Site-Con Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 46 (N.L.R.B. 1972)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Site-Con Industries, Inc. and Local No. 106, Interna-
tional Union of Operating Engineers , AFL-CIO
and Local No. 545-D, International Union of
Operating Engineers , AFL-CIO. Cases
3-CA-4433 and 3-CA-4445
November 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 21, 1972, Administrative Law Judge I
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Charging Parties and
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in answer to the
exceptions and cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Site-Con Indus-
tries, Inc., its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner: These consoli-
dated cases, tried before me on August 24 through 27,
1971, at Albany, New York, are proceedings under Section
10(b) of the National Labor Relations Act, as amended
(the Act), arising out of charges filed April 16 and
amended June 16, 1971, in Case 3-CA-4433 by Local No.
106, International Union of Operating Engineers,
AFL-CIO (herein called Local 106), and April 23, 1971, in
Case 3-CA--445 by Local 545-D, International Union of
Operating Engineers, AFL-CIO (herein called Local
545-D). The matters were consolidated and a complaint
based on the charges issued on June 30, 1971, against Site-
Con Industries, Inc. (herein called Site-Con or Respon-
dent), alleging violations by it of Section 8(a)(3), (5), and
(1) of the Act. Respondent filed an answer admitting some
allegations of the complaint, denying others, and denying
that it had engaged in unfair labor practices.
The 8(a)(3) issues are: (a) Whether four operating
engineers (Stephen Kaufman, William F. Shelley, Robert
A. Slade, and Eugene Perry), all members of Local 106,
who admittedly were separated on March 31, 1971, were
terminated for cause or because they were members of
Local 106; and (b) whether two surveyors (Edward Koziol
and Stephen Spring), laid off April 1, 1971, were not
thereafter recalled because they were members of Local
545-D. I conclude hereinafter that Respondent violated
Section 8(a)(3) as to the four operating engineers , but not
as to the two surveyors.
The general 8(a)(5) issues are whether Respondent, by
virtue of membership in two multiemployer bargaining
groups which recognized and bargained with the respective
Unions, was obligated to continue to recognize and
bargain with each of the Charging Unions. Threshold
questions are whether Respondent ever belonged to either
multiemployer group. Assuming its membership in either
group, further questions are whether Respondent effective-
ly withdrew from either. Additional refusal-to-bargain
issues are whether Respondent unlawfully bargained
directly with an individual surveyor and unilaterally
changed his wages and other conditions of employment,
and assigned surveyor work to nonsurveyor employees. I
conclude hereinafter that Respondent was obligated to, but
thereafter got out of, multiemployer bargaining, and that
as an individual employer it violated its bargaining duty to
Local 545-D by making unilateral changes.
Upon the entire record, my observation of the witnesses,
and consideration of the briefs filed by the parties, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE EMPLOYER INVOLVED
Site-Con, a New York corporation with its principal
office and place of business at Greenwich, Connecticut, is
engaged as a general contractor in public utility construc-
tion at various jobsites, including jobsites in upstate New
York. It annually purchases goods and materials valued in
excess of $50,000 which are transported to these New York
Jobsites directly from outside the State of New York. It is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
At the time of the events detailed here, it was actively
engaged in construction of a sewer at Amsterdam, New
York, in which project it at first employed surveyors
belonging to Local 545-D and equipment operators
belonging to Local 106. It had earlier performed a similar
job at Gloverville-Johnstown, New York, on which it also
employed members of Local 106. It subsequently began
two projects near Utica, New York, where it employed
equipment operators, some of whom belonged to a sister
Local of Local 106. It has also employed other construc-
tion crafts, including laborers, truckdrivers, and at times,
carpenters.
200 NLRB No. 9
SITE-CON INDUSTRIES , INC. 47
II. THE LABOR ORGANIZATIONS INVOLVED
Local 106 and Local 545-D are both labor organizations
within the meaning of Section 2 (5) of the Act which admit
to membership employees in construction work in the State
of New York, including employees of Site -Con. At times
material herein each Union has represented employees of
Site-Con referred to it by such Union.
Local 106 (located in Albany) represents equipment
operators . It bargains jointly with sister locals of the
International Union of Operating Engineers representing
equipment operators in upstate New York, including Local
410 at Binghamton , Local 545 at Syracuse, Utica, and
Massena , and Local 832 at Rochester and Elmira. The
territorial jurisdiction of Local 106 roughly includes that
part of upstate New York on both sides of the Hudson
River north of Poughkeepsie and east of Little Falls (a
point about 20 miles east of Utica).
Local 545-D represents surveyors. It is also a sister local
in the same International as Local 106 , but is not to be
confused with Local 545 which bargains jointly with Local
106 and like it represents equipment operators. The
territorial jurisdiction of Local 545-D is larger than Local
106, including all of the territory within the jurisdiction of
Local 106 plus the balance of upstate and western New
York.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal To Bargain in Group
Bargaining
1. Theory of the complaint
The theory of the complaint is that Site-Con, by virtue of
membership in multiemployer bargaining groups from
which it failed to make timely or effective withdrawal, is
obligated to honor the terms of agreements negotiated by
those groups with the Charging Unions, and that Site-Con
in bad faith has refused to do so.
2. Associated General Contractors , New York
- State Chapter
Associated General Contractors of America, New York
State Chapter , Inc. (herein called AGC), is an incorporated
trade association made up of contractors in the construc-
tion industry in New York State and including contractors
performing heavy and highway construction . It provides
members with various services including labor relations
services and, as described hereinafter, provides some
members with facilities for group bargaining with various
unions. Thus, since at least 1950, group bargaining through
AGC has been had with unions (including Local 106)
representing equipment operators . Local 545-D represent-
ing surveyors has had similar group bargaining for the
period covered by two preceding contracts . The precise
nature of these bargaining groups is discussed later herein.
As a result of such group bargaining Local 545-D on
May 15, 1967, entered into a collective-bargaining agree-
ment with members of the Labor Relations Division of
AGC which remained in effect until December 31, 1970.
The Labor Relations Division was composed of those
AGC members participating in such multiemployer bar-
gaining.
Similarly, Local 106 , together with its sister Locals 410,
545, and 832 , on October 1, 1967, entered into a collective-
bargaining agreement with the Labor Relations Division of
AGC acting for and on behalf of its then members and
future members . This contract expired March 31, 1971.
3. Respondent's participation in AGC and its
relations with the Charging Unions
a. Site-Con adopts Local 106 contract
At the time the above -described 1967 labor agreements
were negotiated Site-Con was not a member of AGC. It
applied for such membership in early September 1969 and
was accepted for membership October 9, 1969. In the
meantime , however, on September 17, 1969 , prior to its
admission , it adopted the terms of the AGC contract with
Local 106 by signing the inside back cover of a copy
thereby agreeing to adhere to and to be bound by all of its
terms.
b. Designation of A GC
The following March 17, 1970, Site-Con, in writing,
authorized AGC to be its bargaining agent . It thereby
designated and appointed "Associated General Contrac-
tors, New York State, Inc.," its sole and exclusive
representative in the negotiation of collective -bargaining
agreements and bound itself by the acts of the AGC "labor
committee and/or their appointed representative" in
regard to all matters relating to such collective-bargaining
agreements for so long as Site-Con remained a member of
the Association and a collective-bargaining agreement
negotiated by such representative remained in existence. It
also agreed to be bound by all lawful acts taken by AGC.
This clearly indicated Respondent 's intent to be bound by
group rather than individual bargaining.
The following June 22 , 1970, AGC's labor counsel
transmitted to Local 545-D a list of AGC members who
had designated it as bargaining agent. Site-Con was
included in this list although it had not yet adopted the
Local 545-D contract.
c. Site-Con adopts Local 545-D contract
In late October 1970 Local 545-D notified the Labor
Relations Division of AGC that the agreement between
AGC and Local 545-D would expire on December 31,
1970, and requested a meeting with respect thereto. A week
later, at the end of October , Site-Con's vice president, Billie
Harding , on its behalf signed the inside back cover of a
copy of the AGC agreement with Local 545-D, thereby
accepting the provisions of that contract.
d. The bargaining groups
There is much dispute between the parties over whether
Site-Con ever belonged to the Labor Relations Division of
AGC. Respondent Vice President Billie Harding testified
that, when he signed the Local 545-D contract on October
30, he did not intend thereby to join the Labor Relations
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Division. On the other hand, Administrative Vice President
Frederick Collins testified that, during the time the
contracts with Local 545-D and Local 106 were in effect,
Respondent was a member of the Labor Relations
Division. I so find, although in my view the point is not
material.
(1) The surveyor group
The more essential questions are whether there was an
identifiable group of employers engaged in multiemployer
bargaining with Local 545-D (Site-Con contends there was
not), and if so, whether Site-Con ever joined it (Site-Con
contends it never did ). With regard to the first point I find
there was an identifiable group bargaining with Local
545-D. Although this record does not show clearly who
they were, it is beyond question that at the time the 1967
agreement was negotiated AGC was acting on behalf of
some contractors who as a result of the negotiations
became bound as a group to that agreement and remained
bound at least until its expiration date. No one contends
that such a core of contractors did not exist during the life
of that agreement . Whether membership in that group was
synonymous with membership in the Labor Relations
Division of AGC or not seems to me to be of no
importance even though the agreement by its terms
purported to be between the Union and members of the
Labor Relations Division . In the contract that term was
merely a label referring to those employers obligated under
the contract. The record here does not establish that
membership in the Labor Relations Division was the same
for all union contracts or for all purposes. The principal
significance of that division seems to have related to the
internal structure and management of AGC.
There being an identifiable group bargaining with Local
545-D, whatever it might accurately be labeled, the next
question is whether Site-Con ever joined the group. I find
that it did by designating AGC as its bargaining represent-
ative and thereafter binding itself to the then extant group
contract with Local 545-D. Membership in the then
existing multiemployer bargaining group was the natural
and foreseeable consequence of these two acts.
(2) The operators group
Similarly, I find that a sufficiently identifiable group of
contractors through the agency of AGC engaged in
multiernployer bargaining with Local 106, the product of
which was the 1967 collective -bargaining agreement
between Local 106 and that group. In September 1969,
after Site-Con had applied for AGC membership but had
not yet been formally invested, it adopted that contract,
Company President Pitassi on that occasion telling the
business representative of Local 106 that Site-Con was a
member of the Labor Relations Division. When Site-Con
thereafter in March 1970 designated AGC to be its
bargaining representative for this very kind of negotiation,
it clearly joined ranks with the other members of that
bargaining group.
4. Efforts to escape multiemployer bargaining
As a member of both multiemployer bargaining groups,
Site-Con continued to be bound by the agents acting on
behalf of each group so long as it remained a member. It
argues that , even if it became a member of either group, it
nevertheless effectively removed itself from both.
a. The surveyor group
The group of employers which bargained with Local
545-D was variously referred to as the "Plossl group," the
"Kohnke group," or the "Surveyor group." All employers
in the group were , or during the most recent negotiations
commencing in late 1970 became, members of the Labor
Relations Division of AGC. In those 1970 negotiations the
group was represented by a committee of five AGC
members selected at a meeting of the AGC labor
committee . The negotiating committee members were
Roger Plossl, B. Wetmore, J. Kohnke , H. Maggione, and
H. DeCarr . Plossl and Kohnke were also members of the
AGC board of directors; Kohnke was a member of the
AGC labor committee, and he and Wetmore were
members of the AGC specifications committee.
By letter of November 16, 1970, Allan Fluke, director of
labor relations for AGC , confirmed to Jess Webb acting
for Local 545-D that on November 11 Webb and Plossl
had "agreed that the multiemployer group of heavy and
highway contractors who bargain with Local 545-D, and
who are also members of the Associated General Contrac-
tors, will meet with your negotiating committee on
November 24, 1970." The employers' committee was
further described as, "the negotiation committee represent-
ing those AGC members who are part of the multi-
employer group who have bargained with Local 545-D in
the past and who have not withdrawn from such bargain-
ing arrangement ." It apparently was not clear at that point
just what employers belonged to the group for the purposes
of negotiating future contracts because Fluke went on to
say that , "the negotiations committee representing those
heavy and highway contractors who will bargain with
Local 545-D during the oncoming negotiations will
provide you with a list of those contractors they represent
at the commencement of their negotiations."
As agreed the negotiating committee for the surveyor
group and representatives of Local 545-D met on
November 24. This was a preliminary meeting, actual
negotiations not commencing until December 3. But the
exact makeup of the employer group remained unsettled
for a month or two after negotiations began. At the
November 24 meeting Local 545-D listed contractors who
had contracts with the Union . Respondent was not
included. The next day Fluke, on AGC letterhead, wrote to
each of the contract members so listed to inquire if they
were interested in having the employer negotiating com-
mittee represent them . Those who indicated in the
affirmative were sent forms by which the interested
contractors designated the negotiation committee to
represent them . AGC staff members, including Fluke, also
circularized all AGC members they thought might be
interested in being represented , including names suggested
by Local 545-D representatives and including some
contractors not members of AGC. Thus over a period of a
month or so while early negotiations were in progress the
negotiators, with the joint intelligence of the Union and
SITE-CON INDUSTRIES, INC. 49
AGC and the services of the AGC labor relations staff,
endeavored to develop a definitive list of contractors
included in the bargaining group. At no time did the Union
or anyone on the employers' side suggest that Site-Con was
or should be a member of the group. It was not even asked
if it wished representation. Sometime after the second
meeting on December 3 the AGC staff sent new designa-
tion forms to each contractor who had indicated a desire to
be represented. According to Fluke all members of the so-
called "surveyor group" signed this new designation of
authority. Site-Con did not sign it nor was it asked to do
so.
On December 10, Plossl, on AGC letterhead, wrote to all
of the contractors who had previously been contacted by
the AGC staff. He stated in part, "For your information,
although the agreement we are negotiating with Local
545-D is not in itself an AGC Agreement, the AGC is
providing counsel and service to our committee in its
negotiations." To those contractors from whom the AGC
staff had received no response he wrote further, "To date
we have received no response to our inquiry. Therefore we
are making one last attempt to contact you and to give you
the opportunity to be represented by our committee." To
those who had advised the staff they did not wish to be
represented he wrote, "AGC headquarters informs us that
you indicated to them you do not want to be represented
by our committee in the 545-D negotiations. However,
before notifying the Union of that fact we wish to give you
one more opportunity to be represented by our commit-
tee." To both of these categories of contractors he also
wrote, "We have been put on notice by Local 545-D that
we must inform them which of the contractors on the list
they provided are contractors we represent at the negotia-
tion session on December 16, 1970. They have also
indicated that those firms on their list which are not
represented by our committee will be contacted by them
individually for the purpose of negotiating a separate
collective-bargaining agreement for Technical Engineers
(Surveyors)." Site-Con was not among those to whom
Plossl wrote.
In the meantime by letter of December 7 Site-Con,
following AGC instructions for withdrawal, notified Fluke
as director of labor relations for AGC of its intent to be an
"open shop" contractor operation "effective as of the
termination of the existing labor agreements between the
members constituting the New York State Chapter's
multiemployer group and any union with whom such
multiemployer bargaining group bargains with on behalf of
such members." The letter, signed by Site-Con's vice
president, Collins, further stated:
I also hereby notify you of my company's withdrawal
from the multi-employer bargaining group comprised
of certain members of the New York State Chapter of
the Associated General Contractors and declare my
company's intent not to sign or be bound by any
Designation of Bargaining Agent authorization form
for any future negotiations. Also effective as of the date
of the termination of the existing labor agreements
referred to above, my company hereby revokes any
authority given under any Designation of Bargaining
Agent authorization form previously signed by my firm
designating the New York State Chapter's multi-em-
ployer bargaining group as my bargaining agent or
representative. Accordingly, in labor relations matters
my company does not want to be represented or bound
by or be a member of or participant in any multi-
employer bargaining group representing and bargain-
ing for any group of members of the New York State
Chapter of the Associated General Contractors of
America.
In short, at the first meeting on November 24, the
makeup of the surveyor group, beyond the core who were
actually present at the meeting, was unknown and both the
union negotiating committee and the employer negotiating
committee joined in efforts at that meeting and thereafter
to develop a firm list on those represented. Such a list was
gradually developed and eventually finalized and the
employer negotiating committee obtained new written
authorizations from all represented contractors. Implicit in
the attitude and conduct of the negotiators on both sides
was the assumption that the surveyor group negotiation
committee represented only those contractors listed. The
Union was to separately approach any contractors not on
the list with whom it wished to bargain. Since Site-Con was
never included on any list of those contractors represented
by the negotiating committee in these negotiations, it is
clear neither side considered it part of the group bargained
for. Considering that Local 545-D had an outstanding
collective-bargaining agreement with Site-Con, this course
of conduct amounted to acquiescence in a separate
bargaining relationship between the Union and Site-Con.
On December 7 Site-Con, by communicating with AGC,
made an unequivocal effort to withdraw from all multiem-
ployer bargaining connected with its membership in AGC.
This effort was timely with respect to the expiration date of
the then current Local 545-D contract due to end on
December 31. But it came after the Union's October 23
request to reopen the contract, after Plossl's November 11
agreement for the surveyor group on behalf of "contractors
who bargained with Local Union 545-D and who are also
members of the Associated General Contractors" to meet
with the union committee, after the first preliminary
meeting of the two groups on November 24 at which the
makeup of the employer group was considered but no
actual bargaining occurred, and after the second meeting
on December 3 which dealt further with the makeup on the
employer group and at which some bargaining (not
disclosed in this record) occurred. In these circumstances
there is a question whether Site-Con's effort to withdraw
was timely. Retail Associates, Inc., 120 NLRB 388. I deem
it unnecessary to resolve that question. It may also be
argued that Site-Con never gave the necessary notification
of its withdrawal to Local 545-D. See Walker Electric
Company, 142 NLRB 1214, 1219-21. In effect, however,
the Union was notified by the process of creating the list of
contractors represented which excluded Site-Con. The
Union thereby inferentially acquiesced in the exclusion.
Robert Becker d/b/a Lenox Grill, 170 NLRB 1027.
Given the above facts, I conclude that even though Site-
Con was initially obligated to group bargaining with Local
545-D and assuming (without finding) that its efforts to
withdraw were untimely and not specifically called to the
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attention of the Union, in acquiescing to its exclusion from
the group , Local 545-D relieved it from its group
bargaining obligations . N.L.R.B. v. Spun-Jee Corporation,
385 F.2d 379 (C.A. 2, 1967), on remand 171 NLRB No. 64;
Metke Ford Motors, Inc., 137 NLRB 950; Publicity
Engravers, Inc., 161 NLRB 221.
b. The operators group
Bargaining with Local 106 respecting equipment opera-
tors was carried on by the Labor Relations Division of
AGC on behalf of the contractors belonging to the
operators group. There was no confusion as to the makeup
of that group comparable to the confusion surrounding
membership in the surveyor group.
Moreover, there is no dispute that Site-Con's withdrawal
letter of December 7 was applicable to the operators group.
There is also no question that this communication to AGC
was timely inasmuch as the existing contract with Local
106 was not due to expire until March 31, 1971, and the
first bargaining session looking toward a new contract did
not occur until February 22. Thus Site-Con made a timely
application to withdraw from multiemployer bargaining
with Local 106.
The parties are in disagreement as to whether timely
notice was given to Local 106 of this withdrawal.
Respondent offered in evidence a file copy of a company
letter dated December 7, 1970, addressed to Local 106,
attention Lester Jones, its business agent, notifying the
Union of the withdrawal, and offered supporting testimony
that instructions had been given that the original of the
letter be mailed at that time to Local 106. On the other
hand, Jones testified that neither he nor anyone else on
behalf of Local 106 received the letter and they had no
other notice of Site-Con's withdrawal. The General
Counsel urges that this (file copy) was created at a later
time and was an afterthought. There is, however, no
evidentiary basis for questioning the authenticity of the
copy, and the fact that the original was not received is not
proof that it was not sent. I conclude that Site-Con took
reasonable steps to notify Local 106 of its withdrawal from
multiemployer bargaining. In connection with this finding
I adhere to my ruling made at the hearing rejecting the
General Counsel's offer of an April 19, 1971, letter of
Respondent on letterhead similar to that on the copy of the
December 7, 1970, letter to Local 106. The April letter only
proves that that type letterhead was in use then. It does not
tend to prove it was not in use on December 7.
Accordingly, I deny the General Counsel's posthearing
motion to reverse my ruling.
In addition, Local 106 had some informal intelligence of
Site-Con's intention at the end of the then current contract
to adopt "open shop" status with AGC, a status which it
could not achieve while remaining a member of the
multiemployer bargaining group dealing with Local 106.
Thus, starting in October 1970 Francis Doyle, the Local
106 job steward on Site-Con's Amsterdam job, heard by
way of rumor and also by statements of Site-Con's
supervisors that it would become "open shop." And the
Local 106 business agent, Jones, admitted that he had
similar information a month or two before March 2, 1971.
All of this occurred prior to the first meeting for
multiemployer bargaining with Local 106 on February 22.
A finding that Local 106 received timely notice of Site-
Con's withdrawal is supported by evidence in the record
that the Labor Relations Division as a matter of practice
advised unions engaged in multiemployer bargaining prior
to commencement of negotiations as to the identity of the
contractors being represented . In accordance with this
practice the AGC director of labor relations, Fluke, on
December 31 transmitted to Jess Webb, one of the union
negotiators for equipment operators (including Local 106),
a list of contracting firms represented in the multiemployer
bargaining as of December 28, 1970. Site-Con was not
included on this or any later list of those represented. This
evidence of who was represented was by inference also
evidence of who was not represented and the exclusion of
Site-Con from the list of those represented was in a
negative sense some further notice to Local 106 of Site-
Con's removal from the group . See Robert Becker d/b/a
Lenox Grill, supra. In any case , Local 106 made no
objection to the omission of Site-Con until well after the
commencement of negotiations on the basis of the list
which did not include it.
Based on the peculiar facts of this record to which
significance should be given, I conclude that Respondent
made an effective and timely withdrawal from group
bargaining with Local 106. See International Brotherhood of
Electrical Workers, Local 68 v. N.L.R.B., 448 F.2d 1127
(C.A.D.C., 1971).
Respondent also argues that even if it did not effectively
escape group bargaining with Local 106 prior to the
commencement thereof, it nevertheless was thereafter
relieved of group bargaining obligations when impasses
occurred in the bargaining. In view of the above findings I
deem it unnecessary to reach this question.
5. The obligation to bargain separately
As an alternative theory the General Counsel contends
in both the Local 545-D case and the Local 106 case that
even if Site-Con's withdrawal from group bargaining was
effective and timely, it continued as a separate employer to
be obligated to bargain in good faith with each Union and
that it failed in this regard with respect to both. I agree that
if Site-Con escaped group bargaining it was still obligated
to bargain on an individual basis with both Unions. The
question is whether it has failed to do so. In support of his
theory the General Counsel relies on evidence that the
Respondent endeavored to make itself an "open shop"
operation, a status which he and the Charging Parties
equate with being nonunion, supplemented by evidence of
Respondent's desire to operate without union contracts.
Sometime in the late months of 1970 AGC altered its
membership rules to require that any member having
contractual relations with any union engaged in group
bargaining with AGC belong to the Labor Relations
Division which conducted such bargaining. Member
contractors not in that category belonged to the Open
Shop Division of AGC. On this basis a contractor
bargaining separately with these unions could not remain a
member of AGC and still comply with its rules. These
requirements were publicized among member contractors
SITE-CON INDUSTRIES, INC. 51
and also among the unions, who were asked to cooperate
with AGC in policing them. Evidence in the record
suggests that the rules were not in all instances strictly
complied with.
On December 7, 1970, when Site-Con withdrew its
authorization for group bargaining, it also certified to
AGC that it was an "open shop" contractor. It thereafter
remained a member of AGC and continued as a member
at the time of the hearing herein. This "open shop" status
was for many months a matter of conversation among Site-
Con employees and supervisors. The General Counsel
urges that this "certification" amounted to a declaration to
AGC of its intention to operate nonunion . He reasons
further that such an intention was inconsistent with good-
faith bargaining and that therefore Site-Con should be held
to have violated Section 8(a)(5) of the Act. I do not agree.
Neither Union has ever asked Site-Con to bargain on an
individual basis, consequently the question of what it
would do if such a demand were made has never been
presented. Its "open shop" status is not necessarily the last
word since it is still open to it to bargain separately with
unions by leaving the AGC. Therefore, a demand from a
union to bargain separately would not necessarily be a
futile act. At least until the history of this relationship more
definitely demonstrates such futility, it should not be
inferred.
Both Unions have proceeded here on the assumption
that their rights depend on group bargaining obligations,
apparently not contemplating that Respondent might
equally be obligated as a separate enterprise. Even if Site-
Con, hoping for the open range of nonunion employee
relations, had no intention of bargaining separately, until
the Unions by demand for separate bargaining have put it
to the test, no refusal has occurred. It is not yet established
that Respondent has not bargained or will not bargain
upon demand with either Union. Thus, the essential corpus
delecti of a refusal to bargain is missing.
Other evidence in the record indicates the possibility
Respondent might bargain if asked . Both its president,
Pitassi, and its vice president, Harding, declared under
oath a willingness at all times to bargain . Its vice president,
Collins, testified that its December 7 declaration of "open
shop" status and withdrawal from group bargaining was
for the purpose of bargaining in the future on an individual
basis. Of course on April 14, 1971, according to Local
545-D business representative, Harvey Scott (whom I
credit), Harding stated he was not going to sign any more
labor contracts and was through taking hosings from
unions. Yet in March, long after the Local 545-D group
contract expired, Harding asked Scott to refer a survey
crew, and on April 1, after the Local 106 contract expired,
Pitassi and Local 106 Business Agent Jones arranged for
layoff slips for the equipment operators who had refused to
work that day. And Respondent has since met with Local
545 (a sister local of Local 106) and negotiated regarding
terms of employment of equipment operators in the Utica
area (outside the territorial jurisdiction of Local 106). It
has also agreed to meet with Local 545-D regarding
employment of surveyors in the Utica area. In this latter
regard , Harding testified that if a contract is negotiated
Respondent will sign it.
In the circumstances I find that a preponderance of the
evidence fails to establish that Respondent has failed to
bargain on demand with either Union.
B. The Alleged Discriminations
1. Separation of operators
The complaint alleges that on March 31 Respondent
unlawfully laid off Stephen Kaufman and William Shelley
(both pump and compressor operators) and Robert Slade
and Eugene Perry (both oilers). The answer, as amended at
the hearing , admits they were separated but denies such
was unlawful.
On the Amsterdam job Site-Con also employed four
equipment operators (operating two front-end loaders and
two backhoes) plus a master mechanic in charge of the
equipment. These were in addition to the four above-
named alleged discriminatees . All nine of the crew were
members of Local 106.
The duties of the oilers were to assist in starting the
backhoes at the beginning of the workday, check oil levels
and grease the machines , and at the end of the day shut
them off and lock up. The duties of the compressor and
pump operators were to start those machines at the
beginning of the day, check oil levels , and at the end of the
day shut them off. The above-described duties took less
than an hour per day for each man to perform. They
received pay for 8 hours . Although nothing specific in the
record so indicates , I infer from the circumstances of the
job that part of the functions of the oilers and compressor
and pump operators were of a standby nature, to be
available in the event of breakdowns. They spent a
substantial amount of time sitting in their own automobiles
or trucks or working on their own vehicles.
Billie Harding, Site-Con's vice president of operations
and the person in charge of the Amsterdam job, com-
plained that they did not even perform the work to which
they were assigned ; that the backhoe operators started and
shut down their own machines without help from the
oilers; and that laborers turned on and shut off the pumps.
He contended they were late in reporting to work, spent
too much time in their own vehicles , performed personal
work on their vehicles on company time , failed to assist the
equipment operators , and on occasion parked their own
vehicles so they interfered with the use of the equipment.
In sum, according to him , they were unproductive
personnel . The situation was of long standing . Harding had
complained as frequently as once a week to the master
mechanic and to the Local 106 job steward.
In late February or early March 1971 he asked Francis
Doyle (the steward) to arrange a meeting with Local 106
representatives to discuss various problems, including
these . The meeting so arranged was attended by Billie
Harding , Frank Pitassi, Site-Con's president , Doyle,
LeRoy Boyer, the master mechanic, and Lester Jones,
business agent for Local 106 . Doyle voiced complaints
about men being assigned to pumps too far away from
their other assignments . One of the prime complaints of
Harding was respecting an operator referred by the Union
who did not wish to work in rock with which the job was
then involved. Boyer credibly testified that company
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaints about the work of the oilers and the compressor
and pump men were also brought up. Harding credibly
testified that he complained to the Union that they were
not performing and were nonproductive personnel. Jones
at first denied and then later admitted that Pitassi voiced
complaints regarding the oilers and compressor and pump
men. It is thus clear from a preponderance of the evidence,
and I find, that Respondent had longstanding grievances
regarding the performance of the oilers and the compressor
and pump men, that it frequently voiced its complaints to
the master mechanic and the job steward, and, finally, that
it brought the matter up at a meeting with the Union's
business agent prior to the expiration of the Local 106
contract. I also find that these complaints constituted a
valid business reason to terminate Kaufman, Shelley, and
Perry. In fact on at least one prior occasion Harding had
shut down a piece of equipment and laid off the operator
and the oiler (Perry) in the hope that a later referral would
provide a more competent oiler. Nothing in the records
suggest that Site-Con had any complaints regarding the
equipment operators.
Billie Harding testified that at the above-described
meeting Jones responded to company complaints about
nonproductive personnel by noting that Site-Con was not
on the list of employers for whom AGC was conducting
group bargaining but was on an open status list and that
the employees were also aware of this and lacked a desire
to work productively because after April 1 Local 106
would not allow them on the job. Master mechanic Boyer
and job steward Doyle testified they did not recall such
remarks but they did not specifically deny they were made.
Their testimony, therefore, is of little help on that
particular point. On the other hand, Business Agent Jones
specifically denied saying that after April 1 operating
engineers would not be allowed to work on Site-Con's job.
But his further testimony indicated it would not have been
necessary for him to say anything in that regard to the
men, the inference being that they understood this without
being told.
I do not credit Jones in this denial because his testimony
was less explicit than the other witnesses ', his later
testimony corrected in some regards generalizations earlier
made, and in general his recollection of events seemed
more imperfect than the other witnesses'. Jones did not
specifically deny stating at the meeting that Site-Con was
not on the list for AGC group bargaining but was on an
open status list and that the employees were aware of this
and lacked a desire to produce. As I have already found,
Local 106 was at that time already knowledgeable
regarding the AGC group bargaining list which omitted
Site-Con's name. Inasmuch as Harding's testimony that
Jones made the statements which he attributed to him was
credible and, except for that portion to the effect that the
Union would not allow the employees on the job after
April 1, was uncontradicted, I find that Jones made the
statements attributed to him by Harding. Site-Con Presi-
dent Pitassi who was also present at that meeting also
testified but he was not questioned by anyone regarding
the meeting. Considering that everyone else present did
testify, I draw no inference from the fact that he did not
give testimony on that subject. The meeting presented an
opportunity to both the Company and the Union to begin
or arrange for collective bargaining for a new contract
separate from the group bargaining . No one availed
himself of the opportunity.
Following the meeting just described Harding, on the
assumption that union labor might not be available, took
measures to assure a supply of manpower for the
Amsterdam job, and other jobs which Site-Con had
obtained or had in prospect. Beginning March 27 he
advertised in various newspapers for new employees
without indicating the crafts involved. Although applica-
tions were received in answer to the ads, no new personnel
were in fact hired or even interviewed for the Amsterdam
job during the balance of March. Harding admitted that in
placing these ads he was at least partially motivated by his
anticipation of a work stoppage at the end of the month.
a. Events of March 31
On March 31, Billie Harding decided to terminate the
two oilers and two compressor and pump operators. His
testimony admits of the possibility, not to say probability,
that he contemplated the matter at an earlier date.
Oiler Robert Slade, an employee of Site-Con for a year
and a half and a member of Local 106 for 5 years, was
transferred to the Amsterdam job in October 1970. On
March 31, prior to his termination , he was approached by
Billie Harding who informed him they were going to go
"open shop" and that he (Harding) wanted Slade to come
to work for him if Slade thought it feasible . But Slade
declined saying he had made his living through Local 106
for quite a while . From this it is clear that dissatisfaction
with Slade's work was not the reason he was terminated.
Later that same day, a regular payday, Slade, Perry (also
an oiler), and Kaufman and Shelley (pump and compressor
operators) were all terminated . Job Superintendent Robert
Harding gave final checks for all of them to master
mechanic LeRoy Boyer for distribution to the men, stating
that Site-Con was going to go "open shop" the next day
and no longer needed oilers or pumpmen . Boyer passed
this on to the men when he gave them their checks.
b. Events of April 1
As noted earlier the crew operating the equipment on the
Amsterdam job included five operators in addition to the
four men terminated March 31. These five were master
mechanic Boyer, two operators of front-end loaders (one of
whom was Francis Doyle, the union steward), and two
backhoe operators. On the morning of April 1, these five
reported for work. Those on the front-end loaders started
their machines. Those on the backhoes did not because
their established work rules, as they construed them,
required an oiler on those machines . Job Superintendent
Robert Harding then instructed a foreman and a laborer to
start a pump, work which members of Local 106 consider
to be within their work jurisdiction. The five operators
refused to work under these conditions and after some
negotiation back and forth they were finally laid off.
It is not alleged that these five terminations were a
violation of Section 8(a)(3) of the Act. The General
Counsel does contend that they ceased work on April 1 to
SITE-CON INDUSTRIES, INC.
protest the four terminations on March 31 , and seeks a
finding that they were engaged in an unfair labor practice
strike . I disagree.
While it is true that if the March 31 terminations had not
occurred there probably would have been no work
stoppage on April 1, the evidence does not show that the
operators ' conduct on April 1 was in protest of the events
on March 31 . All five men reported for work on April 1
and in fact the front -end loaders began work . The only
reason the backhoe operators did not begin was because no
oilers were assigned to assist them . They were not insisting
that Slade and Perry, the two oilers terminated the day
before , be assigned to their machines . They were protesting
the absence of any oilers . Presumably if other qualified
oilers had been assigned to their machines , they would
have proceeded to work . A further ground of protest was
the April 1 violation of the claimed work jurisdiction of
operating engineers by directing other personnel to start a
pump . Both of these reasons for protest occurred on April I .
The General Counsel further contends that Site-Con
created these conditions as part of a plan to achieve
nonunion status with respect to the crew operating its
equipment , the first step being to lay off the oilers and
compressor and pump operators March 31 with the
expectation that the equipment operators would then walk
off the job leaving no Local 106 members employed. In the
overall that is what happened . His analysis is supported by
uncontradicted evidence that a couple of days prior to
March 31 Job Superintendent Robert Harding (who did
not testify) stated that Respondent was going to lay off the
oilers and the compressor men which would cause the
other operators to walk off the job and in this way Site-Con
could go nonunion.
Also, on April 1 after leaving the job, Doyle, the Local
106 steward , had a conversation with Site -Con President
Pitassi in which he asked Pitassi what had happened and
Pitassi replied that he felt the Company would benefit by
going "open shop," and that he was going to shut down the
job and reorganize the Company. It does not appear,
however, that the job was shut down , and if the Company
was reorganized , such does not appear in this record. And
2 weeks later, on April 14, in a telephone conversation with
Local 545-D Business Agent Scott (whose version of the
conversation I credit), Vice President Billie Harding stated
that Respondent was going "open shop," was not going to
sign any more labor agreements with anybody, and that it
was through taking a "hosing" from unions.
c. Conclusions regarding separation of operators
First , with respect to the terminations of March 31, it is
clear from the fact that Harding wanted to retain Slade
that he was not laid off because of poor work . While the
evidence shows that Respondent had reason to terminate
Kaufman , Shelley, and Perry, the statements of Respon-
dent 's officials bearing on motive raises a strong inference,
and I find , that the protection afforded these employees by
their unionism was the substantial , if not the exclusive,
reason for their layoff . Accordingly , I find Respondent
committed an unfair labor practice in violation of Section
8(a)(3) and (1) of the Act in laying off all four.
53
Regarding the events of April 1, the complaint does not
allege , nor does the General Counsel contend , that the so-
called layoff that day violated Section 8(a)(3), or that the
failure to have oilers and compressor and pump men on
hand or the assignment of pump work to other than
operating engineers were unilateral changes in working
conditions amounting to a refusal to bargain under Section
8(a)(5). Accordingly, I make no findings in that regard.
2. Separation of surveyors and recall of McIntyre
but not of Koziol and Spring
On March 31 Site-Con also had employed on the
Amsterdam project a surveyor crew, made up of Donald
McIntyre, crew chief, Edward Koziol, rodman, and
Stephen Spring , instrumentman , all members of Local
545-D. They were all laid off that day because the
surveying work was substantially caught up . It is not
alleged that the layoffs were discriminatory. A few weeks
later, in mid-April, Vice President Billie Harding contacted
McIntyre and offered him a job at a higher rate of pay
than he previously had received and with expanded duties.
The complaint alleges that Site-Con's failure at that time
to also rehire Koziol and Spring was discriminatonly
motivated and therefore violated Section 8(a)(3) and (1)
and that the reemployment of McIntyre under altered
working conditions constituted a unilateral change in
working conditions in violation of Section 8(a)(5) and (1).
When Harding rehired McIntyre he informed him
Respondent would not pay any union benefits . Instead
McIntyre would receive $2.25 more per hour in pay. It was
his understanding that the new job would not necessarily
be related to the job he had had earlier as Amsterdam
survey party chief and that he was to perform other duties
as well as those of party chief. McIntyre returned to work
on the Amsterdamjob April 19 and was still working at the
time of the hearing. When he had need for an instrument-
man or a rodman on that job he did not employ regular
surveyors but instead used employees already on the job in
other capacities , usually laborers, and not members of
Local 545-D. He was also in charge of all surveying for
Respondent in the upstate area onjobs within 100 miles of
each other, and his duties were expanded to include junior
engineering responsibilities such as grade control for an
entire project . He was employed on a permanent basis, 12
months a year. Among other things he interviewed
applicants for surveying work and could effectively
recommend whether they should be hired . He also had
authority to discharge . According to McIntyre he was
induced to come back to work in a nonunion capacity by
the increased benefits offered . Yet at the time of the
hearing he was still a member of Local 545-D.
Conclusions Regarding Recall of McIntyre and
Failure To Recall Koziol and Spring
The General Counsel argues that Site-Con's failure to
rehire Koziol and Spring at the same time as McIntyre was
unlawful discrimination against them . He bases this
argument on the thesis that the Company had a continuing
bargaining obligation with respect to Local 545-D and that
if the Company had honored this obligation it would also
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have asked Local 545-D to refer survey crewmembers, and
that its failure to do so establishes that its motive was to rid
itself of Local 545-D surveyors. This argument does not
hold water. Nothing in this record shows that if Site-Con
had asked for referrals from the Union Koziol and Spring
would have been the persons referred. The history of an
earlier crew headed by McIntyre suggests the contrary.
While I agree that Site-Con had a continuing obligation to
bargain with Local 545-D, at the time McIntyre was
reemployed in April there was no collective-bargaining
agreement in existence limiting the employment or use of
survey personnel. There is no evidence that Koziol or
Spring reapplied for employment or that the Union offered
their services. In fact the Company never employed any
replacement crewmembers as such. Instead it cut across
jurisdictional lines by using the services of existing
employees, laborers or sometimes machine operators, on
those occasions when services of rodmen and instrument-
men were needed. In sum, it does not appear that Site-Con
had an obligation to reemploy Koziol or Spring as
individuals. Accordingly, the Company's use of other
sources for services ordinarily performed by surveying
crewmen is not substantial evidence of discrimination with
respect to those two men. This is especially so where, as
here, there is no contention that their separation on April 1
violated the Act and no independent violations of Section
8(a)(1) are shown. I find a preponderance of the evidence
fails to establish that they were not rehired because they
were members of Local 545-D. I note that McIntyre who
was reemployed remained a member of the Union at the
time of the hearing, albeit under nonunion conditions. The
fact that Koziol and Spring were members of Local 545-D
plus the fact that they were not recalled is no evidence at
all that their union membership was the reason they were
not recalled. More than that is required to support
inferences that Site-Con did not hire them because they
were union members. N.L.R.B. v. Citizen-News Company,
134 F.2d 970, 974 (C.A. 9, 1943).
The theory of the complaint puts Respondent in a nice
dilemma. On the one hand, it is supposed to have violated
Section 8(a)(3) by not recalling Koziol and Spring and, on
the other, Section 8(a)(5) by recalling McIntyre. There is
no question but that McIntyre was induced to return by
the offer of benefits different from those he had earlier
enjoyed and that these changes in his terms and conditions
of employment were unilaterally arrived at without benefit
of consultation by Respondent with Local 545-D. Without
more, these facts would establish a violation of Section
8(a)(5) of the Act so long as Respondent had a continuing
obligation to recognize and bargain with the Union. Site-
Con contends there is more to the question because
McIntyre's job duties were enlarged, that he was reem-
ployed as a supervisor, and that these differences are
enough to save it from an 8(a)(5) violation.
During the life of the Local 545-D collective-bargaining
agreement, to which Site-Con was obligated and which
provided for union security and required the Company to
give the Union equal opportunity with all other sources to
refer suitable job applicants, the only Site-Con employees
performing surveying work were McIntyre and two
crewmembers (not Koziol or Spring). All were members of,
and represented by, Local 545-D. They were all laid off in
early December. The collective-bargaining agreement
expired December 31. Respondent employed no additional
surveyors until McIntyre, Koziol, and Spring were hired
through Local 545-D in mid-March. They continued
working through April 1. At that point all of Respondent's
surveying employees were members of, and represented by,
Local 545-D. On April 19 McIntyre, still a union member,
was rehired. No one else had in the meantime been hired
for survey work. These facts indicate, and I find, that as of
April 19 Local 545-D continued as the majority represent-
ative of Site-Con surveying employees. See David F. Irvin
and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy
Company, 194 NLRB No. 8.
Under the expired collective-bargaining agreement Local
545-D was the recognized representative in a unit
consisting of all field survey employees, including party
chiefs, rodmen, and instrumentmen employed by members
of AGC in heavy and highway construction within the
geographical jurisdiction of Local 545-D, excluding all
office clerical employees , all professional employees, and
all guards and supervisors as defined in the Act. I find that
a unit so described but limited to employees of Site-Con is
also appropriate for purposes of collective bargaining.
After his April 19 recall McIntyre continued to perform
unit work as well as additional duties. He had some new, if
limited, supervisory functions. I find that because of the
broader scope of his new job, together with its supervisory
aspects, he was employed in a different capacity than
earlier, but that much of his work nevertheless continued
to be of the same type earlier performed by members of the
bargaining unit and within Local 545-D territorial jurisdic-
tion. I deem his supervisory duties too infrequent and
limited to qualify him as a supervisor under Section 2(11)
of the Act. But, in any event, whether he was a supervisor
or not is immaterial because when Billie Harding offered
him the new position, the offer was conditioned on his
acceptance of nonunion terms of employment. Therefore,
whatever business reasons the Company may have had,
such as the reorganization of its operations , it was not
motivated solely by those considerations in dealing with
McIntyre but was motivated in substantial part by a desire
to erode the Union's status as his representative. See Cooke
& Jones, Inc., 146 NLRB 1664, 1675-79, enfd. 339 F.2d 580
(C.A. 1, 1964); Imperial Outdoor Advertising 192 NLRB
No. 183. In so dealing unilaterally with McIntyre Respon-
dent committed and continues to commit an unfair labor
practice contrary to Section 8(a)(5) and (1) of the Act.
Similarly, the assigning after April 19 of the same type of
work previously done by rodmen and instrumentmen
within the bargaining unit to employees outside the
bargaining unit , such as laborers and machine operators,
without discussing such loss of unit work with the Union,
was a unilateral change regarding working conditions
about which Respondent had a continuing obligation to
consult with Local 545-D. Its failure to do so was a refusal
to bargain contrary to the mandate of Section 8(a)(5) and
(1) of the Act and was and is an unfair labor practice.
David F. Irvin and James B. McKelvy, Partners, d/b/a The
Irvin-McKelvy Company, supra.
SITE-CON INDUSTRIES, INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Site-Con set forth in section III, above,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and those found to be unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce. Such unfair labor
practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act.
I recommend that it offer Stephen Kaufman, William F.
Shelley, Robert A. Slade, and Eugene Perry immediate,
full, and unconditional reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights, privileges, or working conditions, and make each of
them whole for any loss of earnings suffered by reason of
discrimination against them by paying each a sum of
money equal to the amount he would have earned from the
date of the discrimination on March 31, 1971, to the date
Respondent offers him reinstatement, less his net earnings
during that period in accordance with the Board's formula
stated in F. W. Woolworth Company, 90 NLRB 289, with
interest thereon at the rate of 6 percent per annum as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716, and
that it make records available to the Board agents in
connection with compliance therewith.
I also recommend that Respondent cease and desist from
unilaterally changing the terms and conditions of employ-
ment , or the assignment of work, of surveyors without
prior consultation with Local 545-D, and that upon
request it bargain collectively with Local 545-D respecting
the terms and conditions of employment and work
assignment of surveyors and, if any understanding is
reached, embody such understanding in a signed agree-
ment . Nothing in the recommended Order attached hereto
shall be construed as requiring Respondent to revoke
employee benefits put into effect on or after April 19, 1971,
unless Local 545-D so desires. See Great Western Broad-
casting Corporation, d/b/a KXTV, 139 NLRB 93.
I further recommend that Respondent post appropriate
notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: i
1 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
ORDER
55
Respondent, Site-Con Industries, Inc., its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local No. 106, Interna-
tional Union of Operating Engineers , AFL-CIO, or any
other labor organization, by discriminatorily terminating
any employee or in any other manner discriminating
against any employee in regard to hire, tenure, or any other
term or condition of employment.
(b) Making unilateral changes in terms and conditions of
employment or work assignments of surveyor employees in
the appropriate unit without consulting and negotiating
with Local 545-D, International Union of Operating
Engineers, AFL-CIO.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to the employees named below immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights, privileges, or
working conditions, and make each of them whole for any
loss of earnings he may have suffered as a result of
discrimination against him in the manner set forth in the
section hereto entitled "The Remedy." The employees are:
Stephen Kaufman
William F. Shelley
Robert A. Slade
Eugene Perry
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(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 recommended Order.
(d) Upon request bargain collectively with Local 545-D,
International Union of Operating Engineers, AFL-CIO, as
the exclusive representative of all field survey employees,
including party chiefs, rodmen, and instrumentmen em-
ployed by Respondent on heavy and highway construction
projects within the geographical jurisdiction of Local
545-D, excluding all office clerical employees, all profes-
sional employees and all guards and supervisors as defined
in the Act, concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its premises in upstate New York copies of the
attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith .3
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
3 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 3, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found , after a
trial , that we violated Federal law by terminating the
employees named below in order to discourage member-
ship in Local 106, International Union of Operating
Engineers , AFL-CIO, and by unilaterally dealing with a
surveyor regarding terms and conditions of employment
and by assigning surveyor work to nonsurveyor employees
without prior consultation with Local 545-D, International
Union of Operating Engineers , AFL-CIO:
WE WILL offer the employees named below full
reinstatement to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions and
pay them for earnings lost as a result of their
termination , plus 6-percent interest. The employees
are:
Stephen Kaufman
William F. Shelley
Robert A. Slade
Eugene Perry
WE WILL NOT discnminate against employees in
order to discourage membership in a union.
WE WILL NOT deal with surveyor employees regard-
ing terms and conditions of employment, or assign
surveyor work to nonsurveyor employees, unilaterally
without prior consultation with Local 545-D, Interna-
tional Union of Operating Engineers, AFL-CIO.
WE WILL, upon request, bargain collectively with
Local 545-D, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive representative of all
employees in the unit described below, concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All field survey employees, including party
chiefs, rodmen, and instrumentmen employed by
Site-Con Industries, Inc., on heavy and highway
construction projects within the geographical
jurisdiction of Local 545-D, International Union
of Operating Engineers, AFL-CIO, excluding all
office clerical employees, all professional employ-
ees, and guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other
labor organizations, to bargain collectively through
representatives of their own choosing, and 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.
Dated By
SITE-CON INDUSTRIES, INC.
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
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 compliance with
its provisions may be directed to the Board's Office, Ninth
Floor, Federal Building, 111 West Huron Street, Buffalo,
New York 14202, Telephone 716-842-3100.