S. M. Lorusso & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1990

297 N.L.R.B. 793 (N.L.R.B. 1990)

S M LORUSSO & SONS, INC 793
West Roxbury Crushed Stone Division, S. M. Lor-
usso & Sons, Inc. and Local 4, International
Union of Operating Engineers, AFL-CIO. Case
1-CA-25 136
February 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 14, 1989, Administrative Law Judge
Peter E Donnelly issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief The Respondent filed cross-excep-
tions and a brief in support of cross-exceptions and
in answer to the General Counsel's exceptions The
General Counsel filed a motion to strike all or por-
tions of the Respondent's exceptions and brief, and
the Respondent filed an opposition to the General
Counsel's motion'
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, West Rox-
' The General Counsel contends that the Respondent's cross-excep-
tions and bnef should be stncken because the document containing the
cross-exceptions does not comply with Sec 102 46(b) of the Board's
Rules, which states that each exception must designate the portion of the
record relied on and must state the grounds for the exception We deny
the motion because the Respondent's brief in support of its cross-excep-
tions fully identifies the portions of the record relied on as well as the
grounds for each cross-exception See, for example, Giddings & Lewis
Inc, 240 NLRB 441 fn 2(i979) k.
We do find merit in the General Counsel's position that fn 4 of the
Respondent's bnef contains statements concerning extra-record matters
Accordingly, we grant the motion to strike all but the first and last sen-
tences of that footnote
2 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless 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 Cm
1951) We have carefully examined the record and find no basis for re-
versing the findings
The judge stated, erroneously, that employee Joseph Columbo testified
concerning what was said at a meeting held by the Respondent on
August 28, 1987, Columbo did not testify about what was said at that
meeting Also, the correct date of the incident referred to in par 5 of
part III,9,1 of the judge's decision is October 27, not 29 These errors do
not affect our decision
In the first paragraph of part 111,9,2 of his decision, the judge stated
that the strike on September 1 was not an unfair labor [practice]
strike, but rather an economic strike It follows therefore that Respondent
lawfully replaced Carrigan and Tedesco We disavow that statement to
the extent It suggests that an employer may not lawfully hire temporary
replacements for unfair labor practice strikers
bury Crushed Stone Division, S M Lorusso &
Sons, Inc, West Roxbury, Massachusetts, as offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
CHAIRMAN STEPHENS, dissenting in part
Unlike my colleagues and the judge, I do not
find that the General Counsel has carried his
burden of proof with respect to the violations of
Section 8(a)(1) found here I would not dismiss the
complaint altogether, however, because I find,
again contrary to the majority and the judge, that
the issue of whether the Respondent unlawfully
failed to reinstate the strikers when a vacancy oc-
curred as the result of the departure of a lawful
striker replacement was fully litigated That issue
cannot fairly be determined, unfortunately, because
the judge did not decide whether the Union had
made an unconditional offer to return to work, as
the General Counsel has alleged I would, there-
fore, remand the proceeding to the judge to make
that factual determination and to decide any other
issues that might remain after that determination
had been made
Ronald S Cohen, Esq , for the General Counsel
Keith B Muntyan, Esq and William F Joy, of Boston,
Massachusetts, for the Respondent
Arthur Flamm, Esq , of Boston, Massachusetts, for the
Charging Party
DECISION
STATEMENT OF THE CASE
PETER E DONNELLY, Administrative Law Judge The
charge herein was filed on December 4, 1987, by Local
4, International Union of Operating Engineers, AFL-
CIO (Charging Party or Union) An amended charge
was filed by the Union on January 15, 1988 Complaint
thereon issued January 22, 1988 A second amended
charge was filed by the Union on April 22, 1988 An
amended complaint and further notice of hearing issued
on July 27, 1988, alleging that West Roxbury Crushed
Stone Division, S M Lorusso & Sons, Inc (Employer
or Respondent) made coercive statements to employees
and engaged in certain conduct which violated Section
8(a)(1) and (5) of the Act Answers were timely filed by
Respondent Pursuant to notice, a hearing was held
before me on August 10 and 11, 1988 Briefs have been
timely filed by the General Counsel and Respondent
FINDINGS OF FACT
I EMPLOYER'S BUSINESS
Employer is engaged in the operation of a quarry and
the sale of crushed stone at West Roxbury, Massachu-
setts Respondent annually sells and ships from its West
Roxbury facility products, goods, and materials valued in
excess of $50,000 directly to points outside the Common-
297 NLRB No 131
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wealth of Massachusetts Respondent annually purchases
and receives at its West Roxbury facility products,
goods, and matenals valued in excess of $50,000 directly
from points outside the Commonwealth of Massachu-
setts The complaint alleges, the answer admits, and I
find that the Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act
II LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES1
A Facts2
Respondents operates quarries at various sites in Mas-
sachusetts Since 1979, Respondent has operated under a
lease a rock quarry in West Roxbury, Massachusetts,
where it employed a work force of about 16 organized
employees The Union represents under contract two of
those employees, Robert Carrigan and Robert Tedesco
Both were loader operators and were the only employ-
ees in the contract unit About 12 others were members
of Operating Engineers, Local 877, and 2 were members
of Teamsters Local 379
At the time Respondent assumed the lease for the
premises at West Roxbury, in 1979, it also assumed a 2-
year labor agreement with the Union which expired on
September 1, 1981 Subsequent contract negotiations
have been of short duration, a few sessions, starting late
in the contract term Negotiations for the 1981 contract
did not begin until August 21, 1981 After a 6-week
strike, a 2-year contract was negotiated after some two
or three sessions In 1983, negotiations began on August
10 and were concluded in two or three meetings without
a stnke In 1985, negotiations did not even begin until
September 9, after the contract had expired No request
for an earlier meeting had been made by the Union, em-
ployees worked without a contract, and agreement was
reached on September 16 after two negotiating sessions
In 1987, 3 by letter dated June 9, the Union advised
Respondent of its intent to terminate the existing con-
' Par 6 of the amended complaint was amended at hearing to correct
the spelling of the name "Lorusso' and to correct a first name to "Anto-
nio' Par 11 of the complaint was amended to delete 'January and Feb-
ruary" and to substitute "March"
2 There is conflicting testimony regarding some allegations of the com-
plaint In resolving these conflicts, I have taken Into consideration the ap-
parent Interests of the witnesses In addition, I have considered the inher-
ent probabilities, the probabilities in light of other events, corroboration
or lack of it, and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other wit-
nesses with similar apparent interests In evaluating the testimony of wit-
nesses, I rely specifically upon their demeanor and have made my find-
ings accordingly While apart from considerations of demeanor, I have
taken Into account the above-noted credibility considerations, my failure
to detail each of these is not to be deemed a failure on my part to have
fully considered it Walker's, 159 NLRB 1159, 1161 (1966)
3 All dates refer to 1987 unless otherwise indicated
tract and to negotiate a new contract According to Wil-
liam O'Keefe, union business representative, he attempt-
ed by telephone six or seven times in late June through
early August to reach Antonio Lorusso, president of Re-
spondent However, the calls to Lorusso's office were
not returned and O'Keefe never spoke to Lorusso On
about August 12, O'Keefe went to the West Roxbury lo-
cation and spoke to Plant Manager Richard Grover He
explained that he wanted to start negotiations Grover
agreed to inform Lorusso and asked O'Keefe to contact
him if he did not hear from Lorusso During the after-
noon of August 12, Lorusso called O'Keefe and left a
message for him to call Lorusso When O'Keefe re-
turned, he telephoned Lorusso and a date for negotiating
session was set for August 17 On August 14, Lorusso
called the union office, leaving a message that it would
be necessary to cancel the August 17 meeting and that
they could meet anytime from August 25 to August 28
When O'Keefe got the message, he called Lorusso who
explained that he was tied up, too busy, and could not
meet on August 17 Lorusso's version is that he spoke to
Charlie DeRosa, union business manager and O'Keefe's
supervisor, in early August DeRosa said he was looking
for him and wanted to negotiate a contract Lorusso
agreed and set a date of August 17 with DeRosa with
the understanding that he needed his West Roxbury
Plant Manager Grover present also, and would call back
if that was a problem Lorusso later learned that Grover
had to substitute for the dispatcher at West Roxbury
who was on vacation for the week of August 17, where-
upon he called DeRosa and the date was changed to
August 25 In the absence of any testimony from
DeRosa, 4 I am disposed to credit Lorusso's testimony
that his conversations in establishing the first meeting
were with DeRosa, not O'Keefe, and that they took
place as Lorusso testified
The negotiating session on Tuesday, August 25, was
attended by DeRosa and O'Keefe representing the
Union Lorusso and Grover represented the Company It
lasted about 5 minutes DeRosa was the principal spokes-
man for the Union DeRosa explained that agreement
had been reached with other quarry employers and that
he was making an offer that Lorusso could not pass up
DeRosa described the offer as $3 05 over a 3-year con-
tract While it appears that a 3-year contract was accept-
able, Lorusso told DeRosa that $3 05 was totally unac-
ceptable, complaining that the competition and nature of
his business differed from that of the employers who had
agreed to the $3 05 DeRosa stood up and said that he
would do what he had to do Lorusso asked what he
meant and DeRosa said, "We're on strike Monday morn-
ing," and left According to O'Keefe, Lorusso said that
the employees would get nothing from him, that they
were paid too much now, and to do what they had to
do, "that's it" However, having reviewed the testimony
of the participants who testified, I credit the corroborat-
4 DeRosa did not testify Accordingly, as to those portions of the testi-
mony of Lorusso and Grover descnbmg conversational exchanges be-
tween themselves and DeRosa, I have accepted as accurate their versions
despite the fact that those versions may be inconsistent in some particu-
lars with the testimony of O'Keefe regarding those conversations
S M LORUSSO & SONS, INC 795
ed testimony of Lorusso and Grover and conclude that
while Lorusso did reject the $3 05 figure as unaccept-
able, he did not refuse to negotiate any wage increase
whatever, nor foreclose any further discussion as to any
wage increase Rather, it was DeRosa who foreclosed
further discussion when he reacted to Lorusso's rejection
by answering that he would do what he had to do, that
is, strike on Monday
On Friday, August 28, in anticipation of a strike on
Monday, August 31, Lorusso called a meeting of all em-
ployees after work, about 3 30 p m Business representa-
tives from all three Local Unions were invited Repre-
sentatives from Locals 877 and 379 attended, but no one
attended for the Union Lorusso told the employees, in-
cluding Carrigan and Tedesco, that there would likely be
a stnke on Monday and that the quarry would continue
to operate and that work would be available for them
He also told them that because of Local 4's attitude, par-
ticularly its demand for a $3 05 raise, that it would be a
long strike which he expected could last until April 5
This testimony was generally corroborated by Grover,
Carngan, and employee Michael Russo and Joseph Co-
lumbo However, Steve Silva, another employee who at-
tended the meeting, testified that Lorusso told the em-
ployees that he did not plan to settle the strike until
April However, since no one but Silva testified in this
fashion, I am persuaded that what Lorusso actually told
them was that he anticipated or expected, rather than in-
tended or planned for the strike to last until April
When the contract expired on September 1, the two
employees in the unit, Carrigan and Tedesco, went on
strike Employees represented by the other two Unions
continued to work, and except for about 2 weeks, from
September 14 to 28, have continued to work to date
O'Keefe testified that DeRosa decided to call the strike
because of Lorusso's response to the Union's contract
offer on August 25
The next negotiating session took place on September
10, attended by DeRosa, O'Keefe, Lorusso, and Federal
Mediator John Martin According to O'Keefe, Lorusso
made a proposal that he take back Carngan, but not
Tedesco, with a raise of 25 cents per hour, explaining
that he was concerned about Local 4 men getting sick
and dying on him The Union responded that the money
was not enough and if Tedesco was the problem, some-
thing could be worked out to replace him, whereupon
Lorusso told them that they had misunderstood, he was
offering to return only one man, Carrigan, and a 25-cent-
per-hour raise DeRosa rejected this proposal Lorusso's
version is different According to him, his original pro-
posal on September 10 was $2 58 5 over 3 years for one
employee in the bargaining unit The other position
would be transferred into sister Local 877 DeRosa re-
jected this proposal Lorusso testified that he then made
a second offer This offer included both employees with
a wage increase of 25 cents each year on a 3-year con-
tract After a caucus, DeRosa rejected this proposal as
5 Lorusso testified that his opinion was derived from an earlier strike
by Local 4 at Respondent's Wrentham facility which began in 1977 and
was still going on
6 According to Lorusso, 4-1/2 percent of wages was actually $2 58
rather than the $3 05 figure advanced by the Union
not enough money Lorusso's third proposal was to
return both union employees without a wage increase
under a 1-year contract, as a "cooling off' period,
DeRosa rejected this proposal also adding that the
money figure had to be $3 05, the original demand
Lorusso testified that he made the "one-man unit" pro-
posal because he wanted to get the negotiations off
center He felt that in this way he could give the one
man in the unit the increase that the Union was seeking
and at the same time help himself by moving the other
man into Local 877 where the pay for wages and fringes
was $8 per hour less Lorusso also reasoned that Carn-
gan's loading work on the raw product was located in
the quarry, somewhat removed from Tedesco who
loaded out finished product near the plant, closer to
Local 877 employees Despite these efforts, no progress
was made and the Union retained its demand for a $3 05
raise Having carefully reviewed the testimony of both
Lorusso and O'Keefe, I am satisfied that Lorusso's ac-
count is more reliable, particularly since DeRosa did not
testify and O'Keefe's notes of the meeting reflect the
date as September 14, when it was actually September
10, and recite the presence of Rick Grover who actually
did not attend this meeting
On October 27, O'Keefe and several employees, in-
cluding Carrigan, were picketing Respondent's plant in
Weymouth, Massachusetts Lorusso came to the plant
While attempting to take pictures of the picketing, he
told Carngan and another picket that they were not
going to go back to work and that they could blame
O'Keefe for it As Lorusso was leaving the plant in a
car, O'Keefe asked if they could end this nonsense and
Lorusso responded with an obscene gesture, sometimes
referred to as the "finger"
Respondent's employees who were members of Oper-
ating Engineers Local 877 worked throughout the strike,
with the exception of a 2-week period between Septem-
ber 14 and 28 7 However, the employees were sum-
moned by Local 877 to a meeting on the morning of No-
vember 20 They were apprehensive and asked for a
meeting with Lorusso on November 19 At this meeting,
held after work at about 3 30 p m, Lorusso told them
that he would not tell them to continue working but that
he wanted them to work He was asked by one of the
employees if the matter would be resolved the next day
Lorusso responded that he felt that it could not be re-
solved the next day because he was unwilling to pay the
Union's demand for $3 05 an hour and the Union would
not accept anything less Another employee asked him
why he was so sure it would not be resolved Lorusso
testified that this question called to mind a strike in 1977
by Local 4 at the Wrentham facility wherein the Union
had insisted on a money figure from which it would not
move He told them about the Wrentham strike, that he
was not willing to meet those demands, and that the
Wrentham strike was still going on John Hart, one of
the employees in attendance who was employed at that
time at the Wrentham facility, confirmed Lorusso's ob-
7 The two employee members of Teamsters Local 379 took withdrawal
cards from Local 379 and continued to work also
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
servation Silva, Columbo, and Russo, employees who at-
tended the meeting, testified that Lorusso told them that
he did not think the strike would be ending, that he was
going to make the Union an offer they could not accept,
and that Local 4 would not be back in the plant He then
called on Hart who confirmed his opinion based on the
circumstances of the Wrentham strike While various ac-
counts differed to some extent, having carefully re-
viewed the testimony, I conclude that Lorusso did
advise the employees at this meeting that he intended to
make the Union an unacceptable offer and that Local 4
would not be coming back to the plant
On November 20, another negotiating session was
held It was attended by DeRosa and Jim Griffin, an-
other union business agent representing the Union Lor-
usso and Grover represented the Company John Martin,
a Federal mediator, was also present Lorusso com-
plained about the strike, harassment, and the loss of busi-
ness He explained again why he felt that the $3 05 per
hour that had been negotiated with other employers
should not apply to him and asked what DeRosa could
do for him After the caucus, the Union returned but re-
fused to modify or reduce its demand for $3 05 over a 3-
year contract, and the meeting ended 8
Columbo, an employee member of Local 877, testified
that in early December 1987, at the Respondent's Christ-
mas party, he had a conversation with Lorusso He asked
Lorusso how the strike was going and Lorusso told him,
"Like I told you before, there's no fucking way they're
coming back" This testimony is not disputed
The parties next met on March 1 at the West Roxbury
plant, with DeRosa and O'Keefe again representing the
Union Lorusso and Grover were there for the Compa-
ny According to O'Keefe, the Union offered to uncondi-
tionally return the two employees to work and the
matter would be dropped O'Keefe testified that Lorusso
rejected this proposal, stating that he wanted a contract
because he was afraid they would just strike again in 3
months, so he insisted on an agreement Lorusso then
proposed a 1-year contract with no raise The Union re-
jected this and Lorusso asked for a counteroffer The
Union proposed $240 over a 3-year contract 9 At this
point, since it appeared that progress was being made,
they agreed to meet on March 4 after Lorusso had
spoken to his attorney According to both Lorusso and
Grover, the Union came in on March 1, requested that
both men go back to work, and that they would talk
about "some money" In this discussion, Lorusso told
DeRosa that he had problems taking Tedesco and Carri-
gan back because he had replaced them with two other
men and felt a responsibility to them As to the money,
the Union later mentioned a figure of $2 40 over 3 years
and Lorusso said he needed a wage freeze for the first
year At this point they agreed to meet together with the
Federal mediator on March 4
At the March 4 meeting, attended by the same parties
and Federal Mediator Martin, Lorusso proposed that
9 Neither DeRosa nor Griffin testified, and I accept as credible the
corroborated testimony of Lorusso and Grover as to this meeting
9 This was the first time the Union had reduced its demand from $3 05
over 3 years
Carrigan and Tedesco be offered and decline reinstate-
ment and that Silva and McGee, their replacements,
become members of Local 4 DeRosa insisted that Carri-
gan and Tedesco be reinstated and suggested that Silva
and McGee be employed somewhere else in Respond-
ent's business operations It appears that DeRosa was
willing to accept $2 40 over a 3-year contract Lorusso,
however, was unwilling to reinstate Carngan and
Tedesco because he was satisfied with Silva and McGee
and did not want to displace them, but was willing to
retain them as members of Local 4 Lorusso also pro-
posed an apprenticeship rate under which new employ-
ees in the unit would get 70 percent of the full rate in
the first year, 80 percent in the second year, and 100 per-
cent in the third year, and that these apprenticeship rates
would apply to Silva and McGee However, this propos-
al was unacceptable to the Union, who held to their de-
mands that Carngan and Tedesco be reinstated with a
raise of $2 40 over 3 years The parties were unable to
reach agreement and the meeting broke up
B Analysts and Recommendattonsl°
1 The unfair labor practices
The General Counsel contends that the Respondent
"delayed and cancelled" bargaining sessions in violation
of Section 8(a)(5) of the Act I do not agree A review of
their 10-year bargaining history makes it clear that the
parties have traditionally started negotiations late in the
last month of the contracts' term 1 1 In 1985, the first ses-
sion did not begin until September 9, after the contract
had expired Even when it appears that problems were
involved which caused the Union to strike, as in 1981,
contract negotiations did not begin until August 21
While this minimal number of sessions may seem unusu-
al, it is not so extraordinary in circumstances where, as
here, extensive changes or modifications to the contract
are not contemplated and only a single money figure for
wages and fringe benefits is involved The pattern of ne-
gotiations seems to have been that the Union arrived at a
dollar figure based on recently negotiated contracts in
the industry Negotiations were then conducted around
the acceptability of that figure to Respondent That was
normally the only issue In this case the figure is $3 05, a
figure from which the Union did not move until the
meetings in March 1988
O'Keefe testified that Lorusso failed to return several
of his telephone calls in late June through early August
However, it would seem that if a departure from their
usual practice of starting late to negotiate the contract
was being sought, O'Keefe could have written or made
personal contract with Lorusso to make this intention
known rather than just leaving messages Neither does
the record show that Lorusso canceled any sessions One
session was rescheduled, without objection, because Lor-
usso's plant manager was not available In these circum-
stances, and noting particularly the bargaining history of
10 The record is insufficient to support the 8(a)(I) allegation contained
in sec 7(m) of the complaint, and I shall therefore recommend its dismis-
sal
'The contracts normally expired on August 31
- S M LORUSSO & SONS, INC 797
the parties, I cannot conclude that the Respondent de-
layed or canceled negotiating sessions in violation of
Section 8(a)(5) of the Act
The General Counsel alleges that on August 28 at the
West Roxbury plant, Lorusso violated Section 8(a)(1)
and (5) of the Act by telling employees that he did not
plan to settle contract negotiation with the Union until
April 1988 As noted above, I have concluded that this
was not said The credible testimony convinces me that
Lorusso told the group, not that he intended, but rather
that he expected the strike to last until the spring and
that this estimate was based on his evaluation of the
Union's attitude in view of a continuing 11-year strike at
Wrentham This remark, in my opinion, is not coercive
It is merely Lorusso's opinion or prediction based on his
evaluation of the Union's $305 wage demand, his own
position, and the fact that Local 4 had been on strike at
Wrentham for 11 years Nor did, the remarks violate Sec-
tion 8(a)(5) of the Act since they were made away from
the bargammg table and cannot reasonably be construed
as having the intent or effect of frustrating the bargain-
ing process Reichhold Chemicals, 277 NLRB 639, 640
(1985), Aztec Bus Lines, 289 NLRB 1021, 1024 (1988)
The General Counsel also alleges as an 8(a)(5) refusal
to bargain that Respondent on September 10, demanded
that the Union reduce the size of its unit to one employ-
ee The General Counsel contends that Respondent's
demand that the Union agree to reduce the size of its
unit to one employee was unlawful I do not agree The
facts disclose that at the September 10 session, Respond-
ent proposed, as first of three proposals, that one of the
two unit employees be transferred to sister Local 877,
both to reduce wage costs, since Local 877 employees
got less money, and because that employee was doing
work similar to the work being done by Local 877 em-
ployees The proposal was rejected and Lorusso moved
on to other proposals The Respondent was not adamant
or intransigent in maintaining its position and did not
thereafter reintroduce the proposal in subsequent negoti-
ations Under these circumstances, I cannot conclude
that it was unlawful for Respondent to propose a "one-
man unit" The intent of Respondent was not to frustrate
the bargaining process, but rather to facilitate it Nor
does the fact that the proposal would have resulted in a
one employee unit make it unlawful There is nothing in
the Act that prohibits an employer from voluntarily rec-
ognizing and bargaining with a union for a unit consist-
ing of one employee Garman Construction Co, 287
NLRB 88 (1987), General Truck Drivers, 158 NLRB
1044, 1052 (1966) Of course, the Board will not certify
nor will it order bargaining for a unit consisting of a
single employee, but that is another matter Accordingly,
I conclude that Respondent on the facts of this case did
not violate Section 8(a)(5) of the Act by making a pro-
posal, a portion of which would have resulted in a single
employee bargaining unit
The General Counsel contends that Respondent violat-
ed Section 8(a)(1) of the Act by Lorusso's conduct at the
picket line at the Weymouth facility on October 29 when
he told stnkmg employees, including Carrigan, that they
were not going back to work and could blame O'Keefe
for it Obviously, such remark, at least implicitly, imparts
to employees a concept that their representatives are the
cause of their predicament The impression being con-
veyed is that their relationship with their union repre-
sentatives has caused the Respondent to become inflexi-
ble in its attitude toward resolving the strike Obviously,
such hostility inhibits employees in the exercise of and
the pursuit of the rights which they are guaranteed
under Section 7 of the Act
Turning to the meeting of November 19 with Re-
spondent's employees who were members of Operating
Engineers Local 877 and Teamsters Local 379, I have
concluded that Lorusso did tell these representatives that
the Union would never come back to the plant because
he was making them a contract proposal that they could
not accept He likened it to the Wrentham facility of the
Respondent where employees of Local 4 struck in 1977
and the strike continues to date Clearly these remarks
have an inhibiting effect on employees and represent a
threat to them in the exercise of their rights under Sec-
tion 7 of the Act This is true even though none of the
employees being addressed were members of the bargain-
ing unit covered by the contract under negotiation and
these remarks violate Section 8(a)(1) of the Act Howev-
er, the same logic does not sustain a holding that the re-
marks also violate Respondent's duty to bargain under
Section 8(a)(5) of the Act There is no evidence to show
that these remarks were calculated to disrupt bargaining
between the parties nor any evidence that this occurred
Remarks such as these made away from the bargaining
table to employees who are not in the bargaining unit
under negotiation do not constitute bad-faith bargaining
Aztec Bus Lines, supra
Respondent, through Lorusso, also violated Section
8(a)(1) of the Act by remarking to an employee at the
Company Christmas party on December 12 that there
was "no fucking way" the Union was coming back This
remark conveyed the concept that regardless of what
sort of accommodation might be offered, Respondent
would not sign a contract Such a declaration by Re-
spondent was patently coercively, even though not made
to a unit employee, since it suggests to that employee the
general futility of the Union representation
2 The unfair labor practice strike
The General Counsel contends that the strike which
began on September 1 was an unfair labor practice
stnke However, since none of the statements which I
have concluded violated Section 8(a)(1) of the Act oc-
curred prior to September 1, they cannot be deemed to
have been the cause of the strike In addition, the evi-
dence is totally insufficient to conclude that any of the
statements made by Lorusso on October 27 and Novem-
ber 19, individually or collectively, played any part in
prolonging the strike In these circumstances, it is clear
that the strike on September 1 was not an unfair labor
strike, but rather an economic strike It follows therefore
that Respondent lawfully replaced Carrigan and
Tedesco
It appears that Silva, one of the striker replacements,
left Respondent's employ However, the General Coun-
sel has not alleged that Respondent violated the Act
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
under any theory of an obligation to reinstate caused by
the departure of a lawful striker replacement This
matter was not litigated, and I therefore do not 'pass on
it In short, I conclude that Carrigan and Tedesco were
not unfair labor practice 'strikers and thus not entitled to
reinstatement as unfair labor practice strikers
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent as set forth in section
III, above, in connection with Respondent's operations
described in section I, above, have a close and intimate
relationship to traffic and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
of the Act, I shall recommended that Respondent be or-
dered to cease and desist therefrom and from interfering
in any like or related manner upon its employees' Section
7 rights and it take certain affirmative action designed to
effectuate the policies of the Act
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By telling employees that they will not return to
work and that the Union is to blame, Respondent violat-
ed Section 8(a)(1) of the Act
4 By telling employees that the Union will not return
to the West Roxbury plant because Respondent is offer-
ing unacceptable contract proposals, Respondent violated
Section 8(a)(1) of the Act
5 By telling employees that the Union will not return
to the West Roxbury plant under any circumstances, Re-
spondent violated Section 8(a)(1) of the Act
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, West Roxbury Crushed Stone Divi-
sion, S M Lorusso & Sons, Inc , its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Telling employees that they will not return to
work and that the Union is to blame
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(b) Telling employees that the Union will not return to
the West Roxbury plant because Respondent is offering
the Union unacceptable contract proposals
(c) Telling employees that the Union will not return to
the West Roxbury plant under any circumstances
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its West Roxbury, Massachusetts plant
copies of the attached notice marked "Appendix "13
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being signed by the Employ-
er's authorized representatives, shall be posted by it im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuously located places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Employer
to ensure that said notices are not altered, defaced, or
covered by any other material
(b) Notify the Regional Director within 20 days from
the date of this Order what steps have been taken to
comply
13 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 Nation-
al 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT tell employees that they will not return
to work and that the Union is to blame
WE WILL NOT tell employees that the Union will not
come back to the West Roxbury plant because Respond-
ent is offering the Union unacceptable contract propos-
als
WE WILL NOT tell employees that the Union will not
return to the West Roxbury plant under any circum-
stances
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the Act
WEST ROXBURY CRUSHED STONE DIVI-
SION, S M LORUSSO & SONS, INC