Patterson-Stevens, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1995

316 N.L.R.B. 1278 (N.L.R.B. 1995)

1277
316 NLRB No. 194
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On August 3, 1994, Administrative Law Judge Marvin Roth
issued the attached decision. The Respondent, the General Counsel,
and the Union filed exceptions and supporting briefs. The Respond-
ent and the General Counsel filed answering briefs. The General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel and the Union have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions un-
less the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 We affirm the judge’s conclusion that the Respondent timely and
unequivocally withdrew from multiemployer bargaining before the
Union and the CIEA commenced negotiations for a new contract.
We disavow any implication in the judge’s analysis that face-to-face
negotiations are a prerequisite to the commencement of bargaining,
and we find it is unnecessary to pass on the judge’s alternative find-
ing that the Respondent timely withdrew from bargaining even if the
parties’ September 21, 1992 meeting involved negotiations for a new
contract. Finally, we note that there are no exceptions to the judge’s
application of the rule of Retail Associates, 120 NLRB 388 (1958),
to the circumstances of this case. Subsequent to the judge’s decision,
a Board majority held in James Luterbach Construction Co., 315
NLRB 976 (1994), that the Retail Associates rule is inapplicable to
multiemployer bargaining in the construction industry under 8(f).
The Board would have dismissed the Sec. 8(a)(5) allegation here
under Luterbach.
Member Browning, who dissented from her colleagues’ position in
Luterbach that the Retail Associates rules do not apply to 8(f) bar-
gaining relationships, does not rely on the citation to Luterbach. As
her colleagues point out, the Respondent filed no exceptions to the
judge’s application of Retail Associates. Under these circumstances,
Member Browning would not raise sua sponte the issue of whether
the Retail Associates rules are applicable to multiemployer bargain-
ing in the construction industry.
In affirming the judge’s conclusion that the parties had not actu-
ally begun early negotiations by the time of the September 18 meet-
ing, Member Browning relies only on the fact that both parties, the
Union and CIEA, characterized the September 18 meeting and their
contacts leading up to it as communications regarding the conditions
to be established for early negotiations, and neither party considered
them to be the beginning of the actual early negotiations. Similarly,
both parties viewed the September 21 meeting as preliminary and in-
tended it to deal with midterm contract modifications.
Member Browning specifically disavows the judge’s conclusion
that the employer’s notice of withdrawal from multiemployer bar-
gaining could not be considered untimely if the employer did not
have actual notice of the beginning of early negotiations. Actual no-
tice of the beginning of negotiations is not a prerequisite to the re-
quirement to give timely notice of withdrawal from multiemployer
bargaining pursuant to Retail Associates. See Chel LaCort, 315
NLRB 1036 (1994).
Patterson-Stevens, Inc. and Laborers’ International
Union of North America, Local Union No. 210.
Case 3–CA–17899
April 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The principal issue contested before the Board in
this case is whether the judge correctly found that the
Respondent timely and unequivocally withdrew from
multiemployer bargaining and did not violate Section
8(a)(5) and (1) of the Act by refusing to sign and ad-
here to the terms of a contract negotiated by the Union
and the Construction Industry Employers Association
(CIEA).1 The Board has considered the decision and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Patterson-Stevens, Inc.,
Tonawanda, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Doren G. Goldstone, Esq. and Tamra Diamond, Esq., for the
General Counsel.
Thomas W. Gill, Esq., of Buffalo, New York, for the Re-
spondent.
Richard Lipsitz, Esq. and Eugene W. Salisbury, Esq., of Buf-
falo, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Buffalo, New York, on February 10 and 11 and
March 21–23, 1994. The charge and amended charge were
filed respectively on June 4 and July 22, 1993, by Laborers’
International Union of North America, Local Union No. 210
(the Union). The second amended complaint, which issued
on October 13, 1993, and was amended at the hearing, al-
leges that Patterson-Stevens, Inc. (the Company or Respond-
ent) violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). The gravamen of the com-
plaint is that the Company allegedly: (1) refused to execute,
and failed and refused to adhere to, the terms and conditions
of a collective-bargaining contract negotiated by the Union
and Construction Industry Employers Association (CIEA),
covering a multiemployer bargaining unit which includes the
Company’s laborer employees; (2) interrogated an employee
about his union membership, activities, and sympathies, and
threatened employees by conditioning their employment with
the Company on their abandoning membership in the Union;
and (3) discriminatorily terminated employees Anthony
Baccaro, Victor Cali, Richard Carson, Angelo Ceccarelli,
Frank Conidi, Vincent Conidi, Thomas Cordova, Bruce
Curvin, Joseph Ettipio, Gerald T. Farr, Thomas Fino, Ste-
phen D. Fletch, Anthony Hammill, Michael Jozak, David
Kelley, Monroe Leslie, James J. O’Neil, Myron Patterson,
Joseph Proietto, William Rainey, Michael K. Smith, and
Kevin Bennett.
The Company by its answer denies the commission of the
alleged unfair labor practices. The Company by its answer
admits that it laid off 19 of the 22 alleged discriminatees (all
but Cali, Proietto, and Bennett) on or about May 28, 1993,
and laid off Bennett on an unspecified date, but denies that
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In 1984, following an impasse in bargaining with the cement ma-
sons’ union, CIEA released its members from their designations.
After agreement was reached, CIEA requested new designations.
it did so for discriminatory reasons. The Company contends
in sum by way of affirmative defense that: (1) on September
21, 1992, the Company withdrew from membership in CIEA
and notified CIEA and the Union that CIEA no longer had
authority to bargain with the Union on the Company’s be-
half; (2) under Section 10(f) of the Act and in accordance
with the National Labor Relations Board’s decision in John
Deklewa & Sons, 282 NLRB 1375 (1987), the Company had
no duty to recognize or bargain with the Union after May
31, 1993; and (3) the 8(a)(5) allegations are untimely under
Section 10(b) of the Act.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
The General Counsel and the Company each filed a brief.
Upon the entire record, and from my observation of the de-
meanor of the witnesses, and having considered the argu-
ments of counsel and the briefs submitted by the parties, I
make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with an office and place of
business in Tonawanda, New York, is engaged as a contrac-
tor in the building and construction industry. In the operation
of its business, the Company annually purchases and receives
at its Tonawanda facility goods valued in excess of $50,000
from other enterprises located in New York, each of which
enterprises received those goods directly from points outside
of the State of New York. I find, as the Company admits,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Alleged Unlawful Refusal to Execute
the 1993–1996 Contract Between CIEA and the Union
1. The facts
CIEA is a multiemployer bargaining association in the
construction industry in western New York. CIEA’s bylaws
contain several provisions which are at least arguably perti-
nent to the merits of this case. Article 3 provides in sum that
membership in CIEA is open to members in four categories,
specifically: general contractors; specialty contractors; associ-
ate members, i.e., entities engaged in businesses related to
the construction industry; and honorary members, who are
elected by CIEA’s board of directors. Honorary members do
not have the rights to vote or hold office in CIEA.
CIEA has collective-bargaining relations with basic (non-
mechanical) trades unions in the greater Buffalo, New York
area, including the Union. Article 5 of the CIEA’s bylaws
provides in part as follows:
Section 2—Collective bargaining agreements negotiated
by and between the Association and any labor organiza-
tion affecting the member’s employees shall be binding
upon only members of the Association who have au-
thorized the Association to negotiate with respect to
that particular collective bargaining agreement.
Section 3—Each member whose employees perform on-
site labor agrees to designate the Association as his or
its exclusive representative in regard to all matters inci-
dental to specific collective bargaining agreements
which are applicable to the member’s employees and
the negotiation thereof. The designation shall be in the
form approved by the Board of Directors.
Notwithstanding article 5, section 3, CIEA’s standard form
for ‘‘Agreement of Designation of Bargaining Agent’’ pro-
vides that CIEA and the signatory firm: ‘‘[E]xpressly agree
that the terms and conditions of this AGREEMENT shall
continue to be maintained in full force and effect and shall
be irrevocable unless it is revoked by the FIRM no later than
the last day in the month of January of any calendar year
in which the ASSOCIATION collective bargaining agree-
ments expire.’’ CIEA Executive Vice President James Logan
testified that in practice no further signature is required, and
the initial designation of CIEA as bargaining representative
remains in effect until revoked. However, Logan admitted
that to his recollection, until the present case, no member
ever claimed that it was not bound by a negotiated contract.1
Logan also testified that no member has ever withdrawn au-
thorization to negotiate without also withdrawing from CIEA
membership.
The designation form also provides that revocation of des-
ignation shall be effective only if notice is given by reg-
istered mail. However, Logan testified that in practice, CIEA
accepts resignations without notice by registered mail, and
that he did not consider this factor with respect to the Com-
pany’s asserted notice of revocation. As will be further dis-
cussed, Logan’s testimony in this regard illustrates that in
practice, CIEA does not consistently follow its own rules.
CIEA’s bylaws further provide, in sum, that contract nego-
tiations shall be conducted by CIEA’s elected negotiating
committees. There is a negotiating committee for each trade.
The committees are elected (normally every 3 years), in the
February following completion of contract negotiations, by
the CIEA members ‘‘who employ basic trade labor.’’ How-
ever, each member of a negotiating committee ‘‘must employ
that specific trade.’’ In addition, CIEA’s executive vice
president is an ex officio member of all committees, includ-
ing the negotiating committees.
The bylaws also provide that negotiated collective-bargain-
ing contracts shall be signed by the chairman of the pertinent
negotiating committee and CIEA’s executive vice president
for and on behalf of CIEA, after receiving the approval of
CIEA’s board of directors. After completion of negotiations,
each negotiating committee presents the terms of the ten-
tative contract to CIEA’s labor policy committee for ratifica-
tion. Executive Vice President Logan testified that, in prac-
tice, all negotiated contracts are submitted to the board of di-
rectors for approval.
CIEA’s bylaws provide in sum that the board of directors
shall have charge of the affairs of CIEA between annual
membership meetings, shall establish policies and objectives
1279PATTERSON-STEVENS, INC.
2 Chuck Patterson’s testimony, and some of the documentary evi-
dence presented by the Company, was in several respects confused
and contradictory concerning the above-described changes and trans-
action. Attorney Greg Miller, who arranged the December 24, 1991
transaction, was the Company’s principal witness regarding the mat-
ter. The Counsel for General Counsel intensively cross-examined
both witnesses. In his brief, however, the General Counsel does not
dispute the facts above described, and as I here have found.
of CIEA, and shall direct the executive vice president regard-
ing the purposes, policies, and services of CIEA, among
other responsibilities. The bylaws provide that the board shall
consist of CIEA’s president; first, second, and executive vice
presidents; and ‘‘four general contractor members and four
from other membership categories.’’ All but the executive
vice president are elected at the annual membership meeting
for 1-year terms.
The executive vice president plays a key role in CIEA’s
affairs. Since 1982, James Logan has been executive vice
president. He is in effect CIEA’s manager, being responsible
for conducting CIEA’s business. He is the only paid officer,
and need not be a member of CIEA. Among other functions,
Logan actively participates in contract negotiations and
grievance and arbitration proceedings, has custody of CIEA’s
funds and records, takes minutes of negotiating sessions and
CIEA meetings, and serves as a trustee of most contractual
fringe benefit funds. Together with union representatives, he
reduces negotiated contracts to final language.
As indicated, the bylaws provide for an annual member-
ship meeting. The bylaws further provide that the president
may call additional membership meetings on 3 days’ notice,
and special emergency meetings ‘‘upon such notice as may
be held reasonable by telephone, telegram, or messenger.’’
There is no required quorum for meetings. Logan testified
that decisions are made by majority vote of those members
present, and usually only a minority of CIEA members at-
tend such meetings. Logan further testified that about 25
CIEA members, including the Company, were bound to
CIEA’s 1990–1993 contract with the Union. In addition,
some 100 to 120 independent (nonmember) contractors were
signatory to the contract.
Since at least 1984, the Company has been a member of
CIEA. On January 17, 1984, the Company, by its then presi-
dent, Robert Clarence (Bob) Patterson, signed an agreement
of designation form, designating CIEA as its bargaining rep-
resentative with the Union and Cement Masons’ Local 511,
‘‘in their respective territorial jurisdiction, whose members
[the Company] employs.’’ It is undisputed that the collective-
bargaining relationship between the Company and the Union
was established and thereafter renewed pursuant to Section
8(f) of the Act; in the words of the complaint, ‘‘without re-
gard to whether the majority status of the Union has ever
been established under the provision of Section 9 of the
Act.’’ It is also undisputed that prior to September 21, 1992,
the Company did not revoke its authorization, or purport to
withdraw from CIEA membership.
Bob Patterson served as company president until March
1991, when he was succeeded by his son, Robert Charles
‘‘Chuck’’ Patterson. (For ease in reference, the father will be
referred to as Bob Patterson and his son as Chuck Patterson.)
Both Bob and Chuck Patterson have been active in the af-
fairs of CIEA. Bob Patterson served as president of CIEA
from 1987 to 1991, and thereafter continued to serve on its
board of directors. In November 1993, he ran for reelection,
was reelected, and continued to serve on the board of direc-
tors in 1994. Minutes of board meetings indicate that Bob
Patterson was present and actively participated in such meet-
ings in late 1992 and through 1993. On December 4, 1992,
he joined in a unanimous vote to accept the 1993–1996
agreements negotiated by CIEA and the basic trades’ unions,
including the Union (Laborers). On August 24, 1993, Bob
Patterson was present when the board was informed of the
present unfair labor practice charge. Patterson told the board
that the Company sent letters to CIEA and the Union stating
that the Company resigned its membership in CIEA. Patter-
son added that the Company intended to go nonunion. On
September 16, 1993, Logan informed the board that Bob Pat-
terson resigned as a trustee of the Laborers’ benefit funds.
Patterson participated in the discussion and vote on his suc-
cessor. On November 23, 1993, the board discussed the
Company’s lawsuit to block arbitration over the Union’s
grievance concerning the Company’s failure to adhere to the
1993–1996 contract. Patterson told the board that the Com-
pany was not hiring any Laborers, and did not agree to a
union audit of its books. At the November 23 meeting, Pat-
terson participated in a discussion to enlarge the board. He
and the other board members agreed to run for another 1-
year term on the board.
CIEA routinely sends copies of the minutes of board of di-
rectors’ meetings to CIEA members. Executive Vice Presi-
dent Logan testified that in his opinion, the Company re-
mained a member of CIEA during and after September 1992.
Bob Patterson previously served as a member of CIEA’s
Laborers’ negotiating committee, i.e., the committee respon-
sible for negotiations with the Union. In or about 1990,
Chuck Patterson succeeded Bob Patterson on the committee,
and was still a member of the committee in September 1992.
Chuck Patterson also served on the grievance committee.
Bob Patterson served as company president until March 3,
1991, when he was succeeded by Chuck Patterson. Bob Pat-
terson continued to serve as company treasurer, and he and
his wife Margaret Patterson continued to serve as members
of the Company’s board of directors until December 24,
1991. Bob and Margaret Patterson together owned a majority
of the Company’s stock (102 of 180 shares). On December
24, 1991, Bob and Margaret Patterson sold all their stock,
and concurrently resigned their positions with the Company.
Thereafter the ownership consisted of Chuck Patterson and
Company Vice President Randy Dowling, who each had a
45-percent interest, and Company Vice President Michael
Corbett, who had a 10-percent interest. In sum, Chuck Patter-
son, Dowling, and Corbett purchased, in varying amounts,
the shares of Bob and Margaret Patterson, paying for the
shares by a combination of cash and promissory notes. The
notes were payable in annual installments over a 5-year pe-
riod, and secured by a stock pledge agreement under which
some of the purchased shares were held in escrow as collat-
eral for the notes. As of the present hearing, the notes were
not yet paid off, but there was no default in payments.2
After sending the September 21 letter, Chuck Patterson did
not attend or participate in any contract negotiations.
Chuck Patterson testified, in sum, that after December 24,
1991, Bob Patterson held no position with the Company, had
no further duties to perform for the Company, did not rep-
resent the Company on CIEA’s board of directors, and did
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All dates hereafter are for the period of July 1, 1992, through
June 30, 1993, unless otherwise indicated.
not report to him concerning CIEA board meetings. How-
ever, he knew that Bob Patterson continued to serve on
CIEA’s board of directors after December 24, 1991. Chuck
Patterson further testified that he told CIEA Executive Vice
President Logan that his father retired and was no longer
with the Company. Chuck Patterson testified, however, that
he could not recall when he said this, and that he did not
tell Logan that Bob Patterson no longer represented the
Company. Bob Patterson continued to receive deferred com-
pensation and life insurance coverage pursuant to a deferred
compensation plan executed on August 30, 1991.
Logan testified that he heard about negotiations for Chuck
Patterson to purchase the business, and that he and Dowling
became the owners, but was under the impression that Bob
Patterson became company board chairman. Logan further
testified that Bob Patterson served on CIEA’s board of direc-
tors as an officer of the Company, that CIEA did not admit
individual persons to membership as honorary members, and
that Bob Patterson was not an honorary member.
CIEA and the Union negotiated and executed successive
3-year collective-bargaining contracts in 1984, 1987, and
1990. The 1990 contract was effective by its terms from June
1, 1990, through May 31, 1993. The contract defined the bar-
gaining unit in terms of all employees of employer members
of CIEA performing or hired to perform work within the
Union’s jurisdictional claims. The contract also provided for
an exclusive hiring hall arrangement.
Typically, contract negotiations began after January 31 of
the year of contract expiration. In preparing and participating
in negotiations, CIEA cooperated with Highway Division of
Associated General Contractors (AGC), a multiemployer as-
sociation which also bargained with the Union. In 1980
CIEA, AGC, and the basic trades’ unions reached early
agreement on collective-bargaining contracts. Thereafter,
until 1992, there were no ‘‘early negotiations’’ involving
CIEA or the Union.
On May 1, 1992, the Union and CIEA’s negotiating com-
mittee met and negotiated midterm changes in the 1990–
1993 contract, to take effect as of July 1, 1992. The catalyst
for these negotiations was a ruling by the New York State
Department of Labor, stating, in sum, that the department
would not give effect to collective-bargaining provisions
which exclude public work projects from wage rates or con-
ditions favorable to the employer. The parties agreed in sum
to delete certain such provisions from their contract.
Beginning in July 1992, a series of events took place
which eventually culminated in the 1993–1996 contract be-
tween CIEA and the Union, and the Company’s alleged un-
lawful refusal to execute and abide by that contract. CIEA
Executive Vice President Logan was the General Counsel’s
principal, and for all practical purposes, only witness con-
cerning these matters. (Business Manager Peter Gerace, the
Union’s chief negotiator, was unable to testify because of ill-
ness. His subordinate, Business Representative Peter
Capitano, gave only limited testimony.) Chuck Patterson was
the Company’s principal witness regarding these matters.
Logan cannot be regarded as a neutral or disinterested wit-
ness. CIEA’s interest in this case, like that of the Union, is
that the Company should be held bound by the 1993–1996
contract. Most, but not all, of the material operative facts
concerning this issue are undisputed. Logan impressed me as
a less than wholly credible witness. In connection with two
significant matters in dispute, Logan initially gave testimony
favorable to the Company; and subsequently, on reflection,
backed away from such testimony. As will be further dis-
cussed, I find that Logan’s initial admissions, rather than his
subsequent attempts to revise his testimony, more accurately
reflect the truth of the matter.
In July 1992, representatives of the basic trades’ unions
contacted representatives of CIEA, AGC, and independent
signatory contractors concerning the possibility of early con-
tract settlements.3 Logan was not personally involved in
these discussions, but was informed of their substance. The
basic trades’ unions proposed 3-year contracts, including a
wage freeze, and annual increases of 50 cents per hour in
health and welfare benefits. Logan reported the proposal to
CIEA’s board of directors, and the board informally author-
ized acceptance. In early September, the participants in the
discussions agreed that CIEA, AGC, independent contractors,
and the basic trades’ unions would meet on Tuesday, Sep-
tember 22, for the purpose of agreeing on the proposal. If
there was agreement, the employer side would meet sepa-
rately with each trade union to negotiate conditions, i.e., non-
monetary changes. The unions indicated that if the proposal
was not accepted, thereby precluding early settlement, the
unions probably would seek more in subsequent contract ne-
gotiations.
By letter dated September 10, Logan informed all em-
ployer signatories to the 1990–1993 contract with the Union,
whether or not members of CIEA, that he would conduct a
meeting at CIEA’s offices on Friday, September 18, at 8 a.m.
The declared purpose of the meeting was to discuss the fea-
sibility of early negotiations, which would commence as
early as September 1992 and conclude by October 1992.
The meeting took place as scheduled. Logan and Jim Bid-
dle (representing a CIEA member firm) conducted the meet-
ing. Chuck Patterson and representatives from 13 other firms,
including both CIEA members and independent signatories,
were present. At Logan’s request, CIEA Counsel Jeremy
Cohen was present for the purpose of answering questions
and providing advice, if necessary.
At the meeting, Logan explained the proposal, and that the
proposal was subject to complete settlement with all of the
basic trades’ unions. Logan said that the purpose of early ne-
gotiations was to demonstrate unity in the organized con-
struction industry and to avoid a strike. He informed the
meeting that the unions said that if the proposal was rejected,
the employers would have to take their chances on confront-
ing higher monetary demands. Logan said that the employers
had to make a decision before September 21, and that ac-
ceptance had to be unanimous on both sides. It is undisputed
that the contractors present, including Chuck Patterson, voted
unanimously to accept the proposal, as described and ex-
plained by Logan, as the basis for negotiations with the basic
trades’ unions.
Logan testified, in sum, that questions were asked at the
meeting, and that one contractor member of CIEA said that
he was not sure whether he would sign. Logan and Attorney
Cohen, who was also presented as a General Counsel wit-
ness, testified, in sum, that they did not recall anyone saying
or asking anything about withdrawal from CIEA. Chuck Pat-
1281PATTERSON-STEVENS, INC.
terson variously testified that Logan, or possibly Cohen or
someone else, said they had until Tuesday morning, or by
Monday night, to withdraw from CIEA. Patterson testified
that he did not recall who raised the subject, or whether the
‘‘comment’’ was made at the meeting or in conversation
after the meeting. In his investigatory affidavit, Patterson
stated that the contractors were told that they had to mail in
a letter by the next day in order to withdraw from CIEA and
not be tied into the negotiations. Attorney Cohen impressed
me as a candid witness. If the matter was discussed, he prob-
ably would have remembered the discussion. In light of Pat-
terson’s vague and ambiguous assertions, I credit Logan and
Cohen. I find that the matter of withdrawal was not dis-
cussed at the September 18 meeting.
Immediately following the September 18 meeting, Logan
telephoned Union Business Manager Gerace, and informed
him that CIEA accepted the trades unions’ proposal. At this
point, Logan received what he described as a shock. Gerace
said that there were issues important to the Union which had
to be resolved before the September 22 meeting. Gerace said
that he would fax to Logan the items to be discussed and
resolved. The Union had given no prior indication that it
sought such changes. Gerace apologized, but insisted this had
to be done. Logan said they would get together on Monday,
September 21.
At 5:22 p.m. on September 18, Logan received a three-
page faxed document from Gerace describing proposed
changes in article VII of the CIEA-union contract (hours of
work and holidays). The most significant proposed change
concerned overtime pay. The 1990–1993 contract provided
for time and one half over 8 hours (daily) only if mandated
by state or Federal specifications. The proposed change pro-
vided for time and one half after 8 hours daily, unless the
employee was working on a 4-day 10-hour per day schedule.
The Union’s proposals did not indicate any effective date for
the proposed changes.
Logan summoned the members of CIEA’s negotiating
committee, including Chuck Patterson, by telephone to a
meeting with the Union at 9 a.m. on September 21 at CIEA’s
offices. He also invited an AGC contractor, in order to keep
AGC informed. Chuck Patterson testified, without contradic-
tion, that Logan called him on the morning of September 21,
and that Logan gave no explanation for the meeting. I credit
his testimony in this regard.
Logan, several contractors, including Chuck Patterson and
Union Representatives Gerace and Capitano, were present at
the September 21 meeting, which ran for 2 to 3 hours. Logan
testified in detail concerning the meeting. Capitano testified
only minimally concerning the meeting. Chuck Patterson also
testified concerning the meeting. In his affidavit, however,
Patterson stated that he was unsure whether Capitano at-
tended the meeting. Patterson testified that he did not re-
member the meeting when he gave the affidavit, and that he
guessed he was testifying about the meeting on the basis of
what he learned from others. In light of Patterson’s admis-
sions, my findings concerning what transpired at the meeting,
as distinguished from the unspoken understandings of those
present, is based on Logan’s testimony.
The Union reviewed its written proposals, asserting that
these matters had to be settled or they would not attend the
September 22 meeting. The parties discussed the proposals.
CIEA made verbal proposals. The parties did not review the
entire 1990–1993 contract. The meeting ended in agreement,
substantially on the Union’s terms, including its proposal on
overtime pay. The Union rejected nearly all of CIEA’s pro-
posals, except for one which was resolved on the basis of
language proposed by the Union. The employers voted to ac-
cept the agreement, contingent on unanimous acceptance of
the basic trades unions’ monetary proposal for a 3-year con-
tract.
Logan initially testified, on the first day of hearing, that
the agreed-on contract changes would be effective imme-
diately, i.e., as of September 21. The following day, when
Logan resumed the witness stand, he stated, in sum, that fol-
lowing inquiry by the counsel for the General Counsel, he
reconsidered and now wished to correct his previous testi-
mony. Logan then testified that the parties ‘‘understood or
agreed’’ that the changes would be effective with the new
contract, i.e., as of June 1, 1993. Chuck Patterson testified
that he understood the September 18 and 21 meetings were
‘‘pre-condition meetings,’’ that negotiations were to begin on
September 22, and that the changes agreed to on September
21 would become part of the current contract.
At the September 21 meeting, the parties were aware that
the arrangement scheduled for the next day ‘‘may blow up.’’
They discussed a serious question as to whether AGC and
Operating Engineers Local 17 would agree to the monetary
proposal for a 3-year contract. As matters turned out, their
concern was justified.
In light of Logan’s shifting and equivocal testimony, I find
that the parties did not discuss the effective date of the
agreed-on changes at their September 21 meeting. In light of
Logan’s initial testimony, and additional factors which will
be discussed, I find that the parties understood that the
changes would become part of the 1990–1993 contract.
At 3:56 p.m. on September 21, Company Vice President
Dowling faxed a letter to CIEA, to Logan’s attention, and a
copy of the letter to Union Business Manager Gerace. The
letter stated: ‘‘[T]his letter is to notify you to stop negotia-
tions at this time on our behalf with Laborer’s Local 210.’’
Logan received the letter at about 4 p.m., and promptly faxed
another copy to Gerace. Logan also telephoned Dowling to
confirm receipt of the letter, but did not discuss or ask ques-
tions concerning its meaning or significance.
Chuck Patterson testified in sum as follows: After return-
ing from the September 21 meeting, he and Dowling dis-
cussed the situation. They agreed to send the letter because
they decided to withdraw from CIEA, although they had not
yet decided whether to sign a contract with the Union. They
believed they had to give notice of withdrawal prior to com-
mencement of negotiations on September 21. However, in
his affidavit, Patterson stated that on September 21, he with-
drew authority for anyone at CIEA to bargain on behalf of
the Company with the Union. Dowling testified that they
sent the letter because they did not want CIEA to bargain for
the Company anymore, and believed they had to give notice
before the start of negotiations in order to protect their rights
and keep their options open.
Union Business Representative Capitano testified that
when he and Gerace received the letter, they were not sure
what it meant. However, Logan’s testimony was particularly
significant. Logan initially testified that the letter stated
‘‘they would no longer designate the CIEA as the bargaining
agent.’’ Later, in response to a leading question from union
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Union counsel’s questioning of Logan was so blatantly leading
as to be substantially worthless.
counsel, Logan testified that the letter was not a revocation
of authority, but simply a direction to stop negotiations.4
Logan testified that he believed the letter was ineffective be-
cause negotiations had begun and the parties had already
reached agreement. I find that Logan’s initial testimony, rath-
er than union counsel’s subsequent attempt to negate his ad-
mission, most accurately reflects Logan’s state of mind on
receiving the letter. I find that Logan, as he admitted, under-
stood that the Company, by its letter, revoked designation of
CIEA as its bargaining agent, although retaining its member-
ship in CIEA.
On September 22 at 9 a.m., representatives from CIEA
(including Logan), AGC, independent contractors, and the
basic trades’ unions met as scheduled to accept or reject the
proposed terms for a 3-year contract. Logan described the
meeting as ‘‘confused.’’ Logan learned that two pile driving
contractors were unwilling to accept the proposed terms. The
meeting did not discuss contract specifics. The assembled
participants agreed that the two contractors should be given
until October 1 to agree on the proposed terms. Otherwise,
in Logan’s words, ‘‘the proposal would be removed from the
table for all trades.’’
The pile driving contractors and the pile drivers’ union did
not reach an agreement by October 1. However, they contin-
ued their negotiations. Some time after November 9, they
reached agreement. When the October 1 deadline passed, the
employer side was informed, in Logan’s words, that ‘‘the
$1.50 proposal [50–50–50] was withdrawn from the table,’’
and ‘‘if we wanted to pursue the negotiations we would have
to go back and start from scratch.’’
About November 1, the basic trades’ unions submitted a
new proposal. Representatives of the trades’ unions met with
representatives of CIEA, AGC, and independent contractors.
Carpenters’ business manager Terry Bodowes, speaking for
all of the unions, informed the employer side that ‘‘in order
to reach an early agreement, the new dollar amount was 75–
75–50,’’ i.e., a 3-year contract providing for annual fringe
benefit increases of 75 cents, 75 cents, and 50 cents per
hour, respectively. In Logan’s words, the proposal was pre-
sented on a ‘‘take it or leave it’’ basis, and was ‘‘not a nego-
tiable item.’’ As with the prior proposal, this proposal was
conditioned on unanimous acceptance. No deadline was set
for such acceptance.
As indicated, on December 4, Bob Patterson joined in a
unanimous vote of CIEA’s board of directors ‘‘to accept the
3-year agreement which called for a total of $2.00.’’ By let-
ter dated November 3, Logan summoned CIEA members and
employers signatory to the union 1990–1993 contract to a
meeting on November 9 to discuss the ‘‘joint negotiating
session’’ of September 22, and the trades unions’ new ‘‘pro-
posal for contract settlement.’’
The November 9 meeting voted to accept the new pro-
posal. The Company was not present at the meeting. Logan
informed the Union of the acceptance. However, nothing
could then be signed because the pile drivers’ union and the
pile driver contractors had not yet resolved their differences.
When they did so, both the employer side and union side had
unanimous agreement on the proposal. So far as CIEA and
the Union were concerned, they had a final agreement.
Thereafter Logan and Union Business Manager Gerace pro-
ceeded to draft a final document.
On January 8, Logan and Gerace signed an agreement for
a 3-year contract between CIEA and the Union, effective
June 1, 1993. The agreement provided, in sum, for continu-
ation of the terms of the 1990–1993 contract, with the
agreed-on changes, i.e., the 75–75–50 ‘‘wage’’ increases, to
be used for fringe benefits, and the revised article VII on
hours of work and holidays. The parties also agreed that they
would consider proposed language changes for the purpose
of correcting, clarifying, or elaborating on present provisions.
Logan testified that the revised article VII reflected minor
changes from the Union’s September 21 proposal.
CIEA mailed copies of the signed agreement to its mem-
bers (as of the present hearing, the 1993–1996 contract had
not been prepared in booklet form). Logan testified that the
Company remained on CIEA’s active membership list. The
Company had, previously, paid its dues for the fiscal year of
April 1, 1992, through March 31, 1993. In April 1993, CIEA
billed the Company for 1993–1994 dues, but the Company
did not pay the dues. However, on March 30, at the Union’s
request, Logan sent the Union a list of ‘‘those firms that
have designated Laborers.’’ The list was prepared from an
earlier (1990) list, with the Company’s name deleted. Logan
testified that the Company’s name was deleted from the list
because of the circumstances surrounding the Company’s
September 21 letter, although he could not make a legal de-
termination concerning its significance.
By letter dated March 26, Union Business Manager Gerace
enclosed, and requested the Company to sign, two ‘‘Interim
Agreements’’ with the Union: the CIEA-union agreement of
January 8; and a document accepting that agreement as the
1993–1996 contract. Normally such documents were sent
only to independent (non-CIEA member) signatories to the
1990–1993 contract. Union Business Representative Capitano
testified that the Union sent the documents to the Company
because of uncertainty as to its status.
On April 2, Capitano met Chuck Patterson at a grievance
meeting (the grievance involved alleged subcontracting by
the Company to a nonunion firm). Capitano pointed out to
Patterson that he had not yet received the signed interim
agreements. Patterson said he would check with Company
Vice President Dowling and get back to Capitano. The Union
did not hear from the Company until May 28. By letter of
that date, Dowling informed the Union that ‘‘[A]s of May
31, 1993 midnight, we will not be signing a new Agreement
with your Local.’’
With regard to the effective date of the changes in article
VII, agreed on between the Company and the Union, Chuck
Patterson’s testimony was confused and contradictory. Patter-
son variously testified that Union Business Representative
Sam Caci told him the changes were to be effective imme-
diately, that the Company had already instituted the overtime
change, that he did not know whether there were any other
changes affecting the Company, and that he did not know
when the changes were implemented. The General Counsel
requested, and the Company agreed to furnish, payroll
records which would reflect the overtime change. However,
the parties could not agree as to what, if any, records would
reflect the change, and the matter was not pursued. Patterson
did testify, in sum, that Caci told him that the overtime
change concerned the same problem addressed in May 1992,
1283PATTERSON-STEVENS, INC.
5 The Company’s reliance on Restatement 2d, Contracts 2d, § 253
(R. Br. at pp. 44–45) begs the question. The principle therein stated,
is that when an obligor repudiates a contractual duty, the repudiation
gives rise to a claim for damages for total breach. However, that
principle does not resolve the question of whether the ‘‘repudiation’’
here took place when the Company sent its September 21 letter, or
when the Company notified the Union that it would not sign the
1993–1996 contract.
namely, the need to accommodate the contract to the New
York State Department of Labor ruling.
By letter dated January 17, 1994, the Company informed
CIEA that it was resigning from CIEA, effective imme-
diately, because of confusion as to its membership, which
‘‘could cause us to be bound to labor agreements with unions
we do not want to employ.’’ Logan testified that CIEA ac-
cepted the resignation.
2. Analysis and concluding findings
a. The timeliness issue
The Company contends that the 8(a)(5) allegations in this
case are untimely. The crux of this argument is that if the
Company acted lawfully, the unfair labor practice, if any, oc-
curred when the Company sent its September 21 letter to
CIEA and the Union. Therefore, the Company argues that the
present charge, filed more than 6 months later, is time barred
under Section 10(b) of the Act. I disagree. I find that the
charge was timely. Therefore, the merits of this case are
properly before me for decision.
In Preston H. Haskell Co., 238 NLRB 943 fn. 1 (1978),
enf. denied 616 F.2d 136 (5th Cir. 1980), the Board held, in
sum, that where an employer untimely withdraws from multi-
employer bargaining, ‘‘the 10(b) period commences as of the
date the new agreement, which the parties are obligated to
sign, is reached.’’ This is because ‘‘the refusal to execute
and apply the contract reached through multiemployer bar-
gaining is the essential part of the 8(a)(5) violation.’’ In Ele-
vator Sales & Service, 278 NLRB 627, 632 (1986), the
Board affirmed the decision of Administrative Law Judge
Socoloff, citing and applying Haskell in rejecting a 10(b) ar-
gument similar to that advanced in Haskell and the present
case.
The court of appeals’ majority in Haskell did not reject the
Board’s rationale on this issue. The case was heard by a
three-judge panel (Judges Gee, Thornberry, and Hatchett).
Judge Gee, writing the lead opinion, held that the complaint
was time barred because the 10(b) period commenced with
the employer’s ‘‘putative withdrawal from group bargain-
ing.’’ Judge Thornberry, concurring only in the result, held
in sum that the Board was correct on the 10(b) question, but
there was no violation on the merits of the case, because of
a lack of history of group bargaining. Judge Hatchett, dis-
senting, held that he would affirm the Board on both issues.
Thus, two of three judges who heard the case held that they
would affirm the Board on the 10(b) issue.
I recognize that there are Board decisions which detract
from the clarity of the Board’s rationale in Haskell. In Team-
sters Local 378 (Capitol Chevrolet), 243 NLRB 1086 fn. 1
(1989), the Board held in sum that an untimely attempt by
an employer-member to withdraw from a multiemployer
group would constitute a violation of Section 8(a)(5) at the
time of the withdrawal. The Board held that it was over-
ruling Haskell, insofar as Haskell held otherwise. However,
Teamsters Local 378 did not involve a 10(b) issue, and the
Board did not discuss or reject the central premise of Has-
kell, as stated above. Rather, the Board’s approach in Team-
sters Local 378 tends to support this premise. In Teamsters
Local 378, the Board held that the respondent union violated
Section 8(b)(3) of the Act by bargaining and executing a sep-
arate contract with an employer-member of a multiemployer
bargaining association, without the consent of the associa-
tion, and without the employer making a timely withdrawal
from the association. The charge was filed by the association
against the union. A charge against the employer was settled.
Consequently, the employer was not even a party to the liti-
gated case. In sum, the crux of the Board’s decision was that
the respondent union violated Section 8(b)(3) by negotiating
and executing a contract with the employer; and the Board’s
discussion of whether the employer violated the Act by at-
tempting to withdraw from the association, and the Board’s
reference to Haskell, was dictum.
In Dixon Commercial Electric, 302 NLRB 946 (1991), the
Board, on a stipulated record, dismissed the complaint as
time barred. Although the respondent employer terminated its
membership in a multiemployer bargaining association
(NECA) in 1983, the Board did not base its decision on that
action. Rather, the Board based its decision on a letter sent
by the employer to the charging union, on November 30,
1986, in which the employer, in ‘‘clear and unequivocal’’
language, repudiated its bargaining relationship with the
union, as reflected in a collective-bargaining contract be-
tween NECA and the union (‘‘Residential Agreement’’),
which expired on that date. There was no successor contract
until February 9, 1987. In January 1987 the employer refused
to respond to the union’s request for information concerning
compliance with the expired contract, and restated its posi-
tion. Nevertheless, the union waited until February 24, 1988,
to file an unfair labor practice charge alleging that the em-
ployer violated Section 8(a)(5) and (1) of the Act by failing
and refusing to furnish the requested information, refusing to
abide by the new contract, and withdrawing recognition from
the union.
In the present case, unlike Dixon, there was no hiatus be-
tween collective-bargaining contracts, and the Company con-
tinued to abide by the 1990–1993 CIEA-union contract until
its expiration. More significantly, in the present case, the
General Counsel contends in sum, that: (1) the Company’s
putative withdrawal from multiemployer bargaining was un-
timely, and (2) the Company’s September 21 letter did not
constitute a clear and unequivocal withdrawal from multiem-
ployer bargaining, by reason of both the language of the let-
ter itself and the Company’s overall course of conduct. Con-
sequently, in order to determine whether Section 10(b) bars
the present complaint, I would first have to determine the
merits of the General Counsel’s case, on the entire record.
Applying the Company’s argument to its logical conclusion,
it would follow that: if the complaint was meritorious, Sec-
tion 10(b) would not bar the complaint; but if General Coun-
sel’s case failed on its merits, then Section 10(b) would bar
the complaint. This makes no sense.5
I find, as discussed above, that Haskell, as defined above,
governs the present case. Therefore, Section 10(b) does not
bar the present complaint. I find it unnecessary to decide
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The General Counsel’s reliance on Carvel Co., 226 NLRB 111
(1976), enfd. 560 F.2d 1030 (1st Cir. 1977) (Br. pp. 26–28), is mis-
placed. In Carvel, the association and union there involved expressly
and in writing agreed that receipt of the union’s written contract pro-
posals, and the association’s acknowledgment of such receipt, would
constitute the commencement of contract negotiations. They so
agreed, because the existing contract required that negotiations com-
mence not later than February 15 or else the existing contract would
renew itself for another year, and the parties were unable to meet
by that date. The Board, giving effect to the parties’ agreement, held
that under Retail Associates, negotiations commenced when the asso-
ciation acknowledged, by letter, receipt of the union’s written pro-
posals. In the present case, there was no such agreement. Rather, the
only agreed-on date was September 22.
whether the Company’s September 21 letter would, standing
alone, constitute a chargeable unfair labor practice.
b. The merits
In order to decide whether the Company unlawfully re-
fused to execute the 1993–1996 contract between CIEA and
the Union, it is necessary to determine whether the Company
withdrew from multiemployer bargaining in a timely and un-
equivocal manner.
In Retail Associates, 120 NLRB 388, 395 (1958), the
Board explained:
We would . . . refuse to permit the withdrawal of an
employer or a union from a duly established multiem-
ployer bargaining unit, except upon adequate written
notice given prior to the date set by the contract for
modification, or to the agreed-upon date to begin the
multiemployer negotiations. Where actual bargaining
negotiations based on the existing multiemployer unit
have begun, we would not permit, except on mutual
consent, an abandonment of the unit upon which each
side has committed itself to the other, absent unusual
circumstances.
The Board further explained that such notice must be both
timely and unequivocal, and that: ‘‘the decision to withdraw
must contemplate a sincere abandonment, with relative per-
manency, of the multiemployer unit and the embracement of
a different course of bargaining on an individual-employer
basis’’ (Id. at 393–394).
The principles set forth above, with one qualification,
apply, as here, to bargaining relationships established and
maintained pursuant to Section 8(f) of the Act. Under John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988),
cert. denied 488 U.S. 889 (1988), on the expiration of an 8(f)
collective-bargaining agreement, the signatory union will
enjoy no presumption of majority status, and either party
may repudiate the 8(f) bargaining relationship. Therefore, if
the Company here properly withdrew from the multiem-
ployer unit, then the Company had no further obligation be-
yond compliance with the 1990–1993 contract, and was
thereafter free to repudiate the 8(f) bargaining relationship,
without obligation to bargain on an individual employer
basis. See City Electric, 288 NLRB 443 (1988); Plasterers
Local 337 (Marina Concrete), 312 NLRB 1103, 1106 (1993).
The General Counsel does not contend otherwise.
Turning to the facts of the present case, the first question
presented is what, in the words of Retail Associates, supra,
constituted ‘‘the agreed-upon date to begin the multi-em-
ployer negotiations,’’ i.e., negotiations for the 1993–1996
contract. The General Counsel contends (Br. at p. 28) that
the ‘‘September 18, 1992 meeting conducted by CIEA quali-
fies as the commencement of negotiations’’: I do not agree.
I find that there was no agreed-on date for commencement
of contract negotiations earlier than September 22, and that
in fact, actual contract negotiations began, at the earliest,
about November 1.
The September 18 meeting constituted nothing more than
an internal meeting among employer signatories to the 1990–
1993 contract, including CIEA members, for the declared
purpose of considering the feasibility of early contract nego-
tiations. Prior to that meeting, employer and union represent-
atives simply engaged in informal contacts for the same pur-
pose. Logan was not even a participant in these contacts, al-
though if these contacts were contract negotiations, he would
have been present by reason of his position and duties. CIEA
and the Union never expressly or impliedly referred to any
meeting or contract prior to September 22 as contract nego-
tiations. The proposal considered by the employers on Sep-
tember 18 was not a contract proposal. Rather, as Logan in-
dicated in his September 10 letter, it was a basis on which
early contract negotiations could take place. Significantly, the
proposal fixed September 22 as the date on which the em-
ployer and union side would meet for the purpose of accept-
ing or rejecting the proposal.
In sum, the contacts between the employer and union side
were ‘‘exploratory talks before the formal opening of nego-
tiations,’’ and therefore did not constitute contract negotia-
tions under Retail Associates. Dependable Tile Co., 288
NLRB 710 (1988) (Dependable Tile II); see also Plasterers
Local 337, supra.
The September 18 meeting of employers convened by
CIEA also did not constitute either the agreed-on date to
commence negotiations, or actual bargaining negotiations.
‘‘Face-to-face negotiations between the bargaining principals
is an elementary and essential condition of bona fide bargain-
ing. So also is an exchange of contract proposals.’’ Redway
Carriers, 274 NLRB 1359, 1377 (1985); Colony Furniture
Co., 144 NLRB 1582, 1589 (1963). The September 18 meet-
ing did not meet either criteria. Rather, as indicated, the
meeting was simply an internal discussion among the em-
ployer side.6
I further find that the September 21 meeting between
CIEA and the Union did not, under Retail Associates, supra,
constitute negotiations for a new contract. Rather, the meet-
ing constituted negotiations over union-proposed changes in
the 1990–1993 contract, acceptance of which, by CIEA, was
a precondition for early negotiations for a new contract. As
indicated, Logan initially admitted in his testimony that the
agreed-upon changes would be effective immediately. More-
over, the substance of the most important change indicates
that the parties contemplated an immediate change. As dis-
cussed, the 1990–1993 contract provided for time and one
half after 8 hours, ‘‘only if mandated by State or Federal
specifications.’’ Because of the somewhat oblique wording of
this provision, CIEA and the Union, in their May 1992 mid-
term negotiations, evidently overlooked or failed to realize
that this provision could be interpreted as granting more fa-
vorable conditions to employers on private projects. There-
1285PATTERSON-STEVENS, INC.
fore, the Union proposed to change the language in order to
comply with the New York Department of Labor ruling. In
sum, Chuck Patterson correctly understood that the Septem-
ber 21 meeting was, at least in part, a continuation or re-
sumption of the May negotiations, which were designed to
conform the existing contract to the state ruling. I also credit
the uncontroverted testimony of Chuck Patterson that Union
Business Representative Caci told him this was in fact the
purpose of the change.
Assuming, arguendo, that the September 21 meeting con-
stituted negotiations for the 1993–1996 contract, I would
nevertheless find that the meeting did not preclude the Com-
pany from subsequently giving timely notice of withdrawal
from multiemployer bargaining. A corollary of Retail Associ-
ates is that the affected employer is entitled to actual notice
of the scheduled commencement of contract negotiations.
Absent such notice, there can be no ‘‘untimely’’ withdrawal
from the multiemployer unit. Withdrawal is also timely if, on
receiving notice of the commencement of negotiations, the
employer acts as ‘‘expeditiously as possible in withdrawing’
from multiemployer bargaining.’’ Gary Jasper Enterprises,
287 NLRB 746, 747 (1987); Acropolis Painting, 272 NLRB
150 (1984). Accord: Action Electric v. Local 292, 856 F.2d
1062 (8th Cir. 1988).
In the present case, the Company received no notice what-
soever that the September 21 meeting constituted or was
scheduled as either the commencement or continuation of
1993–1996 contract negotiations. Rather, on only a few min-
utes’ notice, Logan summoned Chuck Patterson and other
members of CIEA’s negotiating committee to a meeting with
the Union, without telling Patterson the purpose of the meet-
ing. Assuming that Patterson, on attending the meeting,
learned or was given reason to believe that this was 1993–
1996 contract bargaining, he plainly acted as expeditiously as
possible by sending the purported notice of withdrawal that
same afternoon. (In Jasper Enterprises, supra, the Board
found that the employer, in the absence of prior notice of ne-
gotiations, withdrew in timely fashion 2 weeks after the com-
mencement of those negotiations.)
No negotiations took place on September 22. As the pile
drivers’ union and pile driver contractors failed to agree on
the proposed conditions for early negotiations, the conditions
had not been met. Meanwhile, on the afternoon of September
21, the Company sent, and CIEA and the Union received, the
Company’s purported notice of withdrawal.
For the reasons discussed above, I find the Company’s no-
tice was timely. I shall next address the question of whether,
under the standards of Retail Associates, supra, and its prog-
eny, the Company gave clear and unequivocal notice of with-
drawal from the multiemployer unit.
I find that the Company gave the requisite notice of with-
drawal. First, the Company, by its faxed letter of September
21, unambiguously instructed CIEA to stop negotiating on its
behalf with the Union, and so informed the Union. The
phrase ‘‘at this time’’ did not detract from that instruction.
As pointed out in S. Freedman Electric, 256 NLRB 432, 435
fn. 2 (1981), in sum, an employer may expressly reserve an
option to resume ‘‘union status’’ at some future time, with-
out thereby negating an otherwise effective withdrawal from
the multiemployer unit. In the present case, the Company did
nothing more by inserting the quoted phrase.
Second, CIEA and the Union by their reactions, dem-
onstrated their understanding that the Company gave notice
of withdrawal from the multiemployer bargaining unit. As
discussed, Logan initially admitted in his testimony that the
letter stated ‘‘they would no longer designate the CIEA as
the bargaining agency.’’ Subsequently, CIEA deleted the
Company’s name from the list of firms designating CIEA as
their bargaining representative, and so informed the Union.
Even before receiving such notice, the Union formally re-
quested the Company to sign the 1993–1996 agreement, al-
though such request would normally be made only to inde-
pendent signatories to the 1990–1993 contract. I do not credit
the self-serving attempts of Logan and Capitano, in their tes-
timony, to explain away these reactions.
I further find that the Company did not act in a manner
inconsistent with its asserted withdrawal. After September
21, Chuck Patterson did not attend or participate in any
CIEA meetings or contract negotiations. As indicated, on
April 2, Chuck Patterson told Capitano that he would get
back to Capitano on the matter of the 1993–1996 contract.
However, Patterson’s response was consistent with the Com-
pany’s right, under Section 8(f) of the Act, to reserve deci-
sion on whether to remain a union contractor on expiration
of the 1990–1993 contract.
The Company did not, by its September 21 faxed letter to
CIEA, terminate its membership in CIEA. As discussed, Bob
Patterson continued to serve on CIEA’s board of directors,
and was still serving on the board in 1994. I find that these
factors fail to demonstrate that the Company acted in a man-
ner inconsistent with withdrawal from the multiemployer
unit.
In this regard, a distinction must be considered between
withdrawal from membership in a multiemployer association
and withdrawal from the multiemployer unit represented for
collective-bargaining purposes by that association. Under
Board law, an employer is not required to terminate its mem-
bership in an association in order to effectively withdraw
from the unit. However, renewal of membership in the asso-
ciation, coupled with continued participation in group bar-
gaining for a new contract, may be considered as evidence
of conduct inconsistent with a stated intent to abandon group
bargaining. Ladies’ Garment Workers (West Side Sports-
wear), 286 NLRB 226 fn. 2, 231 (1987); Dependable Tile
Co., 268 NLRB 1147 (1984), enfd. as modified in other re-
spect 774 F.2d 1376 (9th Cir. 1985) (Dependable Tile I).
In the present case, CIEA’s bylaws provided, in sum, that
members whose employees performed onsite labor were re-
quired to designate CIEA as their bargaining representative
with respect to such employees. The bylaws also provided,
in sum, for categories of membership which, in practice,
would preclude Bob Patterson from serving on CIEA’s board
of directors, except as a representative of the Company.
However, the evidence discussed above demonstrates that
CIEA did not enforce these asserted policies; that CIEA per-
mitted the Company to retain its membership, notwithstand-
ing the Company’s withdrawal from multiemployer bargain-
ing with the Union; and that CIEA permitted Bob Patterson
to serve on its board of directors, notwithstanding that CIEA,
and specifically Logan, knew that he no longer represented
the Company.
As discussed, Bob Patterson sold his interest in the Com-
pany, resigned from all company offices, and retired from the
1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Dependable Tile I is distinguishable on its facts. In that case, the
Board found inconsistent conduct in that the employer renewed its
membership in the association, and the employer’s president actively
participated in group negotiations for a new contract. In the present
case, the Company failed to pay its 1993 dues, Chuck Patterson took
no part in negotiations after September 21, and Bob Patterson did
not represent the Company.
8 The complaint alleged, but the answer denied, that the Company
terminated Victor Cali about May 28. Cali was not presented as a
witness in this proceeding, and no evidence was presented that Cali
was on the Company’s payroll at this time. I find that the General
Counsel failed to present a prima facie case as to Cali. Therefore,
I am recommending that the allegation of the complaint be dismissed
insofar as it pertains to Cali.
Company in December 1991. Logan testified, in sum, that he
knew that Chuck Patterson was no longer an owner in the
business. The testimony of Chuck Patterson and Logan is
conflicting as to whether Chuck Patterson told Logan that
Bob Patterson no longer held any position with the Com-
pany. However, in April 1993, the Company failed to renew
its membership in CIEA. On August 24, 1993, Bob Patterson
told CIEA’s board of directors that the Company sent letters
to CIEA and the Union, stating that the Company resigned
its membership in CIEA, and that the Company intended to
go nonunion. By letter dated January 17, 1994, the Company
informed CIEA that it was resigning from CIEA, effective
immediately. Nevertheless, CIEA took no action to terminate
the Company’s membership, and permitted Bob Patterson to
serve on its board of directors through 1994.
In sum, it is evident that CIEA did not regard the Compa-
ny’s letter of September 21 as inconsistent with continued
membership in CIEA, and understood that Bob Patterson no
longer represented the Company on CIEA’s board of direc-
tors. Therefore, the Company did not by its continued mem-
bership in CIEA, or by Bob Patterson’s continued participa-
tion in CIEA’s affairs, act in a manner inconsistent with its
withdrawal from the multiemployer unit. See Ladies’ Gar-
ment Workers, supra.7
For the foregoing reasons, the Company did not violate
Section 8(a)(5) of the Act by refusing to sign the 1993–1996
contract between CIEA and the Union. It follows that the
Company also did not violate the Act by failing to adhere
to the terms and conditions of that contract, including the ex-
clusive hiring hall arrangement, or by exercising its right, on
expiration of the 1990–1993 contract, to repudiate its bar-
gaining relationship with the Union. Therefore, the Company
did not violate Section 8(a)(5) by its alleged termination of
union employees about May 28. I shall next address the
question of whether the Company violated Section 8(a)(1)
and (3) of the Act by such termination and related conduct.
B. Alleged Unlawful Interrogation, Threats, and
Termination of Union Employees
1. The facts
Friday, May 28, 1993, was the last working day for the
Company’s day-shift laborer employees working under the
1990–1993 CIEA-union contract, and Saturday, May 29, the
last such day for the night-shift laborers (Monday, May 31,
was a holiday, and the next working day was June 1, follow-
ing expiration of the contract). As indicated, the Company,
by its answer, admitted that on or about May 28 it laid off
19 of the 22 alleged discriminatees (all union laborers), and
another employee (Bennett) on an unspecified date. For rea-
sons which will be further discussed, this admission substan-
tially disposes of the Company’s principal defenses in this
proceeding.8
Company Vice President Dowling testified in sum as fol-
lows: He prepared a form letter, dated June 1, the text of
which stated as follows:
Patterson-Stevens, Inc. is no longer signatory with
Local #210, and will no longer make contributions for
Health and Welfare payments to the Local.
These monies will be paid in your check or by other
arrangements.
The letter was signed by Dowling, with a space below, under
the word ‘‘ACCEPTANCE,’’ for signature by the union em-
ployee. Dowling gave copies of the form letter to Company
Project Manager Daryl Sornberger, with express or implied
instructions to have them presented to the union member em-
ployees for signature and returned. Sornberger reported back
to Dowling that he did so. Dowling personally showed the
form to one or two employees (the Company does not dis-
pute that job foremen, who were unit employees, were its
agents for the purpose of distributing the form to employees).
Employee signature was a condition of continued employ-
ment with the Company. However, employees who later re-
turned to work for the Company were not required to sign
the form. It is undisputed that none of the employees signed
the form. It is also undisputed that on May 28 or 29, or
shortly thereafter, the union member employees were given
two paychecks, including a final paycheck, indicating that
they were laid off or otherwise terminated by the Company.
The General Counsel presented testimony by 11 union
member employees concerning the circumstances of their ter-
mination. Bruce Curvin was night-shift union steward on the
NFTA job in downtown Buffalo, New York. Curvin testified
in sum as follows: He heard rumors that the Company was
going nonunion. During the week which culminated in the
May 28 and 29 layoffs, he had two conversations with Job
Superintendent Sornberger about the matter. Curvin asked if
the rumors were true. Sornberger answered that they were,
and the Company was not going to hire out of the union hall
and was not going to hire union employees. On May 27 or
28, Curvin asked Vice President Dowling what was going
on. Dowling answered that it was none of his business.
Curvin insisted that he was the union steward and wanted to
know. Dowling said: ‘‘I wouldn’t hire you union guys if it
was the last person on earth.’’ Curvin subsequently testified
that Dowling said: ‘‘I wouldn’t hire you now if my life de-
pended on it.’’ Curvin responded that he was doing a good
job, and that the Union would handle the matter. On the
morning of May 29, Sornberger said that he was laying off
all the union employees. No one presented Curvin with the
company form letter.
Curvin further testified that he reported to work on June
2. Union employees were standing around. Curvin asked
Dowling whether they were working that day, and Dowling
laughed. It is undisputed that beginning on June 2, the Com-
pany used replacement employees, including new hires, and
company employees transferred from outside of the Union’s
territorial jurisdiction.
1287PATTERSON-STEVENS, INC.
Employee Richard Carson also worked the night shift on
the NFTA job. Carson testified in sum as follows: On the
morning of May 29, at the end of his shift, Sornberger gave
him his final checks. Sornberger said he could return to work
on June 1, if he wanted. On the afternoon of June 1, about
3 hours before the night shift was scheduled to begin,
Sornberger telephoned Carson at home. Sornberger asked if
Carson was going to work. Carson answered that was up to
him. Sornberger asked if Carson was still with the Union.
Carson answered that was ‘‘obvious.’’ Sornberger replied:
‘‘well then, we can’t use you for work.’’ Carson asked:
‘‘where does that leave me for the future?’’ Sornberger an-
swered: ‘‘you don’t have one.’’ Carson did not thereafter
work for the Company. No one from the Company presented
or discussed the form letter with him.
Employee Thomas Fino worked the day shift on the NFTA
project. Fino testified, in sum, that he was laid off on May
28, no one from the Company spoke to him about returning
to work, but he received the company form letter, which he
did not sign.
Employee Michael Jozak also worked the day shift on the
NFTA project. Jozak testified in sum as follows: On May 28,
shortly before the layoff, Sornberger told him that the Com-
pany was going nonunion, but wanted him to stay, as well
as Frank and Vincent Conidi. Jozak asked the circumstances.
Sornberger said he would have to give up his union book.
Jozak said he would not. Sornberger said that if Jozak re-
mained, he would be covered by a company medical and re-
tirement plan. Sornberger added that Dowling was fed up
with the way the Union was running the Company, and they
didn’t want union members working for them. Sornberger
showed Jozak the form letter, saying that if he remained, he
would have to sign it. Jozak did not sign. Jozak went to the
company office on June 1 to pick up his second (final) pay-
check. Company Project Manager Leslie Wardell said the
Company wanted Jozak to stay, but he would have to go
nonunion. Jozak said he would not stay because he would
have to give up his union representation.
Employee Gerald Farr worked the night shift on the NFTA
project. Farr testified in sum as follows: On the morning of
May 29, shortly before the end of his shift, Sornberger ap-
proached Farr, who had already learned of the layoff.
Sornberger told Farr that the Company had a pension and
benefit plan. Sornberger gave Farr his final paychecks, say-
ing that if Farr wanted to continue working, he should give
Sornberger a call. Farr did not personally receive the com-
pany form letter. However, Foreman Frank Conidi (one of
the laid-off employees) told him that if he wanted to con-
tinue working, he would have to sign the letter. Farr replied
that he would be off sick until he got more information about
the letter. Farr did not thereafter work for the Company.
Employee William Rainey worked the night shift on the
NFTA job. Rainey testified in sum as follows: Shortly before
the layoff, Project Manager Sornberger told him that the
Company would no longer be affiliated with the Union.
Sornberger added that Rainey could continue to work, the
Company had plenty of work, but the Company would not
pay any union benefits. Rainey said he would get back to
Sornberger. Rainey reported to work on June 1. Sornberger
handed him the company form letter, saying that he had to
sign if he wanted to work. Rainey refused to sign because
he had 28 years in the Union and would lose his accumu-
lated pension benefits. Rainey did not thereafter work for the
Company.
Employee David Kelley also worked the night shift on the
NFTA project. Kelley testified in sum as follows: On May
28, Sornberger gave him his final paychecks. Sornberger said
that if he wanted to work, he should report on June 1, but
the Company would not be affiliated with the Union. When
Kelley reported to work on June 1, Sornberger told him that
he had to sign the company form letter. Kelley refused, and
he did not thereafter work for the Company.
Employee Joseph Proietto testified in sum as follows: He
was working the night shift on the NFTA project, although
he had previously worked the day shift. He worked only 1
day during the week of May 24. On May 27, he told
Sornberger that he was unable to continue working nights,
and wanted to return to the day shift. Sornberger said that
it wouldn’t make much difference because unofficially, the
Company was not going to stay Union. The next day, at the
jobsite, Proietto and employees Thomas Fino and Joseph
Ettipio spoke to Sornberger. One of the employees said:
‘‘[I]t’s official now, we’re done, we’re through.’’ Sornberger
told the employees that there was work if they wanted to be
nonunion workers. Proietto indicated that this was unlikely.
Proietto received the company form letter in the mail, but did
not sign it, and did not thereafter work for the Company.
By letter dated August 30, 1993, Company Vice President
Dowling stated to Proietto as follows:
On May 31, 1993, you were laid off by Patterson-
Stevens, Inc. As per our verbal offer, you were offered
the opportunity to return to work on June 1, 1993 with
the understanding that Patterson-Stevens, Inc. would no
longer be making contributions to Local 210’s Pension
& Welfare Funds. You elected not to return.
The NLRB has issued a complaint asserting that Pat-
terson-Stevens, Inc. terminiated [sic] your employment,
and did not allow you to continue because of your
membership in Local 210.
To clear up any uncertainty, Patterson-Stevens, Inc.
hereby offers you unconditional reinstatement. Please
report to 400 Sawyer Avenue, Tonawanda, NY on Sep-
tember 1, 1993.
No evidence was presented that any of the other laid-off em-
ployees received such a letter.
Employee Anthony Hammill was working on the Compa-
ny’s Nabisco job. On May 28, Hammill and employee Mi-
chael Smith reported to the company yard, preliminary to
working at the jobsite. Vice President Dowling took Hammill
aside. Dowling told Hammill that the Company was severing
ties with the Union, and that he would like Hammill to stay,
but Hammill would also have to sever ties with the Union.
Dowling promised that Hammill would be covered by a
medical and pension plan, which he explained. Hammill re-
plied that he had 20 years in the Union and had no intention
of remaining with the Company for 25 years in order to ob-
tain a pension. Hammill declared that he would keep his ties
with the Union. Dowling said that this was probably
Hammill’s last workday, but Hammill could talk to him later.
Hammill did not thereafter work for the Company. Hammill
received his final paycheck in the mail, but did not receive
the Company’s form letter.
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employee Kevin Bennett was working at the Lincoln Park
pool project in Tonawanda, New York. Bennett testified in
sum as follows: Friday, May 28, was his last day at work.
No one from the Company spoke to him about the layoff at
that time. He reported to the job on June 1. A roofer foreman
told him that he was not supposed to work that day. When
Company Superintendent Michael Corbett arrived at the job-
site, he confirmed the information. Bennett asked why.
Corbett replied, by gesture, that they were sticking it to the
Union. Corbett said that if Bennett wanted to work for the
Company he should talk to Dowling, and had to sign a paper
that he was no longer in the Union. Corbett told Bennett to
pick up his last paycheck at the company office. Bennett
went to the office, where he received his paycheck. As he
was leaving, Dowling approached him. Dowling told Bennett
that the Company was not signing with the Union, and Ben-
nett could not work unless he gave up the Union. Bennett
replied that he ‘‘couldn’t do it.’’ Bennett saw or received the
company form letter, but did not sign it. He did not there-
after work for the Company.
Employee Anthony Baccaro also worked at the Lincoln
Park pool project. Baccaro testified in sum as follows: On
May 27, in the company office, Dowling told him that the
Company was not going to sign with the Union. Dowling
showed Baccaro a personal proposed company pension plan,
indicating that Baccaro could be covered under the plan if
he chose not to be a union member. Baccaro said he would
let the Company know. The next day, Baccaro asked Project
Manager Wardell if the only way to stay on with the Com-
pany was to quit the Union. Wardell answered: ‘‘[Y]es, that
was correct.’’ Baccaro said he would not quit the Union.
Wardell told Baccaro to turn in his keys. The Company
mailed Baccaro his final paychecks. That weekend, Foreman
Frank Conidi told Baccaro that he had to sign the form letter
in order to work for the Company. Baccaro did not sign the
letter, and has not worked for the Company since May 28.
By letter dated May 28, Union Business Manager Gerace
informed all union member employees of the Company that
it was ‘‘imperative’’ that they attend a special meeting on the
evening of June 2. The letter informed the employees that:
‘‘[I]f you are asked to continue to work by Patterson & Ste-
vens please do so until further notice from the Union.’’
Union Business Representative Capitano testified that he told
members who inquired, that the Union had a contract, and
they should continue to work. The Union gave such instruc-
tion in order to organize the Company’s work force. How-
ever, at the June 2 meeting, Gerace concluded that the Union
could not win an election. The Union decided to picket the
Company, and requested its members not to cross the picket
lines. The Union immediately set up picket lines at the
NFTA and other company projects. Some of the alleged
discriminatees participated in the picketing. The Union de-
cided to suspend and fine members who crossed the picket
lines, and in fact charged three union members, and two
members of another Laborers local, with such conduct.
Capitano further testified that the Union cannot accept bene-
fit contributions from a nonunion contractor.
Company Vice President Dowling testified in sum as fol-
lows: During the week of May 24, Union Steward Joseph
Ettipio asked him if the Company intended to sign the new
contract. Dowling answered no. Ettipio said the employees
were concerned about being locked out and unable to collect
benefits. Dowling responded that he appreciated that, and he
was not trying to hurt anyone by not signing the contract.
Project Manager Sornberger was present at this conversation.
On another occasion, Dowling told a company steward that
he would give everyone a layoff. He did not explain the rea-
son. However, Dowling believed that the Union would not
permit the employees to work without a contract. He also be-
lieved that by laying them off, rather than leaving them to
strike, he would enable them to qualify for unemployment
compensation.
Dowling further testified in sum as follows: He spoke to
several of the employees, including Stephen Fletch, William
Rainey, Anthony Hammill, Frank Conidi, Vincent Conidi,
Michael Smith, and Kevin Bennett. He told them substan-
tially the same thing. He told them the Company would not
sign the new contract, would operate nonunion, and would
not contribute to the union funds. He said he would like to
have them as employees, but they would have to understand
these conditions. He did not say they could not be union
members or had to sever their ties with the Union. Some em-
ployees raised questions about union membership. Dowling
answered that it made no difference to the Company.
Dowling never met Bruce Curvin, never spoke to him, and
did not make the alleged remark about not hiring union guys.
Dowling did not take into consideration which employees
were likely to stay.
Dowling further testified that some of the laid-off employ-
ees eventually returned to work for the Company. He also
testified that Michael Smith worked without layoff until early
June. However, as indicated, the Company admitted in its an-
swer that it laid off Smith on or about May 28.
Project Manager Sornberger testified that he was not
present when Dowling spoke to Joseph Ettipio. Sornberger
initially testified that, during the week of May 24, he termi-
nated Richard Carson because his services were no longer
needed, specifically because: ‘‘[H]e just wasn’t carrying his
weight.’’ Sornberger subsequently testified that night fore-
man Frank Conidi terminated Carson. Conidi, who was pre-
sented as a company witness, testified that Carson was in-
cluded in the May 28 layoff. As indicated, the Company ad-
mitted that Carson was laid off on or about May 28. Car-
son’s timesheet, initialed by Sornberger, indicates Carson
worked through May 29, including overtime. When con-
fronted with the timesheet, Sornberger retracted his testimony
concerning Carson’s alleged termination for poor perform-
ance. Sornberger’s testimony, with regard to this matter, re-
flects adversely on his credibility.
Sornberger testified that he didn’t think he talked to Bruce
Curvin about contract termination, although he guessed he
talked to Michael Jozak, and also talked to Gerald Farr, Wil-
liam Rainey, and David Kelley. Sornberger testified, in sum,
that he told them their work was good, the Company would
like to keep them, but the Company would not be signatory
with the Union, and would not contribute to the Union’s
health and welfare fund, but hoped to offer the employees
a better plan. Sornberger testified that he did not tell any em-
ployees that they had to quit the Union in order to continue
working. Sornberger also testified that he did not say that the
Company would not hire union employees. However, at one
point, Sornberger testified that he did not know whether he
said this. Frank Conidi, who as indicated was presented as
a company witness, testified that Sornberger may have said
1289PATTERSON-STEVENS, INC.
that employees who continued after Memorial Day would
have to stop being union members. Sornberger testified that
he asked those employees who worked conscientiously to re-
main, and didn’t ‘‘really’’ consider who was likely to work
nonunion. Sornberger further testified that he did not know
whether an employee could work without a contract and re-
main a union member, and no one discussed this with him.
Leslie Wardell was project manager for the Lincoln Park
pool job. Wardell testified in sum as follows: He did not dis-
cuss the situation individually with employees. However,
during the week of May 24 he had a group conversation with
Anthony Baccaro, Michael Jozak, and ‘‘Kevin’’ at the job-
site. Wardell told them that the Company was not going to
sign with the Union, but would like them to remain. They
did not discuss fringe benefits. Baccaro may have asked
whether he had to quit the Union in order to continue work-
ing. Wardell did not recall his response, but he did not say
that they had to quit the Union. Wardell spoke to the em-
ployees as instructed by Chuck Patterson, Dowling, and Mi-
chael Corbett. Employees Michael Smith and Stephen Fletch
were not laid off because they chose to remain with the
Company. (As indicated, the Company’s answer admits that
both employees were laid off.)
Michael Corbett is company vice president in charge of its
swimming pool business. Corbett testified that he did not dis-
cuss the matter of the Company going nonunion with Kevin
Bennett or any other employee, and did not make the gesture
attributed to him by Bennett.
The present case was initially consolidated with Patterson-
Stevens, Inc. and Operating Engineers Local 17, Case 3–
CA–17908. In that case, the complaint alleged, in sum, that:
(1) the Company was bound by a collective-bargaining con-
tract between Local 17 and AGC, covering operating engi-
neer employees, which was effective by its terms from April
1, 1990, to March 31, 1994; (2) the Company violated Sec-
tion 8(a)(1) and (5) of the Act by, since on or about May
31, 1993, failing and refusing to adhere to the terms and con-
ditions of that contract; and (3) the Company violated Sec-
tion 8(a)(1) and (3) by, on or about May 31, 1993, laying
off two employees because of their membership and activi-
ties in Local 17, and to discourage employees from engaging
in such activities. The two cases were subsequently severed.
The Company filed a withdrawal of answer and consent to
entry of judgment in the Local 17 case. The General Counsel
filed a Motion for Summary Judgment with the Board. On
May 16, 1994, the Board granted the motion in a reported
decision (313 NLRB 1229).
As the Board pointed out in its decision, the Company’s
withdrawal of answer and consent to entry of judgment ‘‘has
the same effect as a failure to file an answer, i.e., the allega-
tions in the [complaint] must be considered to be admitted
to be true.’’ The Board also noted that the Company, in
withdrawing its answer, did not rely on any representations
or assurances by the General Counsel that the default would
not be used as evidence in a collateral proceeding. The
Board also noted that it was not expressing any view about
the evidentiary use, in the present case, of its Decision and
Order in the Local 17 case. However, under Board law an
adjudication by consent or default, such as that in the Local
17 case, may be used as evidence in another proceeding.
Teamsters Local 945 (Newark Disposal), 232 NLRB 1, 4
(1977), enfd. mem. 103 LRRM 2603 (3d Cir. 1978). I find,
in light of the Company’s withdrawal of answer and consent
to entry of judgment, and the Board’s Decision and Order in
the Local 17 case, that the Company’s discriminatory layoff
of two operating engineer employees, concurrently with the
layoff of the alleged discriminatees in the present case, may
here properly be considered as evidence of an antiunion mo-
tivation.
2. Analysis and concluding findings
I credit the testimony of the employee witnesses concern-
ing their conversations with Project Manager Sornberger. As
indicated, Sornberger was a less than credible witness. He
testified falsely concerning the circumstances of Carson’s ter-
mination. He was vague, equivocal, and contradictory con-
cerning his conversations with the employees. At one point,
he asserted that he did not know what he said. As indicated,
the Company’s own witness testified that Sornberger may
have said that employees who continued working after Me-
morial Day would have to stop being union members. I have
no comparable reservations with respect to the testimony of
the employee witnesses.
I specifically find, that Sornberger asked Carson whether
he was still with the Union and, when Carson answered af-
firmatively, told Carson that therefore the Company couldn’t
use him; that Sornberger told Curvin the Company was not
going to hire union employees; and that Sornberger told
Jozak that he would have to give up his union book in order
to remain with the Company.
I also credit the testimony of Michael Jozak that Project
Manager Wardell told him that he would have to go non-
union in order to remain with the Company; and the testi-
mony of Anthony Baccaro that Wardell confirmed that the
only way to remain with the Company was to quit the
Union. As indicated, Wardell testified that he did not talk in-
dividually with the employees, but did have a group con-
versation with Baccaro, Jozak, and ‘‘Kevin’’ at the pool job-
site during the week of May 24. This is improbable, because
Jozak was working the day shift on the NFTA job. There-
fore, it is more probable, as testified by Jozak, that he spoke
to Wardell in the company office on June 1. Wardell, in his
testimony, also professed to be unable to recall what he said
when Baccaro asked whether he had to quit the Union.
The credible testimony of the employees with respect to
their conversations with Sornberger and Wardell further
lends credence to their testimony concerning statements
made by Vice President Dowling. As indicated, Baccaro ap-
proached Wardell in order to confirm his understanding of
what Dowling told him. I find that Dowling told Baccaro
that he could be covered under a company pension plan if
he chose not be a union member; told Anthony Hammill that
he would have to sever ties with the Union in order to re-
main with the Company; and told Kevin Bennett that he
could not work unless he gave up the Union.
I also credit Bruce Curvin, insofar as he testified that
Dowling told him that: ‘‘I wouldn’t hire you now if my life
depended on it.’’ In light of Curvin’s testimony on cross-ex-
amination, I find that Dowling phrased his response in this
manner. Curvin was night steward on the Company’s largest
and most visible project. It is unlikely that Dowling would
not know him, or that neither Dowling nor Sornberger would
have spoken to him about the situation. As union steward,
it is probable, as Curvin testified, that he would have asked
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
either Sornberger or Dowling, or both of them, about the sit-
uation. I also find significant the fact that Curvin was among
the few employees who did not receive the Company’s form
letter either in person or by mail. I also credit the testimony
of Kevin Bennett concerning his conversation with Vice
President Corbett, as Corbett’s responses were consistent
with those of Dowling, Sornberger, and Wardell.
The Company violated Section 8(a)(1) and (3) of the Act,
as alleged in the complaint, by terminating its union member
employees because of their membership in and support for
the Union. I would so find, even in the absence of the credi-
bility resolutions discussed above.
First, the employees were selected for layoff solely on the
basis of their membership in or representation by the Union.
Second, the Company told the employees that, as a condition
of reemployment, they were required to sign a form, which
in substance, required them to relinquish their rights under
Section 7 of the Act. The Company could have lawfully in-
formed the employees that as of June 1, they would be work-
ing under nonunion conditions, and the Company would not
be contributing to the union benefit funds. Yellowstone
Plumbing, 286 NLRB 993, 994 (1987). However, the Com-
pany went well beyond such statements. The Company first
summarily terminated the employees, and told them that as
a condition of reemployment they were required to sign a
document by which they agreed to acquiesce in such condi-
tions. Whether the Company or the Union was correct, the
employees had a statutorily protected right, by grievance or
other lawful concerted means, to contest the Company’s po-
sition that it was not bound by the 1993–1996 collective-bar-
gaining contract. By imposing this requirement, the Company
unlawfully interfered with the employees’ Section 7 rights.
Consequently, even if the Company had not initially termi-
nated the employees, the Company would have violated Sec-
tion 8(a)(1) and (3) by actually or constructively denying em-
ployment to those employees who refused to sign the form.
Moreover, the credited testimony of the employees, dis-
cussed above, demonstrates that the Company was in fact
telling them, and requiring them, to terminate their union
membership as a condition of reemployment. I find without
merit Dowling’s explanation, in sum, that the Company did
the employees a favor by laying them off, because the Union
would not permit them to work without a contract, and they
could qualify for unemployment compensation. The employ-
ees had a statutorily protected right to make that decision for
themselves, without being terminated on the basis of their
union membership or representation. Jack Welsh Co., 284
NLRB 378, 383 (1987). As indicated, the Union initially in-
structed its members to continue working for the Company,
but changed its position after the Company terminated all the
union member employees and hired or transferred in non-
union replacements.
The Company argues in its brief that it did not violate the
Act, because the employees engaged in a strike. The argu-
ment is without merit, because the Company discriminatorily
terminated the employees before the Union decided to estab-
lish picket lines. Therefore, the question of whether the em-
ployees went on strike, and if so, the nature of that strike,
is one addressed to compliance, rather than the merits of the
case.
I further find, based on the credited testimony of the em-
ployee witnesses, that the Company, by Dowling, Sorn-
berger, Bennett, and Wardell, threatened its employees by
conditioning their employment with the Company on their
abandoning membership in the Union. The Company thereby
violated Section 8(a)(1) of the Act. The Company, by
Sornberger, also violated the Act by interrogating Richard
Carson as to whether he was still with the Union. The inter-
rogation was plainly coercive and unlawful, as Carson had
been unlawfully terminated, and Sornberger made clear (at
the time when the Union was telling its members to continue
working) that reemployment was conditioned on Carson’s
abandoning union membership. See Honda of Hayward, 307
NLRB 340, 345, 350 (1992).
On the basis of the Company’s selection of the employees
for layoff based solely on their union membership or rep-
resentation, the statements of company supervisors, the un-
lawful condition for reemployment, and the Company’s con-
current unlawful conduct as found in the Local 17 case, the
General Counsel presented a prima facie case that the Com-
pany violated Section 8(a)(1) and (3) by terminating the em-
ployees. As the reasons advanced by the Company for its ac-
tions were without merit in law and fact, it follows that the
Company failed to meet the burden of establishing that it
would have terminated the employees in the absence of their
protected activity.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, the Company has engaged, and is engag-
ing, in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminatorily terminating Anthony Baccaro, Rich-
ard Carson, Angelo Ceccarelli, Frank Conidi, Vincent
Conidi, Thomas Cordova, Bruce Curvin, Joseph Ettipio, Ger-
ald T. Farr, Thomas Fino, Stephen D. Fletch, Anthony
Hammill, Michael Jozak, David Kelley, Monroe Leslie,
James J. O’Neil, Myron Patterson, Joseph Proietto, William
Rainey, Michael K. Smith, and Kevin Bennett, thereby dis-
couraging membership in the Union, the Company has en-
gaged, and is engaging, in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. The Company did not violate Section 8(a)(5) of the Act
as alleged in the complaint.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom, to post appro-
priate notices, and to take certain affirmative action designed
to effectuate the policies of the Act.
I shall recommend that the Company be ordered to offer
the discriminatees immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
1291PATTERSON-STEVENS, INC.
9 In accordance with our decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the ‘‘short-term Federal rate’’ for the un-
derpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the
effective date of the 1986 amendment to 26 U.S.C. § 6621), shall
be computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
11 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
loss of earnings and benefits that they may have suffered
from the time of their termination to the date of the Compa-
ny’s offer of reinstatement. I shall further recommend that
the Company be ordered to expunge from its records any ref-
erence to their unlawful terminations, to give each of them
written notice of such expunction, and to inform them that
its unlawful conduct will not be used as a basis for further
personnel actions against them. Backpay shall be computed
in accordance with the formula approved in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).9
It will also be recommended that the Company be required
to preserve and make available to the Board or its agents,
on request, payroll and other records to facilitate the com-
putation of backpay and reimbursement due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Patterson-Stevens, Inc., Tonawanda, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Laborers’ International
Union of North America, Local Union No. 210, or any other
labor organization, by discriminatorily laying off or terminat-
ing employees, or in any other manner discriminating against
them with regard to their tenure of employment or any term
or condition of employment.
(b) Threatening employees by conditioning their employ-
ment on their abandoning membership in the Union or any
other labor organization.
(c) Interrogating employees about their union membership,
activities, or sympathies.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Anthony Baccaro, Richard Carson, Angelo
Ceccarelli, Frank Conidi, Vincent Conidi, Thomas Cordova,
Bruce Curvin, Joseph Ettipio, Gerald T. Farr, Thomas Fino,
Stephen D. Fletch, Anthony Hammill, Michael Jozak, David
Kelley, Monroe Leslie, James J. O’Neil, Myron Patterson,
Joseph Proietto, William Rainey, Michael K. Smith, and
Kevin Bennett, immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any losses they suffered by reason of the dis-
crimination against them as set forth in the remedy section
of this decision.
(b) Expunge from its files any reference to their termi-
nations, and notify each of them in writing that this has been
done and that evidence of their unlawful terminations will
not be used as a basis for future personnel actions against
them.
(c) Preserve and, on 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 analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Tonawanda, New York office and place of
business and at its jobsites copies of the attached notice
marked ‘‘Appendix.’’11 Copies of the notice on forms pro-
vided by the Regional Director for Region 3, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discourage membership in Laborers’ Inter-
national Union of North America, Local Union No. 210, or
any other labor organization, by discriminatorily laying off or
terminating employees, or in any other manner discriminating
against them with regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT threaten you by conditioning your employ-
ment on your abandoning membership in Local 210 or any
other labor organization.
WE WILL NOT interrogate you about your union member-
ship, activities, or sympathies.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your right to engage
in union or concerted activities, or to refrain therefrom.
WE WILL offer Anthony Baccaro, Richard Carson, Angelo
Ceccarelli, Frank Conidi, Vincent Conidi, Thomas Cordova,
Bruce Curvin, Joseph Ettipio, Gerald T. Farr, Thomas Fino,
Stephen D. Fletch, Anthony Hammill, Michael Jozak, David
Kelley, Monroe Leslie, James J. O’Neil, Myron Patterson,
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joseph Proietto, William Rainey, Michael K. Smith, and
Kevin Bennett immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and WE WILL
make them whole for any losses they suffered by reason of
the discrimination against them, with interest.
WE WILL expunge from our files any reference to their ter-
minations, and notify them in writing that this has been done
and that evidence of their unlawful terminations will not be
used as a basis for future personnel actions against them.
PATTERSON-STEVENS, INC.