R. J. Smith Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1974

208 N.L.R.B. 615 (N.L.R.B. 1974)

R. J. SMITH CONSTR. CO.
R. J. Smith Construction Co., Inc. and Local No.
150, International Union of Operating Engineers,
AFL-CIO. Case 25-CA-3390
January 22, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On June 28, 1971, the National Labor Relations
Board issued its Decision and Order in this proceed-
ing, finding that Respondent did not violate Section
8(a)(5) and (1) of the Act when it unilaterally
changed existing wage rates at a time that it had a
prehire contract with the Union, because at all
material times the Union failed to enjoy majority
support.' Thereafter, on June 20, 1973, the United
States Court of Appeals for the District of Columbia
Circuit denied enforcement of the Board's Order and
remanded the case for an order granting appropriate
relief on the ground that an employer who has
entered into a validly executed 8(f) prehire agree-
ment should be held to the same standard of conduct
in regard to unfair labor practices as an employer
who has entered into a collective-bargaining agree-
ment with a union that has proved its majority
status.2
The Board, for reasons it deems sufficient, has not
filed a petition for certiorari to review the court's
decision and will here apply the court's view,
respectfully reserving for future cases its position that
an employer may not be found guilty of a refusal to
bargain with respect to a union with which it has
executed a valid 8(f) prehire contract but which has
failed to achieve majority status.3 Accordingly, the
Board will, for the purposes of this decision only and
in accordance with the court's decision, find that
Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally altering the terms of the collec-
tive-bargaining agreement and refusing to bargain
collectively with the Union.
As the Administrative Law Judge (then Trial
Examiner) and the Board dismissed the complaint on
the aforementioned grounds, a unit determination
was never made. Therefore. before we can enter an
appropriate 8(a)(5) bargaining order, we must deter-
mine the appropriate unit.
The complaint alleges, and the General Counsel
and Charging Party maintain. that all hourly paid
and salaried operators of new equipment used by the
Respondent in certain Indiana counties, including
1 191 NLRB 693,Meniber. Fanning and Brown dissenting
2 480 F 2d 1186 (C.A D C)
3 Member Fanning agrees with the court's decision . Chairman Miller
615
mechanics, but excluding hand laborers and supervi-
sors, constitute an appropriate bargaining unit. The
Respondent agrees with the exclusion of the hand
laborers from the unit but would limit the unit to
hourly paid operators, thereby excluding mechanics
and salaried equipment operators.
The equipment operators operate heavy equipment
such as cranes, front-end loaders, back hoes, earth
movers, scrapers, and bulldozers on the projects on
which the Respondent is employed. One mechanic,
Van Klavern, repairs the equipment which the
operators use. He works primarily in the shop but in
some instances goes into the field to repair a machine
in particularly bad condition or to bring a malfunc-
tioning machine into the shop. On occasion he will
operate a machine in the field to test his repair or as
a change of pace from his mechanical work. The
equipment operators also do some servicing of the
equipment inside and outside the shop. A second
individual, Burns, who performs as a crane and dozer
operator, does Klavern's mechanical job in his
absence. There is evidence that the salaried equip-
ment operators' functions are no different than those
of the hourly paid operators. One of the salaried
operators testified that he requested this method of
compensation to even out his earnings over the year.
One of the salaried equipment operators testified that
he had worked at one time as a mechanic for
Respondent. It also appears that the mechanics and
operators work under the common supervision of
Daniel Logan, the Respondent's superintendent.
In view of the interchangeability, overlapping of
functions, and contact among equipment operators
and mechanics and their common supervision, and
the lack of any evidence differentiating the functions
of salaried equipment operators from those of hourly
paid operators, we find that there is a sufficient
community of interest among all these employees to
render a combined unit appropriate. Accordingly, we
find that the following unit is appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All operators of heavy equipment and mechanics
employed by the Employer in the Indiana
counties of Elkhart, Fulton, Jasper, Kosciusko,
Lagrange, Marshall, Newton, Noble, Pulaski,
Starke, Lake, Porter, LaPorte, and St. Joseph,
excluding all hand laborers, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
reserves opinion as to the underlying legal issues , but of course joins in
accepting the court's view of the law as the law of this case
208 NLRB No. 90
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found for the purposes of this decision only
and in accordance with the court's decision that
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act, we shall order it to cease and desist therefrom
and take certain affirmative action which we find
necessary to effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
R. J. Smith Construction Co., Inc., Elkhart, Indiana,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local No.
150, International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment:
All operators of heavy equipment and mechanics
employed by the Employer in the Indiana
counties of Elkhart, Fulton, Jasper, Kosciusko,
Lagrange, Marshall, Newton, Noble, Pulaski,
Starke, Lake, Porter, LaPorte, and St. Joseph,
excluding all hand laborers, office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
(b) Making unilateral changes in wages, rates of
pay, or other terms and conditions of employment of
its employees • in the above-described appropriate
unit during the term of the contract without first
reaching agreement with the above-named Union
concerning such changes.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist the above-named or any other labor organiza-
tion, to bargain collectively through representatives
of their choosing, to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such
right may be affected by the provisos in Section
8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Recognize the above-named Union as the
exclusive bargaining representative of its employees
and honor the memorandum agreement whereby it
adopted the collective-bargaining agreement between
the above-named Union and the General Building
Contractors Association of South Bend and Misha-
waka, Indiana, and agreed to be bound by the terms
and conditions of such agreement, as long as such
agreement is still in effect.
(b) Make whole each affected unit employee for
any loss of pay he may have suffered by Respon-
dent's illegal unilateral changes by reimbursing him
the difference between what he has been paid since
October 23, 1968, and what he would have been paid
in accordance with the wage rates set forth in the
aforesaid collective-bargaining agreement with inter-
est at the rate of 6 percent per annum to be added to
the backpay in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its premises in Elkhart, Indiana, copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
4 In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to honor the memorandum
of agreement executed by us with Local 150,
International Union of Operating Engineers,
AFL-CIO, on October 8, 1968 , as long as it is in
effect.
WE WILL NOT refuse to bargain collectively
with the aforesaid Union as the exclusive repre-
sentative of all the employees in the appropriate
R. J. SMITH CONSTR. CO. 617
unit described below with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
WE WILL NOT unilaterally change the rates of
pay of the employees in the appropriate unit
described below. The bargaining unit is:
All operators of heavy equipment and
mechanics employed by the Employer in the
Indiana counties of Elkhart, Fulton, Jasper,
Kosciusko, Lagrange, Marshall, Newton,
Noble, Pulaski, Starke, Lake, Porter, La-
Porte, and St. Joseph, excluding all hand
laborers, office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
WE WILL make whole any employees in the
aforesaid appropriate unit for any loss of pay they
suffered by reason of our illegal unilateral
changes in their rate of pay since October 23,
1968, with interest at the rate of 6 percent per
annum.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any of our
employees in the exercise of their right to self-
organization, to form, join, or assist the above-
named or any other labor organization, to
bargain collectively through representatives of
their choosing, to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities, except to the
extent that such right may be affected by the
provisos in Section 8(a)(3) of the Act.
R. J. SMITH
CONSTRUCTION CO., INC.
Employer
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 614 ISTA Center, 150 West Market
Street , Indianapolis , Indiana 46204 , Telephone
317-633-8921.