Komatz Construction, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1971

191 N.L.R.B. 846 (N.L.R.B. 1971)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Komatz Construction , Inc. and General Drivers &
Helpers Union Local No. 487 , affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and High-
way Construction Workers Local #78, affiliated
with the Christian Labor Association of the United
States of America , Party to the Contract . Case 18-
CA-3003
June 30, 1971
DECISION AND ORDER
On March 2, 1971, Trial Examiner Sidney J. Barban
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engag-
ing 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 at-
tached Trial Examiner's Decision. Thereafter, Re-
spondent and the Party to the Contract each filed ex-
ceptions to the Trial Examiner's Decision. Respondent
also submitted a brief in support of its exceptions. The
General Counsel has filed a memorandum with the
Board.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, the memo-
randum, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Komatz Construction, Inc., St. Peter, Minnesota, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARMAN, Trial Examiner: This matter was
heard at Minneapolis, Minnesota, on December 16 and 17,
1970. The complaint, issued on October 16, 1970, based upon
charges filed on May 25, 1970, alleges (1) that the above-
named Respondent contributed financial or other support to
the above-named Party to the Contract (herein referred to as
CLA) by (a) permitting a CLA representative to speak and
solicit members at a meeting of Respondent's employees
called by Respondent, (b) telling employees that they would
have to be members of CLA or nonunion in order to work
for Respondent, (c) causing employees to be informed that
191 NLRB No. 150
Respondent would sign a CLA contract if the employees
joined that Union and that the employees could then go to
work the next day, (d) entering into a collective-bargaining
contract with CLA providing that employees must join that
Union after a period of time, (e) telling employees that they
could not work unless they became members of CLA and
inducing and coercing employees to sign dues authorization
forms, and (f) putting into effect and enforcing the union
security and dues checkoff provisions of the CLA contract,
all in violation of Section 8(a)(1) and (2) of the Act; and (2)
that the Respondent refused to bargain with'the above-named
Charging Party (herein referred to as the Teamsters), as col-
lective-bargaining representative of an appropriate bargain-
ing unit of Respondent's employees, in violation of Section
8(a)(1) and (5) of the Act.
The Respondent's answer denies the commission of any
unfair labor practices, but admits allegations of the complaint
sufficient to justify the assertion of jurisdiction under current
standards of the Board and support findings that CLA and
the Teamsters are labor organizations within the meaning of
the Act. CLA, which was duly served with the pleadings in
this matter, entered an appearance and fully participated in
the proceedings, stating that'its position with respect to the
complaint was the same as that of Respondent.
Upon the entire record in this case,' from observation of
the witnesses, and after due consideration of the briefs filed
by the General Counsel and the Respondent (CLA advises
that it joins in Respondent's brief), the Trial Examiner makes
the following:
FINDINGS AND CONCLUSIONS
1. THE FACTS
A. Bargaining History
Respondent first recognized the Teamsters as the repre-
sentative of certain of its employees in 1951, apparently in the
unit set forth in the complaint,' as a result, according to
Henry Komatz, president of Respondent, of an imminent
threat of interference with Respondent's operations by some
unidentified persons. Respondent's contractual relationship
with the Teamsters since that time has been continuous until
the events involved in this proceeding. Certain other em-
ployees of Respondent have also been covered by collective-
bargaining agreements with a local of the International
Union of Operating Engineers, AFL-CIO. Other employees,
such as laborers, apparently have not been represented by any
union. Since 1956, Respondent has been a member of As-
sociated General Contractors of Minnesota (herein referred
to as AGC), which, as one of its functions, engages in collec-
tive bargaining with labor organizations representing em-
ployees of its members. The record indicates that the AGC
has regularly negotiated with the labor organizations repre-
senting Respondent's employees and Respondent has signed
the collective-bargaining contract agreed to by AGC with
such unions prior to 1970. The authority of the AGC to act
for Respondent in 1970 is in dispute.
' Respondent's motion to correct the record, dated January 15, 1971,
which is unopposed, is hereby granted.
' The complaint alleges, Respondent's amended answer admits, and it is
found that the following is an appropriate unit for the purposes of collective
bargaining within the meaning of section 9(b) of the Act: All drivers and
helpers of Respondent, excluding all other employees, office clerical em-
ployees, guards, and supervisors as defined in the Act
KOMATZ CONSTRUCTION, INC. 847
B. Bargaining Activities of the AGC Generally
The AGC is authorized by the provisions of Section 1 of
Rule V11 (Labor Relations) of its Rules and Procedure to
engage on behalf of members in various occupational divi-
sions (Respondent appears to be part of the Highway Divi-
sion) in collective bargaining or other like and related activi-
ties with labor organizations designated or selected by
employees of such members "as permitted by law." It is
further provided that "[s]uch authority may extend to the
agreement upon and execution of collective contracts on be-
half of such of the members of the respective occupational
divisions as may from time to time authorize the same to be
done."
Section 2 requires that before the AGC may engage in the
activities set forth above this must be authorized by a two-
thirds vote at a regularly called occupational division meet-
ing, that notice of this authorization must be given to each
member of the occupational division immediately after the
meeting, and that any member objecting to the grant of au-
thority must notify the AGC in writing within 10 days.
Section 3 provides: "No member of any occupational divi-
sion shall be bound by collective bargaining agreement nego-
tiated by this Association, or any occupational division or
labor committee thereof, until such member has notified the
Association of election to be so bound."
Section 6 provides: "The authority of the Association and
any labor committee established or acting as herebefore pro-
vided, shall be limited to that of an agent and neither the
Association nor any such labor committee shall be or become
a principal in any acts or activities in connection with any
activities on behalf of the members as specified in Section 1
hereof."
It has been the practice of the AGC, to send out letters to
affected members, after the conclusion of negotiations with
all unions representing employees of members in a particular
division, asking if the member desired to be bound by the
agreements negotiated. AGC would thereafter notify the
unions involved of the responses. AGC Manager William
Gary's testimony indicates that it was unusual for a member
previously bound by such contracts to refuse to sign. Aside
from vague speculation by Gary, the record does not show
the names of members or the reasons for any such past refus-
als, or whether these past occurences affected the Teamsters
or whether the unions involved accepted such action. On
occasions when a union or bargaining committee sought an
advance listing from the AGC of the members who would
sign the contract, it appears that AGC would agree only to
furnish the names of members bound by the most recent
agreement . This continued true in 1970.
It appears that the AGC and unions with which AGC
deals, including the Teamsters and Operating Engineers,
make special efforts to ensure that the contract negotiated is
not varied for individual contractors. The Teamsters con-
tracts negotiated with AGC provice that if the Teamsters
should give more favorable terms to any employer, the AGC
has the right to reopen the contract to seek those terms.
During the 1970 negotiations, when the AGC was making
strenuous efforts to maintain unity against pressure from the
Operating Engineers, the AGC expelled two members who
signed an "interim agreement " with that union.
It would appear, particularly from the testimony of Re-
spondent President Komatz, that the AGC committees bar-
gaining with unions representing employees of members meet
with the members, advise them of contract proposals, and are
instructed by the members as to the'members' desires. When
the bargaining committee of the AGC has a proposal for
settlement of a contract that it considers acceptable, accord-
ing to Gary, manager of AGC, "they will call a meeting of
the division, of the highway division, approach them with
this, tell what the union has demanded, they think it is a good
idea, do they want to accept it, and those people who are
present say yes or no." In such a meeting only those members
who were bound by the preceding contract with the union are
eligible to vote.
C. 1970 Negotiations
Prior to 1970, Respondent was a party to an agreement
with the Teamsters, negotiated by AGC, running from May
1, 1966, until December 31, 1969, subject to annual renewal
in the absence of 60 days' written notice before the termina-
tion date.' The contract further provided that "[i]n the event
such written notice is given and a new agreement is not signed
before the expiration date of the old agreement, then said
agreement is to continue in force until a new agreement is
signed, or until negotiations are formally broken off_"
The Teamsters, by letter dated October 29, 1969, notified
the Respondent and also the AGC of the Union's desire to
make changes and modifications in the contract which was to
expire December 31, 1969. The record does not show the
AGC response, but negotiations between AGC and the
Teamsters occurred thereafter. Respondent did not answer
the Teamsters letter. Thereafter, Komatz, in response to a
request of Teamsters representatives to discuss the new con-
tract, advised them that "[o]ur contracts are being negotiated
by the A.G.C. We don't have anything to do with it."4
There were at least 8 or 10 negotiation meetings between
AGC and a committee (herein referred to as the Joint Com-
mittee) which represented allied local unions, including the
Teamsters, signatory to the previous contract covering em-
ployees in the unit set out in footnote 2 above. Komatz did
not serve on the AGC bargaining committee in 1970, al-
though he had served on a similar committee in the past- The
record shows that the AGC met with the Joint Committee on
March 5, 17, and April 2. At the conclusion of the April 2
meeting, the chairman of the Joint Committee advised that
the negotiations were stalemated. Although the parties often,
at the close of a meeting, scheduled their next meeting, no
new meeting date was set at the close of the April 2 meeting.
The following day Gary, the AGC manager, received notice
that strike action was contemplated, as discussed hereinafter.
However, a new meeting date of April 10 was arranged by the
federal mediator and at that meeting the AGC committee and
the Joint Committee came to a complete agreement on terms
for a new contract. These terms were reported to the union
members by the local unions involved, including the Team-
sters, and to a meeting of the AGC members concerned by
the AGC committee. Komatz was invited to attend the meet-
ing (as an AGC member who was a party to the prior con-
tract he had a right to vote on the terms of the proposed new
contract), but he testified that he was uncertain whether he
attended. However, it is clear that Komatz was familiar with
the negotiations, that he attended meetings at which the
' The contract covered employees engaged in covered work in the state
of Minnesota. Several locals including the Teamsters affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America are named as parties to the contract.
' In its brief, Respondent suggests that either Komatz was confused or the
representatives involved in this conversation were Operating Engineers
since there was reference to a dispute over dike work or that the conversa-
tion took place after May 6 None of these suggestions seems justified.
Komatz gave the testimony on direct examination in response to questions
concerning whether the Teamsters took any action prior to May 6, 1970,
to follow up their written request for bargaining . There is indication in the
record that the Teamsters were interested in the dike dispute and Gary gave
testimony to the effect that the dike dispute was raised, apparently by the
Teamsters, in 1970.
^lmmmmm^A^uu
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AGC negotiating committee reported and discussed contract
terms and voted on proposals during the 1970 negotiations.
Both the local union members and the AGC members in-
volved approved the settlement and each side notified the
other that the terms agreed upon were accepted for a new
contract. Respondent at no time prior to April 28, 1970,
advised the AGC that it objected to any of the actions of the
AGC in respect to the 1970 bargaining.
During this same period, the AGC was also negotiating
with the International Union of Operating Engineers (herein
referred to as the Operating Engineers) on behalf of AGC
members whose employees were represented by that union.
At some time prior to April 6, 1970, the Operating Engineers
had gone on strike against AGC members. However, the
Operating Engineers did not picket Respondent's St. Peter
shop operations and Respondent's employees who were
members of the Operating Engineers continued to work at the
shop during the strike. As noted hereinafter, during this
period Respondent was almost completely inoperative, ex-
cept at its shop. There is an indication that at one location
away from the shop the Operating Engineers did picket and
halt the operation of a crusher set up by the Respondent. The
bargaining contract, and presumably the dispute, with the
Operating Engineers was not settled until May 28, 1970.
There is some controversy as to whether there was a work
stoppage on the part of the Teamsters or the other allied
locals negotiating with the AGC during this same period. The
day following the April 2 meeting referred to above, Gary, for
the AGC, received a telegram advising that "all teamsters
unions" associated with the bargaining "will be on strike on
Monday, April 6, 1970." It was purported to be signed by
Hasenbush, as chairman of the Joint Committee, "by R.R.
Pogue Local 221." Pogue, a representative of Local 221 and
a member of the Joint Committee, admits sending the tele-
gram, but asserts it was only on behalf of his local, which he
states did nothing to implement the threat. Gary, on the other
hand, testified to reports received with respect to work stop-
pages at the operations of members at various locations in the
State. While I am skeptical of Pogue's assertion that the
telegram applied to his local only, I am also satisfied that the
reports related by Gary do not provide a reliable basis for a
finding with respect to the issues in this matter. Thus, with
respect to whether the Teamsters were engaged in a work
stoppage, Gary relied, in substantial part, on reports to this
effect asserted to have been received from Respondent, but
the record is clear that there was no work stoppage of em-
ployees of Respondent represented by the Teamsters. Ac-
cording to Respondent, it did not attempt to resume its opera-
tions manned by truck drivers until after April 27, 1970.
D. Respondent's Operations
Respondent is engaged primarily in highway construction
in Minnesota and in some other States. Komatz stated that
Respondent's employment during its peak season approxi-
mates 200 employees, of which 40 to 50 were truck drivers,
about the same number of operating engineers, about 50 la-
borers, and an undetermined number of shop mechanics. The
parties stipulated to a list of 40 truck drivers employed by
Respondent in September 1969, at the peak of its season, and
30 drivers employed in May 1970, after Respondent started
work that year, as discussed hereinafter.
Prior to 1970, as previously noted, the work of Respond-
ent's truck drivers and operating engineers in the State of
Minnesota was covered by agreements with the Teamsters
and the Operating Engineers respectively. The most recent
Teamsters' contract contained a clause requiring Respond-
ent's employees covered by the contract to become and re-
main members of the Teamsters and the record shows that a
majority of the 40 such employees employed by Respondent
in September 1969 were members in good standing of the
Teamsters or allied unions.
Respondent's work season is from spring (April-May) until
fall (October-November). In the fall the workers are laid off.
The Teamster members normally take withdrawal cards
which relieve them of dues payments during the winter. In
the spring, when operations are to start up, Respondent di-
rects its supervisors to get in touch with employees previously
employed to return for the new season, although not all are
necessarily recalled and not all called return. In the winter of
1969-1970, for the first time in the memory of some wit-
nesses, Respondent worked employees who were members of
the Operating Engineers in its shop at St. Peter during the
winter. However, prior to April 28, 1970, at least, Respond-
ent had not recalled any truck drivers represented by the
Teamsters.
The record indicates that it was Respondent's practice, in
anticipation of resuming operations in the spring, to have its
supervisors summon employees to what is described as a
"safety meeting" at its St. Peter shop, at which Respondent
would discuss its operations and talks would be given by
others such as insurance men and police officers. It is also
customary for Respondent to provide beer and sandwiches
for the men after the meeting, referred to in the record as
"lunch." The workers are not paid for attendance at this
meeting, which apparently is not compulsory. The safety
meeting in 1970 was scheduled for April 27, on what seems
to have been short notice. It was stated that the date was
picked to enable police officers to show a safety film, but there
is no evidence that any such film was shown. General Coun-
sel's contention that the meeting was timed to assist the CLA
in its campaign to organize employees of Respondent will be
considered hereafter.
E. Organizing Activities of CLA
CLA represents employees of employers in the construc-
tion industry, some of whom were members of AGC. There
is no indication that AGC represented its members in
negotiations with CLA, however. There is evidence that the
CLA, and undoubtedly its contracts, were discussed at AGC
meetings. Repsondent was clearly aware that CLA was a
competitor of the unions with which Respondent had been
contracting, and was aware of the efforts of the CLA to
organize Respondent's employees as set forth hereinafter.
CLA apparently does not negotiate on a craft basis, but
attempts to organize all construction employees of the em-
ployer in a single unit under a single agreement. Prior to the
middle of April 1970, CLA had negotiated a "standard con-
tract" with employers in the area here involved.
In early April, Respondent's personnel manager and dis-
patcher, Lee Ganson, who had been voicing concern over the
fact that Respondent was being prevented from starting work
by the Operating Engineers' strike, was informed by a con-
tractor that employers with CLA contracts were working.
Thereafter, when two employees, Nestrud and Peterson, in-
quired as to when Respondent was going to call them back
to work, Ganson told them about the CLA, and advised them
that Ahrenholz, the business manager of CLA, was registered
at a nearby motel in the community, and suggested that they
see him. (At least one of the employees, perhaps both, were
employed by Respondent in capacities that would be covered
by the Operating Engineers contract. The gist of their conver-
sation with Ganson apparently was that they were being
prevented from working by the strike, for Ganson states that
they suggested that the Respondent "go nonunion." Gan-
son's interest in CLA derived from the fact that the CLA was
not then on strike.) These two employees met with Ahrenholz
KOMATZ CONSTRUCTION, INC.
at the motel that day.' At Ahrenholz' request, these two
approached other of Respondent's employees and arranged a
meeting at Henderson, Minnesota, on April 20, at which
Ahrenholz spoke to Respondent's employees who attended.
About 40 to 45 persons were present at the meeting. Ahren-
holz explained the CLA and its operation, told the persons
present of the contract CLA had negotiated and CLA be-
nefits. After answering questions, Ahrenholz asked that a
vote be taken to indicate whether there was any interest in
CLA continuing to organize among Respondent's employees.
Although less than a majority voted in favor of CLA, Ahren-
holz was encouraged by the fact that a substantial number of
votes were marked "undecided." At this meeting Ahrenholz
handed out copies of the current CLA standard agreement.
The following day, Ahrenholz visited Respondent's shop at
St. Peter to speak with Nestrud and Peterson about arranging
another meeting. During this visit, Ahrenholz was intro-
duced to and spoke with Ganson. Ganson asserts that he had
been given a copy of the CLA contract previously by an
employee. Though General Counsel suggests that Ahrenholz
also discussed the CLA with Komatz, Respondent's presi-
dent, on this occasion (as Ahrenholz' pretrial affidavit states),
both Ahrenholz and Komatz denied this at the hearing, and
there is no direct evidence in support of this contention.
F. The Safety Meeting
Respondent, through its supervisors, about 3 days in ad-
vance, invited about 150 of its employees to attend a safety
meeting at Respondent's shop premises at St. Peter on April
27, 1970. According to the testimony of Komatz, those in-
vited would normally be selected from employees who had
worked for Respondent the previous year. Such meetings had
been held by Respondent annually, for about 6 years, in
anticipation of the start of the construction season. The meet-
ing in 1970 began about 5 p.m., at the close of the work day
for the shop employees then working, and continued until
about 8 p.m.
During the course of the meeting, law enforcement officers
and an insurance agent spoke to the employees, in addition
to Komatz, Leonard Hanson and Charles Regenschied,
members of Respondent's management. Komatz and Han-
son, Respondent's construction superintendent, spoke to the
employees about the rising costs of construction and the
necessity of keeping costs down. They referred to the diffi-
culty of competing against non-union contractors, who had
lower costs. The employees were told that Respondent had
work for them to do, and that Respondent was anxious to
start to work, as the construction season was at hand. It was
indicated, however, for those who were interested in getting
back to work, that Respondent would be prevented by the
current strike, which Komatz states he told the employees
would be settled "ultimately." In closing, Komatz states that
he made the following comment: "There is many of you men
concerned about how I feel in reference to labor unions.
I am not at liberty and I have been told not to say
anything so I cannot tell you. However, how would you feel
if you had been coerced as I have these many years by these
labor unions?" Komatz then left the meeting and went home,
although it appears that the meeting had not ended.
Before the safety meeting had concluded, Ahrenholz and
three other officials of CLA arrived at Respondent's premises
at St. Peter, having driven from the offices of CLA some 100
' Ahrenholz testified that the two employees met with him in accordance
with arrangements made over the phone the previous day This does not
comport with Ganson's testimony that he told the two men about Ahren-
holz, suggested that they go and speak with him and told them where to find
Ahrenholz.
849
miles away in anticipation that they would be permitted to
address the employees at the safety meeting. Ahrenholz tes-
tified that he had been informed of the meeting by Nestrud,
but had not received advance permission from Respondent to
speak at the meeting. Respondent's officials also deny that
they had given advance permission for CLA to address the
meeting, or that they "knew" that CLA would come to the
meeting, but it is admitted that they heard that this might
occur. It was also stated that they had heard the Teamsters
and Operating Engineers might come. However, there is no
evidence that the latter unions intended to come or made an
appearance.
With the permission of Construction Superintendent Han-
son, Ahrenholz was permitted to come into the Respondent's
shop, after the regular meeting, and talk to the employees. At
the outset Ahrenholz requested that all management and
supervisors leave the room.' It appears that all of them left,
with the exception of one person whose supervisory authority
is disputed, "Bud" Danner. It is admitted that Danner, dur-
ing the construction season, is a supervisor, but Respondent
asserts that at the beginning and at the end of the season,
when there is not so much work, Danner works as a non-
supervisor. It is also asserted that Danner is a supervisor over
laborers. However, DeGroot, a driver, testified that Danner
was a supervisor over him during 1969. Respondent's payroll
records show Danner carried as nonsupervisory at the time
of the April 27, 1970 , meeting.
After being permitted into the shop, Ahrenholz proceeded
to explain and answer questions about the CLA contract,
apparently as he had done at the Henderson meeting the week
previous. He explained that the CLA agreement was com-
pleted and ready for signature, that he needed only the em-
ployees' approval to go in to see Komatz and when Komatz'
signature was secured to the contract the employees would be
able to go to work. Ahrenholz asked that the employees take
a vote on this matter. The written votes of the employees were
tallied by employee Voight and "Bud" Danner. Forty to 43
employees voted in favor of CLA and 12 voted against.
Thereafter, Ahrenholz sought to have the employees present
sign CLA membership application and checkoff forms. Ac-
cording to the application forms submitted in evidence, CLA
secured 24 such forms from employees that evening, 13 of
which bear names of employees employed as truck drivers in
September 1969, and 3 bear the name of drivers apparently
not employed previously but who were employed in 1970.'
One card, dated April 28, also bore the name of a driver,
DeGroot, employed in 1969, and called back to work by
Respondent in 1970. Other CLA applications submitted bear
dates after April 28 (except one dated April 18, which is of
questionable validity).
After the vote, Superintendent Hanson called Komatz at
his home, informed him that the CLA had won the vote and
suggested that Komatz return to the plant. Komatz did so,
mingling with the employees at the lunch which was served
after the meeting and talking with Ahrenholz. However,
Komatz and Ahrenholz agreed that they did not discuss
6 One employee testified that an official of Respondent, Regenscheid
introduced Ahrenholz; two employees were less certain though they re-
called this; another employee and Ahrenholz did not recall that anyone
introduced the latter . Regenscheid denied this . Regenscheid's denial is cred-
ited.
' These three, W. Horozdavsky, D Kotek, and V. Peterson, do not ap-
pear on the list of drivers employed in September 1969; they do appear on
the list of drivers in May 1970. Peterson's CLA application states his date
of employment by Respondent as April 27, 1970. From this, and from my
unfavorable impression of Regenscheid 's testimony at the hearing that these
three (and others named on the CLA cards) worked in both 1969 and 1970,
that testimony is not credited.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition of the CLA that evening, or the CLA contract.
G. Respondent's Recognition of CLA
On April 28, 1970, Ahrenholz met with Komatz and re-
quested recognition on the basis of the vote of the employees
at the meeting the previous night. After Komatz agreed to
recognize CLA, the two went over the CLA standard agree-
ment, which covered the work of "all operators, mechanics,
truck drivers, laborers, painters, bridge carpenters, structural
iron workers, cement masons," excluding clerical, super-
visory, professional and guard employees. After Ahrenholz
agreed to place Respondent in a classification requiring lesser
wage rates than originally proposed, Komatz signed the
agreement. Komatz then prepared a notice to'AGC advising
that Respondent would not sign any agreements negotiated
by that organization with the labor unions with which AGC
was negotiating. Respondent then began recalling its em-
ployees to work. It was stipulated that since its execution,
Respondent has enforced the CLA contract, including the
requirement that the employees join and maintain member-
ship in CLA. In the course of this action, Respondent urged,
solicited, and directed employees to join CLA, as required by
the CLA agreement.
H. Respondent's Refusal To Bargain with the Teamsters
On May 2, 1970, the Teamsters wrote Respondent reiterat-
ing the Union's claim to represent Respondent's truck driv-
ers, referring to its previous written request for bargaining,
and requested a meeting with Respondent to sign the "new
Teamster Working Agreement." When Respondent did not
reply, Teamsters, on May 14, sent a copy of their letter to
Respondent's attorney, requesting a reply. Respondent's at-
torney advised, in answer to the Teamsters request, that Re-
spondent "had signed an agreement with another union."
The Teamsters thereafter filed the original charge in this
matter.
II ANALYSIS AND CONCLUSIONS
A. Assistance to the CLA
The facts in this matter are convincing that Respondent
was not only aware of the CLA attempts to organize its
operating personnel and persuade those employees repre-
sented by the Teamsters and the Operating Engineers to
change their representation, but that Respondent considered
these developments as in its own immediate interests and
therefore assisted the CLA in its efforts. Respondent (whose
operations are limited to the warmer months of the year) had
had contractual relations with the Teamsters since 1951 and
with the Operating Engineers for some indeterminate period.
In the spring of 1970, Respondent was clearly concerned over
the fact that the then current strike of the Operating Engi-
neers was preventing it from carrying out its plans to start
work. Respondent's management was also aware that one
means by which it could carry out its desire to begin opera-
tions was through the CLA, inasmuch as contractors in
agreement with that Union were operating, and Respondent
had evinced some interest in this approach, as shown by the
fact that Personnel Manager Ganson, when approached by
two employees anxious to start work, told them about the
CLA and suggested that they go to see Ahrenholz, business
manager of that Union.
Respondent was informed of the CLA initial organiza-
tional meeting, held on April 20, at which less than a majority
of the employees attending voted for the CLA. Respondent
admittedly also had been informed that CLA representatives
were considering attending a safety meeting which Respond-
ent had scheduled, on short notice, for its employees on April
27.8 Indeed , it seems manifest from the circumstances that
Respondent was not only aware that CLA was coming to
address the employees at the safety meeting, but also desired
this. The timing of the safety meeting , one week after the
CLA organizational meeting, does not seem reasonable
related to Respondent's operations . Respondent normally in-
vited its employees to attend such a safety meeting in its shop
in the spring in anticipation of commencing operations. How-
ever, on this occasion Respondent had no anticipation of
starting up and according to what it told the employees at the
meeting had no idea when it would do so . Although Respond-
ent asserted, in explanation of the short notice on which the
meeting was called , this was the only date that the police
could show a safety film, no witness testified to the showing
of such a film. One Respondent witness speculated only that
this might have been the year that the projector broke down.
It is further improbable, as General Counsel points out, that
Ahrenholz and three other CLA representatives would have
traveled 100 miles to arrive at Respondent's shop about
nightfall on the mere chance that they might be permitted to
speak to the employees at the meeting, without attempting
through Nestrud to determine what reception they would be
likely to receive. That this occurred is indicated by the fact
that it is admitted that Respondent had heard through an
employee of CLA plans to come to the meeting.
Further, almost immediately after Respondent had advised
the employees at the meeting of its strong desire to start work,
its frustration at being prevented by the Operating Engineers
strike , and its hostility to the unions which had been repre-
senting them, the representatives of the CLA were permitted
in the room with the permission of Construction Superinten-
dent Hanson . At Ahrenholz' request Respondent's manage-
ment left the room (Respondent President Komatz had al-
ready left). Whether or not Ahrenholz was introduced by a
member of management, as General Counsel claims , the fact
that ' management left the room at his request , leaving him in
control of Respondent's meeting on Respondent 's property
carries its own stamp of approval , which the employees could
not fail to understand .' After Ahrenholz again advised the
employees of the provisions of the CLA contract (previously
explained at the CLA meeting a week before ), the employees
were informed that the agreement was complete and Ahren-
holz needed only the employees ' approval to take it in to
President Komatz for signature, after which they could start
to work . Thereafter, the employees present voted 40 (or 43)
to 12 in favor of CLA. It'would appear that the vote included
employees not previously represented by a union (including
possibly one supervisor), as well as employees represented by
the Teamsters and Operating Engineers.
Finally , Komatz' actions that evening are most consistent
with the conclusion that , knowing of the CLA's plans to
attend the meeting, and that they would be permitted to do
so, he deliverately sought to avoid any contact with the CLA
until after the vote was taken. Thus, after attacking the
unions which had represented the employees in the past, he
seem to have left hurriedly, before the end of the meeting, and
before the "lunch" which was an annual feature of such
8 Considering the mutual contacts between employee Nestrud and CLA
and Supervisor Ganson, the inference is strong that communication between
CLA and Respondent was through that employee
' Contrary to --contentions of Respondent, I do not see any analogy be-
tween this action and permission given in the past to Teamster and Operat-
ing Engineer representatives to come on jobsites to talk to employees. In
such cases, the unions were the bargaining representatives of the employees
under contracts to which Respondent was a party. The Teamsters contract
specifically provided for such visits (G.C Exh. 2, art. XIII, p 8). The
Operating Engineers contract is not in evidence, but it is assumed that the
practice with that union was the same.
KOMATZ CONSTRUCTION, INC.
meetings, and went home. However, when informed of the
vote by Hanson over the phone, and assertedly at the latter's
suggestion, he immediately left home and returned to the
meeting where he joined the employees at the lunch. Never-
theless, both Komatz and Ahrenholz are agreed that there
was no discussion of the matter of recognition that evening.
The following day, Ahrenholz and Komatz met in the
latter's office, and after Ahrenholz agreed that Respondent
would be assigned to a geographical area under the contract
that was more favorable to the Respondent than that origi-
nally proposed, Komatz signed the CLA contract. There-
after, Respondent began calling its employees back to work.
The provisions of the CLA contract requiring employees to
join the CLA and maintain membership in that organization
were enforced.
Respondent argues that the facts do not justify a finding
that Respondent illegally assisted CLA in violation of the
Act. In particular, it is contended that Ganson's suggestion
to two employees that they contact CLA was of minor signifi-
cance, that Respondent's permission to CLA to address the
employees in Respondent's shop was not per se a violation of
the Act (citing Jolog Sportswear, Inc., 128 NLRB 886; Coamo
Knitting Mills, Inc., 150 NLRB 579; Mace Food Stores, Inc.,
167 NLRB 449), and that no supervisory employee was
present when Ahrenholz met with the employees or at the
vote. Respondent further contends that Respondent's actions
do not fall within the scope of the Board's doctrine set forth
in Midwest Piping and Supply Co., Inc., 63 NLRB 1060,
requiring that an employer faced with substantial claims by
two competing unions remain neutral until the contested
right to representation has been resolved under the special
procedures provided in the Act. See also Novak Logging
Company, 119 NLRB 1573. In this latter respect, Respond-
ent argues that there existed no real and substantial question
of representation, asserting that "mere incumbency" of the
Teamsters and Operating Engineers, and the "naked claim"
of the Teamsters do "not constitute a substantial claim to
representative status" (Brief, p. 10, citing N.L.R.B. v. Air
Master Corporation, 339 F.2d 553), that Respondent was
obligated to recognize CLA as the free choice of its em-
ployees, and finally, that the Midwest Piping Doctrine does
not apply to agreements in the construction industry, such as
the CLA contract, inasmuch as Section 8(f) of the Act per-
mits such agreements without proof that the union involved
has been designated by a majority of the employees covered
by the contract.10
Basic to the Respondent's contentions in this part of the
case (as in the part of this case concerned with Respondent's
refusal to bargain with the Teamsters, discussed hereinafter)
is the argument that, notwithstanding Respondent's long and
continuous recognition of the Teamsters (and, it is assumed,
the Operating Engineers also)-and notwithstanding the fact
that Respondent normally begins each new operating season
with employees recalled from the previous season-those
previously recognized unions had no substantial claim to
'° Sec. 8(f) of the Act provides, in pertinent part: "It shall not be an unfair
labor practice ... for an employer engaged primarily in the building and
construction industry to make an agreement covering employees engaged
(or who, upon their employment, will be engaged) in the building and
construction industry with a labor organization of which building and con-
struction, employees are members (not established, maintained or assisted by
any act defined in sec. 8(a) of this Act as an unfair labor practice) because
(1) the majority status of such labor organization has not been established
under the provisions of section 9 of this Act prior to the making of such
agreement, or (2) such agreement requires as a condition ofiemployment,
membership in such labor organization after the seventh day following the
beginning of such employment or the effective date of the agreement, which-
ever is later.... ..
851
represent the Respondent's employees in collective bargain-
ing after the expiration of the current union agreement. Es-
sentially, it is Respondent's position that, by reason of Section
8(f), each new contract in the construction industry starts a
"whole new ball game." The Board, however, has previously
considered this contention and rejected it. Thus, in Bricklay-
ers & Masons International Union Local No. 3, 162 NLRB
476, the Board held that the Congress in enacting Section 8(f)
clearly intended it to apply only to the initial contract be-
tween the employer and the union involved, and that it did
not apply to "the situation of a continuing bargaining rela-
tionship" (162 NLRB at 478 ). See also Dallas Building &
Construction Trades Council, 164 NLRB 938, 942-943. It has
further been held that Section 8(f) does not exempt contrac-
tors in the construction industry from the requirement of the
Midwest Piping doctrine that the employer must remain neu-
tral in the face of substantial conflicting claims to representa-
tion. See Couch Electric Company, 143 NLRB 662, 669.
There is no question but that the claim of the Teamsters
to represent Respondent's employees in an appropriate unit
at the time Respondent recognized CLA was clear and sub-
stantial. The Teamsters had given Respondent specific,
timely notice of its desire to negotiate a new contract. In
response, Respondent had advised the Teamsters that the
AGC would negotiate with the Teamsters for a new contract
in Respondent's behalf, and such negotiations took place
thereafter, with Respondent's knowledge and assistance. In-
deed, there can be no doubt on the record in this matter that
Respondent recognized that the Teamsters (and the Operat-
ing Engineers) continued to represent its employees, by the
very fact that Respondent accepted the fact that its employees
so represented, would not work in face of the Operating
Engineers' strike. It was this very situation that led Respond-
ent to assist CLA in its efforts to organize Respondent's
employees.
It is therefore found, on the basis of the above and the
record as a whole, that Respondent, by suggesting to its
employees at a time they were represented by other unions,
that they investigate representation by CLA, by granting
CLA permission to solicit membership and support on Re-
spondent's premises at a meeting called by Respondent", by
recognizing the contracting with CLA and enforcing its con-
tract with CLA requiring its employees to join and remain
members of CLA, assisted and supported CLA in violation
of Sections 8(a)(1) and (2) of the Act.
The cases relied upon by Respondent are not to the con-
trary. In N. L.. .R.B. v. Air Master Corp., supra, in which the
Court held that the employer was justified in recognizing the
claim of an outside union during the course of bargaining
with the recognized union, the employer was faced with a fait
accompli in which the union representatives with whom it
was dealing across the bargaining table and almost all of the
employees suddenly switched to the outside union , without
any hint of assistance from the employer, and the employer,
after some resistance, agreed to recognize the outside union
only after an impartial check of cards designating the outside
union. In that situation, the Court noted there was no evi-
dence of "illegal conduct" influencing the shift, that [t]he
moving spirits -in this switch-,were not outsiders, "and that
[t]he circumstances suggested that this change of affiliation
had resulted from a successful coup rather than an open
contest between the two unions." In the present case there
was not only a substantial doubt as to CLA's representative
" I do not pass upon the contention that Respondent also assisted CLA
by the fact that an alleged supervisor, "Bud" Danner, attended the meeting
conducted by Ahrenholz and helped count the votes, inasmuch as that
matterds not essential to the decision in this matter.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status," but Respondent was well aware of the competition
between the unions which it had previously recognized and
CLA for representation of Respondent's employees. Further,
although in other circumstances, an employer may not vio-
late the Act by permitting a union to solicit membership on
its property, in the circumstances of this matter, the Re-
spondent's action clearly constituted illegal assistance to the
CLA. See Spartan-Atlantic Dept. Stores, 169 NLRB No. 47,
enfd. 406 F.2d 1002; see also, Welch Scientific Co. v.
N.L.R.B., 340 F.2d 199.
B. The Refusal To Bargain
Respondent, clearly, after April 28, 1970, and specifically
on or about May 14, 1970 (as alleged in the complaint)
refused to recognize or bargain with the Teamsters, or sign
an agreement with that union , as requested. Respondent as-
serts, however, that in the absence of probative evidence that
the Teamsters was the duly designated representative of Re-
spondent's employees in an appropriate unit in the spring of
1970, it had no obligation to recognize or bargain with the
Teamsters for a new collective-bargaining contract. Respond-
ent argues, citing Davenport Insulation, Incorporated, 184
NLRB No. 114, that by reason of Section 8(f) of the Act, the
ordinary presumption of continuing representative status
derived from past recognition and collective-bargaining rela-
tionship does not apply; that the proof adduced by General
Counsel that a majority of the unit employees were members
of the Teamsters in 1969 is not probative since the contract
then in effect required employees to join and maintain mem-
bership in the Teamsters; and that Respondent was not bound
by the AGC bargaining with the Teamsters or the contract
agreed between the AGC and Teamsters.
Davenport Insulation, supra, does indeed hold that an ini-
tial contract entered into pursuant to Section 8(f) creates no
presumption of continuing representative status which a Re-
spondent successor to the employer who entered into the
contract is required to honor. Obviously, when the parties are
permitted by law to enter into a bargaining contract without
regard to whether the union involved is the representative of
a majority of the employees concerned, more than the exist-
ence of that contract is required to show that the union is in
fact the choice of a majority of the employees employed under
the contract. In the present case, however, Respondent's
original contract with the Teamsters in 1951 was executed
without reference to Section 10(f), which was not contained
in the law at that time", and the contractual relationship has
continued since that time, during most of which time Re-
spondent has been represented by the AGC. In addition, the
existence of a lawful union security clause in Respondent's
prior contracts with the Teamsters (particularly in the con-
struction industry) renders it more probable that the em-
ployees engaged thereunder would favor representation by
the contracting union than otherwise. As the Board stated in
Bricklayers, Local No. 3, supra (162 NLRB at pp. 478-479,
in pertinent part):
12 Respondent had a normal employee complement of about 200 Its
customary practice was to begin each new season with employees recalled
from the previous season In pursuance of this practice , it had invited 150
employees to attend its unpaid safety meeting , without any advance indica-
tion that a vote on representation would be taken at that meeting . Of approx-
imately 55 employees who attended the safety meeting, about 40-43 voted
for CLA.
11 Though Respondent asserts that it signed the agreement with the
Teamsters in 1951 under pressure and not from choice, there is no indica-
tion, however , that the employees at that time did not desire representation
by the Teamsters or that they made any protest or that any charge was filed
with the Board alleging an unfair labor practice.
It is apparent ... that the bargaining between AGC and
the Union presents the situation of a continuing bargain-
ing relationship; a situation quite different from that
which Congress had in mind when enacting Section
8(f)(1), to wit, an initial attempt by a union and an
employer in the construction industry to commence
such a relationship. Thus, the entire legislative history of
Section 8(f)(1) is couched in terms of "prehire agree-
ments," a reference which can have no meaning in the
situation where, as here, the parties are continuing an
existing bargaining relationship under which employees
have been previously hired. Particularly [is] this so
where, as in this case, the previous agreement contained
a lawful union-security provision....
In the instant case, of course, Respondent Union had for
many years been the recognized bargaining agent of the
employees of the employers comprising AGC. We hold,
therefore, that the tests to be applied in determining the
fulfillment of the bargaining obligations of the parties
herein are those generally used under Section 8(a)(5) and
8(b)(3)....
In the circumstances of the present matter, therefore, it is
found that at all times material to this case, by reason of the
long established collective-bargaining relationship and con-
tracts between Respondent and the Teamsters, there was a
presumption that the Teamsters representative status con-
tinued, and that Respondent at no time had an objective basis
for a good-faith doubt of that status. See Celanese Corporation
ofAmerica, 95 NLRB 664.14 Indeed, Respondent not only did
not question Teamsters representative status prior to recog-
nizing CLA, but in fact, when the issue was brought up by
Teamster representatives, in 1970, during the bargaining be-
tween AGC and the Teamsters, Respondent asserted that the
AGC was representing it in that bargaining with the Team-
sters.
Inasmuch as the Teamsters were, at all times material
herein, the exclusive representative of Respondent's em-
ployees in an appropriate unit for the purposes of collective
bargaining, Respondent was obligated, upon request, to bar-
gain in good faith with that union for a new contract to
replace the current agreement which had a termination date
of December 31, 1969. The Teamsters made a specific, timely
request of Respondent to bargain. In response, Respondent
specifically, and by its course of conduct, designated AGC to
negotiate with the Teamsters in fulfillment of Respondent's
legal obligation to bargain. At no time prior to the agreement
by AGC and the Teamsters on the terms of a new contract
effective April 6, 1970, did Respondent advise the Teamsters
that the AGC was no longer its representative for bargaining.
Respondent did not then protest the agreement which was
reached nor has it since advanced any reason that it should
not be bound by the results of that bargaining other than its
own illegal act in recognizing the CLA. Quite apart from the
issue as to whether it was also bound as a result of an estab-
lished pattern of multiemployer bargaining-which has been
so vigorously briefed by the parties-where, as here, Re-
spondent designates another to bargain for him, in lieu of
fulfilling that obligation directly, Respondent cannot avoid
14 In coming to this conclusion, the Trial Examiner has not relied upon
General Counsel's contention that, since the prior agreement to which
Respondent was a party by its own terms continued in effect until a new
agreement was signed or negotiations were formally broken off, Respondent
was at all times bound by that agreement to recognize and bargain with the
Teamsters The issue as to whether the Teamsters briefly broke off negotia-
tions with AGC about April 2 within the meaning of that prior contract, is
not free from doubt and its resolution is not necessary to the decision in this
matter.
KOMATZ CONSTRUCTION, INC.
the results of such bargaining in the absence of some showing
of good cause therefor. None has here been shown.
The same result must follow, the Trial Examiner believes,
even if this matter is considered from the standpoint of the
rules governing multiemployer bargaining. It is well estab-
lished that where groups of employers and unions bargain
collectively for an agreement covering the working conditions
of employees, with an intention of being bound by such
negotiations, none of the parties may, without good cause,
withdraw from such bargaining or reject its results after the
negotiations have fairly begun. See, e.g., The Evening News
Association, etc., 154 NLRB 1494. The intention to be bound
need not be explicit, but may be drawn from a pattern of
conduct such as that shown in the present case, in which
employers in the same industry have regularly met as a group
with unions representing their employees, bargained jointly,
and regularly signed the agreement reached through such
joint bargaining. See, e.g., The Kroger Co., 148 NLRB 569.
The issue involves as Respondent argues (citing Van Eerden
Company, 154 NLRB 496) the determination of the actual
intent of the parties, but this requires a close evaluation of
complex factors, differing from case to case-with an "alle-
giance to fact rather than form"-from which it may be
determined whether the requirements of the Act have been
complied with. See Retail Clerks Union, No. 1550 v.
N.L.R.B., 330 F.2d 210, 216.
In support of its contention that Respondent was not
bound by the actions of the AGC, Respondent relies princi-
pally upon Rule 3 of the AGC Rules of Procedure which
purport to give AGC members the right to elect whether they
will be bound by any contract negotiated by AGC and on the
fact that in the past, as the Teamsters knew, AGC has regu-
larly canvassed its members after the conclusion of all agree-
ments affecting its members in a particular division to deter-
mine which of the various agreements the member desired to
sign (citing Averill Plumbing & Heating Corp., 153 NLRB
1595). From this, Respondent argues that members of the
AGC not only did not authorize the AGC to bind them to
contracts, but did not even delegate authority to the AGC to
bargain for them (Brief, p. 25). In effect, Respondent seems
to contend that in these matters AGC acts as a principal and
not as a representative of any specific employer. In respect to
this argument, indeed, Respondent at one point asserts that
a-collective-bargaining agreement between AGC and unions
with which it deals "is not, . . . an agreement between specific
unions and specific employers," and is not so understood by
the parties at the time it is negotiated, but is rather "a pattern
agreement to be used throughout the state." (Brief, p. 5)
However, the record as a whole, as well as the requirements
of the law, do not support the Respondent's contention.
AGC, which is not shown to have any employees represented
by any union, does not act as principal in these negotiations,
but as agent for the various divisions of its members who have
such employees. The AGC rules so provide and the contracts
with the Teamsters so state. Furthermore, the AGC bargain-
ing committees act only with the approval of the members of
the division involved and agreed to the terms of a final con-
tract only after being authorized by a vote of the members in
the division involved. The rules of the AGC further provide
that members authorized to vote who are absent from the
meeting authorizing the final agreement shall be notified and
have 10 days in which to state their disapproval. As a signa-
tory to the last AGC negotiated contract with the Teamsters,
Respondent was authorized to vote on these issues. The
record is clear that Respondent did meet with other AGC
member employers in its division in 1970 and participated in
discussing the Teamster negotiations and in instructing the
AGC committee as to these matters. While Komatz is vague
853
as to whether he attended the meeting authorizing the final
agreement with the Teamsters, it is clear that he did not
protest the agreement to the AGC as required by their rules
or advise the Union of his disagreement until after the Team-
sters request, in early May, that Respondent sign the agree-
ment negotiated by the AGC. Nor did Respondent, at any
time, advise the Teamsters that Respondent desired in-
dividual, rather than group, bargaining on the Teamster con-
tract or on any terms involved in that agreement.
On these facts (including the fact that Respondent specifi-
cally stated that AGC was bargaining for it) it is manifest that
Respondent designated the AGC to negotiate for Respondent
in fulfillment of its obligation to bargain with the Teamsters
and delegated bargaining authority to the AGC, and, indeed,
participated in the bargaining process (though behind the
scenes) which resulted in the AGC agreement with the Team-
sters in 1970. Even under the AGC rules, Respondent must
be held to have assented to the agreement reached, since it
clearly did not promptly protest the result, and, in fact, may
even have voted on the agreement itself. In such circum-
stances, and on the record as a whole, it is found that Re-
spondent did evidence a clear intention to be bound by the
AGC bargaining. Since Respondent sought to withdraw long
after the bargaining began, and after the contract was com-
pleted, such action was not effective, and does not justify
Respondent's attempt to avoid the agreement which resulted
from those negotiations. To hold otherwise would permit
Respondent, as it did here, to use the AGC as a device or
stratagem to avoid its obligations to bargain as required by
the Act. See Retail Clerks Union, No. 1550 v. N.L.R.B., supra
at 216.15
Averill Plumbing and Heating Corp., supra, cited by Re-
spondent, is clearly distinguishable. There the union did not
specifically request the employer to bargain prior to agree-
ment on the contract by the union and the association, the
employer did not specifically or otherwise acquiesce in the
association bargaining nor participate in association discus-
sions and decisions with respect to that bargaining and, when
the union approached the employer after the contract had
been completed, the union appears to have acquiesced in the
employer's request for individual bargaining with respect to
the employer's operations.
On the basis of the record as a whole and the above anal-
ysis, it is found that Respondent, by refusing to recognize and
bargain with the Teamsters as the collective-bargaining rep-
resentative of its employees in the appropriate unit set forth
in footnote 2, above, on or about May 14, 1970, and by
refusing to sign , honor, and abide by the collective-bargaining
contract agreed between AGC and the Teamsters effective
April 6, 1970, violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Teamsters and the CLA are labor organizations
within the meaning of Section 2(5) of the Act.
3. At all times herein material, the Teamsters has been and
continues to be, the exclusive representative of Respondent's
employees in the appropriate unit set forth in footnote 2
': Whatever might be the significance of AGC rule 3 (that its members
are bound by AGC negotiated contracts only if they specifically elect) in
other circumstances, it cannot serve in this matter to either negate the
authority actually delegated to the AGC by Respondent or immunize it
from the legal consequences of its conduct Indeed, in light of the authority
granted to AGC by other rules set forth herein above, the Trial Examiner
questions whether rule 3 has any significant legal force in the resolution of
issues such as those here involved
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereinabove, for the purposes of collective bargaining within
the meaning of Section 9(a) and (b) of the Act.
4. Respondent, by assisting, recognizing, and contracting
with CLA, and by enforcing its contract with the CLA re-
quiring its employees to join and maintain membership in
CLA, engaged in conduct in violation of Section 8(a)(1) and
(2) of the Act. `
5. Respondent by refusing to recognize and bargain in good
faith with the Teamsters as the exclusive representative of its
employees in the appropriate unit set forth in footnote 2,
hereinabove, on and after May 14, 1970, and by its refusal to
sign, honor, and abide by the collective-bargaining contract
agreed between the Teamsters and AGC, effective April 6,
1970, engaged in conduct in violation of Section'8(a)(1) and
(5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Sections 8(a)(1), (2) and
(5) of the Act, it will be recommended that Respondent cease
and desist therefrom and, take certain, affirmative action de-
signed to effectuate the policies of the Act.
Since it has been found that the Respondent violated Sec-
tion 8(a)(2) and (1) of the Act by various acts and conduct
giving aid, assistance, and support to CLA, it will be recom-
mended that Respondent withdraw and withhold all recogni-
tion from CLA as the collective-bargaining representative of
any of Respondent's employees and cease giving effect to any
collective-bargaining contract with CLA or to any modifica-
tions, extensions, supplements, or renewals of such contracts,
unless and until CLA shall have been certified as the collec-
tive-bargaining representative pursuant to a Board-con-
ducted election among Respondent's employees in a unit or
units appropriate for the purpose of collective bargaining.
It has been found that Respondent, since April 28, 1970,
has maintained and enforced a contract with CLA requiring
employees to join and maintain membership in CLA as a
condition of employment in violation of the Act. It will there-
fore be recommended that Respondent refund to the em-
ployees covered by the, aforesaid agreement with CLA all
CLA dues and fees withheld from their wages, together with
interest at the rate of 6 percent per annum on such sums in
accordance with the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
It having further been found that Respondent has refused
to sign, honor, and, abide by the terms of the collective-
bargaining agreement negotiated in its behalf by the AGC, it
will be recommended that Respondent forthwith sign the
collective-bargaining agreement with the Teamsters effective
April 6, 1970, with a termination date of April 30, 1972, and
that Respondent give retroactive effect to the terms and con-
ditions contained in that agreement, and make whole its em-
ployees for any loss of wages or other employment benefits
they may have suffered as a result of Respondent's failure and
refusal to honor and abide, by the terms of that agreement, in
a manner consistent with the Board policy set forth in F W.
Woolworth Company 90 NLRB 289, to which interest shall
be added as prescribed by the Board in Isis Plumbing &
Heating Co., supra.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
the following recommended order is issued:16
11 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,
ORDER
On the basis of the above findings of fact and conclusions
of law and upon the entire record in this matter, Respondent
Komatz Construction, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Recognizing or contracting with CLA as the represent-
ative of its employees or giving effect to, maintaining, or in
any way enforcing any collective-bargaining contract with
CLA, unless and until CLA shall have been certified as repre-
sentative of such employees by the Board, as provided in the
section entitled "The Remedy," hereinabove.
(b) Coercively urging, soliciting, or directing employees to
join, or support, or participate in the activities of CLA, or
otherwise rendering unlawful aid or assistance to the CLA.
(c) Refusing to recognize and bargain collectively with the
Teamsters as the exclusive representative of Respondent's
drivers and helpers, excluding all other employees, office
clerical employees, guards; and supervisors, with respect to
rates of pay, wages, hours of employment, or other conditions
of employment, as required by the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise or rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is found will
effectuate the purposes of the Act:
(a) Withdraw and withhold all recognition for CLA as the
collective-bargaining representative of its employees unless
and until CLA shall have been certified by the Board.
(b) Upon request by the Teamsters, sign the collective-
bargaining agreement effective April 6, 1970, negotiated by
the AGC, and honor and abide by the terms and provisions
of that Agreement.
(c) Give retroactive effect to the terms and conditions of
the collective-bargaining agreement described above and
make its employees whole for any losses they may have suff-
ered by reason of Respondent's failure and refusal to execute
and comply with the terms and provisions of that agreement,
as provided in the section entitled "The Remedy," hereina-
bovc.
(d) Refund to the employees covered by Respondent's con-
tract with CLA all,un'ion dues and fees withheld from their
wages on and after April 28, 1970, in favor of CLA, as
provided in the section entitled "The Remedy," hereinabove.
(e) Preserve and, upon request, make available to the Board
or its agents, for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
amounts due as bac'kpay and other benefits, and reimburse-
ment of CLA dues and fees to its employees as required by
this Order.
(f) Post in conspicuous places at its place of business at St.
Peter, Minnesota, copies of the notice attached hereto and
marked "Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 18, after being
duly signed by Respondent's authorized representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
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.
1' 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."
KOMATZ CONSTRUCTION, INC.
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
IT IS FURTHER ORDERED that allegations of the complaint
setting forth violations of the Act not found herein shall be
dismissed.18
'S In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in writing,
within 20 days from the date of the Board's Order, what steps Respondent
has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request by Teamsters Local 847, sign
the Teamsters Highway, Railroad and Heavy Construc-
tion agreement effective April 6, 1970, and comply with
its terms and provisions.
WE WILL pay our drivers and helpers who come un-
der the Teamster agreement for wages and other em-
ployment benefits which they may have lost because we
did not sign the Teamsters agreement or comply with its
terms, retroactive to April 6, 1970, with interest.
855
WE WILL refund to our employees any dues or fees
withheld from their wages on or after April 28, 1970, for
Highway Construction Workers Local # 78, affiliated
with the Christian Labor Association of the United
States of America, with interest on the money withheld.
WE WILL cancel the contract we signed on April 28,
1970, with Local 78 of the Christian Labor Association
and WE WILL NOT recognize or bargain with that
union until it is certified by the National Labor Relations
Board as the representative of our employees.
WE WILL NOT coercively urge, solicit, or direct our
employees to join, support or participate in the activities
of Local 78 of the Christian Labor Association, or other-
wise give unlawful assistance or aid to that union.
Dated By
KOMATZ
CONSTRUCTION,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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, 316
Federal Building, 110 South Fourth Street, Minneapolis,
Minnesota 55401, Telephone 612-725-2611.