Spring Industries

National Labor Relations Board - Board Decisions

Mar 18, 1985

274 N.L.R.B. 998 (N.L.R.B. 1985)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edgar Springs , Inc. d/b/a Spring Industries and The
Laborers ' District Council of Ohio
Tri-State Asphalt Corporation and Jim Murad and
International Union of Operating Engineers,
Local 18, AFL-CIO. Cases 8-CA-16190, 8-
CA-16209, and 8-CA-16213
18 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 September 1984 Administrative Law
Judge Peter E. Donnelly issued the attached deci-
sion . Respondent Tri-State filed exceptions and a
supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 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, Edgar
Springs, Inc., d/b/a Spring Industries, New Phila-
delphia and Martins Ferry, Ohio, and Tri-State As-
phalt Corporation, Martins Ferry Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i Although it does not alter our conclusions , we find ment in the Re-
spondent 's exception to the judge's incorrect factual finding that the
Fulton crew was the most senior of all Tn-State Asphalt crews Also, in
the absence of exceptions thereto, we adopt, pro forma, the judge's find-
ing that Respondent Spring Industries violated Sec 8(a)(1), (3), and (5) of
the Act by maintaining and enforcing an individual lease equipment
agreement with employee Rhonda Miles at such times as her work was
covered by a project agreement between Spring Industries and Laborers
Local 809
2 We find it unnecessary to determine whether Respondent Tri-State
discharged employees Murad, Kinnison, Morns, Uppole, and Snodgrass
as argued by the General Counsel and found by the judge , or laid them
off (they were recalled in the 1983 paving season ) Instead , we leave to
the compliance stage of this proceeding the issue of when , without un-
lawful motivation , the Respondent would have laid off these employees
at the end of the 1982 season and would have recalled them for the 1983
season.
DECISION
STATEMENT OF THE CASE
Spring Industries (Spring) violated Section 8(a)(1), (3),
and (5) of the Act The charge in Case 8-CA-16209 was
filed on October 28, 1982 by Jim Murad, an individual,
alleging that Respondent Tri-State Asphalt Corporation
(Tri-State) violated Section 8(a)(1) and (3) of the Act.
The charge in Case 8-CA-16213 was filed on October
29, 1982, by International Union of Operating Engineers,
Local 18, AFL-CIO (Operating Engineers) alleging that
Spring and Tri-State violated Sections 8(a)(1), (4), and
(5) of the Act.
By order consolidating cases, consolidated complaint,
and notice of hearing dated July 29, 1983, the above
cases were consolidated for hearing alleging that as to
Tri-State, it had violated Section 8(a)(1) of the Act by
threatening employees with layoff; violated Section 8(3)
of the Act by discharging employees Murad, Doug
Kinnison, Johnson Morris, John Uppole, and Charles
Snodgrass because of their union activity; and also vio-
lated Section 8(4) of the Act in discharging Morris,
Uppole, and Snodgrass.
The consolidated complaint also alleges that Spring
violated Section 8(a)(1) of the Act by threatening em-
ployee Rhonda Miles and further violated Section 8(a)(3)
and (5) of the Act by negotiating individually with Miles
for a lease agreement requiring Miles to pay Respondent
Spring a rental fee for the use of certain equipment at a
time when Miles was represented under contract by
Local Union No. 809, Laborers International Union of
North America, AFL-CIO (Local 809). The complaint
was amended at the hearing to allege that Spring violat-
ed Section 8(a)(1) and (3) of the Act by stopping pay-
ment on a payroll check issued to Miles and refusing to
pay her for her final days of work because of her union
activity.
Answers were timely filed by both Tri-State and
Spring. Pursuant to notice, a hearing was held before me
on December 12 and 13, 1983, and on January, 10, 1984.
Briefs filed by the General Counsel and Respondents
have been considered.
FINDINGS OF FACT
1. EMPLOYER 'S BUSINESSES
Respondents Tri-State and Spring are both Ohio cor-
porations engaged in the business of road construction
and repair. Each of Respondents in the course of its busi-
ness operations annually sold and shipped from its facili-
ties within the State of Ohio products, goods, and mate-
rials valued in excess of $50,000 directly to points outside
the State of Ohio. The complaint alleges, the answer
admits, and I find that the Employers are employers en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
PETER E. DONNELLY, Administrative Law Judge. The
charge in Case 8-CA-16190 was filed on October 22,
1982, by Laborers' District Council of Ohio (Laborers)
alleging that Respondent Edgar Springs, Inc., d/b/a
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that Laborers, Operating Engineers, and Local 809 are
labor organizations within the meaning of the Act.
274 NLRB No. 149
SPRING INDUSTRIES 999
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts'
1. Discharge allegations (Tri-State)
Spring and Tri-State are both engaged in the business
of road repair. Glenn Straub is vice president and princi-
pal stockholder of both Companies. Which jobs are per-
formed by which company is determined by the location
of the job, the basic consideration being the proximity of
the job to the asphalt plants operated by each company.
Tri-State and Spring both employ "heavy" crews com-
posed of a supervisor and some six crewmembers, who
are both operating engineers and laborers. While Spring
is nonunion, Tri-State's employees are represented by the
Operating Engineers and Laborers respectively under
contracts. Apart from the laborers employed under col-
lective-bargaining agreements with Local 809 under the
terms of various project agreements, the Spring employ-
ees are not represented.
About May 20, 1982,2 a Tri-State crew supervised by
Wilson Fulton3 was offered and accepted employment
on a Spring job, that is, within the geographical area
normally served by Spring. This was done because
Spring did not have the available manpower. The job
was a highway repair job located near Cambridge, Ohio.
Straub testified that he told James Lampert, area project
superintendent, to offer the work to the Fulton crew. He
also testified that he told Lampert to advise them that it
was a Spring job not a Tri-State job, and that since
Spring was nonunion, they would not receive overtime
pay after 8 hours as the Tri-State contracts require, but
only after 40 hours. According to Straub,' Lampert re-
ported to him the following day "[t]hat some of the men
on the job would accept the fact that they were working
for a nonunion company, that they were working for
only time and a half after 8 hours, but they have specific
questions" (concerning fringe benefits).5 Straub testified
that he told Lampert to tell the crew that they would
continue to receive their fringe benefits. Straub further
testified that after the Fulton crew began on the Cam-
bridge job, while flying over the jobsite in a helicopter,
he spoke to Fulton who was on the ground at the job-
site . During the conversation he asked Fulton if he had
told the crew that they were working for Spring. Straub
' There is conflicting testimony regarding many of the allegations of
the complaint In resolving these conflicts, I have taken into consider-
ation the apparent interests of the witnesses , the inherent probabilities in
light of other events , corroboration or lack of it; and consistencies or in-
consistencies within the testimony of each witness and between the testi-
mony of each and that of other witnesses with similar apparent interests
In evaluating the testimony of each witness I rely specifically upon his or
her demeanor and make my findings accordingly And 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)
2 All dates refer to 1982 unless otherwise indicated
3 This crew consisted of Murad, Kinnison, and Wayne Anderson, em-
ployed as laborers, and Morris, Uppole, and Sncdgrass employed as oper-
ating engineers
* Lampert did not testify at the hearing
a Straub also testified that Lampert told him that Lampert had spoken
to Snodgrass and Uppole and that Fulton spoke to the others Fulton did
not testify at the hearing
testified, "What did they say? He said nothing. What did
they-I said, did you tell them about the 8 hours, about
time and a half over 8 hours? He said yes."
Despite it being a Spring job, a fact which is not in
dispute, it appears that the Fulton crew was paid with
Tri-State checks and contributions for both Unions fringe
benefit programs for the crew continued to be made by
Tri-State. Moreover, they continued to be paid overtime
after 8 hours as if they were Tri-State employees. Straub
testified that he was so informed by an employee in the
payroll department. Straub also stated that while carry-
ing the Fulton crew on the Tn-State payroll for fringe
benefit purposes was intentional, a mistake was being
made in paying them time and a half after 8 hours as if
they were Tri-State employees. Upon being so advised,
he instructed the payroll department to recoup the over-
time overpayments in two installments from the crew's
next two paychecks and to include a memo with the first
paycheck explaining the deduction. This was done with
the checks distributed on July 12. The memo, dated July
12, read:
TO: Employees on Project 707(81)
FROM: Payroll Department
DATE: July 12, 1982
For work performed on Edgar Spring, Inc. dba
Spring Industries Project 707( 81) on 1-70 near Cam-
bridge overtime should have been calculated after
40 hours per week as the contract with the State of
Ohio requires. However, the payroll department
mistakenly calculated overtime on an over 8 hours
per day basis.
This error resulted in an overpayment to you of
[amount], which will be deducted at [amount] for
the next two weeks.
Thereafter, the crewmembers contacted representa-
tives of both the Operating Engineers and the Laborers
who disputed the matter with Straub. Straub took the
position that the crew was aware that they were Spring
employees and that as such were not entitled to overtime
after 8 hours and that recouping the overtime payments
was justified. On August 19, 1982, the Operating Engi-
neers filed an unfair labor practice charge against Tri-
State alleging that the deductions and failure to pay
overtime under the terms of the contract covering Tri-
State employees were violations of the Act.
On August 25, while visiting the Cambridge jobsite,
and in an effort to resolve this matter, Straub called to-
gether the members of the Fulton crew. At times Lam-
pert and Wilson were also present. Those in attendance
included the entire crew, except Uppole, who was em-
ployed elsewhere with another crew. Straub testified that
in discussing the matter he asked them if they had been
told that it was a Spring job and that overtime would be
paid after 40 hours and not 8 hours and that there was
no response to this question. Straub went on to complain
that his credibility with the union business agents was
being affected and that he did not like liars and cheaters.
Straub denied any reference to the charge filed by the
Operating Engineers on August 19 and in fact denied
being aware at the time of the meeting on August 25 that
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charge had been filed. Straub conceded, however,
that he did refer to another labor dispute with the Team-
sters and the filing of a National Labor Relations Board
charge in that matter, noting that with all the aggrava-
tion he was undergoing he would be better off with his
money in stocks. Straub also told those assembled that in
view of their failure to deny that they knew that they
were being employed by Spring and that they would be
paid overtime only after 40 hours, he was going to type
up something for them to sign saying that they were sat-
isfied with their compensation and that these notes, after
being signed, would be sent to the business agents in
order to resolve the problem.
Concerning the August 25 meeting, Murad and Kinni-
son testified that Straub told them that if they did not
sign the statements they would be laid off as an extra
crew Murad's testimony, substantially corroborated by
Snodgrass, is that when asked if they would lose their
jobs for not signing the statements, Straub replied that
they were all pretty good workers and "wouldn't have
no trouble finding a job." Straub denied having been
asked or having told the crew that they would be dis-
charged if they did not sign the statement. However, I
find the mutually corroborative testimony of the employ-
ees more convincing and I credit that testimony to the
effect that Straub in his remarks during this conversation,
by implication, conveyed the message to those present
that their continued employment depended on their sign-
ing the statements.
At Straub's instructions, typed statements, dated
August 26, were prepared for signature by the crew. The
statement read:
This is to state that I [name] am satisfied with the
wages and benefits I received for work I performed
on Project 707-81 located near Cambridge, Ohio,
and make this statement freely and under no duress.
These statements were distributed to the employees at
the beginning of the workday on August 26, to be re-
turned at quitting time on the same day. Lampert, in col-
lecting them at the end of the first day, met with Murad,
Kinnison, Morris, and Snodgrass. Murad kept his state-
ment, but lied to Lampert that he had lost it Kinnison
and Morris returned their statements unsigned. Lampert
told Murad and Kinnison that failure to sign the state-
ments would result in their layoff, but when they pur-
sued the matter, Lampert modified his position by stating
that they were being laid off for lack of work. After re-
ceiving the statements, Lampert told them that they
were being laid off immediately for lack of work and
denied Murad's suggestion that they were being laid off
because they had refused to sign the statements. It is un-
disputed, however, that several days of work remained
to be done on the job, and that the prospect of a layoff
for lack of work had not been mentioned to the crew.
Uppole, who was working on another crew, did not re-
ceive a statement and when Lampert came to him to col-
lect the statement, Uppole so advised Lampert. Lampert
asked if he would have signed it, and Uppole, having
heard from other employees what the statement con-
tained, replied that he would not, whereupon Lampert
drove off. Later that day Uppole was told by his crew
chief that there was no work for him and he did not
work thereafter. Morris testified that, as he and Fulton
were driving home from the job, they stopped by Ander-
son who was working that day as a flagman. Morris
asked if he had signed the statement. Anderson replied
that he had, and attempted to tell Morris why he had,
but Morris told him that he did not want to hear it.
Fulton told Anderson that he would call him about
work It is undisputed that Anderson continued to work
after the rest of the crew was terminated on August 26.
It is also undisputed that those laid off did not return to
work during the 1982 season and were not offered work
in 1983 until July, well after the season had begun.
By way of explaining layoffs, Straub testified that after
meeting with the crew on August 25 he observed the
work being performed by them and was not satisfied.
The basic deficiency, according to Straub, was that they
were not efficient in moving the traffic around the job
and not sufficiently productive in the amount of asphalt
being laid Straub testified that, having made those obser-
vations, and also learning that his best crew, Dale Rus-
sell's crew, was employed on another job, it occurred to
him that it would be cost efficient to replace the Fulton
crew with the Russell crew.6 Straub testified that his de-
cision to make this change was made on August 25
before he had any information about who had not signed
the statements. On the morning of August 26, according
to Straub, he gave the instructions to move the Russell
crew and lay off the Fulton crew
2. Equipment lease between Rhonda Miles and
Spring
Miles was called to work in the 1982 season about the
first of May as a flag person. At that time she was told
by Jim Clark, a supervisor for Spring, that in order to
work she would have to sign a contract for the lease of
certain equipment, to wit, as described in the contract,
one safety vest and one walkie-talkie unit Under the
terms of the contract Miles was obligated to pay to
Spring $5 per hour for the use of the equipment.
As noted earlier, Spring is a nonunion employer and at
the time Miles began work in May 1982 she was not a
union member. However, in order to work at locations
where Spring employed union labor, she joined Local
809, signing an authorization card on May 10.
While Spring was not a party to any union contract
with Local 809, it is undisputed that "project agree-
ments" were agreed to and executed between Local 809
and Spring for work done on projects within the geo-
graphical jurisdiction of Local 809 (G.C. Exhs. 23(a)-
(f)). Some of these project agreements were signed by
Straub and some by Clark, a salaried construction super-
6 Straub testified that crews were rated, but that the written ratings
were lost shortly before hearing in the instant case Straub testified that
the crew ratings in 1981 placed Russell's crew first, Clark's crew second,
Jack Travis' crew third, and Fulton's fourth However, Anderson was
not on the Fulton crew in 1981 and Straub testified that Kinnison may
not have been on it either Murad and Uppole worked on Russell's crew
in 1981 Uppole had not worked on the Fulton crew for 2 months when
he was laid off on August 26 So it is clear that the composition of the
crews varied yearly to some extent
SPRING INDUSTRIES
visor for Spring with responsibility for both Spring
crews and hiring from the union hall Clark reported to
Straub. Fred Bensie, business manager of Local 809, tes-
tified that Straub told him that he would be dealing di-
rectly with Clark on the project agreements for jobs
within the geographical jurisdiction of Local 809, but
conceded' that Straub did not tell him specifically that
Clark was authorized to sign project agreements.7 Straub
testified that he was not aware that Clark had signed any
project agreements until a few weeks before the hearing
in the instant case. It is undisputed that Miles worked at
several of the jobs covered by project agreements.
These project agreements bound the parties to the
1980-1983 Ohio Highway-Heavy-Municipal-Utility State
Construction Agreement, which reads, in part-
22 When safety shoes and/or other safety appar-
el or equipment is required by a Contractor, it shall
be provided by the Contractor at no expense to the
employee.
Under the lease agreement, Miles was billed by Spring
for the use of the equipment and she paid the bills by
check By check dated August 30, in the amount of $260,
Miles made a payment of the equipment rental charges.
However, when the check bounced, Phoebe Zehnder,
the office coordinator, contacted Miles, who instructed
her to put the check through again. The check bounced
a second time and was returned with a "Debit Memo"
'dated September 29. At this time Zehnder referred the
matter to Dale Wood, credit manager, who brought it to
the attention of Straub. When Straub looked into the
matter he discovered that Miles was substantially in ar-
rears in paying her rental fees.
About October 1, Straub testified that he called Miles
in an effort to collect on the bounced check and told her
about the money she owed in rental fees and the bad
`check. He also told her that he wanted her to call him
back within 24 hours to advise him of how she intended
to pay off. Straub also voiced the possibility of prosecut-
ing her on the bad check charge in county court. Miles
testified that she complained to Bensie on September 30
and that Straub called her on October 5 and threatened
to prosecute her for passing bad checks, telling her that
she had 24 hours to "back down" and to call him by 6
p.m. the next day to let him know what she was going to
do. According to Miles, he did not explain the "backing
down" remark but she assumed that it concerned the
"grievances" she had registered with Bensie It is undis-
puted that Miles did not call Straub back.8
Straub testified that he was not aware of any union
protest concerning the Miles' rental agreement until late
October or early November and that he had spoken once
to Bensie about the problem and that this had occurred
after his conversation with Miles. Bensie testified that
Miles first spoke to him about the lease problem "late in
September" after she was laid off on September 29, and
that he nonetheless spoke to Straub in September. How-
ever, Bensie conceded that he was not really sure of the
Clark did not testify at the hearing
s A grievance on the matter was filed with the Laborers' Council in
October, but was not resolved and was not pursued to arbitration
1001
dates, and a careful review of the relevant testimony
convinces me that Straub's testimony should be credited
in concluding that when he spoke to Miles he was not
aware of Miles having protested the lease agreement to
the Union
After the conversation with Miles, Straub stopped
payment on Miles' last paycheck in an effort to recover
some of the money owed by Miles on the equipment
rental agreement.
B. Discussion and Analysis
1. Discharge allegations (Tri-State)
The General Counsel contends that Murad and Kinni-
son were discharged in violation of Section 8(a)(3) of the
Act and that Morris, Uppole, and Snodgrass were dis-
charged in violation of Section 8(a)(3) and (4) of the Act,
essentially for having refused to repudiate outstanding
grievances against Tri-State concerning Tri-State's dock-
ing of their pay to recoup overtime allegedly paid to
them in error in prior wages and, additionally, as to
Morris, Uppole, and Snodgrass, because of the charges
filed on their behalf by the Operating Engineers with the
National Labor Relations Board in Case 8-CA-16011.
Tri-State takes the position that the crew would have
been laid off on August 26 whether or not the overtime
dispute had arisen because they were not performing
their work in a satisfactory manner while a better crew
was being underutilized. A review of the relevant facts
persuade me that the General Counsel must prevail.
First, statements made by Straub on August 25 when
he met with the employees constitute direct evidence
that failure to sign the statements would prompt the dis-
charges of those not signing 9 On the following day,
Lampert, in conversation with Murad and Kinnison at
the time the statements were collected, alluded to the
layoffs as being prompted by the failure to sign the state-
ments. But even apart from any conversation, it is undis-
puted that the layoffs of these employees were made and
announced to them immediately upon their failure to sign
the statements, thus supporting the conclusion that the
layoffs were prompted by their refusal to sign. The
timing of the layoffs becomes even more suspect when
one takes into account the fact that the job was not yet
completed, with several more days of work remaining.
Another factor which suggests that the failure to sign
the statements was the real cause of the layoff is that
only those failing to sign the statements were laid off.
While Straub testified that it was his intention to replace
the Fulton crew with a more effective crew, he did not
lay off the entire Fulton crew. It is undisputed that An-
derson, the only employee member of the Fulton crew
to sign the statement, was not laid off. At the same time,
Uppole, a nonsigner, who was not a crewmember at the
time, was laid off. The common factor uniting the laid-
off employees was that they all declined to sign the state-
ment while the one crew member who signed it was re-
9 Apart from their evidentiary value as to the discriminatory discharge
aspects of the complaint, the statements by Straub and Lampert are clear-
ly threats addressed to those employees which interfere with employee
rights guaranteed under Sec 8(a)(1) of the Act
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained. This disparity suggests an unlawful motive for the
discharges.
Straub attempted to explain the layoffs by testifying
that he observed the crew at work on August 25 and
that its poor performance prompted him to replace them
with a more highly rated crew The validity of the rat-
ings as justification for the layoffs is questionable. Apart
from Straub's testimony concerning the ratings, there is
no documentary evidence or corrobative testimony that
the concept of a formal rating system even existed. Such
an evaluation would be difficult since, as noted above,
the composition of the crews is not constant from year
to year.
Next, in evaluating the overtime grievances, they do
not appear to have been frivolous or made in bad faith.
While it appears that the crew was advised that they
were working for Spring instead of Tri-State, I am not
convinced, particularly in the absence of testimony from
either Fulton or Lampert, that they were all advised of
the overtime ramifications of their new jobs, and they
continued to be paid with Tri-State checks at the over-
time rate called for in the Tri-State contract. While
Straub testified that the overtime payments were made in
error, I cannot conclude that protesting the docking of
their pay was not a legitimate exercise of their right to
protest an important matter dealing with their wages,
and this is true whether or not they would have eventu-
ally prevailed on the merits of the grievance. In summa-
ry, I conclude that this precipitous layoff of several
members of Respondent's most senior crew while the job
they were working on was still in progress was prompt-
ed by their refusal to abandon a legitimate protest con-
cerning their overtime pay. Had they been discharged
for registering their grievances with the Union, they
clearly would have been discharged for engaging in
union activity. It follows, as a matter of logic, that a dis-
charge for refusing to abandon a legitimate grievance
also constitutes unlawful discrimination within the mean-
ing of Section 8(a)(3) of the Act, and I so find. 10
2. Equipment lease between Miles and Spring
The General Counsel contends that by entering into
and enforcing the individual lease agreement with Miles,
Spring violated Section 8(a)(3) and (5) of the Act As
noted above, Miles was employed by a nonunion em-
ployer, Spring. It was as a nonunion employee working
for a nonunion employer that she signed the lease agree-
ment. Obviously, despite the General Counsel's conten-
tion, entering into the contract was not unlawful. I i
10 The General Counsel also contends the layoffs of Morris, Uppole,
and Snodgrass were the result of Straub discriminating against these em-
ployees for having filed charges or given testimony in an unfair labor
practice charge filed by the Operating Engineers on August 19 Howev-
er, Straub denied this, and the record is not sufficient to establish that
Straub was aware that any unfair labor practice charges involving this
matter had been filed at the time of the layoffs Consistent with this con-
clusion, I shall dismiss the 8(a)(4) allegations as to Morris, Uppole, and
Snodgrass, since the evidence is not sufficient to conclude that their dis-
charges were related to the charge
11 The evidence does not show that Miles was working at a jobsite
covered by a project agreement with Local 809 at the time she entered
into the contract on May 6 It appears that she first began work at a job-
Nor can it be said that the lease agreement became un-
lawful thereafter, except to those jobs covered by
project agreements.12 However, as to those jobs and
while employed thereon, the Local 809 contract applied
to Miles and any effort to enforce the lease agreement
with Miles during such times was unlawful
The Board has long held that when employees are rep-
resented by a union, an employer may not negotiate indi-
vidually with those employees, but must negotiate for
them collectively with the union representing them, as to
matters concerning their conditions of employment. The
issue presented in the instant case is whether or not an
equipment lease agreement, otherwise lawful, becomes
unlawful on those jobs covered by project agreements
where certain employees are represented under contract
by Local 809. It is my conclusion that, in such circum-
stances, the labor agreement must prevail and that it was
unlawful to maintain and enforce the lease agreement at
those times. To hold otherwise would, in effect, deprive
employees represented by Local 809 on those jobs of the
right to collective representation guaranteed to them
under the Act. J. I. Case Co. v. NLRB, 321 U.S. 332
(1944).
Spring argues that the dispute herein involves a matter
of contract interpretation, that is, whether or not the
walkie-talkie and vest are "safety apparel or equipment"
within the meaning of the Local 809 contract and that
the General Counsel is therefore attempting to enforce a
contract provision which should be resolved by the
grievance and arbitration provisions of the Local 809
contract under the project agreements. The premise of
this contention is faulty. The issue to be resolved herein
is not one of contract interpretation, but whether or not
Respondent Spring committed an unfair labor practice
by maintaining and enforcing an individual lease arrange-
ment with Miles at a time when it was obligated to rec-
ognize and bargain with Local 809 as the collective-bar-
gaining representative of an employee covered by the
contract The matter of contract interpretation is a sepa-
rate and secondary issue.
The General Counsel also alleges that Spring threat-
ened Miles with criminal prosecution if she did not re-
frain from pursuing her complaint with Local 809. The
facts, however, establish that, although Straub did indeed
threaten Miles, the threat was not related to Miles' griev-
ance Even assuming that Miles had complained to
Bensie prior to the October 1 conversation, there has
been no showing that Straub was aware of it. Moreover,
nothing in the conversation itself suggests that the threat
was being made because of the grievance. Miles testified
only that Straub threatened that she had 24 hours to
"back down," but conceded that he did not say that the
backing down was to be from the processing of any
site covered by the agreement on May 10, the same day that she signed
the authorization card,
12 Respondent Spring's contention that Clark did not have the author-
ity to execute those project agreements bearing his signature is not well
taken The facts disclose that Clark had such authority He supervised
the Spring crews and was involved in the hiring of union employees
Further, Bennie had been instructed by Straub to deal with Clark with
respect to the contract agreements and had himself signed several of
them
SPRING INDUSTRIES.
grievance, nor do the facts herein warrant such an infer- manner prescribed in F.
ence Indeed, a balanced view of the conversation per- 289 (1950), and Florida
suades me that this telephone call was made by Straub (1977).13
simply ,to induce Miles to pay the arrearages which had
accumulated under the lease agreement.
The General Counsel further contends that Respond-
ent Spring violated Section 8(a)(3) of the Act by stop-
ping payment on Miles' last check and by not paying her
for her last 3 days of work because of Miles' union activ-
ity in protesting to Local 809 over the lease agreement.
Straub conceded that he did stop payment on Miles' last
check and that he is withholding her last days of pay. He
contended that this was done under the lease to offset
rental payments owed by Miles under the lease. The
facts do not support the General Counsel's contention
As noted above, nothing in the "bad check" conversa-
tion between Straub and Miles can be interpreted as re-
lating to her complaints to the Union; nor is the proba-
tive evidence presented by the General Counsel suffi-
cient to conclude that the withholding of these moneys
was related to the protests raised by Miles with the
Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents as set forth in section
III, above, in connection with Respondents' operations
described in section I, above, have a close and intimate
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondents have engaged in, and
are engaging in, unfair labor practices, I shall recom-
mend that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act. I have found that Tri-State discharged Jim
Murad, Doug Kinnison, Johnson Morris, John Uppole,
and Charles Snodgrass for reasons which offend the pro-
visions of Section 8(a)(3) of the Act. With respect to
Rhonda Miles, while I have concluded that while enter-
ing into the equipment lease agreement was not itself un-
lawful, the maintenance and enforcement of that lease
agreement as to Miles after August 10, when her repre-
sentation by Local 809 became effective, at such times as
she was employed on jobs covered by the project agree-
ments, was unlawful. The effective dates of coverage of
those project agreements appear on the project agree-
ments themselves, and Miles is entitled to be reimbursed
by Spring for any moneys remitted by Miles or withheld
by Spring covering such periods of time. Any wages
withheld by Spring which exceed moneys lawfully owed
by Miles under the equipment lease agreement shall be
paid to Miles
I shall therefore recommend that Respondents make
the above discriminatees whole for any loss of pay they
might have suffered as a result of the discrimination
practiced against them, the backpay and reimbursement
provided herein with interest to be computed in the
1003
W. Woolworth Co, 90 NLRB
Steel Corp, 231 NLRB 651
CONCLUSIONS OF LAW
1. Respondents Tri-State and Spring are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Laborers, Local 809, and the Operating Engi-
neers are labor organizations within the meaning of Sec-
tion 2(5) of the Act
3 By threatening employees with layoff for exercising
the rights guaranteed in Section 7 of the Act, Tri-State
has engaged in unfair labor practices proscribed by Sec-
tion 8(a)(1) of the Act.
4. By unlawfully discharging Jim Murad, Doug Kinni-
son, Johnson Morris, John Uppole, and Charles Snod-
grass, Tri-State has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. At all times material herein the following described
unit has been an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act, such unit being specified in the unit description
of the collective-bargaining agreement between Spring
and Local 809 effective May 27, 1980, to May 1, 1983,
and the project agreements between Spring and Local
809.
6. At all times material here Local 809 has been and is
now the exclusive representative of the employees in the
above-described bargaining unit under the project agree-
ments for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
7. By maintaining and enforcing the above-noted indi-
vidual lease equipment agreement with Rhonda Miles at
such times as she was employed on projects covered by
the above labor contract under project agreements,
Spring has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (5) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 14
ORDER
A The Respondent, Tri-State Asphalt Corporation,
New Philadelphia and Martins Ferry, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in union activity.
(b) Threatening employees with layoff for exercising
the rights guaranteed in Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
' See generally Isis Plumbing Co, 138 NLRB 716 (1962)
" 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
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Jim Murad, Doug Kinnison, Johnson
Morris, John Uppole, and Charles Snodgrass immediate
and full reinstatement to their former jobs or, if those po-
sitions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole
for any loss of pay they may have suffered in the manner
set forth in the remedy section.
(b) Expunge from its files any references to the dis-
charges of Jim Murad, Doug Kinnison, Johnson Morris,
John Uppole, and Charles Snodgrass and notify them in
writing that this has been done and that evidence of
these unlawful discharges will not be used as a basis for
future personnel action against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facilities in Martins Ferry, Ohio, copies
of the attached notice marked "Appendix A."15 Copies
of the notice, on forms provided by the Regional Direc-
tor for Region 8, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
regard to rates of pay, hours of employment , and other
terms and conditions of employment.
(b) Make Rhonda Miles whole for any loss of pay she
may have suffered as result of its discrimination against
her in the manner set forth in the remedy section of this
decision.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post in its facilities in New Philadelphia and Mar-
tins Ferry, Ohio , copies of the attached notice marked
"Appendix B."16 Copies of the notice, on forms provid-
ed by the Regional Director for Region 8, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
spondent immediately upon receipt and maintained for 60 18 See in. 15 above
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The Respondent, Edgar Springs, Inc. d/b/a Spring
Industries, Martins Ferry, Ohio, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local 809 as the exclusive collective-bargaining repre-
sentative in the appropriate bargaining unit, as described
above, by maintaining and enforcing individual equip-
ment lease agreements with its employees at such times
as those employees are employed on projects covered by
labor contracts with Local 809 under project agree-
ments.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with Local 809 as the exclusive representative of all em-
ployees in the appropriate unit described above with
15 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX A
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 discharge or otherwise discriminate
against any of our employees for engaging in union ac-
tivity.
WE WILL NOT threaten employees with layoff for ex-
ercising the rights guaranteed in Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Jim Murad, Doug Kinnison, Johnson
Morris, John Uppole, and Charles Snodgrass immediate
and full reinstatement to their former jobs or, if those po-
sitions no longer exist , to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole
for any loss of pay they may have suffered as the result
of our discrimination practiced against them , plus inter-
est.
WE WILL expunge from our files any reference to the
discharges of Jim Murad , Doug Kinnison, Johnson
Morris, John Uppole, and Charles Snodgrass and notify
them in writing that this has been done and that evi-
SPRING INDUSTRIES 1005
dence of these unlawful discharges will not be used as
the basis of future personnel action against them.
TRI-STATE ASPHALT CORPORATION
APPENDIX B
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 fail and refuse to recognize and bargain
with Local 809, Laborers International Union of North
America, AFL-CIO as the exclusive collective-bargain-
ing representative in the appropriate bargaining unit, by
maintaining or enforcing any individual equipment lease
agreements at such times as employees are engaged on
projects covered by labor contracts with Local 809
under project agreements.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Rhonda Miles whole for any loss of
pay she may have suffered as the result of our discrimi-
nation against her, plus interest
EDGAR SPRINGS, INC. D/B/A SPRING IN-
DUSTRIES