposed extension of the current 8(f) agreement
through the end of the project with the understanding that In-
cisa would agree to abide by any changes reached by Highway
Contractors, Inc., and Steelworkers during their negotiations
(see G.C. Exh. 12). Steelworkers’ position at the time was that
“if a renewal agreement that encompasses statewide work is not
reached by July 1, 1992, a strike will occur’’ (G.C. Exh. 13). In
the same letter, Steelworkers suggested Respondent Incisa au-
thorize the contractors association to bargain for them. By letter
dated June 22, 1992, Incisa withdrew its offer to extend the
contract and incorporate changes negotiated by Steelworkers
and the Highway Association.
On June 23, 1992, Respondent Incisa representatives met
with representatives of Steelworkers Local 14581, the body that
actually supplied men for the death hill project. No representa-
tive from the International Union attended and the positions of
the parties were not altered as a result of the meeting.
On June 30 representatives of Incisa and United Steelwork-
ers International met at a motel in Fort Mitchell, Kentucky.
Management was represented by Stuart Rothman (attorney),
Orson Zinglerson (labor relations consultant), Santo Tropea
(executive vice president), Dina Peletti and Fallica (Incisa offi-
cials). The Union was represented by Jay Smith (attorney),
Ernest Thompson (staff representative), George Cantrell (vice
president of Local 14581), Charles Cantrell (president of Local
14581), and J. C. Barker (union steward). Thompson and Smith
described what occurred at the meeting. A composite of their
testimony reveals that at the outset of the meeting, Smith with-
drew the demand for a statewide agreement and withdrew the
Union’s suggestion that Incisa negotiate through the contrac-
tor’s association. Smith then requested that Incisa recognize
Steelworkers as the 9(a) representative of project employees
observing that surely everyone agreed that Steelworkers repre-
sented a majority of workers on the project. Rothman indicated
Incisa doubted the Union’s claimed majority status and refused
to extend recognition to Steelworkers. The attorneys, Thomp-
son, and Zinglerson met privately away from the general meet-
ing and Smith inquired whether Incisa would be willing to ex-
tend the agreement through the end of the project with Incisa’s
agreement to abide by changes that had been agreed on during
recently concluded negotiations with Highway Contractors, Inc.
Rothman asked what the changes were and Thompson de-
scribed a couple of changes. Rothman indicated Incisa was not
interested in entering any kind of agreement with Steelworkers
at that time. After the negotiators returned to the general meet-
ing room, Smith announced that Steelworkers would be striking
for recognition the following morning. Rothman advised the
job would be open for business for anyone who wanted to
work.
Thompson indicated that, after leaving the June 30 meeting,
he went to the project where he caused employees who were
there to sign authorization cards. He further indicated that he
returned to the site the next morning and asked those who had
appeared to participate in the strike to sign authorization cards.
The cards were placed in evidence as General Counsel’s Ex-
hibit 18.2
On July 1, 1992, Steelworkers commenced a strike at the
death hill project. Pickets carried signs, the legends of which
stated: “Incisa Unfair to Labor’’ and “USWA On Strike For
Recognition.’’ Some 39 individuals had been employed by
Incisa on the project as of June 30, and approximately 50 dem-
onstrators appeared at the project on July 1. No replacement
workers appeared at the job on July 1, but some 50 feet of re-
taining wall had been poured the preceding day and about 9:30
a.m. the project superintendent, Dave Riley, and Zinglerson
approached Thompson and Steward J. C. Barker to see if the
Steelworkers would permit someone to finish the wall while the
cement was green. Apparently, Riley asked Thompson if he
would supply someone to accomplish the finishing and Thomp-
son informed him he would not. Zinglerson claims Thompson
then told Riley he would strongly urge that he not use his own
people to do the finishing because feelings were running high
and he would not want to see anything happen. Thompson’s
recollection is that his comment was that things were calm right
then and he suggested they leave it like that. Picketing contin-
ued at the site from July 1–5 without incident. Respondent In-
cisa did not attempt to accomplish work at the project during
that time period.
On July 2, Respondent Incisa and Respondent Laborers exe-
cuted the collective-bargaining agreement placed in the record
as General Counsel’s Exhibit 25. The agreement was given an
effective date of July 1, 1992, and was to remain in effect for
the duration of the death hill project. The agreement contains a
referral clause requiring the signatory employer to obtain jour-
neymen and apprentices from the Union except in the event the
Union cannot refer qualified applicants within 48 hours after a
request. In that situation, the employer can employ applicants
from other sources. Additionally, the contract contains a union-
security clause requiring membership in the Union no later than

2 There were 30 cards dated June 30, 1992; 15 dated July 1, 1992;
and 9 dated June 31, 1992.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568
the 8th day following the beginning of their employment and it
contains a no-strike clause.
Steelworkers sent Respondent Incisa a letter requesting 9(a)
recognition on July 2. It claimed to have received authorization
cards signed by a majority of employees in the following unit:

All employees performing Heavy Construction which
shall include, but not be limited to the construction or
modification or addition, or repair of: railroad bridges
across commercially navigable rivers; ie. navigable to
loaded barge tow, piledriving, pipe lines, piers, abutments,
retaining walls, viaducts, shafts, tunnels, subways, tract
elevators, drainage projects, aqueducts, flood control pro-
jects, reservoirs, water supply projects, water power de-
velopment, hydroelectric development, duct lines, locks,
dams, dikes, levees, revetments, channels, canal cutoffs,
intakes, dredging projects, jetting sanitation projects, irri-
gation projects, transmission lines, breakwaters, docks,
harbors, excavation and disposal of earth and rock, includ-
ing the assembly operation, maintenance and repair of all
equipment, vehicles and other facilities used in connection
with and servicing the aforementioned work and services.
Also, including All employees performing highway
construction work which is defined as follows:
1. All work let by the Kentucky Department of Trans-
portation and the Ohio Department of Transportation.
2. All work normally included in highway or street
construction contracts when let by the united States Corps
of Engineers or by municipalities, counties or other politi-
cal sub-divisions.
3. Storm sewers, sanitary sewers, supplying and dis-
tributing water lines, gas lines, telephone and television
conduit, underground electrical lines and similar utility
construction, when let by municipalities, counties or other
political sub-divisions.
4. Airport flight strips, taxi strips, aprons, grading,
drainage, paving and cross country railroads.
5. Reclamation projects.
But excluding the engineering staff, clerical employ-
ees, guards, watchmen, timekeepers, superintendents, mas-
ter mechanics, assistant superintendents, general foremen,
foremen, permanent off-the-project shop employees and
supervisors having the right to hire or fire or effectively
recommend same and in charge of classes of labor, but
shall cover all other persons employed by the Employer in
the performance of the work covered.

On July 6 Respondent Incisa sought to recommence work on
the death hill project. At shortly after 7 a.m., its executive vice
president, Santo Tropea, accompanied by Attorney Russell and
15 members of Respondent Laborers’ Union arrived at the site
in 15 cars. Utilizing a blueprint of the jobsite placed in the re-
cord as Respondent Employer’s Exhibit 6, Tropea explained
that he and the convoy entered the site using ramp C (colored
yellow) and drove to a point marked C on the blueprint. At that
time, some pickets and demonstrators were some distance from
Tropea and his group (see circled area marked P on the ex-
hibit), and they walked rapidly toward Tropea and his group.
The number of pickets was estimated by Tropea to be 45–50
and was estimated to be 15–30 by George Cantrell, Steelworker
Local 14581’s vice president.3 Tropea testified he attempted to
photograph the demonstrators as they approached with his Po-
laroid camera, and he indicated a driver named Hopkins
grabbed the picture and while doing so jammed the camera
against his face. Tropea was not injured. It is uncontradicted
that the demonstrators used vulgar language in addressing the
Laborers’ members, who remained in their cars, and that they
called them scabs and referred to their union as a scab union.
Several police cars arrived shortly after 7 a.m. George Cantrell
admitted he suggested to the police that he thought they should
separate the demonstrators and Laborers’ members and sug-
gested that management get the Laborers’ members out of there
to avoid a confrontation. In due course Tropea and the Labor-
ers’ members left the jobsite. Tropea estimated that 30–35 of
the 41 Steelworkers employed on June 30 were at the site on
July 6. He did not seek to name the employees he saw there.
At 3:30 p.m. on July 6 Respondent Incisa obtained a restrain-
ing order that was signed by a judge of the Kenton Circuit
Court (R. Emp. Exh. 9). The restraining order was obtained
after presentation of affidavits to the court, and it restrained and
enjoined the Union from inter alia:

a. Picketing on or in the vicinity of the Project located
in Kenton County, Kentucky, except for two stationary
pickets at plaintiff’s construction trailer located at 615
Pike Street, Covington, Kentucky; two stationary pickets
at the staging area on Dixie Highway east of Mt. Allen
Drive, Covington, Kentucky; and two stationary pickets at
plaintiff’s business office located at 100 Crisper Avenue,
Crescent Springs, Kentucky;
b. Gathering together on either side of the public
roadway easements at, near to, or in the vicinity of plain-
tiff’s work on the Project in such a way as to interfere with
traffic on the public roadway or into or out of said Project;
c. Being present individually or in crowds or groups at,
near to, or in the vicinity of plaintiff’s work on the Project,
or within one hundred (100) yards, except for engaging in
picketing activity as authorized in subparagraph (a)
above[.]

Although the record reveals that Steelworkers International
Representative Ernest Thompson was served with a copy of the
above-described restraining order at the project on July 7, it
fails to reveal the names or positions of others who may have
been served with copies of the document. Through Thompson’s
testimony, Respondent Incisa placed in the record as Respon-
dent Employer’s Exhibit 10, defendant’s response to plaintiff’s
first set of requests for admission and interrogatories in civil
action no. 92.123 filed in the U.S. District Court for the Eastern
District of Kentucky, Covington Division. Interrogatory no. 3
and the answer thereto are as follows:

INTERROGATORY NO. 3 Identify each and every
member of the Steelworkers Union known to any of the
Defendants who participated in picketing and/or demon-
strations at or near the INCISA Job Site on July 6th, 7th or
8th, 1992 or at or near the INCISA Office on July 7, 1992,
and for each such member state the dates and locations
where such member engaged in picketing and/or demon-

3 Two photographs purportedly portraying the scene were placed in
evidence as R. Emp. Exhs. 7(a) and (b). Inspection of those documents
causes me to conclude there were approximately 30–35 pickets and/or
demonstrators on the project shortly after 7 a.m. on July 6, 1992.
INCISA, U.S.A., INC. 569
strations, the particular Steelworkers Local to which such
member belongs and the period of time that such member
has belonged to Steelworkers.

Steelworkers Local 14581 answered the described interroga-
tory by indicating, inter alia, that the following 35 named em-
ployees engaged in picketing and/or demonstrations on July 6,
7, or 8, 1992:

ANSWER: The following members of Local 14581 engaged
in picketing:

Adkins, Hershel, Rt. 1, Box 254, West Liberty, KY 41472
Adkins, Timmy, 7420 Fair Court, Florence, KY 41042
Akers, Daniel, HC 74, Box 480, #8, Honaker, KY 41639
Barker, J. C., Rt. 1, Box 598, West Liberty, KY 41472
Barker, Thomas, Rt. 1, Box 598, West Liberty, KY 41472
Barrowman, Charlie, 4646 Beach Grove Dr. #3, Independ-
ence, KY 41051
Bolin, Gary D. (Jr.), RR 1, Box 143-P, Hazel Green, KY
41332
Bressler, Michael, Rt. 5, Box 790, West Liberty, KY 41472
Colemire, Charles (Jr.), Rt. 1, Box 389, Brooksville, KY
41004
Colemire, Randall, RR 2, Foster, Brooksville, KY 41043
Conn, Wilford, HC 74, Box 555, Dana, KY 41615
Gilliam, Calvin, Rt. 1, Box 825, Sandy Hook, KY 41171
Hampton, Clarence, P. O. Box 55, Jonaney, KY 41438
Hickle, Charles, General Delivery, Camp Day, KY 41127
Hocker, Gregory, 1503 Garrard St., Covington, KY 41011
Hopkins, Harry, 1737 Normandy Rd., Lexington, KY 40504
Jenkins, Gaylord, 3138 Rockhouse Creek Rd., Salyersvile,
KY 41465
Jenkins, Raleigh, 2076 Highway 172, West Liberty, KY
41472
Jenkins, William H., 1850 Highway 172, West Liberty, KY
41472
Kent, Robert, 255 Tebbs Avenue, Lawrenceburg, KY 40342
McDaniels, George, 38 Shelley St., Florence, KY 41042
Napier, Barbara, Rt. 1, Box 130A, Butler, KY 41006
Napier, Velinda, P. O. Box 582, Belfrey, KY 41514
Powell, Donald, P. O. Box 781, Elkhorn City, KY 41522
Rogers, Paul D., P. O. Box 606, Elkhorn City, KY 41522
Rowe, Ronald, 10213 Dixie Highway, Florence, KY 41042
Sellards, Marvin B., P. O. Box 214, Regina, KY 41559
Sheets, Angela, Rt. 1, Box 598, West Liberty, KY 41472
Smith, Alfred Kyle, P. O. Box 3296, Pikeville, KY 41502
Smith, Vincent, 4864 Fegenbush Lane #3, Louisville, KY
40228
Tackett, Granville, 3803 1/2 W. Cumberland Ave., Middles-
boro, KY 40965
Vaughn, Richard K. (Jr.), 514 Barbie Court, Ashland, KY
41002
Ware, Sidney, Box 156, Brooksville, KY 41004
Webb, Ralph, Rt. 2, box 180-A, Butler, KY 410064

The record reveals that Steelworkers caused 150–200 pick-
ets/demonstrators to appear at the project on July 7, and on July
8, approximately 100 appeared. By calling George Cantrell,
Local 14581’s vice president, and Gypsy Cantrell, the Local’s

4 Respondent Incisa employed 39 employees on June 30, 1992. In
addition to the 35 named as participating in picketing and/or
demonstrations, the following were also employed: Christopher
Davidson, Michael Ellis, Harold Landers, and Claude Whitis.
office manager, as adverse witnesses, Respondent Incisa estab-
lished that Gypsy Cantrell assured increased numbers of Steel-
workers on the jobsite on July 7 and 8 by calling members and
by calling various signatory employers and exercising a so-
called “organizing purposes’’ clause in their bargaining agree-
ments that authorized Steelworkers time off for organizing
purposes.
Respondent Incisa did not attempt to accomplish any work
on the project on July 7 and 8, and the record fails to reveal any
altercations occurred. At 12:07 p.m. on July 8, Steelworkers
notified Respondent Incisa by fax that all striking employees at
the death hill project were unconditionally offering to return to
work and that the strike was terminated immediately. (See G.C.
Exh. 19.) Respondent Incisa responded by faxing Steelworkers
a letter dated July 8, 1992, the body of that states (G.C. Exh.
20):

In response to your memorandum of this date, please
be advised that the Company will resume operations under
its contract with the Laborers Union with its permanent
employees employed under that contract and which pres-
ently constitute a full complement of required employees.
With respect to the content of your memorandum, we will
be back in touch with you in the very near future. There is
no purpose to be served by having anyone report to work
tomorrow.

On July 9 the former strikers reported for work but were not
permitted to work. The General Counsel offered in evidence as
General Counsel’s Exhibit 24, a tape recording that depicted
Respondent Attorney Andrew Russell conversing with Steel-
workers at the site on the morning of July 9, 1992. I errone-
ously refused to receive the tape in evidence and that ruling is
reversed at this time. Summarized, the tape reveals that: the
Steelworkers present clearly indicated to Russell that they were
unconditionally offering to return to work; Russell informed
them Respondent Employer had written Steelworkers Repre-
sentative Thompson a letter indicating the recall procedure to
be utilized; there was no work available for Steelworkers at that
time, and that Steelworkers would be recalled at a future time
and any questions those present had should be directed to
Thompson or Cantrell. On July 13, 1992, Respondent sent
Steelworkers a letter, the body of which states (G.C. Exh. 21):

Supplementing our memorandum to you of July 8, 1992,
INCISA’s position regarding your alleged unconditional offer
to return to work is as follows:
(a) INCISA and the Laborers’ International Union of
North America, Local 265, are parties to a collective bar-
gaining agreement with which INCISA is legally obligated
to comply, and the Laborers Union bargaining agreement
contains a hiring hall clause which INCISA must observe
when supplementing its existing workforce;
(b) Members of the United Steelworkers of America,
AFL–CIO–CLC, who were covered under the expired
agreement between INCISA and the Steelworkers Union
(former Steelworkers Employees), and who were in the ac-
tive employ of INCISA on June 30, 1992, will be placed
on a preferential recall list and, except as provided for in
paragraph c below, will be offered recall to work on a non-
discriminatory basis as vacancies become available in jobs
which they are qualified to perform; provided, however,
that such recall opportunities shall be subject to obser-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570
vance by the Company of the provisions of the aforemen-
tioned hiring hall clause of the Laborers Union agreement;
(c) Former Steelworkers’ employees who engaged in
strike misconduct and employees who left their jobs on
June 30, 1992, before completion of their scheduled work
assignments in violation of the no-strike clause of the
Steelworkers’ contract have forfeited their employment
with INCISA;
(d) All former Steelworkers’ employees should under-
stand that they are required to comply with all of
INCISA’s current terms and conditions of employment,
including a drug screen and an orientation procedure on
current policies and procedures and to comply with all of
the terms of the current contract between the Laborers’
Union and INCISA, including payment to the Laborers’
Union of all required dues and fees;
(e) Any recall offers made to former Steelworkers’
employees will be made without waiver of the company’s
position that it is not legally obligated to offer recall to any
of said employees, and
(f) Former Steelworkers’ employees will be notified
individually of their recall in accordance with the usual re-
call procedures followed by the Company.

On July 14, 1992, Steelworkers filed an amended petition in
Case 9–RC–16074. The document was signed by Jay Smith,
attorney, and the sole change of substance was insertion of the
following language at the bottom of the unit description:

And excluding any employees not performing work on
Kenton County, Kentucky, project 1DR-1R-175-8(63)187.

By letter from Steelworker Attorney Smith to Respondent
Incisa Attorney Rothman dated July 17, 1992, Steelworkers
indicated they were seeking an election only on the death hill
project in a unit coextensive with that covered by the expired
8(f) contract.
By letter dated August 7, 1992, Respondent Laborers re-
quested that Respondent Employer grant it 9(a) recognition. By
letter dated August 8, 1992, after observing that a card check
conducted by a Covington City Commissioner revealed that all
of its then-current employees had designated Laborers’ Local
265 as their collective-bargaining agent, Respondent Employer
granted Respondent Laborers August 7, 1992 request.
The parties stipulated that since July 9, 1992, Incisa has
made offers of employment to only two ex-striking employees,
and they stipulated that another employee who was working on
June 30, 1992, later registered at the Laborers hall and was
referred to work at Incisa.
Granville Tackett, the alleged discriminatee in Case 9–CB–
8406, is one of the two employees offered reemployment by
Respondent Incisa since the strike. Tackett testified that during
the week following the strike, Incisa’s project manager, Dave
Riley, telephoned him to ask if he would be interested in return-
ing to work. Tackett told Riley he had some compunction about
talking to him and indicated he felt he should discuss the situa-
tion with his local union officials. He testified he discussed the
offer with Billy Thompson and the former steward at the pro-
ject, J. C. Barker, and they jointly decided he should accept the
offer to avoid a situation wherein Incisa could cause his unem-
ployment claim to be denied because he refused a job offer.
Tackett claims the union officials advised him to tell Respon-
dent Laborers Union that he would work as a financial core
member.
After deciding he would take the offer, Tackett asked for a
letter from Incisa. He later received a letter from Incisa that was
dated July 15, 1992, was signed by Santo Tropea, and stated
(G.C. Exh. 27):

This letter is to confirm our telephone conversation with you
on Tuesday, July 14, 1992 at 4:30 PM regarding returning to
work on the I-75 project subject to the following conditions:
1. You are required to report to the corporate office on
7/20/92 for orientation.
2. You are required to consent to a drug screen and re-
port to the testing facility to take the drug test.
3. You are required to report to the job site, should the
drug test prove negative on 7/21/92.
4. You are subject to all terms and conditions of In-
cisa’s union contract including payment of all union fees
and dues.

Given these conditions of employment, you have agreed to
report to work.

Tropea testified that when Tackett reported to the office on July
20, 1992, he read the body of the above-described letter to
Tackett and his recollection was that Tackett agreed to work
under the conditions indicated.
When Tackett reported to the jobsite on July 20, he testified
he told Riley he was reporting for work, but he needed to talk
to a union representative first. He claims that Youngblood ar-
rived at the jobsite several hours later and that, after handing
him the copy of the Tropea letter, he told him he “wanted to be
a financial core participant, not to join the Union; that at my
age my pension was vested in United Steelworkers Local 14581
and at my age I couldn’t vest a pension in their union.’’ Tackett
claims that Youngblood said he had to make a telephone call
and that shortly thereafter, Don Marksberry, the concrete super-
intendent on the job, came in and told him they agreed to let
him go back to work “as a dues paying member at three percent
check-off.’’ Tackett testified he then left the office, found
Youngblood in the parking lot, and verified with Youngblood
that he was to go to work at a 3-percent checkoff. He claims
Youngblood told him to see Barry, the union steward, to sign
the appropriate card. Tackett testified he found Barry, who had
two cards for him to sign; one for the 3-percent dues checkoff,
and one for the Ohio labor council.
Tackett testified that he actually began work on the job on
July 21, 1992. He claims that he worked from that time until
Barry came to him 9 days later to tell him “that Mr. Young-
blood had told him that they couldn’t abide or live with the deal
that we had made when I came back, that I would have to join
their Union.’’ Tackett testified he told Barry, “No, I didn’t have
to join his f’ing union, that I could go home.’’ He claims he
then went to Terrance Smith, who had replaced Riley as project
manager and told him what Barry had told him. Smith told him
to finish out the day; that he would check around. Tackett got
back to Smith later and told Tackett there was nothing he could
do, that they had a project agreement with Local 265, and they
had no alternative but to lay him off. Tackett was given a layoff
slip that was placed in the record as General Counsel’s Exhibit
30. It indicates he was laid off on July 31, 1992, and that the
reason for the layoff was:

Conflict with Article IX of the project agreement with Local #
265 Regarding Union Membership in # 265.

INCISA, U.S.A., INC. 571
Tackett testified he was never told the specific amount of
money he owed by anyone from the Laborers Union; that he
was not told he could object to having money he paid spent on
nonrepresentational activities; and he was not told that those
who object to having nonrepresentational expenses deducted
would only be charged for representational activities.
Local 265 Field Representative Tony Youngblood and Barry
Williams, the Laborer’s steward on the death hill project after
July 1, 1992, disputed Tackett’s claim that he told them he
wanted to work on the project without joining their union.
Youngblood testified he had two conversations with Tackett.
He claimed the first occurred when he went to Incisa’s field
office. His recollection was that Tackett showed him a letter he
had received from Tropea; that after reading the letter, he called
Robert Richardson, his business manager, to confirm the hire;
and that he told Tackett it would be all right but he would have
to sign the out-of-work list and he would have to become a
member of the Union. Youngblood claims he then located the
steward on the job and told him to sign Tackett up after he had
been on the job 7 days. Youngblood testified his second con-
versation with Tackett took place about 9 days later. He claims
he encountered Tackett in Incisa’s parking lot around 10 a.m.,
explained how their local union works, and told him he had to
become a member. He testified Tackett then told him he was a
member of the Steelworkers and had been a member for 30
years. He claims he told Tackett Local 265 was not affiliated
with the Steelworkers and he repeated that Tackett would have
to become a member.
Barry Williams was a field representative of Local 265 at the
time of the hearing. He testified that while he was the steward
on the death hill project he gave Tackett an opportunity to ob-
tain union membership by causing him to sign an authorization
card and a dues-assessment authorization the eighth day Tack-
ett was on the job. The authorization card was placed in the
record as Respondent Local 265 Exhibit 1. It is dated July 21,
1992, and merely recites language that authorizes Local 265 to
represent the signer in matters of rates of pay, wages, fringe
benefits, hours of employment, and other conditions of em-
ployment. Williams denied that Tackett said anything to him
about financial core membership. Williams indicated that the
dues for persons working on the death hill project were 3 per-
cent of gross for working dues and $16 a month for monthly
dues.
Robert Richardson, Local 265’s business manager, sought to
bolster the testimony given by Youngblood and Williams. He
testified that the Local Union’s policy in event a worker asked
for financial core membership was to simply represent them but
to charge them nothing. He claimed the Union had followed
such a policy when two Nieman Plumbing employees had ob-
jected when asked to join the Union several years ago. Richard-
son, like Youngblood and Williams, denied that he was in-
formed that Tackett sought financial core membership.
Through Richardson’s testimony, the General Counsel placed
in the record as General Counsel Exhibit 31 a letter dated Au-
gust 4, 1992, from Local 265 to Respondent Incisa. The body
of the letter (signed by Youngblood) states:

This will confirm that I advised you to enforce Article
IX of the Project Agreement between Incisa, U.S.A., Inc.
and Laborers’ District Council of Ohio on behalf of La-
borers’ Local Union 265 with respect to Granville Tackett.
Mr. Tackett was notified on at least two occasions,
days prior to his termination, by representatives of Local
265 of the obligations of Article IX. Despite this notice
and advice, Mr. Tackett chose not to tender the monetary
obligations set forth in Article IX. To the contrary, it is my
understanding that he told you that rather than pay what
was required of him under this Article, he would quit your
Company’s employ and begin employment with another
Employer who had a job for him.

Youngblood and Williams were not impressive witnesses
and much of their testimony is absolutely unbelievable. I credit
Tackett when his testimony, which is logical and believable,
conflicts with that given by Youngblood and Williams. I do not
credit Richardson’s uncorroborated testimony concerning the
Union’s treatment of persons who request financial core mem-
bership.
Article IX of the project agreement entered by Respondent
Incisa and the Laborers’ District Council of Ohio is a union-
security clause that requires membership in the Union as a con-
dition of employment after 8 days (see G.C. Exh. 25, pp. 8 and
9).
B. Analysis and Conclusions
The Reinstatement Issues
Economic strikers’ replacement rights were defined by the
Supreme Court in NLRB v. Fleetwood Trailer Co., 389 U.S.
375 (1967), where the Court stated (id. at 378):

Section 2(3) of the Act (61 Stat. 137, 29 U.S.C.
§ 152(3) provides that an individual whose work has
ceased as a consequence of a labor dispute continues to be
an employee if he has not obtained regular and substan-
tially equivalent employment. If, after conclusion of the
strike, the employer refuses to reinstate striking employ-
ees, the effect is to discourage employees from exercising
their rights to organize and to strike guaranteed by §§ 7
and 13 of the Act (61 Stat. 140 and 151, 29 U.S.C. §§ 157
and 163). Under §§ 8(a)(1) and (3) (29 U.S.C. §§ 158(1)
and (3)) it is an unfair labor practice to interfere with the
exercise of these rights. Accordingly, unless the employer
who refuses to reinstate strikers can show that his action
was due to “legitimate and substantial business justifica-
tions,’’ he is guilty of an unfair labor practice. NLRB v.
Great Dane Trailers, 388 U.S. 26, 34 (1967). The burden
of proving justification is on the employer.

With respect to “legitimate and substantial business justifica-
tions,’’ the Supreme Court stated (id. at 379):

In some situations, “legitimate and substantial business
justifications’’ for refusing to reinstate employees who en-
gaged in an economic strike have been recognized. One is
when the jobs claimed by the strikers are occupied by
workers hired as permanent replacements during the strike
in order to continue operations. NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 345–346 (1938); NLRB v.
Plastilite Corp., 375 F.2d 343 (C.A. 8th Cir. 1967); Brown
& Root, 132 NLRB 486 (1961).
. . . .
A second basis for justification is suggested by the
Board when the striker’s job has been eliminated for sub-
stantial and bona fide reasons other than considerations re-
lating to labor relations: for example, “the need to adapt to
changes in business conditions or to improve efficiency.’’

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572
Patently, the facts set forth, above, reveal that Respondent
Incisa refused, after the Steelworkers strike ended on July 8,
1992, to reinstate all but two of the striking employees whom it
had employed immediately before the strike started.5 In an
attempt to justify its actions, it offers the affirmative defenses
discussed below.
(A) Respondent Incisa’s first affirmative defense is that
business necessity and a desire to remain a union contractor
compelled it to enter a collective-bargaining contract covering
the death hill project with the Laborers Union and the right to
reinstatement, if any, possessed by the June 30 (strikers) em-
ployees is subject to the exclusive referral provisions of the
Laborers Union’s agreement.
I first note that Respondent Incisa offered no evidence to
support its assertion that “business necessity’’ compelled it to
enter a collective-bargaining agreement with the Laborers Un-
ion. Apart from that, however, it is clear that Respondent In-
cisa, by asserting the defense, contends that it was entitled to
treat the strikers as applicants rather than employees after the
strike ended. NLRB v. Fleetwood Trailer Co., above, applies,
and the defense described is without merit.
(B) The second affirmative defense interposed is that the
June 30 employees forfeited any right to reinstatement they
may have had by participating in a strike for recognition at a
time when Steelworkers were unable to offer objective proof
that they represented a majority of Respondent Incisa’s em-
ployees in a specified bargaining unit.
I construe the described defense to be a contention that a mi-
nority union violates Section 8(b)(1)(A) if it engages in a strike
with an object of obtaining recognition as the bargaining agent
of an employer’s employees. As noted by Steelworkers in their
brief (p. 15), the Supreme Court held in NLRB v. Teamsters
Local 639, 362 U.S. 274 (1960), that a minority union does not
violate Section 8(b)(1)(A) by engaging in a strike with an ob-
ject of organizing employees or obtaining recognition from
their employer. See also Laborers Local 784 (NVE Construc-
tors), 296 NLRB 1325, 1329 (1989). Accordingly, I find that
Respondent Incisa failed to establish that the June 30 employ-
ees forfeited their right to reinstatement by participating in an
unlawful strike.
(C) Respondent Incisa’s third affirmative defense is that by
engaging in unlawful picket line conduct, including threats of
violence and mass picketing, the strikers lost their right to rein-
statement.
The only violence related testimony given during the hearing
was Tropea’s description of the incident involving driver Hop-
kins and the Polaroid camera. Significantly, Respondent Incisa
has not argued in its brief that by taking a photograph from
Tropea and causing the camera to touch Tropea’s face, driver
Hopkins engaged in misconduct that would justify a refusal to
offer him reinstatement.
Turning to the mass picketing contention, it appears Respon-
dent Incisa claims that mass picketing occurred on July 6, 7,
and 8, 1992, and that the Steelworkers admitted by answer to
interrogatories in civil action no. 92123 that 35 of the 39 Steel-
workers employed by Incisa as of June 30, 1992, participated in
picketing and/or demonstrations on July 6, 7, or 8, 1992, at the
death hill project.

5 Initially, Respondent Incisa refused to reinstate any of the indi-
viduals employed on June 30, 1992, unless they registered out-of-work
with the Laborers Union.
The main difficulty with Respondent Incisa’s contention is
the fact that the evidence offered to show what occurred at the
jobsite on July 6 fails, in my view, to establish that Steelwork-
ers pickets and demonstrators engaged in unlawful activity on
that day. As revealed, above, Respondent Incisa sought to es-
tablish what occurred on July 6 by causing Tropea to describe
what occurred and by placing in evidence as Respondent Em-
ployer’s Exhibits 7(a) and (b) photographs taken at the jobsite
on the morning of July 6. In sum, Tropea merely testified that
he met some 15 Laborers at an offsite location and they, travel-
ing in 15 autos, drove to the site and entered at ramp C. After
Tropea and his group parked their cars on the site, 30–35 pick-
ets and demonstrators approached them and called the Laborers
scabs and called their union a scab union. Other than the physi-
cal activity engaged in by driver Hopkins, no contact between
Steelworkers and Laborers or their vehicles occurred. Eventu-
ally, after police arrived, Steelworkers Vice President Cantrell
suggested that Tropea and the Laborers leave to avoid a con-
frontation and that group elected to leave. Significantly, the
record fails to reveal that any of the Laborers who appeared at
the site that day sought to perform any work. By the same to-
ken, the record fails to reveal that the Steelworkers pickets
and/or demonstrators sought to form an unbroken picket line or
otherwise sought to physically bar the Laborers from moving
around the construction site on July 6. In short, the record fails
to reveal that the Steelworkers engaged in mass picketing or
other activity designed to prevent the Laborers from working at
the jobsite on July 6, 1992.
Patently, absent proof that unlawful mass activity occurred at
the jobsite on July 6, 1992, Steelworkers admission, when re-
sponding to interrogatories, that 35-named persons employed
on June 30, 1992, engaged in picketing and/or demonstrating
on July 6, 7, or 8 is meaningless; all of those named could have
picketed or demonstrated on June 6. I find Respondent Incisa’s
third affirmative defense to be without merit.
(D) Respondent Incisa’s fourth affirmative defense is that the
work stoppage that began July 1, 1992, was unprotected be-
cause Steelworkers were striking to force Incisa to join High-
way Contractors, Inc. and/or to accept the agreement negotiated
by HCI and Steelworkers, and by participating in an unpro-
tected and unlawful work stoppage the participants forfeited
their right to reinstatement.
I find the described affirmative defense to be without factual
support and thus to be without merit. As indicated, above, I
have found that Steelworkers Attorney Smith withdrew a sug-
gestion that Incisa negotiate through the contractor’s associa-
tion during the course of the June 30, 1992 meeting. That sug-
gestion and/or demand was never reinstituted thereafter. More-
over, the record clearly reveals that Smith stated at the same
meeting that Steelworkers would strike for recognition the fol-
lowing day, and the legend on the picket signs advertised a
strike for recognition. In sum, Respondent Incisa failed to es-
tablish that the work stoppage that commenced on July 1, 1992,
was unlawful or unprotected.
In its brief (p. 98), Respondent Incisa contended, inter alia,
that the Steelworkers strike was unlawful as it “sought to com-
pel Incisa to grant it 9(a) recognition in the face of a claim by a
rival union during the pendency of an election petition.’’ In
support of the contention, it cites, inter alia, St. Regis Paper Co.
v. NLRB, 623 F.2d 487 (6th Cir. 1980), and Hoover Co. v.
NLRB, 191 F.2d 380 (6th Cir. 1951). In the cited cases, em-
ployees struck, while a petition for an election was pending,
INCISA, U.S.A., INC. 573
with an object of causing their employer to grant 9(a) recogni-
tion to a union other than the one that had filed the petition. The
instant case is clearly distinguishable as here: (1) Steelworkers
filed a petition seeking 9(a) recognition on July 6, 1993; and (2)
the Laborers’ agreement with Respondent Incisa raises no pre-
sumption of majority status, nor does that contract operate to
bar an election.
Similarly, Respondent argues in its brief that the Supreme
Court’s decision in NLRB v. Sands Mfg. Co., 306 U.S. 332
(1939), is applicable, and the rationale expressed there justified
its decision to do business with a new union and a new work
force. In Sands, the Supreme Court found the employer law-
fully replaced employees who engaged in unlawful conduct by
refusing to abide by contractual provisions that had been jointly
agreed on by their union and Sands. Here, employees ceased
work to engage in a lawful strike with an object of causing
Respondent Incisa to grant Steelworkers 9(a) recognition. In the
circumstances described, I find Respondent Incisa’s contention
that the June 30 employees’ participation in a work stoppage
constituted unprotected activity to be without merit.
(E) The fifth affirmative defense is, assuming the Steelwork-
ers employed on June 30, 1992, remained employees of Incisa,
the Laborer-Incisa collective-bargaining agreement that became
effective July 2, 1992, contained a no-strike clause and by vio-
lating it, the strikers forfeited their right to reinstatement.
Respondent Incisa cites no authority for the proposition that
an employer and a union, which does not purport to represent
striking employees, can contractually eliminate such employ-
ees’ right to engage in an economic strike. Particularly this is
true when, as here, the record reveals the employees participat-
ing in protected concerted activity are unaware of such a con-
tractual agreement and/or no-strike clause.
In sum, I find that the 39 individuals employed by Respon-
dent Incisa on the death hill project on June 30, 1992, engaged
in a lawful economic strike during the period July 1–8, 1992.
An unconditional offer to return to work was made on their
behalf on July 8, 1992, and Respondent Incisa has refused since
that time to offer such employees reinstatement to their former
jobs. Respondent Incisa adduced no evidence that would prove
that it hired permanent replacements to fill the jobs of the strik-
ers before they offered unconditionally to return to work, nor
has it offered any other evidence that would establish it had
lawful business reasons for its refusal to offer reinstatement to
such employees. I find, as alleged, that by refusing to reinstate
the 39 employees identified heretofore in this decision, Re-
spondent Incisa violated Section 8(a)(1) and (3) of the Act as
alleged.
C. The Recognition/Contract Issues
Respondent Incisa is alleged to have violated Section 8(a)(1)
and (2) of the Act by recognizing and bargaining with Respon-
dent Union as the exclusive 9(a) representative of employees in
a specified unit at a time when a valid petition for an election
had been filed by Steelworkers. Respondent Union is alleged to
have violated Section 8(b)(1)(A) of the Act by obtaining 9(a)
recognition as the exclusive representative of specified Re-
spondent Incisa employees at a time when a valid petition for
an election had been filed by Steelworkers.
As revealed, above, Steelworkers filed the petition in Case
9–RC–16074 on July 6, 1992. The unit described in the petition
included, inter alia, “All work let by the Kentucky Department
of Transportation and the Ohio Department of Transportation.’’
On July 14, 1992, Steelworkers filed an amended petition that
tracked precisely the original petition but added the following:
“And excluding any employees not performing work in Kenton
County, Kentucky, project no. IDR–IR–175–8(63) 187.’’ As
further revealed by the record, Steelworkers Attorney Jay Smith
informed Respondent Incisa’s counsel, Stuart Rothman, by
letter dated July 17, 1992, that Steelworkers were seeking 9(a)
status solely on the death hill project. Although Respondent
Incisa and Respondent Union contend the Steelworkers’ peti-
tions were invalid because that union failed to make the requi-
site showing of interest necessary to support its petitions, the
Regional Director rejected a like contention in Case 9–RC–
16074, stating: “I find that the Petitioner’s recently expired
collective-bargaining agreement covering the unit sought con-
stituted an adequate showing of interest in support of the peti-
tion. Stockton Roofing Co., 304 NLRB [699] (1991).’’ On Au-
gust 7, 1992, Respondent Incisa received a letter from Labor-
ers’ Local 265 requesting 9(a) recognition. After a card check
conducted by Covington City Commissioner Jim Ruth on Au-
gust 8 revealed that all 55 of Respondent Incisa’s active em-
ployees had designated Local 265 as their collective-bargaining
agent, Respondent Incisa granted Respondent Union 9(a) rec-
ognition on the death hill project.
In Bruckner Nursing Home, 262 NLRB 955, 957 (1982), the
Board formulated the following policy:

[W]e will no longer find 8(a)(2) violations in rival union, ini-
tial organizing situations when an employer recognizes a la-
bor organization which represents an uncoerced, unassisted
majority before a valid petition for an election has been filed
with the Board. However, once notified of a valid petition, an
employer must refrain from recognizing any of the rival un-
ions. [Citation omitted.]

Respondent Incisa and Respondent Union seek to avoid the
application of the described policy by contending they did not
know on August 8, 1992, that the Steelworkers petition sought
9(a) status on the death hill project; that the doctrine of estoppel
should preclude a finding of violation because Steelworkers’
actions during the period July 1–8 prevented Laborers from
obtaining majority status prior to August 8; and that the Steel-
workers showing of interest was inadequate.
I reject each of the described contentions. With respect to the
unit description, the amended petition filed on July 14, 1992,
together with that information supplied to Rothman by Smith’s
July 17 letter, placed Respondent Incisa on notice of the fact
that the unit sought was confined to those employees employed
by Respondent Incisa on the death hill project. With respect to
the estoppel argument, that contention lacks evidentiary support
as I have found that the pickets and/or demonstrators have not
been shown to have engaged in any unlawful action at the death
hill project at a time when members of Laborers were present.
Finally, I reject the showing of interest contention as such de-
terminations are administrative matters that are properly han-
dled by the Regional Director.
In sum, for the reasons stated, I find that by granting 9(a)
recognition to Respondent Laborers on August 8, 1992, Re-
spondent Incisa violated Section 8(a)(1) and (2) of the Act as
alleged. I further find that by seeking and obtaining 9(a) recog-
nition on August 7 and 8, 1992, Respondent Union violated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574
Section 8(b)(1)(A) of the Act. Haddon House Food Products,
Inc., 269 NLRB 338, 341 (1984).6
D. The Alleged 8(b)(1)(A) and (2) Violations
The complaint alleges that by enforcing a union-security
clause that required membership in the Union (after 8 days),
thereby causing Respondent Incisa to terminate the employ-
ment of employee Tackett, and by failing to notify Tackett “of
the percentage of Respondent’s funds spent for nonrepresenta-
tional purposes,’’ Respondent Union violated Section
8(b)(1)(A) of the Act.
Briefly recapitulated, the facts, above, reveal that employee
Tackett was permitted by Laborers Local 265 Official Young-
blood to go to work on the death hill project on July 21 after the
employee indicated he wanted to work as a financial core
participant, and Youngblood obtained clearance to let him work
at 3-percent dues checkoff.7 Nine days later, Union Steward
Barry Williams told Tackett “that Mr. Youngblood had told
him that they couldn’t live with the deal . . . that I would have
to join their union.’’ When Tackett refused to join the Laborers
Union, the project manager told him there was nothing he could
do; that they had a project agreement with Local 265 and they
had no alternative but to lay him off. By letter dated August 4,
1992, Local 265 confirmed the fact that it had advised Respon-
dent Incisa to “enforce Article IX of the Project Agreement . . .
with respect to Granville Tackett.’’
The facts set forth clearly establish, and I find, that by refus-
ing to permit Tackett to work as a financial core member and
by causing Respondent Incisa to terminate Tackett, Respondent
Union violated Section 8(b)(1)(A) and (2).8
Remaining is the General Counsel’s contention that Respon-
dent Union further violated Section 8(b)(1)(A) by failing to
notify Tackett “of the percentage of Respondent’s funds spent
for nonrepresentational purposes, that nonmember employees
could object to having their union security payments spent on
such activities or that those nonmember employees who re-
quested would be charged only for representational activities.’’
As revealed, above, Tackett testified that no Laborers Union
official discussed nonrepresentational activities or their costs
with him and he was not informed he would only be charged
for representational activities.
In the absence of record evidence that would reveal that Re-
spondent Union sought to cause employee Tackett to pay it
moneys that would be used to pay for nonrepresentational ac-
tivities, I recommend that the allegation under discussion be
dismissed.

6 The complaint (in Cases 9–CB–8406 and 9–CB–8411) alleges that
by obtaining 9(a) recognition while a valid petition was pending, and
by simultaneously maintaining a collective-bargaining agreement that
contained a union-security clause, Respondent Union violated Sec.
8(b)(2) of the Act. Noting that the agreement in question was an 8(f)
agreement when it was entered, and the fact that the General Counsel
failed to contend the agreement was entered unlawfully, I refrain from
finding the 8(b)(2) violation.
7 Union Steward Barry Williams testified that members pay 3 per-
cent of gross as working dues and $16 a month, monthly dues.
8 The complaint (G.C. Exh. 1(L)) does not contain an allegation that
Respondent Union violated Sec. 8(b)(2) by demanding that Tackett be
discharged pursuant to a union-security clause. The issue was fully
litigated, however, and I deem this finding to be proper in the circum-
stances.
CONCLUSIONS OF LAW
1. Incisa, U.S.A., Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC, and
Laborers’ International Union of North America, AFL–CIO are
labor organizations within the meaning of Section 2(5) of the
Act.
3. By refusing, without business justification, to reinstate the
39 employees it employed at its Kenton County, Kentucky
project on June 30, 1992, after they ceased an economic strike
and offered unconditionally to return to work on July 8, 1992,
Respondent Incisa violated Section 8(a)(1) and (3) of the Act.
4. By recognizing Respondent Union as the 9(a) exclusive
bargaining agent of employees in the unit set forth below, at a
time when a valid petition for an election among such employ-
ees was pending, Respondent Incisa violated Section 8(a)(1)
and (2) of the Act. The unit is:

All employees of the Employer performing heavy and high-
way construction at the Employer’s Kenton County, Ken-
tucky project excluding all other employees and all guards
and supervisors as defined in the Act.

5. By seeking and obtaining 9(a) recognition as the exclusive
bargaining agent of Respondent Incisa’s employees in the unit
described in paragraph 4 above, at a time when a valid petition
seeking an election among such unit employees was pending,
Respondent Union violated Section 8(b)(1)(A) of the Act.
6. By failing and refusing to permit Granville Tackett to
work as a financial core member and by enforcing a union-
security clause that required that employees join and remain
members of Respondent Union as a condition of employment
and thereby causing Respondent Incisa to terminate Tackett,
Respondent Union violated Section 8(b)(1)(A) and (2) of the
Act.
THE REMEDY
Having found that Respondent Incisa has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (2), and that Respondent Union has engaged in
and is engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2), I shall recommend that they be
required to cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies of the Act.
Respondent Incisa shall be required to offer the employees
employed on the death hill project on June 30, 1992, immediate
and full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or privileges
previously enjoyed and make them whole, with interest, for any
loss of earnings, and other benefits suffered as a result of the
unfair labor practice practiced against them. Questions concern-
ing whether alleged discriminatees would have been transferred
to other projects in event the death hill project has been com-
pleted will be determined at compliance. See Dean General
Contractors, 285 NLRB 573 (1987). Interest will be computed
as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Additionally, Respondent Incisa will be ordered
to withdraw and withhold from Respondent Laborers Union all
recognition as the collective-bargaining representative of em-
ployees employed by Respondent Incisa at its death hill project
and to cease giving effect to any collective-bargaining agree-
ment covering such employees unless and until Respondent
INCISA, U.S.A., INC. 575
Union has been certified as the bargaining agent of such em-
ployees pursuant to a Board-conducted election among such
employees in an appropriate unit for bargaining.
Further, Respondent Union shall be ordered to withdraw
from acting as bargaining representative of the aforesaid em-
ployees or giving any force or effect to such aforesaid bargain-
ing agreement unless and until Respondent Union shall have
been certified as bargaining representative pursuant to a Board-
conducted election. Respondent Union will be required to make
employee Granville Tackett whole for any losses he sustained
as a result of the unfair labor practices practiced against him
from July 31, 1992, forward, with interest to be computed in
accordance with New Horizons for the Retarded, above.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
A. The Respondent Incisa, U.S.A, Inc., Kenton County, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in United Steelworkers of
America, AFL–CIO–CLC, or any other labor organization, by
refusing without business justification to reinstate economic
strikers to their former or substantially equivalent positions of
employment after they have abandoned their strike and have
unconditionally offered to return to work.
(b) Assisting, aiding, and supporting Laborers’ Local 265,
affiliated with Laborers’ International Union of North America,
AFL–CIO by granting it 9(a) recognition as the exclusive rep-
resentative of employees while a valid petition seeking an elec-
tion among such employees is pending.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer the following employees immediate and full rein-
statement to their former positions or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges pre-
viously enjoyed, and make them whole for any loss of pay and
other benefits suffered as a result of its discrimination against
them in the manner set forth in the remedy section of this deci-
sion:

Hershel Adkins Wiliam H. Jenkins
Timmy Adkins Robert Kent
Daniel Akers Harold Landers
J. C. Barker George T. McDaniel
Thomas Barker Barbara Napier
Charlie B. Barrowman Velinda Napier
Gary D. Bolin Donald Powell
Mike Bressler Paul Rogers
Charles Colemire Ronald Rowe
Randell Colemire Marvin Sellards
Wilford E. Conn Angela Sheets
Christopher Davidson Kyle Smith
Michael Ellis Vincent Smith

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
Calvin Gilliam Granville Tackett
Clarence Hampton Richard Vaughn
Charles Hickle Sidney Ware
Gregory Hocker Ralph Webb
Harry Hopkins Claude Whitis
Gaylord Jenkins Thurman Wright
William H. Jenkins

(b) Withdraw recognition from Respondent Laborers’ Local
265 as the exclusive collective-bargaining agent of the employ-
ees in the unit described below until the union has been certi-
fied as the representative of said employees after a Board-
conducted election. The unit is:

All employees of Respondent Employer performing heavy
and highway construction at the Employer’s Kenton County,
Kentucky project excluding all other employees and all
guards and supervisors as defined in the Act.

(c) Preserve and, on request, make available to the Board or
its agents for examination and copying, all payroll records and
other documents necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Kenton County, Kentucky facility copies of the
attached notice marked “Appendix A.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 9, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
B. Respondent Laborers’ Local 265, affiliated with Laborers’
International Union of North America, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Seeking and obtaining 9(a) recognition as the exclusive
representative of Incisa, U.S.A, Inc.’s employees while a valid
petition seeking an election among such employees is pending.
(b) Refusing to permit employees, including Granville
Tackett, to exercise their right to work as financial core mem-
bers by causing their employer to terminate them pursuant to a
contractual union-security clause.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make employee Granville Tackett whole for losses he
suffered as a result of the discrimination practiced against him,
together with interest, in the manner set forth in the remedy
section of this decision.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board’’ shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.’’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576
(b) Post at its union hall copies of the attached notice marked
“Appendix B.’’11 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Forward to the Regional Director for Region 9 signed
copies of the aforesaid Notice to Members for posting by Re-
spondent Employer at its Kenton County, Kentucky location for
60 consecutive days in places where notices to employees are
customarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT discourage membership in Steelworkers of
America, AFL–CIO–CLC, or any other labor organization, by
refusing without business justification to reinstate economic
strikers to their former or substantially equivalent positions of
employment after they have abandoned their strike and have
unconditionally offered to return to work.
WE WILL NOT assist, aid, and support Laborers’ Local
265, affiliated with Laborers’ International Union of North
America, AFL–CIO by granting it 9(a) recognition as the ex-
clusive representative of employees while a valid petition seek-
ing an election among such employees is pending.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer the following employees immediate and
full reinstatement to their former positions or, if those positions
no longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges pre-
viously enjoyed, and make them whole for any loss of pay and
other benefits suffered as a result of our discrimination against
them.

Hershel Adkins Wiliam H. Jenkins
Timmy Adkins Robert Kent
Daniel Akers Harold Landers
J. C. Barker George T. McDaniel

11 See fn. 10, supra.
Thomas Barker Barbara Napier
Charlie B. Barrowman Velinda Napier
Gary D. Bolin Donald Powell
Mike Bressler Paul Rogers
Charles Colemire Ronald Rowe
Randell Colemire Marvin Sellards
Wilford E. Conn Angela Sheets
Christopher Davidson Kyle Smith
Michael Ellis Vincent Smith
Calvin Gilliam Granville Tackett
Clarence Hampton Richard Vaughn
Charles Hickle Sidney Ware
Gregory Hocker Ralph Webb
Harry Hopkins Claude Whitis
Gaylord Jenkins Thurman Wright
William H. Jenkins

WE WILL withdraw recognition from Respondent Laborers’
Local 265 as the exclusive collective-bargaining agent of our
employees in the unit described below until said Union has
been certified as the representative of our employees after a
Board-conducted election. The unit is:

All employees of Respondent Employer performing heavy
and highway construction at the Employer’s Kenton County,
Kentucky project excluding all other employees and all
guards and supervisors as defined in the Act.

INCISA, U.S.A, INC.

APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT seek and obtain 9(a) recognition as the ex-
clusive representative of Incisa, U.S.A, Inc.’s employees while
a valid petition seeking an election among such employees is
pending.
WE WILL NOT refuse to permit employees, including Gran-
ville Tackett, to exercise their right to work as financial core
members by causing their employer to terminate them pursuant
to a contractual union-security clause.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Section
7 of the Act.
WE WILL make employee Granville Tackett whole for
losses he suffered as a result of the discrimination practiced
against him, together with interest.

LABORERS’ LOCAL 265