Staunton Fuel & Material

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 717 (N.L.R.B. 2001)

STAUNTON FUEL & MATERIAL 717
Staunton Fuel & Material, Inc., and Marilyn Mengel-
kamp, d/b/a Central Illinois Construction, Alter
Egos or Single Employer and International Un-
ion of Operating Engineers, Local 520, AFL-
CIO. Cases 14–CA–24132, 14–CA–24311, and
14–CA–24595
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On December 17, 1998, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent 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
adopt the judge’s rulings, findings, and conclusions ex-
cept as discussed below1 and adopt the recommended
order as modified2 and set forth in full below.
This case raises a familiar issue in the construction in-
dustry: how may a union whose status as a bargaining
representative is governed by Section 8(f) of the Act ac-
quire, through agreement with the employer, the status of
majority bargaining representative under Section 9(a)?
Although this question has been implicated in a number
of our cases that have followed John Deklewa & Sons,
282 NLRB 1375 (1987), enfd. sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. de-
nied 488 U.S. 889 (1988), to date we have not fully re-
solved it.
We take this occasion to do so, by adopting the ap-
proach taken by the United States Court of Appeals for the
Tenth Circuit in NLRB v. Triple C Maintenance, Inc., 219
F.3d 1147 (10th Cir. 2000), and NLRB v. Oklahoma
Installation Co., 219 F.3d 1160 (10th Cir. 2000). We hold
that a written agreement will establish a 9(a) relationship if
its language unequivocally indicates that the union re-
quested recognition as majority representative, the em-
ployer recognized the union as majority representative,
and the employer’s recognition was based on the union’s
having shown, or having offered to show, an evidentiary
basis of its majority support. Applying this test to the pre-
sent case, we find that the contract at issue did not estab-
lish a 9(a) relationship and that the Respondent accord-
ingly did not violate 8(a)(5) by withdrawing recognition
from the Union after the contract expired.

1 The Respondent did not file exceptions to the judge’s conclusions
that it violated Sec. 8(a)(1) by threatening to discharge or not hire em-
ployees because of their affiliation with the Union; Sec. 8(a)(3) by
discharging, laying off, failing to refer, and failing to recall Union
members; and Sec. 8(a)(5) by making unilateral changes in terms of
employment prior to contract expiration without bargaining with the
Union. We therefore adopt these conclusions pro forma. The Respon-
dent has excepted, however, to the judge’s reliance on a previous set-
tlement agreement as giving notice that the Union was claiming recog-
nition as majority bargaining representative. We agree with the Re-
spondent that using the agreement as evidence on that point went be-
yond the limited purpose for which the agreement was admitted. In
view of our disposition of this case, however, the error was harmless.
We also deny the Respondent’s exception to the judge’s purported
failure to give adequate weight to the Regional Director’s decision not
to contest the Respondent’s withdrawal of recognition. That decision
was overturned by the General Counsel on appeal.
2 We will modify the judge’s recommended Order in accordance with
our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001).
I. BACKGROUND
At all material times, the Respondent was engaged in
business as a highway construction contractor. The Un-
ion and the Respondent were parties to a series of 3-year
collective-bargaining agreements effective between 1987
and 1996. In article 1 of each of these agreements, the
Respondent “recognize[d] the Union as the sole and ex-
clusive collective bargaining agent” for all employees in
the defined unit.3 For the period of August 1, 1990 to
July 31, 1993, there were two similar agreements, one
covering heavy construction and one covering highway
construction.
On August 1, 1993, the Respondent President Robert
Mengelkamp signed a collective-bargaining agreement
proposed by the Union to succeed both of the agreements
that had just expired, to be effective from August 1, 1993
to July 31, 1996. This proposal included the same rec-
ognition language as in the preceding contracts, but also
contained a new article 43, which read as follows:

MAJORITY REPRESENTATIVE

The Contractors Party hereto recognize [the Union] as
the Majority Representative of all employees in Operat-
ing Engineers classifications employed by them and the
sole and exclusive bargaining agent of such employees.

On May 1, 1996, the Union gave the Respondent writ-
ten notice of intent to negotiate a successor agreement for
the one about to expire. The Respondent responded with
written notice of intent “to terminate any and all Collec-
tive Bargaining Agreements as of July 31, 1996.” On the
contract’s expiration, the Respondent made a number of
unilateral changes in terms and working conditions. The
Union filed several charges against the Respondent alleg-
ing, among other misconduct, a refusal to recognize and
3 The defined unit was comprised of “Operating Engineer Equipment
Operators, Operating Engineers Apprentices, Operating Engineer
Foremen, Master Mechanics, Assistant Master Mechanics, Operating
Engineer Mechanics, Operating Engineer Mechanic Trainees, Operat-
ing Engineer Engine Men, Operating Engineer Greasers and Operating
Engineer Oilers and Fireman employed by the Employer within the
territorial jurisdiction of the Union.”
335 NLRB No. 59
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
bargain with the Union and unilateral imposition of new
terms of employment in violation of Section 8(a)(5).
Based on a thorough review of applicable Board
precedents and the record evidence, the judge found that
the language in article 43 of the parties’ 1993–1996 con-
tract established a 9(a) bargaining relationship, and that
the relationship thus continued after the contract’s expi-
ration. The judge also found that the Respondent was
time-barred under Section 10(b) of the Act from chal-
lenging the Union’s 9(a) status on the basis of alleged
misrepresentation by the Union at the time the contract
was signed.4 Accordingly, she concluded that the Re-
spondent violated Section 8(a)(5) by withdrawing recog-
nition from the Union and by unilaterally altering the
unit’s terms of employment without bargaining.
II. ANALYSIS
Before addressing the issue posed in the case, we place
it in the context of the Act’s requirements and our earlier
decisions in this area.
A. Legal Background
Section 8(f) permits unions and employers in the con-
struction industry to enter into collective-bargaining
agreements without the union’s having established that it
has the support of a majority of the employees in the
covered unit.5 The provision therefore creates an excep-
tion to Section 9(a)’s general rule requiring a showing of
majority support. Section 8(f) also creates an exception
to the general rule of Section 8(a)(2) and Section
8(b)(1)(A) that an employer and a union lacking majority
support of unit employees may not enter into a bargain-
ing relationship with respect to those employees.
The distinction between a union’s representative status
under Section 8(f) and under Section 9(a) is significant
because an 8(f) relationship may be terminated by either
the union or the employer on the expiration of their col-
lective-bargaining agreement. Deklewa, supra at 1386–

4 The Respondent contends that the Union obtained Mengelkamp’s
signature on the new contract through misrepresentation, and that Sec.
10(b) of the Act is therefore not a bar to contesting its Sec. 9(a) obliga-
tion to continue recognizing the Union after the contract expired. Be-
cause we find (for the reasons discussed below) that the language in the
contract did not establish a Sec. 9(a) bargaining relationship, we need
not address those issues.
5 Sec. 8(f) provides, in pertinent part: “It shall not be an unfair labor
practice under subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction industry to make an
agreement covering employees engaged (or who, upon their employ-
ment, will be engaged) in the building and construction industry with a
labor organization of which building and construction employees are
members . . . because (1) the majority status of such labor organization
has not been established under the provisions of Sec. 9 prior to the
making of such agreement. . . . Provided further, That any agreement
which would be invalid, but for clause (1) of this subsection, shall not
be a bar to a petition filed pursuant to Sec. 9(c) or 9(e).”
1387. By contrast, a 9(a) relationship (and the em-
ployer’s associated obligation to bargain) continues after
contract expiration, unless and until the union is shown
to have lost majority support. Levitz Furniture Co., 333
NLRB 717 (2001). Moreover, an 8(f) contract does not
bar a representation petition under Section 9. A contract
made with a 9(a) representative does bar such a petition.
29 U.S.C. § 158(f); Deklewa, supra at 1387.
Deklewa revised our framework for implementing Sec-
tion 8(f) in several important ways. Most relevant here,
Deklewa discarded the Board’s former “conversion doc-
trine,” under which an 8(f) relationship could be con-
verted to a 9(a) relationship without an election, on the
basis of any of several criteria that did not necessarily
reflect employee majority support for the union. Since
the conversion doctrine had permitted employees to be
“locked in” to 9(a) representation beyond the term of one
contract by a union lacking majority support, abandoning
the doctrine served the interest of protecting employees’
right to determine their own representation status. Id. at
1386–1387 and fn. 47. Deklewa also adopted a rebut-
table presumption that a bargaining relationship in the
construction industry was established under Section 8(f),
with the burden of proving that the relationship instead
falls under Section 9(a) placed on the party so asserting.
H.Y. Floors & Gameline Painting, 331 NLRB 304
(2000); Deklewa, supra at 1385 fn. 41.6
However, Deklewa did not foreclose an 8(f) representa-
tive from achieving 9(a) status. Rather, Deklewa empha-
sized that “nothing in this opinion is meant to suggest that
unions have less favored status with respect to construc-
tion industry employers than they possess with respect to
those outside the construction industry.” 282 NLRB at
1387 fn. 53. Accordingly, a construction union holding an
8(f) bargaining relationship with an employer could (like a
nonconstruction union) achieve 9(a) status either through a
Section 9 certification proceeding or “from voluntary rec-
ognition accorded . . . by the employer of a stable work
force where that recognition is based on a clear showing of
majority support among the union employees, e.g., a valid
card majority.” Id.
Guided by this principle, we have held in post-
Deklewa cases that a construction union can overcome
the presumption of 8(f) status by showing that it made an
unequivocal demand for, and that the employer un-
equivocally granted, majority recognition based on a
6 In Deklewa the Board also held that an 8(f) contract would be en-
forceable for its duration rather than terminable at will by either party;
that a single-employer unit will normally be the appropriate unit for a
Sec. 9 petition filed by employees covered under an 8(f) agreement;
and that an 8(f) relationship could be terminated by the union or the
employer upon contract expiration. 282 NLRB at 1385–1386.
STAUNTON FUEL & MATERIAL 719
showing of majority support in the unit. E.g., Western
Pipeline, Inc., 328 NLRB 925 (1999); James Julian, Inc.,
310 NLRB 1247 (1993); Golden West Electric, 307
NLRB 1494 (1992). However, the Board and the courts
have continued to address questions concerning what
constitutes voluntary “recognition” by an employer
“based on a clear showing of majority support among the
union employees” within the meaning of Deklewa, par-
ticularly with respect to contract language purporting to
establish such recognition. The Board’s decisions in this
area have not always been enforced.7
Recently, in Goodless Electric Co., 332 NLRB 1035
(2000), on remand from 124 F.3d 322 (1st Cir. 1977), we
found that where the parties’ contract language commits
the employer to recognizing the union’s majority represen-
tative status in the future if the union demonstrates that it
has majority support, 9(a) recognition will be established
if and when the union subsequently meets that condition
within the term of the agreement.8 We have also held that
once 9(a) bargaining status is created, a preexisting 8(f)
prehire agreement between the parties is from that point
forward a 9(a) agreement, sufficient to bar a rival union
petition, even if the parties do not negotiate a new contract
subsequent to the 9(a) recognition agreement. VFL Tech-
nology Corp., 329 NLRB 458 (1999).
B. The issue in this case
We have not, however, clearly defined the minimum
requirements for what must be stated in a written recog-
nition agreement or contract clause in order for a union
to attain 9(a) status solely on the basis of such an agree-
ment.9 We believe the approach taken on this issue by
the Tenth Circuit in two recent cases issued on the same
day, NLRB v. Triple C Maintenance, Inc. and NLRB v.
Oklahoma Installation Co., establishes a legally sound
and eminently practical set of standards for self-sufficient
majority recognition agreements.

7 See, H.Y. Floors, supra; Western Pipeline, Inc., supra; Triple C
Maintenance, Inc., 327 NLRB 42 (1998), enfd. 219 F.3d 1147 (10th
Cir. 2000); District Council of Painters No. 8, 326 NLRB 1074 (1998);
Oklahoma Installation Co., 325 NLRB 741 (1998), enf. denied 219
F.3d 1160 (10th Cir. 2000); American Automatic Sprinkler Systems,
Inc., 323 NLRB 920 (1997), enf. denied 163 F.3d 209 (4th Cir. 1998);
MFP Fire Protection, Inc., 318 NLRB 840 (1995), enfd. 101 F.3d 1341
(10th Cir. 1996); Decorative Floors, Inc., 315 NLRB 188 (1994).
8 We have referred to this procedure as the “third option” for a union
to obtain 9(a) status, in addition to the earlier recognized options of (1)
winning a Board-certified election, and (2) obtaining the employer’s
immediate voluntary recognition. Goodless Electric Co., 332 NLRB
No. 96, slip op. at 5 fn.10. See also NLRB v. Goodless Electric Co.
Inc., 124 F.3d at 328–329.
9 We have reviewed the terms of particular recognition clauses or
agreements on a number of occasions. In addition to the cases cited
above and in fn. 7, see Hovey Electric, 328 NLRB 273 (1999); J & R
Tile, 291 NLRB 1034 (1988).
In both cases, the court confirmed that written contract
language, standing alone, could independently establish
9(a) bargaining status. 219 F.3d at 1155; 219 F.3d at
1164. The court found that to be sufficient, such lan-
guage must unequivocally show (1) that the union re-
quested recognition as the majority representative of the
unit employees; (2) that the employer granted such rec-
ognition; and (3) that the employer’s recognition was
based on the union’s showing, or offer to show, substan-
tiation of its majority support. 219 F.3d at 1155–1156;
219 F.3d at 1164–1165.10
This approach properly balances Section 9(a)’s em-
phasis on employee choice with Section 8(f)’s recogni-
tion of the practical realities of the construction industry.
Such a balance was one of the Board’s primary goals in
Deklewa, 282 NLRB 1375, 1382. The Tenth Circuit’s
approach also has the advantage of establishing bright-
line requirements. Construction unions and employers
will be able to establish 9(a) bargaining relationships
easily and unmistakably where they seek to do so. These
requirements should accordingly reduce the number of
cases arising in this area and facilitate the Board’s dispo-
sition of those disputes that do occur.11
We therefore adopt the requirements stated by the
Tenth Circuit in Triple C Maintenance, Inc. and Okla-
homa Installation Co.12 A recognition agreement or con-
10 The requirement that the union show or offer to show that it has
majority support is consistent with established law outside the construc-
tion industry. Where a union requests 9(a) recognition from a noncon-
struction employer, the employer may either demand a showing of
majority support or choose to accept the union’s claim of majority
support on its face and recognize the union. Oklahoma Installation,
325 NLRB 741, 742 (1998); Glaziers and Glassworkers, Local 767,
228 NLRB 35, 40–41 (1977), enfd. 577 F.2d 100 (9th Cir. 1978);
Morse Shoe, Inc., 227 NLRB 391, 392–395 (1976), enfd. 591 F.2d 542
(9th Cir. 1979). If the employer recognizes the union and then discov-
ers that the union did not in fact have majority support, it may chal-
lenge the union’s 9(a) status at any time within the 6-month limitations
period after wrongfully extending recognition, pursuant to Sec. 10(b) of
the Act. Oklahoma Installation, 325 NLRB 741, 742. If the employer
fails to act within the 10(b) period, it may terminate its bargaining
obligation only by affirmatively showing that the union has lost major-
ity support. The burden of making such a showing rests on the em-
ployer. Levitz Furniture Co., supra at 8.
11 By way of convenient illustration, in Triple C Maintenance the
recognition language at issue clearly met these requirements. 219 F.3d
1155–1156. In Oklahoma Installation, by contrast, the recognition
language was not sufficient to establish 9(a) recognition. 219 F.3d
1164–1166.
12 The Court of Appeals for the Third Circuit took an approach simi-
lar to the Tenth Circuit’s in Sheet Metal Workers Local 19 v. Herre
Brothers, Inc., 201 F.3d 231, 242 (3d Cir. 1999). The Court of Appeals
for the Fourth Circuit, in American Automatic Sprinkler Systems v.
NLRB, 163 F.3d 209 (4th Cir. 1998), declined to enforce a Board order
finding a 9(a) relationship on the basis of contract language. In that
case, however, as the Tenth Circuit noted in Triple C, the contracts at
issue did not recite that the union had shown or offered to show that it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
tract provision will be independently sufficient to estab-
lish a union’s 9(a) representation status where the lan-
guage unequivocally indicates that (1) the union re-
quested recognition as the majority or 9(a) representative
of the unit employees; (2) the employer recognized the
union as the majority or 9(a) bargaining representative;
and (3) the employer’s recognition was based on the un-
ion’s having shown, or having offered to show, evidence
of its majority support.13 As the Tenth Circuit discussed
in Triple C, although it would not be necessary for a con-
tract provision to refer explicitly to Section 9(a) in order
to establish that the union has requested and been given
9(a) recognition, such a reference would indicate that the
parties intended to establish a majority rather than an 8(f)
relationship. 219 F.3d at 1155–1156.14 To the extent
that any of our post-Deklewa decisions can be read to
conflict with this holding, those decisions are over-
ruled.15
To provide further guidance, we offer some additional
observations. First, in many cases the union’s required
request for recognition can be fairly implied from the
contract language stating that the employer grants the
required recognition. Second, the employer’s grant of
recognition must be express and unconditional. For ex-
ample, a recognition provision stating that the employer
“will” recognize the union as the majority or 9(a) bar-
gaining representative “if” the union presents evidence
that a majority of its employees have authorized the un-
ion to represent them in collective bargaining, would not
be independently sufficient to establish a 9(a) relation-
ship, due to its conditional nature.16 Third, with respect

had majority support. Triple C, supra at 1154 fn. 2; American Auto-
matic Sprinkler Systems, supra at 212, 221.
13 In Chairman Hurtgen’s view, a person who is not a party to the
contract (e.g. a decertification petitioner) is not bound to the declaration
of the contract and thus is not bound by the rules set forth here.
14 Where the recognition language is couched in terms of the Un-
ion’s “offer to show” majority support, the employer may challenge it
by establishing that the union did not, in fact, make the required show-
ing of majority support. Such a challenge must be made within 6
months after the written recognition was given, as required by Sec.
10(b) of the Act. Triple C Maintenance, supra at 1156–1160. We
leave open the issue of whether an employer would be permitted to
make a similar challenge within the 10(b) period where the language he
agreed to unequivocally stated that the union did make (as opposed to
offered to make) a showing of majority support.
15 E.g., J&R Tile, supra. Of course, we will continue to consider
relevant extrinsic evidence bearing on the parties’ intent in any case
where we find that the contract’s language is not independently disposi-
tive. We decide here only that it is possible for us to determine that a
9(a) relationship was established solely on the basis of the parties’
contract language, provided that language meets the criteria we adopt
here.
16 As noted above, however, if the union makes the required showing
within the term of that agreement, the union will at that point have
achieved 9(a) recognition. Goodless Electric Co., supra.
to the union’s claim of majority support, there is a sig-
nificant difference between a contractual statement that
the union “represents” a majority of unit employees—
which would be accurate under either an 8(f) or a 9(a)
agreement—and a statement to the effect that, for exam-
ple, the union “has the support” or “has the authoriza-
tion” of a majority to represent them. See NLRB v.
Oklahoma Installation, supra at 1164–1165. Similarly, a
provision stating only that a majority of unit employees
“are members” of the union would be consistent with a
union security obligation under either an 8(f) or a 9(a)
relationship and is therefore insufficient to confirm 9(a)
status. James Julian, 310 NLRB 1247, 1254. To the
extent that any of our post-Deklewa cases may be read to
imply that an agreement indicating that the union “repre-
sents a majority” or has a majority of “members” in the
unit, without more, is independently sufficient to estab-
lish 9(a) status, those cases are overruled.
III. APPLICATION TO THIS CASE
Here, the Union’s only basis for claiming 9(a) status is
the contract language in the 1993–1996 agreement
quoted above. Although the new recognition provision
in the contract’s article 43 states that the Respondent
“recognize[s] [the Union] as the Majority Representa-
tive,” it does not state that the Respondent’s recognition
was based on a contemporaneous showing, or offer by
the Union to show, that the Union had majority support.17
Accordingly, under the requirements established
above, we cannot adopt the judge’s finding that a 9(a)
relationship was established by the contract language at
issue, even though her finding was clearly supportable
under the authorities she cited. The Deklewa presump-
tion that the parties’ bargaining relationship operated
under Section 8(f) has therefore not been rebutted, and
the Respondent accordingly had the right to terminate the
relationship on the 1993–1996 contract’s expiration.
We consequently do not adopt the judge’s findings that
the Respondent violated Section 8(a)(5) after July 31,
1996, when the contract expired. We will amend the
recommended Order accordingly.
17 We acknowledge the evidence that the earlier contracts between
the parties all contained language that undisputedly established Section
8(f) recognition; that the 1993–1996 contract at issue retained that
language; and that the new language in the 1993–1996 contract specify-
ing that the Union was the majority representative was added in a sepa-
rate section of its own. This evidence suggests that the parties did not
merely intend to extend their earlier 8(f) relationship. The issue here,
however, is not simply whether the parties may have intended to
change their relationship but whether they succeeded in doing so. Be-
cause the contract language itself is the only direct basis for the union’s
claim of 9(a) status, it must be reviewed under the criteria we establish
above.
STAUNTON FUEL & MATERIAL 721
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Staunton Fuel & Material, Inc., Marilyn
Mengelkamp d/b/a Central Illinois Construction, alter
egos and a single employer, Staunton, Illinois, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they have to choose be-
tween adherence to International Union of Operating
Engineers, Local Union No. 520, AFL–CIO, and em-
ployment with Respondent.
(b) Telling employees that they are being discharged
for refusal to go non union.
(c) Asking employees about their union activities in a
manner constituting interference, restraint, or coercion.
(d) Discharging employees, laying off employees, fail-
ing to recall employees, or otherwise discriminating in
regard to hire or tenure of employment or any term or
condition of employment, to discourage membership in
Local 520 or any other labor organization.
(e) Failing, without Local 520’s consent, to honor the
terms of the 1993–1996 collective-bargaining agreement
between Respondent and Local 520 prior to the expira-
tion of that agreement.
(f) Unilaterally changing terms and conditions of em-
ployment of employees prior to the expiration of that
agreement, without giving Local 520 prior notice and an
opportunity to bargain.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Within 14 days from the date of this Order, offer
Dudley Luebbert, Robert Merkle Sr., and Leonard Moss
full reinstatement to their former jobs, or if such jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority or any other rights and privi-
leges previously enjoyed.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Dudley Luebbert, Leonard Moss, and Gary Randle Tits-
worth, to the unlawful layoff of and failure to recall
David Kelly Brown, and to the unlawful failure to recall
Robert Merkle, Sr., and within 3 days thereafter notify
these employees that this has been done and that such
unlawful personnel action will not be held against them
in any way.
(c) To the extent Respondent has not already done so,
jointly and severally make David Kelly Brown, Dudley
Luebbert, Robert Merkle Sr., Leonard Moss, and Gary
Titsworth whole for any loss of earnings and other bene-
fits as a result of the discrimination against them, in the
manner set forth in the remedy section of the judge’s
decision.
(d) Within 14 days from the date of this Order, offer
full and immediate employment to those work applicants
who would have been referred to Respondent for em-
ployment through Local 520’s hiring hall during the pe-
riod running from June 1, to July 31, 1996, were it not
for the Respondent’s unlawful conduct, and make them
whole for any loss of earnings and other benefits they
may have suffered by reason of Respondent’s failure to
hire them, in the manner prescribed in the remedy action
of the judge’s decision.
(e) For the period running from June 1 to July 31,
1996, to the extent Respondent has not already done so,
jointly and severally make whole the employees em-
ployed by it in the bargaining unit, as well as those indi-
viduals who were unlawfully denied an opportunity to
work, for losses suffered as a result of Respondent’s uni-
lateral changes in wages and working conditions during
that period; reimburse them for any expenses ensuing
from Respondent’s failure to make contributions to the
benefit funds during that period; and make whole the
benefit trust funds for losses suffered during that period;
all in the manner prescribed in the remedy section of the
judge’s decision.
(f) Preserve and, within 14 days of a request, provide
at the office designated by the Board or its agent, a copy
of all payroll records, social security payment records,
timecards, personnel records, and all other records, in-
cluding an electronic copy of such records if stored in
electronic form, necessary or useful in analyzing the
amount of backpay due under the terms of this Order. If
requested, the originals of such records shall be provided
to the Board or its agents in the same manner.
(g) Within 14 days after service by Region 14, post at
its facilities in Staunton, Illinois, and at each of its job-
sites, copies of the attached notice marked “Appendix.”18
Copies of the notice, on forms provided by the Regional
Director for Region 14, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other mate-

18 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
rial. In addition, Respondent shall provide signed copies
of the notice for posting by Local 520, if it is willing, at
the locations where employees go when seeking referral
through Local 520’s hiring hall.
(h) In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all employees employed by the
Respondent in the aforesaid unit at any time since March
15, 1996. Such notices shall be mailed to the last known
address of each of the individuals above. Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au-
thorized representative, shall be mailed within 14 days
after service by the Region.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT tell you that you must choose be-
tween adherence to International Union of Operating
Engineers, Local Union No. 520, AFL–CIO, and em-
ployment by us.
WE WILL NOT tell you that you are being discharged
for refusing to go non union.
WE WILL NOT ask you about your union activities in
a manner constituting interference, restraint, or coercion.
WE WILL NOT discharge you, lay you off, fail to re-
call you, or otherwise discriminate in regard to hire or
tenure of employment or any term or condition of em-
ployment, to discourage membership in Local 520 or any
other union.
WE WILL NOT fail, without Local 520’s consent, to
honor the terms of the 1993–1996 collective-bargaining
agreement that existed between us and Local 520 during
the period June 1 to July 31, 1996, for the bargaining unit
covered by that agreement.
WE WILL NOT unilaterally change terms and condi-
tions of employment of employees in that unit before the
expiration of the 1993–1996 agreement, without giving
Local 520 prior notice and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under the Act.
WE WILL, within 14 days of the Board’s order, offer
Dudley Luebbert, Robert Merkle Sr., and Leonard Moss
full reinstatement to their former jobs, or if such jobs no
longer exist, substantially equivalent jobs, without preju-
dice to their seniority or any other rights previously en-
joyed. Gary Titsworth and David Kelly Brown have al-
ready been reinstated.
WE WILL, to the extent we have not already done so,
make David Kelly Brown, Dudley Luebbert, Robert
Merkle Sr., Leonard Moss, and Gary Titsworth whole,
with interest, for any loss of earnings and other benefits
as a result of the discrimination against them.
WE WILL, within 14 days from the date of the
Board’s order, remove from our files any reference to the
unlawful personnel action taken against all of these em-
ployees, and within 3 days thereafter notify them that this
has been done and that such unlawful personnel action
will not be held against them in any way.
WE WILL, within 14 days from the date of the
Board’s Order, offer full and immediate employment to
those work applicants who would have been referred to
us for employment through Local 520’s hiring hall dur-
ing the period running from June 1 to July 31, 1996,
were it not for our unlawful conduct.
WE WILL, for the period running from June 1 to July
31, 1996, to the extent we have not already done so,
make whole with interest the employees employed by us
in the bargaining unit, as well as those individuals who
were unlawfully denied work, for losses suffered as a
result of our unilateral changes in wages and working
conditions during that period; reimburse them, with in-
terest, for any expenses ensuing from our failure to make
contributions to the benefit funds during that period; and
make whole the benefit trust funds for losses suffered
during that period. WE WILL also pay all these amounts
as to supervisors, or persons who would have been re-
ferred to supervisory jobs, in the contract unit during that
period.

STAUNTON FUEL & MATERIAL, INC.,

Lynette Zuch, Esq., for the General Counsel.
STAUNTON FUEL & MATERIAL 723
Mark Weisman, Esq. and Lawrence P. Kaplan, Esq., of Clay-
ton, Missouri, for the Respondent.
Harold Gruenberg, Esq., of St. Louis, Missouri, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in St. Louis, Missouri,
on October 14–17, 1997. The charge in Case 14–CA–24132
was filed by International Union of Operating Engineers, Local
Union No. 520, AFL–CIO (the Union) on June 13, 1996, and
amended on November 4, 1996, on February 18, 1997, and on
July 31, 1997. The charge in Case 14–CA–24311 was filed by
the Union on October 28, 1996, and amended on February 18,
1997. The original consolidated complaint based on the June
1996, October 1996, November 1996, and February 1997
charges was issued on February 28, 1997. This complaint and
all of the charges and amended charges on which it was based
named as the sole respondent Staunton Fuel & Material Inc.
(Staunton). The original charge in Case 14–CA–24595 was
filed by the Union on May 28, 1997, and amended on June 16,
1997, naming only Staunton as respondent. A second amended
charge in Case 14–CA–24595, filed by the Union on July 31,
1997, named as respondents both Staunton and Marilyn
Mengelkamp, d/b/a Central Illinois Construction (CIC). A con-
solidated complaint based on all of the foregoing charges was
issued on July 31, 1997, naming Staunton and CIC as respon-
dents, and was amended on October 10, 1997, and on October
14, 1997.
The consolidated complaint in its final form alleges that
about June 1, 1996, CIC was established by and since that date
has been an alter ego of Staunton or, in the alternative, that
Staunton and CIC constitute a single integrated business enter-
prise and a single employer. The complaint in its final form
further alleges that Staunton/CIC violated Section 8(a)(1) of the
National Labor Relations Act, as amended, (the Act) by telling
employees that the employees would no longer be represented
by the Union; by telling an employee that he had been dis-
charged because of his union membership and activities; by
telling an employee that he would be discharged if he did not
abandon membership in the Union; by telling an employee that
he would be denied employment if he did not abandon mem-
bership in the Union; and by interrogating an employee about
his union activities. The complaint in its final form also alleges
that Staunton/CIC violated Section 8(a)(3) and (1) of the Act by
discharging employees Gary Randle Titsworth, Dudley Lueb-
bert, and Leonard Moss; by laying off and, for about 6 months
thereafter, refusing to recall employee David K. Brown; and by
refusing to recall employee Robert Merkle Sr.; all because of
these employees’ union and concerted activities. In addition,
the complaint in its final form alleges that Staunton/CIC vio-
lated Section 8(a)(5) and (1) of the Act through CIC’s refusal,
from about June 1, 1996 to August 1, 1996, and without the
Union’s consent, to honor or abide by the terms and conditions
of employment set forth in a collective-bargaining agreement
effective by its terms from August 1, 1993 through July 31,
1996. Further, the complaint in its final form alleges that since
about June 1, 1996, in violation of Section 8(a)(5) and (1),
Staunton/CIC has failed and refused to comply with the terms
and conditions of employment set forth in that contract, by
failing and refusing to pay employees for all hours worked,
without the union’s consent and without giving the Union no-
tice and an opportunity to bargain. Also, the complaint in its
final form alleges that Staunton/CIC violated Section 8(a)(5)
and (1) of the Act by raising wages about August 1, 1996; by
refusing to comply with the hiring hall provisions of the most
recent collective-bargaining agreement; and by failing and re-
fusing since about August 1, 1996, to pay benefit contributions
due on behalf of bargaining-unit employees; all without giving
the Union notice and an opportunity to bargain. In addition, the
complaint in its final form alleges that Staunton/CIC violated
Section 8(a)(5) and (1) by failing and refusing to provide,
and/or by unreasonable delay in providing, the Union with
certain information; and by providing the Union with false and
misleading answers to certain requests for information.
On the basis of the entire record, including the demeanor of
the witnesses, and after due consideration of the brief filed by
counsel for the General Counsel (the General Counsel) and the
brief and supplemental brief filed by Staunton/CIC, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND THE RELATIONSHIP BETWEEN
STAUNTON
AND CIC
Staunton is an Illinois corporation with an office and place of
business in Staunton, Illinois. At all material times, Staunton
has been engaged in business as a highway construction con-
tractor. During calendar year 1996, and also during the 12-
month period ending June 30, 1997, in conducting such busi-
ness operations, Staunton purchased and received at its Illinois
facility goods valued in excess of $50,000 directly from points
outside Illinois.
About June 1, 1996, CIC was established by and since that
date has been an alter ego of Staunton. At all material times,
CIC, a sole proprietorship with an office and place of business
in Staunton, Illinois, has been engaged as a contractor in the
construction industry. During the calendar year of 1996, and
also during the 12-month period ending June 30, 1997, CIC, in
conducting such business operations, purchased and received at
its Staunton, Illinois facility goods valued in excess of $50,000
directly from points outside Illinois.
I find that, as Staunton and CIC admit, each of them is en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that assertion of jurisdiction over their opera-
tions will effectuate the policies of the Act.
On the basis of the parties’ stipulation and the pleadings as
amended at the hearing, I further find as follows: At all material
times, Staunton and CIC have been affiliated business enter-
prises with common officers, ownership, directors, manage-
ment, and supervision; have formulated and administered a
common labor policy; have shared common premises and fa-
cilities; have provided services for and made sales to each
other; have interchanged personnel with each other; and have
held themselves out to the public as single-integrated business
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
enterprises. Staunton and CIC are, and have been at all material
times, alter egos and a single employer within the meaning of
the Act.
On occasion, Staunton and/or CIC will be referred to as “Re-
spondent.”
II. THE UNION’S STATUS
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union’s contractual relationship with Staunton began
about 1977. They were parties to a series of 3-year collective-
bargaining agreements effective between 1987 and July 31,
1996. Each of these agreements, four in number,1 included the
following language:

Article I—RECOGNITION

The Employer recognizes the Union as the sole and
exclusive collective bargaining agent with respect to
wages, hours and all other conditions of employment for
the unit comprised of Operating Engineer Equipment Op-
erators, Operating Engineers Apprentices, Operating En-
gineer Foremen, Master Mechanics, Assistant Master Me-
chanics, Operating Engineer Mechanics, Operating Engi-
neer Mechanic Trainees, Operating Engineer Engine Men,
Operating Engineer Greasers and Operating Engineer Oil-
ers and Fireman employed by the Employer within the ter-
ritorial jurisdiction of the Union.

The parties stipulated that with certain exclusions immaterial
here and with the exclusion of supervisors, the appropriate unit
consists of the foregoing employees who are employed by
Staunton and CIC. Each of these agreements also included a
union-shop clause with a 7-day grace period. Under the terms
of the 1993–1996 collective-bargaining agreement, Staunton
deducted and remitted union dues.
The parties do not appear to dispute that nothing in the pro-
visions of the 1987-July 1993 agreements suggests that the
Union was being recognized as the majority representative of
the unit; nor is there any other evidence so suggesting. I con-
clude that at least as to these three contracts, recognition was
extended pursuant to Section 8(f) of the Act.
B. The Execution Of The 1993–1996 Bargaining Agreement
On August 1, 1993, Staunton President Robert Mengelkamp
was presented with, and asked to sign, a proposed collective-
bargaining agreement, to be effective from August 1, 1993, to
July 31, 1996, to succeed the agreements which had expired by
their terms on July 31, 1993. This proposal, which was similar
to contracts which the Union had negotiated with a number of
other contractors, includes, as article I, the same “Recognition”
language which had been included as article I in the three pre-
ceding bargaining agreements. The proposal consists of 27

1 Two of these agreements were both effective between August 1,
1990, and July 31, 1993. One of them covered heavy construction and
the other covered highway construction.
letter-sized pages, with single-spaced typing, plus a 3-page
appendix which is also single-spaced. Page 1 of the appendix
contains nine columns which are horizontally divided into three
groups, each of which has eight lines; this page is a tabular,
dollars-and-cents recitation of five kinds of payments which are
to be made on behalf of each of eight numbered groups during
each of the 3 years covered by the proposal. The total payment
to be made to or on behalf of each employee varies between
about $22 and about $31 an hour; as of the expiration of the
1990–1993 contracts, such payments had varied between about
$21 and about $28 an hour. The second and third pages of the
appendix set forth the kinds of work covered by each grouping.
Both of the two collective-bargaining agreements whose effec-
tive dates (1990–1993) immediately preceded the 1993–1996
agreement consisted of a total of 42 articles which were spe-
cifically numbered as such, the last article being “Article 42—
Separability Clause.” Article 43 of the 1993-1996 proposal
appears toward the bottom of the page which precedes the sig-
nature page. The immediately preceding article (art. 42—
Employment Security) does not appear in the 1990–1993
agreements; but the immediately succeeding article (art. 44—
Beginning and Duration of Agreement) is the same as Arti-
cle 41 of the 1990–1993 agreements, except for the dates; and
the last article in all three documents (art. 42 in the 1990–1993
contracts and art. 45 in the 1993–1996 proposal), captioned
“Separability Clause,” is the same in all of them. Article 43
contains the following language, which had not been included
in any of the contracts effective between 1987 and July 1993:

Article 43—MAJORITY REPRESENTATIVE

The Contractors Party hereto recognize [the Union] as
the Majority Representative of all employees in Operating
Engineers classifications employed by them and the sole
and exclusive bargaining agent of such employees.

After a conference with the Union, Robert Mengelkamp signed
the Union’s proposal as written.
The testimony conflicts as to what occurred during this con-
ference before Mengelkamp signed the proposed contract. As to
these events, I find as follows: Then Union Business Agent
John Gibson and then Union President/Business Manager
Douglas James came into Mengelkamp’s office. Gibson said
that they had a contract for him to sign. Mengelkamp asked
whether there was any new language in the proposed 1993–
1996 contract. Gibson said no, except that the subcontracting
clause (art. 7, p. 7, in the 1990–1993 contracts and the 1993–
1996 proposal) was different,2 and that the wages and fringe-
benefits provisions were different. Neither Gibson nor James
made any oral representation that the Union represented a ma-
jority of Staunton’s employees. The conference lasted 10 or 15
minutes. After signing the 1993-1996 proposed contract,
Mengelkamp handed it back to the union representatives, who
left his office. The signature page of the document includes the
handwritten date of August 1, 1993, was signed by James, and
2 The 1993–1996 proposal added the provision that the employer
would require that all parties to a joint-venture or joint-work undertak-
ing or arrangement agree to be bound by the contract. See the first
proviso to Section 8(e) of the Act.
STAUNTON FUEL & MATERIAL 725
bears Gibson’s at least purported signature, but there is no evi-
dence as to whether they signed it before or after Mengelkamp
did. Although the record fails to show when Mengelkamp ob-
tained a copy of this document, in view of the rather detailed
economic provisions I infer that he received a copy shortly after
its effective date.
My findings as to what happened during this conference are
based on a composite of credible parts of the testimony of
James and Mengelkamp. James testified that Gibson was pre-
sent during at least part of this conference, but that he said
nothing and may not have heard everything that was said.
James further testified that he told Mengelkamp that article 43
was a new article in the contract, and read it aloud to him; and
that Mengelkamp said nothing about this matter. At the time of
the hearing, Gibson was the union’s president and business
agent, but he unexplainedly failed to testify. If he had testified,
he would have been able to testify as to whether he made the
statement which Mengelkamp testimonially attributed to him
(namely, that there were no changes except wages and fringes),
or whether he said nothing (as James testified). In addition, if
Gibson had testified, he would have been able to testify as to
whether James read article 43 to Mengelkamp (as James testi-
monially claimed) in Gibson’s presence, whether James made
to Mengelkamp in Gibson’s presence the statements which
James testimonially claimed to have made about Article 43, and
whether Gibson was present throughout James’ contacts with
Mengelkamp (James having testified that Gibson may not have
been present at all material times). I infer that if Gibson had
testified, he would have corroborated the material portions of
Mengelkamp’s testimony as to what he was told by the Union
before he signed the contract.3 Further, although I do not be-
lieve Mengelkamp’s testimony that he did not read the contract
at all before signing it,4 I do accept such testimony to the extent
that he denied reading article 43, in view of the length of the
Union’s proposal, the relatively inobtrusive placement of article
43, and the evidence that the conference lasted no more than 15
minutes.
As of August 1, 1993, Staunton was checking off union dues
from the wages of all the unit employees and remitting these
sums to the Union. Because the 1990–1993 contracts call for
such action “upon receipt of a signed written authorization by
an employee,” and because such authorization is required by
the Act as a precondition to a lawful checkoff (see Sec.
302(c)(4)), I infer that when Mengelkamp signed the

3 NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1269 (7th
Cir. 1987); Jim Walter Resources, Inc., 324 NLRB 1231 (1997); Olive
Garden, 327 NLRB 5, 6 (1998).
4 Mengelkamp testified that although Gibson had informed him that
the wages and fringes provisions had been changed, he did not read
them because practically all his construction contracts are with the State
of Illinois, they require him to pay the prevailing wage, and the prevail-
ing wage is the same as the union-contract rate in the area. I note that as
discussed infra Part IIIE 2a, between mid-September and October 1996,
Brant Cochran performed operator’s work on the Carlinville sewer
project but was paid less than half the operator’s rate (including
fringes) called for by the bargaining agreement which expired in Au-
gust 1996. However, Cochran was on the payroll of CIC, to which
Staunton had contracted the supplying of labor on that job.
1993-1996 contract Staunton had such checkoff authorizations
on file or, at least, had seen them. As previously noted, the
1990–1993 contracts both contained a union-shop clause. When
the Union met with Mengelkamp on August 1, 1993, the union
representatives had no documents with them indicating that the
Union represented a majority of Staunton’s employees, and did
not offer to present such evidence for Staunton’s inspection.
James credibly testified to the belief that at that time, the Union
represented a majority of the employees. The Union never filed
a representation petition with the Board with respect to Re-
spondent’s employees; nor has any Board election ever been
held among Staunton’s or CIC’s unit employees, so far as the
record shows. As discussed infra, by the time Staunton with-
drew recognition from the Union, Respondent had begun to
violate Section 8(a)(1) of the Act.
Article 43 had been included in the union’s proposal because
of James’ concern about the problems posed to the Union by
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d
770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988). About
1993, almost all of the contractors with which the Union had
had contractual relations signed contracts which included Arti-
cle 43 and were otherwise much the same as the contract signed
in 1993 by Mengelkamp. In September 1993, the Union sent to
one of the contractors (Massman Construction Co.), which had
not yet signed a contract, a “Voluntary Recognition Agree-
ment” which read in part as follows:

The undersigned Employer acknowledges the majority
representative status of [the Union] as result of the volun-
tary designation of employees in the following unit appro-
priate for collective bargaining . . .

The Employer hereby recognizes [the Union] in accor-
dance with Section 9(a) of the National Labor Relations
Act as the sole and exclusive majority representative of
employees in the said unit for purposes of collective bar-
gaining with respect to referral, wages, hours, and all other
terms and conditions of employment.

Massman signed this recognition agreement on September 16,
1993, and, at about the same time, executed a collective-
bargaining agreement containing the same language.
The Union’s bargaining agreements executed in 1996, to
succeed the 1993-1996 agreements, referred to Section 9(a) of
the Act in terms.
C. Alleged Interference, Restraint, And CoercionBefore the
Expiration of the 1993-1996 Bargaining Agreement; The Alleg-
edly Unlawful Discharge of Employee Titsworth
1. Background
Gary Randle Titsworth was hired by Staunton in March
1985, as a heavy-equipment operator, the position which he
filled throughout his employment by Staunton. Titsworth joined
the Union in 1985, and remained a member until January 1996,
when he obtained a withdrawal card because he did not want to
pay dues any more. However, he continued to use the union’s
referral service, for which he paid a fee.
On October 16, 1995, when Titsworth went to Staunton’s
Route 185 project to which he was then assigned, he saw that
the Laborers’ Union had set up a picket line protesting Staun-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
ton’s at least alleged failure to contribute to the Laborers’ bene-
fit fund. When he told Mengelkamp that Titsworth was not
going to cross this picket line, Mengelkamp said that Titsworth
needed to get used to harassment, picket lines, and things of
that nature; and that when Mengelkamp went nonunion, “that
would be the normal.” Mengelkamp went on to say that if
Titsworth would not cross the picket line, then he “had no work
there.” A few days later, Titsworth went by Staunton’s Staun-
ton Lake jobsite, where he observed nonunion people running
the equipment that Titsworth normally ran. On October 23,
1995, Titsworth asked Mengelkamp why he had stopped Tits-
worth’s unemployment compensation payments. Mengelkamp
said that Titsworth had a job on the Staunton Lake project.
Titsworth said that he could not work there, because non-union
people on that project were running the equipment which he
normally ran. As Titsworth was leaving, he remarked to
Mengelkamp, “I can’t believe that you are going non-Union.”
Mengelkamp replied, “That’s my decision.”5
On October 29, 1995, Titsworth went to Mengelkamp’s of-
fice and asked him whether Titsworth was still employed.
Mengelkamp said yes, and told him to report on October 30 to a
new job at Mount Vernon on Route 15. Titsworth did so. Al-
though he continued to work there until his discharge on June
1, 1996, during an undisclosed week-long period he worked for
Staunton on a Route 127 job which was then being picketed by
the Union.
2. Alleged violations of Section 8(a)(1)
In mid-March 1996, when Titsworth went back to the Staun-
ton shop at the end of his shift to pick up his personal vehicle,
Mengelkamp told him that he needed to decide whether he was
going to stay with Mengelkamp and work nonunion, or to stay
with the Union, go back to the union hall, and look for work
there. At that time, Titsworth did not reply.6
In late March or early April 1996, structural iron worker
Charles Hundley, a member of the Union since November
1995, sent Staunton a resume after seeing Staunton’s help-
wanted newspaper advertisement for iron workers. Either from
this advertisement or during a job interview with Mengelkamp
held a week or so later, Hundley learned that the job in question
was a Government bridge job (see supra fn. 4, infra fn. 10).
During the interview, Hundley remarked that “This is a union
state”; to which Mengelkamp replied, “I am tired of the Unions.
I lost money and I am going non-Union.” Also during this in-
terview, it transpired that Hundley was not qualified to perform
the job (rod buster) which Mengelkamp had in mind when plac-
ing the advertisement. Hundley was not hired; no contention is
made that Staunton violated the Act by failing or refusing to
hire him.7

5 My findings in this paragraph are based on Titsworth’s testimony.
For demeanor reasons, I do not credit Mengelkamp’s testimony that he
did not tell Titsworth that Staunton was going to go nonunion.
6 My findings in this paragraph are based on Titsworth’s testimony.
For demeanor reasons, I do not credit Mengelkamp’s denial.
7 My findings in this paragraph are based on Hundley’s tetimony.
For demeanor reasons, I do not credit Mengelkamp’s testimony that
between March 1996 and June 1996, he did not tell anyone he was
going nonunion.
3. Alleged additional violation of Section 8(a)(1); allegedly
unlawful discharge of employee Titsworth
Titsworth remained on Staunton’s Route 15 Mount Vernon
job until June 1, 1996. Early in the morning of that day,
Mengelkamp telephoned Titsworth, said that Titsworth had
never given him an answer, and asked him to give an answer
the following Monday, June 3. Inferring that Mengelkamp was
referring to their March or April conversation where Mengel-
kamp had given him a choice between staying with Staunton
and working nonunion or looking for work elsewhere through
the union hall, Titsworth said that he would give Mengelkamp
an answer “now, I am not staying.” Mengelkamp said, “That’s
fine. Bring your truck in and park it. You’re done.” Titsworth
returned the truck the following day.
On June 13, 1996, the Union filed the first charge which un-
derlies the instant case, alleging, inter alia, that Staunton had
discharged Titsworth “because he refused to relinquish his
[union] membership.” Staunton reinstated Titsworth on June
17, 1996. However, as of the date he testified (October 15,
1997), he had not yet received all the backpay at least allegedly
due him.
D. The AllegedlyUunlawful Withdrawal of Recognition; Al-
leged Additional Interference, Restraint, and Coercion
By letter to Staunton dated May 1, 1996, union business
manager James stated in part:

Notice is hereby served pursuant to the termination
clause of our present contract that [the Union] desires to
enter into negotiations with your Company over wages,
hours, working conditions and other conditions of em-
ployment in the unit presently represented by this Union.
This letter is intended and shall have the effect of render-
ing inoperative the automatic renewal clause contained in
the present collective bargaining agreement . . .

Please advise of the date, time, and place at which rep-
resentatives of your Company, will be available to meet
with representatives of the Union for the purpose of com-
mencing negotiations.

By letter dated May 7, 1996, to the Union, its parent interna-
tional, and the administrators of the benefit funds called for by
the 1993–1996 bargaining agreement, Staunton stated:

Notice is hereby given to terminate any and all Collective
Bargaining Agreements as of July 31, 1996.

On June 13, 1996, the Union filed against Staunton the first
charge (docketed as Case 14–CA–24132) on which the instant
case is based. This charge alleged, among other things, that
Staunton had violated Section 8(a)(5) by “declar[ing] its inten-
tion to its employees to ‘go non-union’ and [refusing] to recog-
nize and bargain with [the Union], the representative of a ma-
jority of operating engineers who comprise a unit appropriate
for collective bargaining.” By letter to the Union (with copies
to, inter alia, Staunton and company counsel Mark Weisman)
dated July 23, 1996, the Regional Director as to Case 14–CA–
24132 stated in part:

STAUNTON FUEL & MATERIAL 727
The investigation revealed that the Union has repre-
sented employees of the Employer, who is engaged in
heavy highway commercial construction services, in col-
lective bargaining with the Employer for more than 10
years. The Employer and Union have been parties to a se-
ries of collective-bargaining agreements, with the current
agreement effective from August 1, 1993 to July 31, 1996.
About May 7, 1996, the Employer notified the Union of its
intention to terminate all collective-bargaining agreements
with the Union as of July 31, 1996. The investigation
failed to establish that the Union has made an unequivocal
demand for recognition with a contemporaneous showing
of majority support to sustain their claim of a collective-
bargaining relationship pursuant to Section 9(a) rather than
Section 8(f) of the Act. Neither the fact that employees of
the Employer are members of the Union nor the language
of the recognition clause of the current contract is suffi-
cient to establish a 9(a) relationship. Accordingly, the Em-
ployer’s announcement of its intention to terminate the
current 8(f) contract upon its expiration is not unlawful. I
am, therefore, refusing to issue complaint, but only with
regard to the allegation the Employer refused to bargain
with the Union in violation of Section 8(a))5 of the Act.

On appeal to the NLRB Office of Appeals, this action was re-
versed on an undisclosed date prior to September 25, 1996.

Meanwhile, by letter to Staunton dated June 27, 1996, the
Union stated:

[P]lease be advised that the matter of contributions [to the
benefit funds] is to be a negotiated item. Until agreement is
reached on the contribution rates to be embodied in a new
agreement, the terms and conditions of employment contained
in the present contract are to remain in effect without unilat-
eral change by your Company.

After stating that Staunton was to meet with James on July
10, at the union’s offices to commence negotiations, the letter
stated:

Any unilateral change by your Company in the present terms
and conditions and benefits of employment currently in effect
will result in appropriate legal sanctions by [the Union].

In reply to this letter, a July 2, 1996, letter to James from
Mengelkamp referred to the Union’s June 13 charge (Case 14–
CA–24132) and then stated, in part:

[A]n issue for resolution is whether your union is the
majority representative of our employees. Pending resolu-
tion of this issue, I must decline your request to commence
negotiations for a new collective bargaining agreement.

David Kelly Brown, also referred to in the record as Kelly
Brown, joined the Union in February 1993, and was still a
member when he testified in October 1997. He obtained his
first job with Staunton in 1993, without going through the un-
ion hall; but in March 1994, the Union referred him to a job
with Staunton, where he worked continuously (except for
breaks caused by the weather) until August 1996. On an occa-
sion in the second week of July 1996, Mengelkamp asked
Brown if he had heard of Mengelkamp’s intention to go nonun-
ion. Brown said yes. Mengelkamp asked whether Brown
planned to go nonunion or stay with the union hall. Brown said
that he would not give up his card.8
E. Alleged Unilateral Changes in Conditions of Employment
1. Alleged failure to use the Union’s referral system in hiring
The bargaining agreement which expired on July 31, 1996,
required Staunton to hire employees through the union hall. In
March or April 1996, in response to a help-wanted advertise-
ment by Staunton, employee Bruce Journey applied to Staunton
for a job. At that time, he was interviewed by Staunton dis-
patcher Tom Chapman.
As previously noted, about June 1, 1996, Staunton estab-
lished its alter ego, CIC, which is a sole proprietorship owned
by Robert Mengelkamp’s wife, Marilyn Mengelkamp, who
resides with him.9 CIC as such has never requested referrals
through the union hall. About the first week in June 1996,
Staunton orally subcontracted to CIC the supplying of labor on
the Carlinville sewer project.10 In July 1996, Chapman tele-
phoned Journey and asked him whether he still needed a job.
Journey thereupon went to Staunton’s facility, where he spoke
with Chapman and Mengelkamp about a backhoe job. Journey
then asked Mengelkamp “if they were union.” Mengelkamp
said that “they were union at the time; but that at the end of
July, the union contract would run out and he was going non-
union.”11 Then, Mengelkamp told Journey to report for work on
Monday, July 29, 1996, and said that Journey would be work-
ing in Carlinville for Mengelkamp’s wife’s company. Journey
reported to work on July 29; his name appears on CIC’s payroll
for that week, and until the week ending September 17. He
continued to work at the Carlinville sewer job until late Sep-
tember 1996. On the last day of this tour of duty on the Carlin-
ville sewer job, he was telephoned by Marilyn Mengelkamp,
who said that “they were having union problems and they were
going to have to lay us . . . off and they’d be in contact with
[the employees] if they got them resolved.” As discussed infra,
Robert Mengelkamp recalled Journey to the Carlinville sewer
job a few days later, and assigned him to Staunton’s payroll,
without going through the union hall. Journey had never been a
member of the Union, and had never registered with the Un-
ion’s referral system.
Brant Cochran was hired by Robert Mengelkamp for the
Carlinville sewer project. Cochran applied for work in response
to a newspaper advertisement for nonunion laborers and opera-
tors, paying prevailing wages, and did not seek referral through
the union hall. Mengelkamp said that he wanted Cochran to act
as assistant to superintendent Ferris, and told Cochran to report

8 My findings in this paragraph are based on Brown’s testimony. For
demeanor reasons, I do not credit Mengelkamp’s denial.
9 Marilyn Mengelkamp is referred to here by her full name. Robert
Mengelkamp is sometimes referred to here by his surname alone.
10 On undisclosed dates, Staunton entered into written subcontracts
with CIC with respect to what Mengelkamp testimonially described as
“the guard rail in Montgomery County, Route 16, and . . . a small
bridge project, in Bond County.” I am unable to ascertain whether
either of these two projects is otherwise referred to in the testimony.
11 The complaint does not allege that this statement violated the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
on the following day to Staunton’s yard. When he did so,
Marilyn Mengelkamp told him to accompany Ferris to the Car-
linville sewer project. Cochran was added to CIC’s payroll, and
began to work on that project, during the first week in July
1996. From the outset of his employment, he greased, oiled,
and loaded trucks. About a week and a half after he began to
work on that project, Ferris quit, and Cochran became superin-
tendent.12 Beginning in mid-September 1996 and until his res-
ignation in late October 1996, Cochran spent 75 percent of his
time running the front loader, a job covered by the bargaining
agreement. Cochran was not a member of any union, had never
been a member of the Union, and had never utilized its hiring
hall.13
In early August 1996, without going through the union hall,
Robert Mengelkamp hired employee Clarence Don Robey as an
operating engineer on the Carlinville sewer job. He continued
to work there, and remained on Staunton’s payroll, until Sep-
tember 1996, when Robert Mengelkamp told him that he was
being laid off because Mengelkamp was having trouble with
the Union, and that as soon as he got “the mess” straightened
out, he would recall Robey. Robey had dropped his union
membership in February 1995.
In response to a newspaper advertisement, Richard L. Clark
filled out a CIC job application blank about late July 1996.
During a job interview at Staunton‘s facility in August 1996,
Robert Mengelkamp said that he would need operators, that at
the time, “they weren’t with the Union,“ and ”there probably
might be picket lines.” Mengelkamp asked if there would be a
problem with that, to which Clark replied no. Later that month,
he received a message on his answering machine that Staunton
wanted him to report to work on the following morning. Clark
worked as an operating engineer on the Route 15 Mount
Vernon bridge job (see supra fn. 10) on various dates in late
August 1996, and on the Route 16 Litchfield job on various
dates in September 1996, after which he was laid off. He was
on Staunton’s payroll throughout this period.
In response to a newspaper advertisement, Terry Deets ap-
plied to Staunton for a job on September 2, 1996. On the fol-
lowing day, he had a job interview with dispatcher Chapman,
who said that he would have to clear Deets’ hire with Robert
Mengelkamp. Thereafter, Chapman told him to report to work
at Staunton. Then, Robert Mengelkamp told him to drive a
Staunton dump truck to the Carlinville sewer project. Deets

12 The record fails to show whether he was ever a statutory supervi-
sor. The contract unit does not in terms exclude statutory supervisors.
The contract unit does include, in terms, “operating engineer foremen.”
Art. 4A (9) of the 1993–1996 agreement states, “A supervisor in the
employ of the Employer who holds union membership shall not be
bound or in any way affected in the performance of his duties for the
Employer . . . by any obligation of union membership.” Art. 17, which
deals with operator-foremen among others, states, in part, “The terms
of this article are not meant to restrict the [management’s] right to
supervise and instruct the members of this bargaining group.”
13 My finding that Robert Mengelkamp conducted the hiring inter-
views of Journey and Cochran, both of whom were then assigned to
CIC’s payroll, is based on Journey’s and Cochran’s testimony. For
demeanor reasons, I do not credit Robert Mengelkamp’s testimony that
he did not interview or hire employees for CIC, and that no employees
were assigned to CIC from his office.
worked on that job, as an operator, for about a week. Then, he
was transferred to the Route 16 Litchfield job, where he worked
as an operating engineer on the wheel saw. In late September
1996, Robert Mengelkamp told him that “they” would have
union men operating on the Route 16 Litchfield project, and
that he was being laid off. During this period, he was on Staun-
ton’s payroll.
By letter to Mengelkamp dated September 25, 1996,
company counsel stated, in part:

. . . As we discussed yesterday, the NLRB’s present
view, based on a reversal of the Regional Director’s prior
determination, is that [the Union] remained the exclusive,
majority bargaining agent after July 31, 1996, therefore
. . . provisions for . . . use of the hiring hall . . . could not
be changed absent good faith bargaining.

. . . This may mean the Region will seek payment for
Operating Engineer hours (fringes and wages) on behalf of
employees other than those [hired off the street and now]
working for Staunton.

The only certain way to stop the accumulation of addi-
tional liability is to request referrals through the hall . . .

On September 27, 1996, Staunton, the Union, and the Board’s
Regional Office entered into a settlement only some of whose
terms can be ascertained from the record. By letter from Robert
Mengelkamp faxed to the Union on that same date, Staunton
asked the Union to refer 2 qualified “Backhoe Operators—
Finish Grade,” and 1 qualified “Wheelsaw Operator—Vermeer
T 600 D” to the Route 16 Litchfield job on September 30,
1996. (As previously noted, at about this same time Staunton
laid off backhoe operator Journey and CIC laid off track hoe
(backhoe) operator Robey from that project for the express
reason that Mengelkamp was having trouble with the Union.
Also, at about the same time, Staunton had laid off wheel saw
operator Deets from its Route 16 Litchfield project with the
statement that union men would be working on that project.)
James credibly testified that after the expiration of the bargain-
ing agreement, he observed on Respondent’s projects employ-
ees who had not been referred by the Union. Respondent never
gave the Union notice that it was not going to use the referral
system, and the Union never agreed that Respondent did not
have to use the referral system.
On September 30, 1996, the Union referred employee Leo-
nard Moss to the Route 16 Litchfield job as a wheel saw opera-
tor, referred employee Dudley Luebbert to that job as a backhoe
operator, and either dispatched David Kelly Brown to that job
as a backhoe operator (Brown’s version) or told him that he
would be reinstated at Staunton as per the settlement agreement
(James’ version). This was Staunton’s first request for referrals
after the expiration of the August 1993—July 1996 collective-
bargaining agreement. As discussed infra, Moss and Luebbert
were discharged that same day, and Brown was laid off about 2
weeks later. About the third week in October 1996, Marilyn
Mengelkamp recalled Robey to work at the Route 16 Litchfield
job. A few days later, Robert Mengelkamp recalled Journey to
that job. Robey and Journey continued to work there until De-
cember 1996, when they were laid off.
STAUNTON FUEL & MATERIAL 729
2. Alleged failure to pay employees in accordance with the
1993–1996 bargaining agreement, and to make payments into
the benefit funds described in that agreement
a. Changes in wage rates
All of the wage rates called for by the 1993–1996 agreement
were set forth on an hourly basis. As previously noted, Cochran
started to work on the Carlinville sewer project before the expi-
ration of that agreement. Initially, he was paid $425 a week, by
a CIC paycheck.14 Thereafter, at his request, his salary was
increased to about $525 a week, effective before the 1993–1996
bargaining agreement expired.15 He was paid $525 a week for
the rest of his employment, which continued until almost 3
months after the bargaining agreement expired on July 31,
1996. It is unclear whether he performed any unit work until
mid-September 1996, after which he spent about 75 percent of
his time performing unit work.
When the bargaining agreement expired on July 31, 1996,
unit employees Titsworth and Brown remained on Staunton’s
payroll. On the expiration of the agreement, Staunton increased
their hourly wages from $22.45 (the contract rate) to $29.97.
Robert Mengelkamp explained that he would not pay the bene-
fits to the hall any more, and he would pay them directly to the
employees. As previously noted, after the expiration of the
bargaining agreement, employees Robey, Deets, and Clark
were added to the payrolls of Staunton or CIC, for which they
performed unit work. All of them were hired at $29.97 an hour,
a higher hourly rate than any rate called for by the bargaining
agreement but, as to employees paid $22.45 an hour, the total
amount called for when fringe payments were included.16
As previously noted, on September 27, 1996, Staunton, the
Union, and the Board entered into a settlement agreement
which is not in the record. Effective in late September 1996, the
wage rates of a number of the hourly-paid operators in the pay-
roll of Staunton and/or CIC were reduced to about $22.45,
$22.50, or $21.52 an hour from their prior rate of $29.97. The
1993–1996 bargaining agreement did not call for anyone to be
paid $22.50 or $21.52; the rates closest thereto were $22.45 and
$21.32. A memorandum from Staunton, and a copy of the Sep-
tember 25, 1996, letter to Robert Mengelkamp from Respon-
dent’s counsel (see supra part III E1), were received by Tits-
worth and Deets on September 27 (a pay day) and by Brown on
October 11 with his paycheck for the week ending October 1.
The memorandum from Staunton states that certain deductions
had been made from the employee’s gross wages “for over-
payment of wage due to the reversal of the Regional Director’s
prior determination regarding [the Union], as stated in the at-

14 His paychecks in evidence state that he worked a 40-hour week.
Assuming this to be accurate, he was being paid $10.65 an hour. The
lowest hourly wage rate specified in the bargaining agreement is
$17.74, which does not include payments of $7.52 an hour to the bene-
fit funds.
15 This was the equivalent of about $13.12 an hour; cf. supra fn. 14.
16 Art. 28 of the 1993–1996 contract states, in substance, that on the
union’s request, payments can be transferred between wage rates and
contributions to the funds, without affecting the employer’s total finan-
cial contribution. Hourly rates called for by the contract varied between
$16.57 and $23.55.
tached, which ties us to the fringe benefit program.” These
deductions were in fact made from the wages of Titsworth
($225.60) and Brown ($545.20), who (so far as the record
shows) were Respondent’s only current employees who had
been hired through the Union’s referral service. There is no
evidence that similar deductions were made from the paychecks
of any of Respondent’s other employees, including Deets, who
had received a memorandum specifying deductions to be made
but had not been hired through the referral service.
Respondent did not give notice to the Union that it was going
to change the wage rates of employees, and the Union did not
agree to these changes.
b. Failure to pay employees for all hours worked
(1) Introduction

Article 12 of the 1993–1996 bargaining agreement provides
that 8 hours constitute a day’s work between 7 a.m. and 4:30
p.m., and that 40 hours constitute a week’s work from Monday
through Friday, inclusive. Article 14 calls for double time on
Sundays and holidays and under certain other conditions, and
calls for time and a half for all other overtime work. Article 18
provides that an employee who starts to work before the regular
starting time is to be paid for 4 hours, plus any overtime in-
volved; and calls for 2 hours’ reporting pay to employees who
report on the job and there is no work. Respondent did not give
the Union any notice of changes in terms and conditions of
employment, and the Union did not agree to any changes.
(2) Failure to pay show-up pay
On August 21, 1996, dispatcher Chapman told employee
Clark to report for work to Staunton’s facility at 5 a.m. on Au-
gust 22. He arrived there at 4:50 a.m., but Mengelkamp imme-
diately sent him home because it was raining. Pursuant to Re-
spondent’s standing instructions, he reported for work at 5:40
a.m. on September 26, but Mengelkamp sent him home at once
because it was raining. Clark received no pay for either August
22 or September 26.
(3) Failure to pay for training time
On September 6, 1996, Mengelkamp requested employee
Deets to report to the Staunton yard on the following day, a
Saturday, in order to learn how to operate a wheel saw. When
he reported as requested, the two of them drove to Staunton’s
storage facility, where Mengelkamp taught Deets how to oper-
ate a wheel saw. Deets was not paid for the 3 hours he spent
learning to operate this machine. Respondent thereafter as-
signed him to operate the wheel saw on the Route 16 Litchfield
project.
(4) Failure to pay for off-site work
Between July 29, 1996 (before the expiration of the bargain-
ing agreement) and the end of September 1996, admitted bar-
gaining-unit employees who worked on the Carlinville sewer
job included Clark, Deets, Robey, Journey, Joseph Slifka, and
Scott Coffey (also spelled “Coffee” in the record). The credible
testimony of Journey, Robey, Deets, and Clark (who began to
work on that job in early June 1996) specifically shows that
Robert Mengelkamp directed them to report to work at the
Staunton yard at 5:30 or 6 a.m. I infer that Respondent gave
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
similar instructions to the other unit employees who reported to
work at the Staunton facility before proceeding to the Carlin-
ville sewer job.17 Between late October 1996 and the first or
second week in December 1996, the unit employees who
worked on the Route 16 Litchfield job included Joseph Bates,
Slifka, Journey, Robey, Deets, and Clark. The testimony of
Journey, Deets, Robey, and Clark specifically shows that Re-
spondent told them to report to work at the Staunton yard at
5:30 or 5:40 a.m. I infer that Respondent gave similar instruc-
tions to the other bargaining unit employees who reported to
work at the Staunton yard before proceeding to the Route 16
Litchfield job. In late August 1996, the unit employees who
worked on the Route 15 Mount Vernon job included Clark,
whose testimony specifically shows that Respondent instructed
him to report to work at the Staunton yard at 5 a.m. I infer that
Respondent issued similar instructions to the other employees
who reported to the Staunton yard at 5 a.m. before proceeding
to the Route 15 Mount Vernon job, which they reached about 7
a.m.
As to each of these jobs, Respondent’s operators drove their
personal vehicles to a parking lot near the Staunton yard,
parked them there, and proceeded to the jobsite by either riding
in or driving a company vehicle. These vehicles consisted of
company trucks which were at least mostly used on the jobsite,
and they carried material and/or company tools between the
Staunton yard and the jobsite. As to at least the Carlinville
sewer and Route 16 jobs, when the operators reported to the
Staunton yard and before leaving for the jobsite, they checked
the fuel and oil on the trucks, fueled them if needed, obtained
road construction signs from the warehouse, loaded materials
and equipment onto the trucks, and hooked up trailers. Also, at
least the unit employees assigned to the Carlinville sewer and
Route 16 jobs performed various tasks after their return to the
Staunton yard. At times, when driving back to the Staunton
yard from the Carlinville sewer jobsite, the unit employees
would drop off equipment at the storage terminal about 2 miles
outside of Staunton. The unit employees were paid only for the
work which they performed on the jobsite after 7 a.m. They
were not paid for the time they spent traveling between the
Staunton yard and the jobsite, nor for the time they spent work-
ing at the Staunton yard, nor for the time they spent working at
the jobsite before 7 a.m. Robert and Marilyn Mengelkamp in-
structed Cochran, who reported the hours of operators on the
Carlinville sewer project from June through October 1996, and
performed unit work during the latter part of this period, that
employees got paid only for hours on the Carlinville sewer
project.18 He reported only the hours worked from 7 a.m. to
3:30 p.m. plus any overtime worked on the jobsite. As to the
amount of unpaid time worked by Respondent’s bargaining-
unit employees who were assigned to the Carlinville and Route
16 Litchfield jobs, the record shows that unit employees began
to work at the Staunton yard at 5:30 or 6 a.m. and, in the after-

17 These employees included all the admitted unit employees then on
Respondent’s payroll except Coffey, who lived in Carlinville.
18 This finding is based on Cochran’s testimony. Because Marilyn
Mengelkamp did not testify, and for demeanor reasons, I do not credit
Robert Mengelkamp’s denial. See cases cited supra fn. 3.
noon, left the Staunton yard between 4:10 and 7 p.m., an hour
or two hours after they had left the jobsite.
My finding that most of the unit employee were required to
report to the Staunton yard well before 7 a.m., rather than to the
jobsite at 7 a.m., is based on credible parts of the testimony of
Journey, Robey, Deets, Clark, and Cochran, and inferences
therefrom. I do not credit Robert Mengelkamp’s testimony that
the employees who reported to work at the Staunton yard be-
fore proceeding to the jobsite did so because they wanted a ride
to the jobsite and not because Respondent instructed them to
report to the Staunton yard. I so find for demeanor reasons and
because of the evidence that if the employees had driven to
their jobsites directly from their homes, instead of driving from
their homes to the Staunton yard and parking their personal
vehicles there, at least some of the employees could have left
their home much later, and returned to their homes much ear-
lier, than they in fact did. More specifically, Robey in fact left
home by 5:05 to 5:10 a.m. to arrive at Staunton’s yard by 5:30
a.m., but could have left home at 6:15 a.m. to arrive at the
Route 16 Litchfield jobsite by 7 a.m. Similarly, employee Clark
in fact left home at 5:15 or 5:20 a.m. to reach the Staunton yard
by 5:40 a.m., but could have left home at 6:30 a.m. if he had
merely reported to the Route 16 Litchfield jobsite by 7 a.m.
Also, if Clark had reported at 7 a.m. directly to the Carlinville
sewer jobsite, he would have been able to leave his home be-
tween 6:15 and 6:30 a.m., rather than (as he did) between 5 and
5:15 a.m.
c. Failure to make payments into the benefit funds
The 1993–1996 contract calls for employer contributions to
various benefit funds. Contributions to the these funds are due
by the tenth of the month following the month for which con-
tributions are made. CIC as such never made any benefit con-
tributions. As to employees on Staunton’s payroll, Staunton
made benefit contributions for the period up to and including
July 1996, the last month covered by the contract; the last such
payment was made on August 20, 1996. Staunton did not make
contributions for the month of August 1996, until October 26,
1996, after reaching the September 1996 settlement agreement
in Case 14–CA–24132. Staunton made benefit contributions for
the week ending September 24, 1996, but not for any other
weeks in September 1996, although unit employees worked for
Respondent during other weeks in September 1996. Although
contributions were made for October 1996, no contributions
were made for the hours that operator Deets worked in October
1996, while on CIC’s payroll. No contributions were made for
November or December 1996, even though operators were
employed. Contributions for January 1997 were not received
until March 1997. No contributions were made on behalf of
some of the unit members who worked for Respondent during
periods for which contributions were made for others. Respon-
dent did not give any notice to the Union, or bargain with it,
over changes in benefit-fund contributions, and the Union did
not agree to any changes in such contributions.
STAUNTON FUEL & MATERIAL 731
F. Alleged September 1996 interference, restraint,
and coercion
On August 14, 1996, when the Carpenters’ Union set up a
picket line on the Route 127, Nashville job where employee
Brown had been working for Respondent, Brown told Mengel-
kamp that Brown would not cross the picket line. Brown asked
Mengelkamp whether there was any other work. Mengelkamp
said no, not at that time; and that he would give Brown a call
when either things got settled or Mengelkamp had some more
work for him. Mengelkamp did not call. About September 11,
Brown drove by a job being performed by Respondent on
Route 16 (apparently, a job different from the job referred to
herein as the Route 16, Litchfield job) and observed that this
job was not being picketed and that people whom he did not
recognize were performing operators’ work. Then, Brown came
to Mengelkamp’s office and asked whether he and the Carpen-
ters’ Union had got anything resolved with their dispute and if
the Carpenters’ Union was still picketing the Route 127 job.
Mengelkamp said that as far as he knew, the picketing was still
continuing and he did not think the dispute would get resolved.
Mengelkamp asked Brown whether he wanted to go back to
work. Brown said yes, and asked, “Under what conditions?”
Mengelkamp said that Brown would have to give up his union
card. Brown said that he could not do that.
On September 3, 1996, in response to a newspaper adver-
tisement, Terry Deets filled out a job application at Staunton.
Then, he spoke to dispatcher Tom Chapman, who asked if
Deets could run any heavy equipment. Deets said he could run
everything but a road grader and a crane. Chapman asked if
Deets had a union card; Deets said no.19 Chapman asked if
Deets had a CLD driver’s license; Deets said yes. Chapman
asked if Deets could drive trucks; Deets said yes. Deets asked
what hourly rate Staunton was paying equipment operators.
Chapman said $29.97. Deets asked Chapman what was being
deducted from that $29.97; Chapman said taxes and social se-
curity. Later that afternoon, Chapman told him to report at
5:30 a.m. the following day and meet with Mengelkamp, who
put him to work that morning on the Carlinville sewer job.
G. Alleged Discrimination Against Employees Referred
by the Union
1. Discharge of Moss and Luebbert
On Saturday, September 7, after ascertaining that Deets did
not know how to operate a wheel saw, Mengelkamp spent 3
hours (for which Deets was not paid), teaching him how to
operate a wheel saw. Deets operated the wheel saw on the
Route 16 Litchfield project between September 10 and 29,
inclusive.
As previously noted, on September 27, 1996, Staunton en-
tered into a settlement agreement with respect to Case 14–CA–
24132. Also on September 27, Mengelkamp asked the Union to
refer a wheel saw operator and two backhoe operators to the
Route 16 Litchfield project for September 30.

19 His job application stated that he had been an independent owner-
operator between 1991 and 1994, but that “Unions forced me out of
[business].”
On September 30, the Union referred Leonard Moss (a
member of the Union since 1968) to operate the wheel saw on
Staunton’s Route 16 Litchfield project—the job to which non-
member Deets had been assigned as a wheel saw operator since
September 10. That same day, Mengelkamp told Deets that that
morning, a “union operator” would be assigned to the wheel
saw. Mengelkamp told Deets to drive to the Route 16 Litchfield
jobsite and to sit far enough away from the machine so that he
could watch the operator attempt to operate the wheel saw, but
to avoid conversation with him. That same day, September 30,
the Union sent David Kelly Brown (see supra part III E1, F,
infra part III G2) and Dudley Luebbert to Staunton’s Route 16
Litchfield job as backhoe operators.
Moss and Luebbert both arrived at the Route 16 Litchfield
jobsite at 7 a.m. on September 30, whereupon Daniel J.
Schireman (also spelled “Shireman” in the record), who was
Staunton’s superintendent on that job, told them to fill out W-2
forms. Schireman, a witness called by Respondent, testified that
Deets reported at 7 a.m. on that jobsite and stood around and
waited to replace Moss on the wheel saw. Schireman further
testified that employee Slifka reported to that jobsite at 7 a.m.,
and waited around to replace Luebbert “If need so.” Deets had
not been referred by the Union, and Slifka was an operator
whom the Union had not referred to Staunton and who had
been working for it continuously since a date which preceded
the expiration of the 1993–1996 contract (see infra fn. 23).
One of the operations to be performed on the Route 16 Litch-
field job that day consisted of the removal of pavement from
certain areas. The first step of this operation was performed by
the wheel saw, which cut a line around the portion of the pave-
ment to be removed. The second step was performed by a
backhoe with a breaker; this step consisted of breaking up the
pavement within the patch cut out by the wheel saw. The third
step consisted of using a backhoe equipped with a bucket to
remove from the area which had been cut out by the wheel saw
the pavement which had been broken up by the backhoe
equipped with a breaker. The backhoe operations could not be
begun until after the wheel saw had cut out the appropriate
area.
When Moss arrived at the jobsite, job superintendent
Schireman took him to the wheel saw and told him to start it.
After the two men had checked the fluid levels and other items,
Moss tried to start the wheel saw, but it would not start. Moss
reported this to Schireman, who said he would get someone
right away. Then, Moss performed a closer inspection, and
found that a fuse was missing from the control panel. He re-
ported this to foreman Bryan K. Henke, who was sitting in his
truck. Henke thereupon said, “Yeah, I forgot”; opened his ash
tray or glove box, pulled out a fuse, and handed it to Moss.
Then, Moss put the fuse into the wheel saw and started the saw
right up.20 Moss stood near the wheel saw until 9:30 or 10 a.m.,
20 My findings as to the fuse incident are based on Moss’s testimony.
For demeanor reasons, I do not credit Schireman’s denial. Henke did
not testify. Although Schireman testified that he did not give Moss a
fuse and did not “recall anything about a fuse,” the record shows that
this incident involved Henke and fails to show that Schireman was in a
position to observe this incident (see infra fn. 22). In any event, on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
when Schireman instructed him to cut out certain patches in the
cement. The first two or three patches which Moss cut were 3
or 4 feet apart; Schireman testified that Moss’s work up to this
point was satisfactory. The next patch to be cut was about an
eighth of a mile away. As Moss was moving the wheel saw to
that patch (a procedure referred to in the record as “tracking” or
“travelling”), Schireman came over and urged him to hurry.
The wheel saw has two “tracking” speeds—3 to 6 feet a min-
ute, and 30 feet a minute. Although Moss had on previous oc-
casions operated the same type of wheel saw, and had been able
to change the electronic gear shift from low (“creep”) to high
(“transport” or “road” gear), he was unable to make such a
change on Respondent’s wheel saw notwithstanding repeated
manipulations. Moss said that he was doing the best he could,
said that he could not get the machine to “track” any faster, and
asked Schireman to find the “road” gear. Schireman said that he
could not help Moss with that, because Schireman did not know
how to operate the machine. Present in the area was Deets, who
had been operating the wheel saw until that day and who at the
time had no particular job assignment. Although it was impor-
tant to keep the project going and to have the area ready for
laying asphalt immediately after it arrived and before it cooled,
Schireman did not call Deets over for assistance but said to
Moss, “If you can’t do any better, then I will get somebody that
can.” Moss said that he would run the wheel saw until Respon-
dent obtained a substitute. Schireman said, “No, that’s all right.
I’ll just take you to your truck.” After taking Moss to his truck,
Schireman told Deets to take over the wheel saw. He operated
it for the rest of the day, which was the last day that machine
was used on that project. He had no problem operating the
wheel saw, and when he took it over, the wheel saw (including
the gear shift) was operating properly.
Moss was never paid for the time he worked on September
30. Laying the events of that day to one side, he had never been
laid off for not working fast enough. He had been working as
an operating engineer for 30 years.
When Luebbert arrived at the Route 16 Litchfield job at 7
a.m., Schireman assigned him to a backhoe with a bucket.
Schireman told him that as soon as the area cut out by the
wheel saw had been broken up by the backhoe with the breaker,
he was to use the backhoe with the bucket in order to put the
broken pavement on a truck. At about 7:30 a.m., Luebbert be-
gan to use the backhoe with the bucket in order to move the
broken pieces of pavement from the ground to the truck, a cycle
which took about 30 seconds. After Luebbert had been per-
forming this operation for 10 to 25 minutes, Schireman told
him that he was not fast enough. Luebbert replied that it took
longer to put the debris onto the truck than to merely move it
from the area to be repaved. Schireman said that he would
move the truck, the broken pavement could be left on the por-
tion of the pavement which was not to be repaved, and the de-
bris would be cleaned up later. Schireman moved the truck and
said, “I’ll give you ten minutes.” Ten minutes later, after Lueb-
bert had moved practically all the broken pavement from the
area to be re-paved, Schireman said, “You’re not fast enough.”

basis of the witnesses’ demeanor, I regard Moss as a more reliable
witness than Schireman.
Then, Schireman directed Slifka, who had been operating the
backhoe with the breaker, to take over the backhoe which
Luebbert had been operating. Luebbert had 35 years of experi-
ence as an operator, and had more experience on a backhoe
than on any other piece of equipment. He had never in the past
been laid off for not being fast enough.
Respondent never requested the Union for referrals to re-
place Luebbert or Moss.
My findings as to the identity of the members of management
with whom Moss and Luebbert dealt on September 30, are based
on Schireman’s testimony that he was the superintendent on the
job to which Moss and Luebbert were assigned on that day; on
Staunton’s payroll records, which identify Henke as the only
other supervisor assigned to that job on that day,21 and on com-
paring Schireman’s testimony that it was he who urged Luebbert
to go faster, and Brown’s credible description of certain conduct
which he credibly attributed to Schireman (whom Brown knew
by name), with Luebbert’s attribution of certain conduct to two
individuals whose names he did not know, and whom he testi-
monially identified as the “first foreman” and the “second fore-
man.”22. My findings as to the events involving Moss and
Schireman that day are based on a composite of Moss’s and
Deets’ testimony and credible parts of Schireman’s testimony.
My findings as to the events in connection with Luebbert and
Schireman are based on a composite of credible parts of the tes-
timony of Luebbert, Brown, Schireman, and Moss; for demeanor
reasons, I do not credit Schireman’s testimony, in effect, that
Luebbert’s backhoe duties included breaking up the pavement
(see p. 568 LL. 4-10, p. 575 LL. 23–24).
2. Layoff of Brown; alleged refusal to recall Brown and Merkle
As noted, supra, part III D, in mid-July 1996, Mengelkamp
asked employee Brown, a union member since February 1993,
whether he planned to go nonunion or stay with the union hall,
to which Brown replied that he would not give up his card.
Thereafter, in early August 1996, when Mengelkamp unilater-
ally increased the employees’ direct wages but told Brown that
hereafter he was going to have to pay for the benefits himself,
Brown told him that members were not allowed to pay for their
own benefits. Later that month, when Brown told Mengelkamp
that Brown would not cross the Carpenters’ picket line on the
Route 127, Nashville job where he had been working, Mengel-
kamp said that there was no other work at the time, but that he
would call Brown when matters were settled or there was work.
Mengelkamp did not call, although Respondent thereafter per-
formed at least one job which was not being picketed. (See
supra part III F.)
As previously noted, pursuant to a settlement agreement
reached on September 27, 1996, with respect to Case 14–CA–
24132, the union sent Brown to the Route 16 Litchfield job on
September 30. Between September 30 and October 11, inclu-
sive, Brown operated a backhoe, a mechanical broom, and a
rotor mill on that job.
21 In view of these records and Luebbert’s testimony, I do not credit
Schireman’s testimony that he was the only foreman on the job.
22 This comparison shows that Henke was the foreman who pro-
duced the missing fuse.
STAUNTON FUEL & MATERIAL 733
At about 5:30 p.m. on Friday, October 11, when Brown went
to pick up his check, he found that about $545 had been de-
ducted therefrom (see supra Part III E2a). After Schireman
responded to Brown’s inquiries by stating that Schireman did
not know why this deduction had been made, Brown said that
he would ask Mengelkamp about the matter. Then, Brown
asked Schireman at what time Brown was supposed to report to
work on the following day, Saturday, October 12. Schireman
said that Brown was not supposed to work on October 12, and
that Mengelkamp planned to lay Brown off once he got done
with the rotor mill. Brown asked whether Schireman had called
for people out of the union hall. He said no, and that he would
call the hall later that night. Brown said that if Schireman had
not already called the hall, he would not be able to reach a dis-
patcher there either that evening or at any time on Saturday.23
Brown said that he would show up the following day, Saturday,
to make sure that Schireman got his operators.
On October 12, when Brown came to the Route 16 Litchfield
job before 7 a.m., he encountered Schireman and operating
engineer George White, who was a member of the Union but
had been hired by Respondent directly and not through the
union hall. Brown asked whether Schireman had called the
union hall; Schireman said no. Schireman asked Brown if he
was the other finish roller operator; Brown said no, that White
was. When Schireman again asked Brown if he was the other
finish roller operator, Brown said that if no one else showed up,
he would run the rubber tired breakdown roller (a different
machine from the finish roller) for Respondent. Schireman said
that if nobody showed up, Brown would run that piece of
equipment. Later that morning, Schireman gave Brown the
keys to that piece of equipment, which Brown began to operate.
At about 9 a.m., Mengelkamp came to the job and told Brown
that if he ever took it upon himself to do what he wanted to do
on a job, Mengelkamp would make sure that Brown never
worked on Mengelkamp’s jobs again. Mengelkamp told Brown
to make sure he told this to Union Business Agent James.
Brown continued to operate the rubber tired breakdown roller
for the rest of the day.24 On October 14, Mengelkamp sent a fax
to the Union stating that on October 11, he had asked the Union
to refer to the Route 16 job the following for employment on
Saturday, October 12, 1996.

1. Equipment Oiler . . .
2. Finish Roller Operator

. . . .
I question Kelly Brown’s referral to us as a finish
roller operator on that date. Mr. Brown, although he has
operated a roller on a few occasions is not a finish roller
operator. Please accept this response as our request that he
not be referred to us for that position in the future.

23 Article IV A(7) of the 1993–1996 agreement permits the employer
to secure employees from sources other than the referral office “If for
any reason the referral office is unable to furnish qualified and compe-
tent applicants within twenty-four hours at the time the request is made
to the referral office (providing the said twenty-four hours does not
include Saturdays and Sundays or Holidays).”
24 Staunton’s payroll records state that he worked 10.5 hours that
day.

As to the Oiler position, please be advised that no one
reported to the jobsite.

The Union had not referred Brown as a finish roller operator for
October 12, and there is no evidence that he ever operated the
finish roller on the Route 16 job. This was the first occasion on
which Mengelkamp had complained about Brown, who had
first worked for Respondent in March 1993, and had been
working steadily for it since March 1994.
On Monday, October 14, Brown reported to work at the
Route 16 Litchfield job. He continued to operate the rubber
tired breakdown roller until about 9 a.m., when he was replaced
on that machine by employee Robert C. Merkle, Sr. a union
member for 44 years, who Schireman knew had been referred
to the job by the Union as a finish roller.25 Schireman told
Merkle that another man was going to be on the finish roller,
and that Merkle was going to be on the rubber tired breakdown
roller, whose use in the paving process precedes the use of the
finish roller. When Merkle took over the rubber tired break-
down roller, Brown returned to the rotor mill machine. He con-
tinued to operate that machine until Thursday, October 17,
when he worked 10 hours and Schireman then laid him off with
the statement that all of the work was done with the rotor mill
machine and Schireman had no other work for Brown.
Merkle operated the rubber tired breakdown roller on the
Route 16 Litchfield job on October 14 through October 17. On
October 17, the job temporarily stopped because of mechanical
trouble with the spreader, whose operation in the paving proc-
ess precedes the operation of the rubber tired breakdown roller.
About 4:30 or 5 p.m., Merkle asked Schireman whether there
would be work the next day. Schireman replied that he did not
know whether the spreader would be fixed, and that he would
have to call Merkle and let him know. At Schireman’s request,
Merkle gave his telephone number to Schireman, who wrote it
down.26
Completion of the job required a breakdown roller. Schire-
man never called Merkle. Beginning on October 21, 3 working
days after giving his telephone number to Schireman, Merkle
picketed Staunton’s asphalt plant for 3 days. After that, he went
to work for another employer. After picketing the asphalt plant,
he never contacted Staunton to say he was willing to come back
to work. He credibly testified that he was picketing because
Staunton had not called him back to work, that he would have
returned to work if he had been recalled, and that if he and the
other pickets had been called back to work, there would have
been no picket line to cross. The employees had been told to
picket by Union President James, who so far as the record
shows had not been told that Merkle had been laid off with a
statement by Staunton that he would be recalled. A letter from
James to Mengelkamp dated October 23, 1996, states, inter alia,
25 Article 16 of the 1993–1996 bargaining agreement provides, in
part: “When changing from one machine to another [during a shift], the
original machine must not be left in productive operation. An employee
shall not be permitted to change to a machine that another employee
covered by this Agreement has been employed to operate.”
26 Article 5 of the 1993–1996 bargaining agreement provides that an
employee who had not worked for a period not exceeding 15 days
could be recalled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734
“With respect to the reference in your letter of October 22,
1996, to picketing of [Staunton’s Route 16 job, the Union] is
engaged in a strike against Staunton . . . for unfair labor prac-
tices of your company in unilaterally changing wages, fringes,
and working conditions.”
At the time the Union referred Merkle to the Route 16 job,
he had had 44 years of experience as an operator. He had oper-
ated cherry pickers, rollers (including breakdown and finish
rollers), bore machines, and turn pulls. While working for
Staunton, Brown had operated track hoes, backhoes, bulldozers
and cranes. Staunton did not recall him until April 17, 1997,
when he was recalled under the provisions of an April 10, 1997,
settlement agreement in Cases 14–CA–24132 and 14–CA–
24311. Brown had never previously been left by Staunton in
layoff status for as long as 6 months. Rather, since March 1994,
Staunton had previously laid him off only because of weather;
and had transferred him between jobs and between various
pieces of equipment. Staunton’s payroll records between June
1996 and August 1997 show that the same individual operating
engineers worked on various Staunton jobs.
By letter faxed to the Union on October 22, Mengelkamp
stated that because the Union had been picketing Respondent’s
Route 16 job and asphalt plant since October 21, he assumed
that the Union would not be furnishing operators for any of his
jobs. “If this is incorrect and you do intend to furnish operators,
please let me know by 3:00 p.m. today so that we can make
arrangements for tomorrow. Failing to hear from you, I will
take appropriate steps to ensure satisfactory progress on my
job.” The Union’s reply letter, dated October 23, stated, inter
alia, that the Union was not agreeable to Respondent’s proposal
to exclude the referral clause from the contract under negotia-
tion; and that the Union was “engaged in a strike” against
Staunton because of its action in unilaterally changing working
conditions.
Staunton’s payroll records show that 3 or 4 of Staunton’s op-
erating engineers worked on the Route 16 Litchfield job (job
9604) during each of the payroll weeks between the week
Brown and Merkle were laid off and the payroll week ending
December 17, 1996. None of these operating engineers had
been hired through the union hall.
H. Allegedly Unlawful Action withRrespect to Union’s Requests
for Iinformation
1. October 23, 1996 requests for information
On or shortly after April 17, 1996, the Union received a re-
port that Staunton was the successful bidder, and the contractor
of record, on the Carlinville sewer job. In addition, on an un-
disclosed date between April 17, 1996, and October 21, 1996,
the Union had received a report that a firm called Grant & As-
sociates (Grant) was a subcontractor of Staunton on that job,
and that Marilyn Mengelkamp was one of Grant’s officers and
owners. Also, on an undisclosed date during this period, the
Union received information that some nonunion employees
were working for CIC on the Carlinville job, and a report from
someone on that job that CIC and Staunton were “one and the
same.” At a meeting with the Union on October 21, 1996, to
negotiate a new contract, the Union asked “who was CIC.”
Mengelkamp replied that CIC was a subcontractor on the Car-
linville job. The Union asked about employees for CIC.
Mengelkamp would not give the Union any information about
that.27 The Union asked for information about Grant. Mengel-
kamp said that this was his wife’s company.
By letter to “Robert Mengelkamp/Staunton Fuel & Material
Inc.” dated October 23, the Union asked him to provide

[t]he names of the owner(s) or co-partners and parties in inter-
est in [CIC] and with the names of the officers, directors and
principal owners of [Grant].28 In addition, [the Union] re-
quests the names and addresses of operators and oilers hired
by Staunton . . . from August 1, 1996 to the present date.

The letter also stated that on October 21, the Union had prof-
fered a clause precluding subcontracting of unit work. James
testified that the Union had requested this information because
the Union felt it was needed “to successfully have negotiations
with Staunton.”
On October 28, 1996, the Union filed against Staunton the
initial charge in Case 14-CA-24311. This charge alleged,
among other things, that since August 1, 1996, Staunton had
violated Section 8(a)(5) by failing and refusing to bargain in
good faith with the Union, “the majority representative of an
appropriate unit”; by unilaterally changing wages, benefits, and
other conditions of employment; and by refusing to provide
information which was “essential and necessary for effective
collective bargaining.” On November 4, 1996, the Union filed
against Staunton the first amended charge in Case 14–CA–
24132. This charge alleged, among other things, that Staunton
had violated Section 8(a)(5) by failing to maintain in effect the
provisions and terms of Staunton’s expired collective-
bargaining agreement with the Union, “in order to undermine
the majority representative status of the Union.”29
A letter dated November 25, 1996, signed by Robert
Mengelkamp, “President,” and under Staunton’s letterhead,
averred, inter alia, that the Union had made “no specific pro-
posal with respect to subcontracting wages or contract dura-
tion” (sic).30 The letter went on to state that CIC “is a business
entity operated by Marilyn Mengelkamp for which I have no

27 Staunton was awarded the Carlinville sewer project in April 1996.
Mengelkamp testified that Staunton “could have” begun work on this
project “a month, six weeks later. I have no idea.” He further testified
that he orally arranged with his wife that CIC would supply labor for
that project.
28 This November 1996 letter averred that CIC was not registered as
a corporation or as a fictitious - name entity, and that its address was
the same as Grant’s address. In April 1997, Respondent advised the
Union that CIC had been registered as a fictitious-name entity in March
1997.
29 The original charge in this case, filed on June 16, 1996, had al-
leged, among other things, that since March 1, 1996, Staunton had
engaged in certain conduct “in order to undermine the Union’s majority
representative status,” and had declared to employees its intention to
refuse to recognize and bargain with the Union, “the representative of a
majority of operating engineers who comprise a unit appropriate for
collective bargaining.”
30 Art. 7 of the 1993–1996 agreement provides, in part, “Any em-
ployer who sublets any of his work on any project he has must let same
subject to this Agreement and he will be held responsible for fulfill-
ment of same.” See the first proviso to Sec. 8(e) of the Act.
STAUNTON FUEL & MATERIAL 735
other information. With respect to Grant . . ., I have no knowl-
edge of its status.” The letter gave the names of 8 individuals as
operating engineers hired by Staunton since August 1, 1996. Of
these 8, a total of 2 (Frey and Merkle) had been referred by the
union hall, and a total of 3 (Frey, Merkle, and White) were
union members. As previously noted, the August 1993–July
1996 bargaining agreement had contained a clause which re-
quired Staunton to hire all employees through the union hall.31
2. December 24, 1996 requests for information
By letter to Robert Mengelkamp dated December 18, 1996,
the Union averred that Robert Mengelkamp had stated during
the October 21 meeting that Staunton had subcontracted certain
work to CIC; that Robert Mengelkamp had then stated that he
did not know the people involved in CIC; and that Robert
Mengelkamp’s November 25 letter had stated that CIC was a
business entity operated by Marilyn Mengelkamp for which
Robert Mengelkamp had no other information. The union’s
letter went on to state that Robert Mengelkamp had told the
Union during their October 21 meeting that Grant was his
wife’s company and that he had nothing to do with it, but that
Robert Mengelkamp’s November 25 letter had denied any
knowledge of Grant’s status. The Union’s December 18 letter
stated that the Union was “confused” and stated that the Union
would be “pleased to receive any clarifying material you wish
to provide.”
By letter dated December 24, 1995, to attorney Weisman
(who according to the letter had represented Staunton during a
negotiating meeting on December 20), Union Attorney Harold
Gruenberg averred, inter alia, that at the December 20 meeting
Weisman had asked that the Union submit its requests for in-
formation in writing.32 Gruenberg’s letter went on to state that 6
(Bates, Clark, Coffey, Journey, Robey, and White) of the per-
sons listed in Staunton’s November 25 letter, and also “Robert
Diets” (sic), had been hired without referral by the Union “dis-
criminatorily and in violation of [the Union’s] exclusive refer-
ral right under NLRA.” (The Union later found out that the
correct name of “Robert Diets” was Terry Deets.) The letter
“demanded that Staunton remedy its discrimination and viola-
tion by replacing the illegally hired operators with referrals
from [the Union’s] list of eligible applicants,” and making
whole the eligible applicants who would have been referred. In
addition, the Union’s December 24 letter requested the follow-
ing information: (a) the names of Grant’s officers, directors,
and principal stockholders; (b) the names of CIC’s officers,
directors, owners or co-partners; (c) Grant’s and CIC’s ad-

31 The list did not include Deets, who had been hired and added to
Staunton’s payroll on September 3, 1996; or Moss or Luebbert, both of
whom had been hired by Staunton on September 30, 1996; nor did the
list include David Kelly Brown, who in August 1996 had started to
honor a picket line at the Staunton job where he had been working, had
been told in mid-September 1996, by Mengelkamp that Brown could
not work on another Staunton job unless he gave up his union card, and
on September 30, 1996, had gone back to work for Respondent pursu-
ant to a settlement agreement. However, the complaint does not allege
that Respondent violated Sec. 8(a)(5) by giving the Union an incom-
plete list of employees.
32 Robert Mengelkamp had made a similar request to the Union dur-
ing their meeting on October 21, 1996.
dresses and telephone numbers; (d) the nature of Grant’s and
CIC’s business; (e) whether during 1995 and/or 1996 Staunton
subcontracted construction work to or from Grant and/or CIC,
or interchanged construction equipment or employees with
Grant and/or CIC, identifying (in each case) the projects where
such subcontracting or interchange occurred; (f) whether Staun-
ton supplied Grant and/or CIC with “construction materials,
facilities including storage facilities, tools, and/or repair re-
sources . . . during 1995 and/or 1996”; (g) whether, as to Grant
and/or CIC, Robert Mengelkamp made decisions with respect
to management and/or employment policies; and (h) whether
CIC was registered with the State of Illinois under the Assumed
Business Name Statute ( and if so, the county and date of regis-
tration) or as a corporation.
By letter to Gruenberg dated January 2, 1997, Weisman
stated that he would respond to Gruenberg’s December 24 letter
as soon as possible. On February 18, 1997, the Union filed a
second amended charge against Staunton in Case 14–CA–
24132, and an amended charge against Staunton in Case 14–
CA–24311. These charges alleged, among other things, that
since about August 1, 1996, Staunton had violated Section
8(a)(5) by failing and refusing to bargain collectively with the
Union, by withdrawing recognition from it, by raising wages,
by refusing to comply with the hiring-hall provisions of the
most recent collective-bargaining agreement, by failing to pay
benefit contributions, and “since about October 23, 1996 [by]
failing to provide information requested by the Union which is
necessary for, and relevant to, the Union’s performance of its
duties as the exclusive collective-bargaining representative.”
On February 28, 1997, the initial complaint was issued against
Staunton in Cases 14–CA–24132 and 24311. This complaint
alleged, among other things, that at all material times since
August 1, 1993, based on Section 9(a) of the Act, the Union
had been the employees’ exclusive bargaining representative.
The complaint further alleged, among other things, that about
August 1, 1996, Staunton had violated Section 8(a)(5) by with-
drawing recognition from the Union; by unilaterally, and with-
out giving the Union notice and an opportunity to bargain, rais-
ing wages, refusing to comply with the hiring-hall provisions of
the most recent collective-bargaining agreement, and failing to
pay benefit contributions; by failing and refusing since about
October 23, 1996, to furnish the Union with the names of CIC’s
owners or copartners and parties in interest and the names of
Grant’s officers, directors, and principal owners; and by unrea-
sonably delaying (between October 23, 1996 and November 25,
1996) in providing the Union with the names and addresses of
operators and oilers hired by Staunton from August 1, 1996 to
October 23, 1996. The complaint also alleged unlawful dis-
crimination against certain named employees, and various vio-
lations of Section 8(a)(1).
3. The April 10, 1997 settlement agreement
On April 10, 1997, Staunton (through Weisman) and the Un-
ion (through Gruenberg) entered into an informal settlement
agreement, approved by the Regional Director that same day, in
Cases 14–CA–24132 and 14–CA–24311. In this settlement
agreement, Staunton agreed, inter alia, to recognize and bargain
in good faith with the Union “as the exclusive majority repre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736
sentative”; and on request, to “restore all changed working
conditions, including wages, hiring hall provisions and benefit
contributions, to those which existed prior to August 1, 1996,
and maintain them until we bargain in good faith with the Un-
ion or a good-faith impasse concerning any proposed changes.”
Also, Staunton undertook not to “fail and refuse to furnish, or
unreasonably delay in furnishing, the Union with information
regarding the relationship of other companies and the names
and address[es] of unit employees as requested by letter dated
October 23, 1996, and with information regarding the relation-
ship of other companies, as requested by letter dated December
24, 1996 . . . .We will furnish the Union with the information it
requested by letters of October 23, 1996 and December 24,
1996.”
4. The April 21, 1997 renewal of the December 24, 1996
request for information
By letter to Staunton dated April 21, 1997, the Union stated
that it was denying a request by Staunton (in a letter dated April
17, 1997) to “resume” contract negotiations. The Union gave as
its reason that before being able to engage in “meaningful bar-
gaining,” the Union would have to receive the information
which in the April 10 settlement agreement Staunton had un-
dertaken to provide. The letter went on to request “the informa-
tion sought by our letter of December 24, 1996 together with
documentation supporting your written responses. Failure to
submit this information within 10 days will result in [the Un-
ion] requesting appropriate NLRB action for violation of the
Settlement Agreement.”
5. The alleged delayed and/or false and misleading April 22 and
29, 1997 responses to the Union’s October and December 1996
information requests
At least purported responses to the union’s information re-
quests on October 23 and December 24, 1996, were set forth in
letters to the Union from Robert Mengelkamp, “President,”
under Staunton’s letterhead, dated April 22 and 29, 1997. The
April 29 letter stated that CIC was a fictitious-named entity
registered on March 28, 1997, in Macoupin County under the
Illinois Business Name Statute, and gave its address and tele-
phone number. Also, the April 29 letter stated that CIC was
owned by Marilyn Mengelkamp, and that she and one Ulysses
Cothran were Grant’s officers, directors, and principal stock-
holders.33 Both letters specified two projects which Staunton
had subcontracted in writing to CIC, but neither letter men-
tioned the Carlinville sewer project, which was the subject of
an oral subcontract (see supra fn. 27). Both letters stated that
except for rental of a storage facility, Staunton had not supplied
CIC with construction materials, facilities including storage
facilities, or tools during 1995 and/or 1996. Both letters stated
that Robert Mengelkamp had made no decisions in regard to

33 Robert Mengelkamp’s April 22 letter had stated, inter alia, “I am
not informed of the structure of either [Grant or CIC]. I do not request
that information from any other subcontractor. However, in lieu [sic] of
the settlement agreement terms, I have requested the information and
discussed the implications made with Mrs. Mengelkamp.” The letter
goes on to say that her responses were “attached,” but no purported
attachment appears in the record.
CIC’s management or employment policies, and that Staunton
and CIC had not interchanged employees.
As to Grant, one or both of these letters stated that Grant had
been in the construction business; that Staunton had subcon-
tracted work to Grant on one job in 1995; that Staunton and
Grant had not exchanged labor or equipment in 1995 or 1996;
that Staunton had not supplied construction materials, facilities,
tools, or repair resources to Grant in 1995 or 1996, except for
rental of a storage facility; that Robert Mengelkamp had made
no decisions with respect to Grant’s management or employ-
ment policies; and that Grant had been dissolved in February
1997, and was not presently engaged in business. There is no
contention or evidence that these letters made any inaccurate,
incomplete, or misleading representations as to Grant. James
credibly testified that before the October 21 meeting, the Union
had received information that Grant had been a subcontractor of
Staunton “on the job” and, to the best of the union’s knowl-
edge, Marilyn Mengelkamp was one of Grant’s owners and
officers.34
6. The May 27, 1997 request for information
By letter to Robert Mengelkamp dated May 27, 1997, the
Union averred that its investigation had shown that contrary to
the representations in his April 29 letter, laborers and equip-
ment operators reported daily to Staunton’s shop and were di-
rected by him to proceed in Staunton’s vehicles to work on jobs
of Staunton and on jobs purportedly subcontracted by him to
his wife, Marilyn Mengelkamp. The letter went on to aver that
the Union had obtained proof that, contrary to the representa-
tions in Robert Mengelkamp’s April 29 letter, employees and
equipment were interchanged and jointly used by Staunton and
CIC.
In addition, the letter stated that the Union had information
that “you” required employees to perform work without com-
pensation before and after their 8-hour shifts, “in violation of
wage and hour laws and prevailing wage laws.” The union’s
letter then demanded “for collective bargaining purposes,” that
“you” make available for audit by the Union “all payroll re-
cords and paychecks, time cards, and quarterly reports to the
Illinois Dept. of Employment Security” of Staunton and CIC;35
and requested “you” to “produce and make available for ex-
amination by [the Union] all contracts and subcontracts be-
tween Staunton [and CIC] relating to construction, highway,
paving, sewer work and all other commercial, residential or
government allocated work projects.”
34 As to the names and addresses of the operators hired by Staunton
from August 1, 1996, “to the present,” which information had been
requested by the union’s letter dated October 23, 1996, Staunton’s letter
of April 29, 1997, included the names and addresses of each of the 8
employees issued in Staunton’s letter to the Union dated November 25,
1996, and also the names and addresses of 3 more employees (Deets,
Luebbert, and Russell F. James). Neither the November 25 letter nor
the April 29 letter named Moss or Brown. See supra fn. 31.
35 Art. 35 of the 1993–1996 bargaining agreement requires the em-
ployer to “elect to come under the Illinois State Unemployment Insur-
ance Act and pay Unemployment Compensation on all employees,
regardless of the number employed.”
STAUNTON FUEL & MATERIAL 737
By letter to James dated May 28, 1997, attorney Lawrence P.
Kaplan, who is associated with the same law firm as attorney
Weisman, stated, in part:

Apparently, you are contending in your May 27, 1997
[letter] that Marilyn Mengelkamp d/b/a Central Illinois
Construction was an alter-ego to Staunton . . . Staunton
denies that allegation. However, the fact remains that the
time-period of any subcontracting by Staunton . . . to
Marilyn Mengelkamp d/b/a Central Illinois Construction
was covered by the NLRB settlement entered into between
[the Union] and Staunton . . . At no time did Staunton . . .
conceal any information concerning its subcontracting to
Marilyn Mengelkamp d/b/a Central Illinois Construction.

Please explain to the undersigned in writing why the
information you request concerning payroll records, pay-
checks, timecards and quarterly reports to the Illinois De-
partment of Employment Security of both Staunton [and
CIC] are relevant to the negotiations between Staunton . . .
and your union, particularly since the subcontracting has
not taken place since the summer of 1996.

Kaplan’s letter went on to state that for about 2 months
Staunton had been requesting bargaining with the Union, and
that the Union had “systematically refused to meet with Staun-
ton Fuel for the purpose of negotiations.” Then, the letter
stated:

If you can enunciate a reason to have the information
requested, in accord with Section 8(a)(5) of the National
Labor Relations Act, Staunton Fuel will be happy to pro-
duce such information. On the other hand, if your Union
continue[s] to refuse to negotiate over the terms of a new
agreement, Staunton Fuel will have no alternative but to
file charges with the NLRB. Accordingly, please contact
the undersigned regarding an initial negotiation session for
the purpose of negotiating a collective bargaining agree-
ment between your Union and Staunton Fuel.

Also on May 28, 1997, the Union filed its initial charge in
Case 14–CA–24595, alleging, inter alia, that Staunton had vio-
lated Section 8(a)(5) by failing and refusing since April 10,
1997, to provide the Union with information “necessary for
effective collective bargaining” and by failing to comply with
and violating the terms of the April 1997 settlement agreement
in Cases 14–CA–24132 and 24311. This charge averred that the
Union was “the majority and exclusive representative of em-
ployees.”
By letter to Kaplan dated June 2, 1997, the Union stated that
the information sought by the Union—namely, “subcontractors
agreements, payroll records, paychecks, time cards, and quar-
terly reports” of Staunton and CIC, and an audit of such CIC
and Staunton records, had been requested because the Union
believed that Staunton and Robert Mengelkamp had concealed
and had not provided information “concerning their interrela-
tionship with [CIC] as a common employing entity with com-
mon employees, utilizing common equipment at common job
sites”; and that negotiations with Staunton not encompassing
the relationship with CIC “would make any collective bargain-
ing agreement reached with Staunton Fuel a nullity and would
permit Staunton and Robert Mengelkamp to divert employees
to Marilyn Mengelkamp and her fictitious-name, nonunion
‘company’.” In connection with Kaplan’s claim that the union’s
request for records was covered by the NLRB settlement, the
union’s letter asserted that this settlement “provides that Staun-
ton Fuel ‘will not fail or refuse or unreasonably delay in fur-
nishing the Union with information regarding the relationship
of other companies’” (see supra part III H3).
By letter to the Union dated June 3, 1997, Kaplan requested
negotiations for a new bargaining agreement between the Un-
ion and Staunton. The letter further stated, “We believe your
continued refusal to meet and negotiate is a violation of the
National Labor Relations Act. If there are specific information
requests that you have, those can be made across the table in
the course of negotiations.” By letter to the Union dated June 4,
1997, Kaplan stated that Staunton “does not refuse to discuss
and/or negotiate concerning the alleged relationship between
Staunton [and CIC]. . . . If, during the course of negotiation, it
appears relevant and important that information concerning
[CIC] and/or any other matter should be provided for the pur-
pose of negotiations, Staunton . . . will appropriately consider
those requests in good faith and supply such information as is
appropriate for the purposes of the National Labor Relations
Act and the duty to bargain in good faith.” The letter went on to
ask the Union to supply Staunton with suggested negotiation
dates. “Failure to do so . . . will result in charges filed with the
National Labor Relations Board alleging a failure to bargain in
good faith.” By letter dated June 10, 1997, Kaplan asked the
Union to negotiate with Staunton regarding a new collective-
bargaining agreement.36 “If you fail to reply before close of
business on Thursday, June 12, 1997, we will file charges with
the National Labor Relations Board against your union for fail-
ure to bargain in good faith.” The record fails to show whether
such charges were ever filed.
By letter to Kaplan dated June 12, 1997, which stated that it
constituted a reply to Kaplan’s June 4 letter, the Union stated
that the April 1997 settlement agreement (see supra Part III H3)
called for Respondent to provide the Union with “information
concerning [Staunton’s] relations with other companies as re-
quested by the Union on October 23, 1996 and December 4,
1996.”37 The letter went on to say, “Negotiations have been
precluded for almost a year by Staunton’s refusal to bargain
with this Union since August 1, 1996 and by Staunton’s dis-
crimination against members of this Union and by Staunton’s
refusal to provide the Union with information necessary for
effective bargaining. Staunton’s violations of NLRA are con-
tinuing.”

36 The letter suggests that the Union may have filed suit against
Staunton and the Mengelkamps to require them to make certain trust-
fund payments attributable to periods after the expiration of the 1993–
1996 bargaining agreement. See Laborers Health & Welfare Trust
Fund v. Advanced Lightweight Concrete Co., 484 U.S. 530 (1988),
referred to in that letter. The letter seems to be suggesting negotiations
as to this matter also.
37 This and other, subsequent correspondence attach this December 4
date to the December 24 request for information. There is no contention
or evidence that anyone was confused or misled by this error.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738
By letter to the Union dated June 16, 1997, Kaplan stated
that Staunton was not refusing to “discuss and/or negotiate
concerning the alleged relationship between” Staunton and
CIC. The letter went on to say that Staunton had already pro-
vided the information which the Union had requested on Octo-
ber 23 and December 4 (see supra fn. 37). “Having said that,
we do not preclude the possibility that there may be additional
information that is relevant to your inquiries.” The letter went
on to propose several possible dates for negotiation of a new
contract.
By letter to Kaplan dated June 20, 1997, the Union stated
that Kaplan’s June 16 letter “proposes a meeting to negotiate or
discuss the ‘alleged relationship’ between Staunton [and CIC]
while you and your clients have refused to provide [the Union]
with the facts it has requested. [The Union] sees no reason to
meet with you and your client to discuss a relationship which
you deny exists.” The letter went on to deny that Staunton had
provided the information requested by the union’s letters of
October 23 and December 4 (see supra fn. 37), stated that the
Union had filed a charge in Case 14–CA–24595 alleging “fail-
ure of proper response,”38 and further stated that Kaplan’s “cli-
ents have refused to provide [the Union] with payroll and re-
lated records of Staunton [and CIC], requested by [the Union’s]
letter to Robert Mengelkamp dated May 27, 1997. If and when
the requested records are produced for [the Union’s] examina-
tion, [the Union] will inform Staunton Fuel of a date for con-
tract negotiation.”
On July 31, 1997, the Union filed against Staunton a third
amended charge in Case 14–CA–24132, and filed against
Staunton and CIC a second amended charge in Case 14–CA–
24595 (the only charge document naming CIC as respondent in
terms). These amended charges alleged, among other things,
that Staunton and CIC were alter egos and a single employer,
and that Section 8(a)(5) had been violated by failing and refus-
ing to bargain with the Union, to furnish the Union with infor-
mation necessary for collective bargaining, and to honor or
abide by the terms and conditions of employment set forth in
the 1993–1996 collective-bargaining agreement; and by with-
drawing recognition from the Union. The second amended
charge in Case 14–CA–24595 also alleged violation since about
April 10, 1997, of the settlement agreement in Cases 14–CA–
24132 and 14–CA–24311.
Also on July 31, 1997, the Regional Director set aside the in-
formal settlement agreement of April 10, 1997, in Cases 14–
CA–24132 and 14–CA–24311, on the grounds that this agree-
ment had been violated about April 29, 1997, by providing
false and misleading answers to certain union requests for in-
formation made about December 24, 1996, and since about
May 27, 1997, by failing and refusing to provide the Union
with information requested by the Union about May 27, 1997. I
find infra Part III I 3b, c(4), that Respondent did in fact provide
the Union with false and misleading information on April 29,
1997, in violation of Respondent’s settlement agreement under-
taking to provide the Union with information regarding Staun-
ton’s relationship with other companies as requested in the

38 The charge and first amended charge in this case had been filed on
May 28 and June 17, respectively.
union’s letter of December 24, 1996 (more specifically, by
omitting the Carlinville sewer project from the list of Staun-
ton’s subcontracts to CIC, and by falsely claiming that Staunton
and CIC had not interchaged employees and that Robert
Mengelkamp made no decisions with respect to CIC’s man-
agement or employment policies). In addition, I find infra Part
III E 3c(4) that Respondent failed and refused to provide the
Union with information requested by the Union about May 27,
1997. Accordingly, I find that the Regional Director properly
set aside the settlement agreement, and that unfair labor prac-
tices may be found on the basis of pre-settlement conduct. Twin
City Concrete, Inc., 317 NLRB 1313 (1995).
In the proceedings before me, Respondent has not relied on
the settlement agreement as a defense to any of the unfair labor
practice allegations in the complaint in its final form.
I. ANALYSIS AND CONCLUSIONS
1. Alleged independent Section 8(a)(1) allegations not depend-
ent on whether Respondent was under a duty to bargain with
the Union after July 1996
In agreement with the General Counsel, I find that Respon-
dent violated Section 8(a)(1) through Robert Mengelkamp: (a)
by telling employee Titsworth, in mid-March 1996 and before
the expiration of the 1993–1996 bargaining agreement, that he
needed to decide whether he was going to stay with Mengel-
kamp and work nonunion, or to stay with the Union, go back to
the union hall, and look for work; (b) before the bargaining
agreement had expired, by telling job applicant Hundley in
about early April 1996, and employee Brown in mid-July 1996,
that Mengelkamp was going nonunion; (c) on June 1, 1996, and
still before the bargaining agreement had expired, by telling
employee Titsworth, after he had replied to Mengelkamp’s
March 1996 ultimatum by replying that he was not staying with
Respondent and consequently working nonunion, “That’s fine,
bring your truck in and park it. You’re done”; and (d) on Sep-
tember 11, 1996, by telling employee Brown, who had been
regularly working for Respondent since 1994 but had been
honoring a picket line at a Staunton project, that he would have
to return to the union hall for referral if he would not go nonun-
ion, and that he would have to give up his union card if he
wanted to go back to work for Staunton. NLRB v. Del Rey Tor-
tilleria, Inc., 787 F.2d 1118, 1122–1124 (7th Cir. 1986), enfg.
272 NLRB 1106, 1114 (1984); Patterson-Stevens, Inc., 316
NLRB 1278, 1291 (1995); and cases cited infra fn. 50, in light
of NLRB v. Bufco Corp., 899 F.2d 608 (7th Cir. 1990).
In addition, I find that Respondent violated Section 8(a)(1)
on September 3, 1996, when dispatcher Tom Chapman, after
conducting a job interview with job applicant Terry Deets,
asked him if he had a union card. NLRB v. Berger Transfer &
Storage Co., 678 F.2d 679, 689 (7th Cir. 1982); Stoody Co.,
320 NLRB 18 (1995); Sundance Construction Management,
Inc., 325 NLRB 1013 (1998). In so finding, I note that this
inquiry was made when Deets was applying for a job; that no
lawful reason for this inquiry was given to Deets or appears in
the record; that Deets was given no assurance against reprisals;
that the union-card subject was brought up by Chapman and not
Deets; that both before and after this interview, Respondent
directed discrimination against union adherents; and that on one
STAUNTON FUEL & MATERIAL 739
of these occasions, Respondent executed a previous plan to
substitute the nonunion Deets for a union member (Moss) who
had just been terminated because the Union had referred him to
the job (see infra Part III I 2). I find that Respondent was an-
swerable for Chapman’s conduct because he was a supervisor
(as evinced by his action, in Respondent’s interest and in the
use of independent judgment, in effectively recommending
Deets’ hire) or at the very least, that Deets would reasonably
believe that Chapman was reflecting company policy and
speaking and acting for management. Southern Bag Corp., 315
NLRB 725 (1994). Thus, Chapman conducted the interview; he
told Deets that Chapman was going to speak with Robert
Mengelkamp; that same day, Chapman called Deets back and
told him he was hired; and before starting to work, Deets never
spoke with Mengelkamp nor (so far as the record shows) with
anyone else from Respondent.
2. Alleged violations of Section 8(a)(3) and (1)
I agree with the General Counsel that Respondent violated
Section 8(a)(3) and (1) by discharging Titsworth because he
refused to relinquish his union membership. Robert Mengel-
kamp gave Titsworth, in effect, this reason for discharging him,
and Respondent has never tendered any other reason.
In addition, I agree with the General Counsel that Respon-
dent violated Section 8(a)(3) and (1) by discharging employees
Luebbert and Moss because they had been hired pursuant to a
referral by the Union. Mengelkamp’s discharge of Titsworth
because he refused to relinquish his union membership,
Mengelkamp’s remarks to employee Brown that he would have
to give up his union card if he wanted to work for Staunton, and
Mengelkamp’s remarks to both Brown and Titsworth about
choosing between continued employment by Respondent and
using the union’s referral service, establish Mengelkamp’s
aversion to employing persons who had been referred by or
were members of the Union. Moreover, before entering into the
September 27, 1996 settlement agreement, and even before the
expiration of the bargaining agreement which obligated Re-
spondent to hire employees through the Union’s referral sys-
tem, Respondent had been hiring employees off the street. On
the morning that a wheel saw operator and two backhoe opera-
tors referred by the Union were to report for work, pursuant to a
request made to the union’s referral service on the day of the
September 27, 1996 settlement agreement, Mengelkamp told
employee Deets, whom Respondent had hired off the street
after learning that he had no union card and who had been op-
erating the wheel saw after Mengelkamp had showed him about
3 weeks earlier how to do it, that a “union operator” would be
assigned to the wheel saw that morning, and that Deets was to
drive to the job and to watch the operator attempt to operate the
wheel saw, but to avoid conversation with him. Further, accord-
ing to job superintendent Schireman when testifying for Re-
spondent, on that morning Deets stood around and waited to
replace Moss on the wheel saw, and employee Slifka (who had
not been referred through the hall), stood around to replace
Luebbert “if need so.” From Mengelkamp’s remarks to Deets,
this testimony by Schireman, and the absence of any other ex-
planation for foreman Henke’s conduct in keeping a fuse in his
truck until Moss found out why the wheel saw would not start, I
infer that Respondent had removed the fuse from the wheel saw
for the specific purpose of making Moss unable to start the
machine, and in the expectation (or, at least, the hope) that he
would not notice the missing fuse and could be discharged,
without his ever operating the machine, on the pretext of in-
competence. On the basis of this incident, Mengelkamp’s in-
structions to Deets to keep an eye on the “union operator” but
not to talk to him, Schireman’s failure to ask Deets to help
Moss to find the “road” gear notwithstanding the importance of
keeping the project going,39 and Deets’ reassignment to the
wheel saw after Moss had been removed from the job, I con-
clude that Respondent’s seeming lawful explanation for Moss’s
removal—namely, his problem with the wheel saw—was pre-
textuous and at least partly based on a setup. Accordingly, such
reasons, far from assisting any contention that Moss would
have been discharged for inability to operate the wheel saw
even if he had not been referred through the union hall, add
weight to my conclusion that his discharge violated Section
8(a)(3) and (1) the Act. Louis A. Weiss Memorial Hospital, 324
NLRB 946 (1997).
Furthermore, because Luebbert and Moss had both been sent
to the job by the union hall, because an employee who had not
been referred through the hall had been assigned to wait around
to replace Luebbert (at least “if need so”), and because on that
same day Respondent had similarly kept an unreferred non-
member (Deets) on tap to replace union referral Moss. I con-
clude that Luebbert was discharged at least partly because he
had been referred through the union hall. Because the record is
barren of evidence to support the reason which Schireman gave
Luebbert for discharging him—namely, that he was too slow—
Respondent has failed preponderantly to show that he would
have been discharged for working too slowly even if he had not
been referred through the union hall. Accordingly, I find that
Luebbert’s discharge violated Section 8(a)(3) and (1) of the
Act. Weiss Memorial, supra, and cases cited.
Also, I agree with the General Counsel that Respondent vio-
lated Section 8(a)(3) and (1) by laying off employee Brown
about October 17, 1996, and failing and refusing to recall him
until about April 17, 1997. As previously noted, in July 1996,
after telling him that Robert Mengelkamp intended to go non-
union, Mengelkamp asked Brown whether he intended to go
nonunion or to stay with the union hall, to which Brown replied
that he would not give up his union card. Thereafter, and while
Brown was honoring a picket line set up at Staunton’s Nash-
ville job, Mengelkamp told him that he could not come back to
work unless he gave up his union card, which Brown refused to
surrender. Although at that time Respondent was performing at
least one job which was not being picketed, and although since
1994 Brown had worked for Staunton for weeks on end before
he began to honor the Nashville picket line, Respondent did not
again employ Brown until September 30, 1996, when the Union
told him to go to the Route 16 Litchfield job pursuant to the
September 1996 settlement agreement. That Respondent did

39 Schireman testified that on that date, Respondent was behind
schedule and was “real concerned” about the approach of cooler
weather, when it would become more difficult to keep asphalt suffi-
ciently warm to assure good-quality paving.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740
not contemplate that its action in returning him to work would
effect a restoration of his previous stable status as a long-time
employee is shown by Respondent’s early-expressed intention
to lay him off once he had completed his initial rotor-mill
assignment on the Route 16 project, regardless of Respondent’s
continued need for operators on that and other projects; by
Mengelkamp’s otherwise inexplicable resentment when Brown
did Respondent what would appear to be a favor by filling in on
a Saturday on the rubber tired breakdown roller when Respon-
dent was short-handed (because it had failed to make a timely
referral request to the Union and/or because referred operators
had failed to show up); and by Mengelkamp’s otherwise inex-
plicable baseless and irrelevant claim to the Union that Brown
had been referred to the project as a finish roller operator but
was not sufficiently skilled in that operation—although he had
not been referred to that project as a finish roller operator, had
so advised the job foreman, and had declined the foreman’s
implied invitation to perform that job, and although there is no
evidence that he ever operated that machine on that project.
Moreover, although Respondent had previously transferred
Brown between a number of different kinds of equipment, and
although as of the time of Brown’s layoff from the Route 16
job on October 16, 1996, the job still required several months’
work using a number of pieces of equipment which Brown had
operated while in Respondent’s employ, Respondent laid him
off with the representation (which was false) that there was no
more work on the rotor mill machine which he had been operat-
ing, while retaining other employees whose presence on the job
was not connected to the Union and who were operating
equipment which Brown was able to operate. Further, Brown
was not recalled until Respondent had entered into the April
1997 settlement which included such an undertaking, even
though, after his layoff, Respondent was performing other jobs
which entailed work Brown was capable of performing. I con-
clude that Respondent laid off Brown solely because he refused
to turn in his union card, honored a picket line, and had been
told by the Union to report to the Route 16 job, and that the
claimed lack of work was purely pretextuous.
Also, I agree with the General Counsel that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by failing to recall em-
ployee Merkle, a union member for 44 years. Merkle was one
of the three employees whom the Union had referred to the
Route 16 project pursuant to a request by Respondent pursuant
to the April 1997 settlement agreement. The other two (Lueb-
bert and Moss) were discriminatorily discharged the very day
they reported to work. Furthermore, on the last day Merkle
worked for Respondent, Respondent discriminatorily laid off
employee Brown, whom the Union had also sent to the Route
16 job pursuant to the settlement agreement. Moreover, Re-
spondent failed to recall either of them to the Route 16 project,
although Respondent thereafter employed on that job employ-
ees who operated machines which Brown and Merkle were
capable of operating, including the very machines they had
been operating just before their layoff. Further, Respondent has
given no explanation for its failure to comply with what
amounted to a promise to recall Merkle. I find that Respondent
failed to recall Merkle solely because he had been referred
through the union hall, and that such action by Respondent
violated Section 8(a)(3) and (1) of the Act.
3. Alleged violations of Section 8(a)(5) and (1), and alleged
independent violations of Section 8(a)(1) turning on whether
Respondent was under a duty to bargain with the Union
a. Alleged failure and refusal by CIC to honor or abide by the-
terms and conditions of employment during the effective period
of, and as set forth in, the August 1993–July 1996 collective-
bargaining agreement
Initially, I conclude that CIC was bound by the collective-
bargaining agreement which was signed by Staunton and the
Union in 1993 and by its terms continued in effect until the end
of July 1996. I so find because the parties stipulated at the hear-
ing that Staunton and CIC are a single employer and alter egos
and that the appropriate unit consists “of the unit described in
the complaint . . . who are employed by Staunton and CIC,”
and because the unit so described contains the same employee
classifications as those listed in the recognition clause of the
1993–1996 agreement. Penntech Papers, Inc. v. NLRB, 706
F.2d 18, 23–24 (1st Cir. 1983), cert. denied 464 U.S. 892
(1983); Bufco, supra at 608–609; Carpenters’ Local 1478 v.
Stevens, 743 F.2d 1271, 1276–1277 (9th Cir. 1984); Design
Drywall, Ltd., 301 NLRB 437 fn. 1, 440–441 (1991).
Further, the evidence shows that CIC failed to honor the
terms of that agreement before its expiration. Union Business
Agent James so testified without contradiction. Thus, it is un-
contradicted that before the bargaining agreement expired,
employee Journey was hired off the street into a unit job, added
to CIC’s payroll, and paid $29.97 an hour (a higher rate than
called for by the bargaining agreement); and that CIC made no
payments on his behalf to the benefit funds.40 Because CIC
engaged in this conduct without the Union’s consent, I find that
such conduct constituted a violation of Section 8(a)(5) and (1)
of the Act by Respondent. SAS Electrical Services, Inc., 323
NLRB 1239 (1997).
b. Alleged unlawful conduct with respect to information related
to policing the 1993–1996 bargaining agreement
Because Respondent Staunton/CIC was bound by the bar-
gaining agreement which expired on July 31, 1996, Respondent
was under a statutory duty to provide the Union with informa-
tion which was necessary and relevant to the union’s perform-
ance, during and with respect to the effective period of the con-
tract, of its duties as the collective-bargaining representative.
SAS Electrical, supra. Respondent’s duty to provide this infor-
mation survived the expiration of the contract. Diversified Bank
Installations, Inc., 324 NLRB 457 (1997); Audio Engineering,
Inc., 302 NLRB 942, 943–944 (1991). Because the Union had

40 Journey is the only employee on CIC’s payroll before the expira-
tion of the bargaining agreement who the parties agreed was in the
bargaining unit. However, the parties left open whether others might be
in this category. The testimony of Journey and Clark indicates that
Merlyn Wirth, who was also on CIC’s payroll before the bargaining
agreement expired, performed unit work. Only Wirth, Dennis L. Ontis,
and Journey were paid $29.97 an hour and given the occupational code
“CO,” CIC’s occupational code for “Company.” None of them was
hired through the union hall.
STAUNTON FUEL & MATERIAL 741
learned about CIC employees’ performance of the Carlinville
job, on which Staunton had been the successful bidder, and had
received a report that Grant was also a subcontractor of Staun-
ton on that job; because the Union had also received reports
that the wife of Staunton’s president owned CIC and was one of
Grant’s officers and owners; because CIC as such was not un-
der contract with the Union at any material time (nor, inferen-
tially, was Grant) (cf. supra fn. 30); because Article 29 of the
1993–1996 contract provided that the work referred to in the
agreement “shall be performed solely and exclusively by em-
ployees covered by the agreement” with exceptions immaterial
here; and because the parties stipulated that CIC and Staunton
are a single employer and alter egos, the Union plainly re-
quested information which was necessary and relevant to the
union’s performance of its duty to police the agreement in its
request to Staunton (1) on about October 23, 1996, for the
names of CIC’s owners; (2) in the December 24, 1996 letter for
certain information regarding the relationship between Staunton
and CIC, including whether Robert Mengelkamp had made
decisions with respect to CIC’s management or employment
policies; whether during 1995 and/or 1996 CIC and Staunton
had interchanged construction employees on construction pro-
jects, or construction equipment; whether in 1995 and/or 1996
CIC and Staunton had subcontracted construction work from
each other and if so, on which projects; and whether Staunton
had supplied construction materials, facilities, or tools; and
similar information with respect to Grant; and (3) in the
May 27, 1997 letter, for all contracts and subcontracts between
Staunton and CIC. Association of D.C. Liquor Wholesalers,
300 NLRB 224, 229 (1990).
It is true that in response to Attorney Kaplan’s May 28, 1997
letter to the Union stating that Staunton would provide this and
other information “If you can enunciate a reason,” the Union
did not specifically refer to policing the expired bargaining
agreement. However, Respondent obviously knew (as the Un-
ion could not) that such information as to CIC would disclose
Respondent’s disregard (through CIC) of the bargaining agree-
ment during its term. I am aware of the provision in the bar-
gaining agreement that “no grievance shall be considered which
has not been presented in writing within fifteen (15) days of its
occurrence. The time limits set forth herein may be extended by
mutual agreement of the parties.” However, even in the absence
of such an agreement, it cannot be said with assurance that any
union grievance as to CIC’s disregard of the bargaining agree-
ment would be time-barred, in view of Respondent’s misrepre-
sentation regarding and concealment of the CIC-Staunton rela-
tionship.41
Respondent has offered no explanation for its failure even
purportedly to supply the requested information for 6 months
(as to the October 23 request), and 5 months (as to the Decem-
ber 24 request). Accordingly, I find that Respondent violated
Section 8(a)(5) and (1) of the Act by undue delay in purport-

41 See generally Holly Sugar Corp. v. Distillery, Rectifying, Wine, &
Allied Workers International Union, AFL–CIO, 412 F.2d 899, 903–904
(9th Cir. 1969); GK MGT Inc. v Hotel Employees Local 274, 930 F.2d
301, 304–305 (3d Cir. 1991).
edly furnishing such information.42 Moreover, I find that Re-
spondent further violated Section 8(a)((5) and (1) by furnishing
false and misleading information—more specifically, by telling
the Union that Staunton and CIC were separate entities, that
they had not exchanged labor or equipment, and that Robert
Mengelkamp had made no decisions in regard to CIC’s man-
agement or employment policies, and by omitting the Carlin-
ville project from the April 22 and 29 letters listing projects
subcontracted by Staunton to CIC.43
c. Alleged post-expiration independent violations of Section
8(a)(1), and alleged post-expiration violations of Section
8(a)(5) and (1)
(1) Whether the recognition clause in the 1993–1996 agreement
is sufficient to show that after its expiration, the Union was
entitled to recognition under Section 9(a) of the Act
Laying to one side (for the moment) the conversation be-
tween Robert Mengelkamp and union representatives just be-
fore Mengelkamp signed the 1993–1996 bargaining agreement,
Oklahoma Installation Co., 325 NLRB 741 (1998), calls for the
conclusion that Article 43 of this agreement effected recogni-
tion of the Union as the representative of the contract unit under
Section 9(a) of the Act. Oklahoma Installation found that rec-
ognition under Section 9(a) was sufficiently established solely
on the basis of a letter of assent, signed by both the union and
the respondent employer, which stated, “The Union has submit-
ted and the Employer is satisfied that the Union represents a
majority of its employees in a unit that is appropriate for collec-
tive bargaining.” I perceive no material difference between this
language and the language of Article 43 (MAJORITY
REPRESENTATIVE/The Contractors Party hereto recognize
[the Union] as the Majority Representative of all employees in
Operating Engineers classifications employed by them and the
sole and exclusive bargaining agent of such employees).
I do not agree with Respondent that this language fails to
evince recognition of the Union by Respondent under Section
9(a) because of its reference to “Contractors” and “classifica-
tions employed by them.” The contract read as a whole shows
that the contract unit is limited to Respondent’s own employ-
ees; in any event, as to the effect of a contract on an employer’s
duty to bargain with the contracting union, so far as material
here the Board draws no distinction between a contract limited
to the respondent employer’s employees and a contract which
included such employees in a multi-employer unit.44 Nor is
there any significance to the fact that the language in the instant
case was included in the contract itself, and not in a separate
document. Decorative Floors, Inc., 315 NLRB 188 (1994);
Painters (Northern California Drywall Assn.), 326 NLRB
1074, 1076, 1080 (1998). Likewise without merit is Respon-
42 Samaritan Medical Center, 319 NLRB 392, 398 (1995); Beverly
Enterprises, 326 NLRB 153 (1998).
43 Association of D.C. Liquor Wholesalers, supra, 300 NLRB 224 fn. 1.
44 NLRB v. Tahoe Nugget, Inc., 584 F.2d 293, 296–304 (9th Cir.
1978), cert. denied 442 U.S. 921 (1979); NLRB v. Roger’s I.G.A., Inc.,
605 F.2d 1164 (10th Cir. 1979); NLRB v Silver Spur Casino, 623 F.2d
571, 576–578 (9th Cir. 1980), cert. denied 451 U.S. 906 (1981); Time
Chevrolet, 242 NLRB 625 (1979), remanded on other grounds, 659
F.2d 1006 (9th Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
dent’s effort to distinguish Oklahoma Installation on the
ground that the grant of recognition in that case was made as a
settlement of a pending Board unfair practice labor case where
the claim was made that the respondent employer was the alter
ego of another employer which had recognized the union pur-
suant to Section 9(a). Respondent’s contention that this “con-
text” significantly contributed to the Board’s conclusion that
Oklahoma Installation’s recognition language invoked Section
9(a) overlooks the Board’s finding that such was “the legal
effect of the express terms of the letter of assent.”45
As to Robert Mengelkamp’s testimony regarding the circum-
stances which surrounded his August 1993 execution of the
August 1993–July 1996 bargaining agreement which contained
article 43, I agree with the General Counsel that Board prece-
dent requires me to disregard it. A claim by Respondent that the
Union did not in fact represent a majority at the time the 1993–
1996 construction-industry contract was executed would have
been barred unless, within 6 months after the execution of that
contract, Respondent had produced affirmative evidence of the
Union’s lack of majority, or of coercion in obtaining a majority,
at the time of recognition. NLRB v. Triple A Fire Protection,
Inc., 136 F.3d 727, 736–737 (11th Cir. 1998); Oklahoma Instal-
lation, supra, 325 NLRB at 742; MFP Fire Protection, Inc.,
318 NLRB 840, 841–842 (1995), enfd. 101 F.3d 1341 (10th
Cir. 1996); New Brunswick General Sheet Metal Works, 326
NLRB 915, 922 (1998). This rule is based on the view that
parties to a bargaining agreement in the construction industry
are entitled to no less protection than those in other industries,
and on the well-established principle that because recognizing a
minority union as a Section 9(a) representative in a noncon-
struction context constitutes an unfair labor practice, a chal-
lenge to a union’s majority status raised more than 6 months
after recognition is barred by Section 10(b) of the Act. Casale
Industries, 311 NLRB 951, 952–953 (1993); Triple A, supra,
136 F.3d at 736–737; Northern California Drywall, supra, 326
NLRB 1074 fn. 1 (1998). Such an approach in the instant case
is further suggested by the fact that at least in a Section 9(a)
context, the Union’s conduct during the meeting when Mengel-
kamp signed the 1993–1996 contract would at least arguably
have constituted an unfair labor practice.46

45 Quite possibly, Respondent’s execution of the April 1997 settle-
ment agreement at least partly accounts for the General Counsel’s
failure to contend that the existence of a 9(a) relationship was evinced
by Respondent’s repeated May and June 1997 threats to file against the
Union refusal-to-bargain charges which would likely have presupposed
a 9(a) relationship. At least arguably, reliance on such threats would be
inconsistent with the General Counsel’s July 1997 determination to set
the settlement agreement aside; and to rely on the 1993–1996 contract,
rather than on the settlement agreement, to establish a 9(a) relationship.
Cf. Randall Division of Textron, Inc. v. NLRB, 965 F.2d 141 (7th Cir.
1992), and cases cited.
46 See Waymouth Farms, 324 NLRB 960 (1997). However, even if
the affirmative-concealment claim had been timely raised, Respondent
has cited no legal basis, nor am I aware of any, for Respondent’s con-
tention that the union’s conduct had the legal effect of creating a con-
tract which did not include art. 43 but which otherwise bound both
parties. See Waymouth, supra; Textron Lycoming Engine Division,
Avco Corp. v. United Automobile, Aerospace, Agricultural Implement
Workers, 523 U.S. 653 (1998).
To be sure, because Section 10(b) does not begin to run until
the injured party knew or should have known that an unfair
labor practice has occurred,47 the analogous 6-month period as
to the validity of Section 9(a) recognition in the construction
industry is tolled until the injured party (here, Respondent)
knew or should have known the facts allegedly invalidating
such recognition. Moreover, the burden is on the General
Counsel (as the party raising the “Section 10(b)” defense) to
show that Respondent first raised its misrepresentation claim
within 6 months after the date on which it learned or should
have learned about the existence of section 43. See R. G. Burns
Electric, 326 NLRB 440 (1998); Chinese American Planning
Council, 307 NLRB 410 (1992). However, the record prepon-
derantly shows that Respondent knew or should have known
about the existence of article 43 much more than 6 months
before the misrepresentation claim was first raised before me
by means of Mengelkamp’s October 1997 testimony that when
he signed the 1993–1996 contract in August 1993, the Union
affirmatively concealed from him the existence of article 43.
Thus, the Union’s October 1996 charge and February 1997 first
amended charge in Case 14–CA–24311, and the Union’s No-
vember 1996 first amended charge in Case 24–CA–24132, all
included allegations that Respondent had violated Section
8(a)(5) on dates after the 1993–1996 contract expired; variously
alleged that the Union was the “majority representative” of an
appropriate unit; and variously alleged that Respondent had
unlawfully withdrawn recognition; had failed to maintain pro-
visions of the expired bargaining agreement, including its hir-
ing-hall provisions; had failed to pay benefit contributions; had
unilaterally changed employment conditions; and had unilater-
ally raised employees’ wages. Moreover, a letter dated Septem-
ber 25, 1996, from Respondent’s counsel to Respondent stated
that the Board’s Regional office was taking the position that the
Union “remained the exclusive, majority bargaining agent after
July 31, 1996” (emphasis added), and that, “therefore,” certain
provisions in the contract which had expired on July 31, 1996,
“could not be changed absent good faith bargaining.” Further-
more, the February 1997 complaint alleged that “about” or
“since about” August 1, 1996, Respondent had violated Section
8(a)(5) by, inter alia, refusing “to comply with the hiring-hall
provision of the most recent collective-bargaining agreement,”
by raising wages, and by failing to pay benefit contributions, all
without giving the Union notice and an opportunity to bargain.
All of these allegations in these charges and in this complaint,
and the Region’s position as described in counsel’s letter of
September 25, 1996, were obviously based on the assumption
that the expired 1993–1996 contract embodied recognition of
the Union pursuant to Section 9(a); indeed, the February 1997
complaint alleges:

7B. Since about August 1, 1993, and at all material times, the
Union has been the designated exclusive collective-bargaining
representative of the Unit and since then the Union has been
recognized as the representative by Respondent. This recogni-
47 Wisconsin Valley District Council v. NLRB, 532 F.2d 47, 53–54
(7th Cir. 1976); Amcar Division, ACF Industries, Inc. v. NLRB, 592
F.2d 422, 430–431 (8th Cir. 1979); SAS Electrical, supra, 323 NLRB
1239 (1997).
STAUNTON FUEL & MATERIAL 743
tion is embodied in a collective-bargaining agreement, effec-
tive by its terms from August 1, 1993 through July 31, 1996.

7C. At all material times since August 1, 1993, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the Unit.

Further, the record shows that on April 10, 1997, more than 6
months before Mengelkamp testified about the execution of the
1993–1996 contract, Respondent’s counsel (retained prior to
December 24, 1996) signed on Respondent’s behalf the settle-
ment agreement in which Respondent undertook, inter alia, to
bargain with the Union “as the exclusive majority representa-
tive” and, on request, to restore all working conditions to those
which existed prior to August 1, 1996.48 I conclude that the
General Counsel has shown that Respondent knew or should
have known of the existence of Article 43 more than 6 months
before raising its affirmative-concealment claim.49
For the foregoing reasons, I find that the 1993–1996 bargain-
ing agreement created a bargaining relationship under Section
9(a) of the Act.

(2) Whether Respondent violated Section 8(a)(5) and (1) by
withdrawing recognition from the Union, and violated Section
8(a)(1) by telling employees that it was going nonunion
Where, as here, an employer has entered into a collective-
bargaining agreement which recognizes the contracting union
as the representative of the contract unit under Section 9(a), on
the expiration of that agreement the union enjoys a presumption
of continued majority support. Auciello Iron Works, Inc. v.
NLRB, 517 U.S. 781, 786 (1996); NLRB v. Imperial House
Condominium, 831 F.2d 999, 1007 (11th Cir. 1987); NLRB v. H
& H Pretzel Co., 831 F.2d 650, 654 (6th Cir. 1987); Fleming
Industries, 282 NLRB 1030, 1034 (1987). Although this pre-
sumption is rebuttable, Respondent has tendered no such rebut-
tal evidence at all. Accordingly, I find that Respondent was
under a duty to bargain at all times relevant here, including the
period after the 1993–1996 contract expired. Therefore, I find
that Respondent violated Section 8(a)(1) by telling employee
Brown in September 1996 that Respondent was going nonun-
ion.50 In addition, I find that Respondent violated Section

48 Of course, I am not relying on the settlement to show any liability
by Respondent for the claims made in the February 1997 complaint or
the corresponding claims in the July 1997 complaint. Rather, I rely on
this settlement solely to show that Respondent knew or should have
known of the presence of art. 43. See Rule 408 of the Federal Rules of
Evidence; Breuer Electric Mfg. v. Toronado Systems of America, 687
F.2d 182, 185 (7th Cir. 1982); U.S. v. Hauert, 40 F.3d 197, 200 (7th
Cir. 1994); Jennmar Corp., 301 NLRB 623, 631 fn. 6 (1991).
49 I note that as late as the first day of the October 1997 hearing, Re-
spondent’s counsel stated, “. . . how can you say that a contractor who
clearly doesn’t understand Board law could conclude that the language
[of art. 43] was sufficient to establish 9(a) status?” Even then, counsel
did not allege that the contractor had ever been unaware that art. 43 was
in the contract.
50 Manna Pro Partners v. NLRB, 986 F.2d 1346, 1348, 1354 (10th
Cir. 1993); Haberman Construction Co., 236 NLRB 79, 86–87 (1978),
enfd. in relevant part, 641 F.2d 351, 357-358 (5th Cir. 1981); MBC
Headwear, Inc., 315 NLRB 424, 428 (1994); McKenzie Engineering
Co., 326 NLRB 473, 479, 491 (August 27, 1998).
8(a)(5) and (1) by withdrawing recognition from the Union
about August 1, 1996.

(3) Whether Respondent violated Section 8(a)(5) and (1) by
unilaterally changing conditions of employment without giving
the Union notice and an opportunity to bargain
As the Court of Appeals for the Seventh Circuit said in
NLRB v. Transport Service Co., 973 F.2d 562, 567 (1992):

Even after the collective bargaining agreement expires,
an employer may not unilaterally change the terms and
conditions of employment subject to mandatory bargain-
ing . . . . Instead, the employer must recognize the terms
and conditions of the agreement that are subject to manda-
tory bargaining until a new agreement is in force or until
the parties bargain in good faith to impasse . . . . After
reaching an impasse, the employer can implement changes
unilaterally as long as the changes were previously offered
to the union. [Internal quotation marks omitted.]

A fortiori, an employer violates Section 8(a)(5) and (1) of the
Act by unilaterally effecting such changes without giving the
union advance notice and an opportunity to bargain. Gaucho
Food Products, Inc., 311 NLRB 1270, 1271 (1993); see also,
Litton Financial Printing Division v. N.L.R.B., 501 U.S. 190,
198–199 (1991); Clear Pine Mouldings, Inc. v. NLRB,. 632
F.2d 721, 729–730 (9th Cir. 1980), cert. denied 451 U.S. 984
(1981). It is undisputed that after the expiration of the contract,
and without giving the Union notice and an opportunity to bar-
gain, Respondent raised wages about August 1, 1996;51 failed
to comply with the reporting-pay provisions of the 1993–1996
agreement; failed to comply with the hiring-hall provisions of
the 1993–1996 agreement;52 and failed to pay benefit contribu-
tions on behalf of unit employees. It is likewise undisputed that
beginning no later than July 29, 1996, 2 days before the con-
tract expired, Respondent failed to pay employees for all hours
worked, although such payments are required by the 1993–
1996 agreement, the Union never agreed to such a practice, and
the Union was not given prior notice and an opportunity to
bargain about it. I find that by engaging in such conduct, Re-
spondent further violated Section 8(a)(5) and (1) of the Act.
(4) Whether Respondent violated Section 8(a)(5) and (1) in
connection with the Union’s requests for information
It is well settled that the names and addresses of employees
hired into the bargaining unit are presumptively relevant to the
performance of a union’s duty to represent employees in the
bargaining unit. MBC Headwear, supra fn. 2, 427. The names
and addresses of the unit employees hired by Respondent be-
tween August 1, 1996 and October 23, 1996, were requested by
the Union on October 23, 1996. Although the record shows that
during this 3-month period, Respondent had hired only about
12 employees, and their names and addresses were obviously in
Respondent’s records, Respondent unexplainedly delayed for a
51 The complaint does not allege that Respondent violated the Act by
lowering wages about September 1996 (see supra part III E 2a).
52 Respondent’s counsel disavowed on the record any contention that
such hiring hall provisions are not mandatory subjects of collective
bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
month in supplying this information. I find that Respondent
violated Section 8(a)(5) and (1) of the Act by unduly delaying
its provision of this information. See cases cited supra fn. 42.
The record shows that the Union had good reason to suspect
(and, it was eventually stipulated, was correct in its suspicions)
that CIC was an alter ego of Staunton, and had good reason to
suspect that through CIC, Staunton was failing to comply with
the statutory duties flowing from its 1993–1996 contract with
the Union. Accordingly, I find to have been relevant and neces-
sary, to the Union’s performance of its statutory duty to repre-
sent the bargaining unit, the following information requested by
the Union on December 24, 1996, with respect to the relation-
ship between Staunton and CIC: (1) the names of CIC’s own-
ers, co-partners, parties in interest, officers, and directors; (2)
whether CIC was a corporation or a fictitious named entity;
(3) whether CIC was registered as a corporation or under the
Illinois Assumed Business Name Statute (and if so, the county
and date of registration); (4) the nature of CIC’s business; (5)
CIC’s address and telephone number; (6) whether during 1995
and/or 1996 Staunton subcontracted construction work to or
from CIC, specifying each such project; (7) whether Staunton
and CIC interchanged construction equipment or construction
employees (and if so, on which projects), in 1995 and/or 1996;
(8) whether Staunton supplied construction materials, facilities,
or tools to CIC during 1995 and/or 1996; and (9) whether
Staunton’s president, Robert Mengelkamp, made decisions with
respect to the management or employment policies of CIC,
which was owned by his wife. For the same reason, I find rele-
vant and necessary to the performance of the Union’s statutory
duty of representation the information requested by the Union
on May 27, 1997, consisting of Staunton’s and CIC’s payroll
records and paychecks, time cards, and quarterly reports to the
Illinois Department of Employment Security for the period
between August 1, 1996 and May 27, 1997. Also, because the
Union had received reports that Grant (like CIC) was owned by
Robert Mengelkamp’s wife and was a subcontractor to Staun-
ton and that all three companies had the same address, the Un-
ion was entitled to the information, which it requested on vari-
ous dates between October 21, 1996 and May 27, 1997, as to
the names of Grant’s officers, directors, and principal stock-
holders; the date of its incorporation; Grant’s address and tele-
phone number; the nature of Grant’s business; whether during
1995 and/or 1996 Staunton subcontracted construction work to
or from Grant, or interchanged employees or equipment, identi-
fying each project where such subcontracting or interchange
occurred; whether during 1995 and/or 1996 Staunton supplied
Grant with construction material and related facilities; and
whether Robert Mengelkamp made decisions with respect to
Grant’s management and/or employment facilities. Walter N.
Yoder & Sons, Inc. v. NLRB, 754 F.2d 531 (4th Cir. 1985);
Genovese & DiDonno, Inc., 322 NLRB 598 (1996); McCor-
mick Dray Lines, Inc., 317 NLRB 155, 160–161 (1995); Na-
tional Broadcasting Co., 318 NLRB 1166, 1168–1169 (1995).
However, Respondent never did supply the Union with the
requested payroll records and paychecks, timecards, and quar-
terly reports. I find that by failing and refusing to supply the
information, Respondent violated Section 8(a)(5) and (1). Fur-
thermore, after initially telling the Union on November 25,
1996, that he had no knowledge as to Grant’s status (a repre-
sentation which was almost certainly false, in view of his con-
comitant statement that Grant was his wife’s company), Robert
Mengelkamp unexplainedly delayed until April 22, 1997, be-
fore telling the Union that Grant had been inactive for some
time and had been dissolved in February 1997. I find that Re-
spondent violated Section 8(a)(5) and (1) of the Act by thus
unreasonably delaying the provision of this information; see
cases cited supra fn. 42. Moreover, Respondent unexplainedly
delayed in even purportedly supplying the requested informa-
tion as to CIC; more specifically, Respondent did not even
purport to supply this information until November 25, 1996;
April 22 and 29, 1997; and June 1, 1997. Further, much of the
information which it did purportedly supply was false or mis-
leading. More specifically, Respondent’s list of jobs subcon-
tracted by Staunton to CIC omitted the Carlinville sewer pro-
ject, and untruthfully asserted that Robert Mengelkamp had
made no decisions in regard to CIC’s management or employ-
ment policies and that CIC and Staunton had not interchanged
employees. I find that Respondent violated Section 8(a)(5) and
(1) of the Act by unreasonable delay in providing the Union
with requested information as to CIC, and by providing false
and misleading information. See cases cited supra fns. 42–43.
CONCLUSIONS OF LAW
1. Respondent Staunton and CIC are each employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and are and have been at all material times,
alter egos or a single integrated business enterprise and a single
employer within the meaning of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act in the
following respects:
a. By telling employee Gary Randle Titsworth, in mid-March
1996, that he needed to decide whether he was going to stay
with the Union and go back to the union hall and look for work,
or stay with Respondent and work nonunion.
b. By telling employee Titsworth, on June 1, 1996, after he
had said he was not staying with Respondent and consequently
working nonunion, to bring in his truck and park it, “You’re
done.”
c. By telling employee David Kelly Brown, on September
11, 1996, that he would have to return to the union hall for
referral if he would not go nonunion, and that he would have to
give up his union card if he wanted to go back to work for Re-
spondent.
d. By asking job applicant Terry Deets, on September 3,
1996, whether he had a union card.
e. By telling job applicant Charles Hundley in April 1996,
and employee Brown in July and September 1996, that Re-
spondent was going nonunion.
4. Respondent has violated Section 8(a)(3) and (1) of the Act
in the following respects:
a. By discharging employee Titsworth on June 1, 1996.
b. By discharging employees Dudley Luebbert and Leonard
Moss on September 30, 1996.
STAUNTON FUEL & MATERIAL 745
c. By laying off employee David Kelly Brown about October
17, 1996, and failing to recall him until about April 17, 1997.
d. By failing to recall employee Robert Merkle, Sr., since
about October 19, 1996.
5. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All operating engineer equipment operators, operating engi-
neer apprentices, operating engineer foremen, master mechan-
ics, assistant master mechanics, operating engineer mechan-
ics, operating engineer mechanic trainees, operating engineer
engine men, operating engineer greasers and operating engi-
neer oilers and firemen employed by Respondent Staunton
and Respondent CIC within the territorial jurisdiction of the
Union, excluding office clerical and professional employees,
guards and supervisors as defined in the Act, and all other
employees.

6. Since about August 1, 1993, and at all material times, the
Union has been the exclusive collective-bargaining representa-
tive of the unit pursuant to Section 9(a) of the Act.
7. Respondent has violated Section 8(a)(5) and (1) of the Act
in the following respects:
a. By failing, without the union’s consent, to honor the terms
of the August 1, 1993–July 31, 1996, collective-bargaining
agreement between Respondent and the Union.
b. By withdrawing recognition from the Union about August
1, 1996, as the exclusive collective-bargaining representative of
the unit.
c. By engaging in the following conduct without giving the
Union prior notice and an opportunity to bargain:
(1) Raising the wages of unit employees about August 1,
1996.
(2) Failing since about July 29, 1996 to comply with the hir-
ing-hall provisions of the most recent collective-bargaining
agreement.
(3) Failing since about June 1, 1996, to pay benefit contribu-
tions on behalf of unit employees.
(4) Failing to pay unit employees reporting pay, and pay for
all hours worked.
(d) By failing and refusing to provide the Union with certain
information since about May 27, 1997; by unreasonable delay,
between October 23, 1996, and November 25, 1996, in provid-
ing the Union with other information; by unreasonable delay,
between December 24, 1996, and April 29, 1997, in providing
the Union with other information; and by providing the Union
with false and misleading information about April 29, 1997.
8. The unfair labor practices set forth in Conclusions of Law
3, 4, and 7 affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
The parties stipulated that if a remedy is ordered, Staunton
and CIC are jointly and severally liable.
Having found that Respondent has violated the Act in certain
respects, I shall recommend that Respondent be required to
cease and desist from such conduct, and from like or related
conduct, and to take certain affirmative action necessary to
effectuate the policies of the Act. Thus, Respondent will be
required to offer reinstatement to employees Luebbert, Moss,
and Merkle,53 and to the extent Respondent has not already
done so, to make them, Titsworth and Brown, whole for any
loss of pay they may have suffered by reason of the discrimina-
tion against them. Because the job from which Luebbert, Moss,
and Merkle were unlawfully separated has been completed, at
the compliance phase of this proceeding Respondent will have
the opportunity to limit the duration of the remedy by showing,
by a preponderance of the evidence, that they would not have
been transferred to other sites after the completion of the pro-
ject on which they were working. Norman King Electric, 324
NLRB 1077 (1997); Urban Constructors, Inc., 320 NLRB
1166 (1996); American Electric, 325 NLRB 637 (1998). In
addition, Respondent will be required to make employees and
supervisors whole for any losses they may have suffered by
reason of Respondent’s failure, at any time after June 1, 1996,
to honor the contract between the Union and Staunton which
expired at the end of July 1996. F. G. Lieb Construction Co.,
318 NLRB 914 (1995); SAS Electrical, supra, 323 NLRB 1239
(1997). Further, Respondent will be required, on the union’s
request, to rescind all unilateral changes, put into effect after
the expiration of the 1993–1996 contract, in the employees’
terms and conditions of employment generated by the contract;
but nothing here shall permit or require any such action if not
requested by the Union. In addition, Respondent will be re-
quired to make the employees in the bargaining unit whole for
any losses they may have suffered by reason of such unilateral
changes.54 Also, Respondent will be required to offer full and
immediate employment to any individuals who since June 1,
1996, were denied an opportunity to work for Respondent as
employees because of its failure to comply with the hiring-hall

53 Titsworth and Brown have already been reinstated. Merkle at-
tained his 65th birthday on October 17, 1996, the date on which Re-
spondent laid him off from the Route 16 job with the implied promise,
which Respondent did not keep, that he would be recalled when work
resumed on that job. He testified in October 1997, that he had retired
from the trade on December 1, 1996. However, Merkle credibly testi-
fied that if Respondent had recalled him to work, he would have re-
turned, “I like to work.” Accordingly, and because Respondent’s
unlawful failure to recall him about late October 1996, has rendered it
uncertain whether he would have retired on December 1, 1996, or any
later date had he still been actively working for Respondent, I conclude
that it is appropriate to require Respondent to offer him reinstatement.
Of course, any period during which he failed to make a reasonable
search for work (because he wanted to be in retirement status or for any
other reason) will be excluded from the backpay period. No different
result is required by Richard W. Kaase Co., 162 NLRB 1320, 1322
(1967), the most apposite case revealed by my research. Kaase was a
backpay case in which a discriminatee’s failure to seek work would
have affected the backpay specification, and there is no indication in
Kaase that backpay was claimed for any period following the discrimi-
natee’s discharge and concomitant retirement.
54 In view of the underlying unfair labor practices found in F. G.
Lieb Construction Co., 311 NLRB 810 (1993), and SAS, supra—
namely, noncompliance with collective-bargaining agreements during
their term—I do not read either SAS or Lieb Construction, 318 NLRB
914, as calling for offers of employment to or reimbursement to super-
visors with respect to periods after the expiration of a contract which
included these supervisors in the contract unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
provisions of Respondent’s 1993–1996 agreement with the
Union and with its failure to continue to observe that condition
of employment (as to vacancies for supervisors, see supra fn.
54) after the contract expired, and to make them whole for any
loss of earnings they may have suffered by reason of Respon-
dent’s failure to hire them, as prescribed in J. E. Brown Elec-
tric, 315 NLRB 620 (1994); and in SAS Electrical, supra.55
Loss of wages because of severance from or failure to obtain
employment with Respondent is to be calculated as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950).
Further, Respondent will be required to make whole these
employees and individuals by making all required fringe bene-
fit contributions that have not been made since June 1, 1996
(but, as to supervisors and applicants for supervisory positions,
up to July 31, 1996, only), including any additional amounts
due the funds, in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979),56 and by reimbursing the
employees and individuals for any expenses ensuing from its

55 Although both Brown and SAS involved a failure to honor contrac-
tual hiring-hall clauses during the effective period of the contract, with
respect to employees I read Brown as extending to the appropriate
remedy for such conduct after the contract has expired. I so conclude
because, when instituting the use of a reinstatement order to remedy
Section 8(a)(5) failures to hire through a union hiring hall, Brown over-
ruled to that extent cases which involved failure to use the hall during
periods which fell, wholly or in part, after the expiration of the con-
tracts requiring use of the hall. See the following cases thus overruled
in Brown, supra, 315 NLRB at 622–623: American Commercial Lines,
291 NLRB 1066, 1076 (1988); Southwestern Steel & Supply, 276
NLRB 1569, 1573 (1985), enfd. 806 F.2d 1111 (D.C. Cir. 1986);
Southwest Security Equipment Corp., 262 NLRB 665, 669–670 (1982),
enfd. 736 F.2d 1332 (9th Cir. 1984), cert. denied 470 U.S. 1087 (1985);
American Commercial Lines, 296 NLRB 622, 625, 641 (1989).
56 To the extent that any individual who is entitled to relief, as de-
scribed above, has made personal contributions to a fund that are ac-
cepted by the fund in lieu of the Respondent’s contribution for the
period since June 1, 1996, the Respondent will reimburse that individ-
ual, but the amount of such reimbursement will constitute a setoff to the
amount that Respondent otherwise owes the funds. Donovan & Associ-
ates, 316 NLRB 169, 170 fn. 2 (1995).
failure to make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891, fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981). All payments to individuals as de-
scribed in this paragraph are to be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971).
All payments due individuals under the terms of the Order
are to be made with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
In addition, Respondent will be required to bargain with the
Union, on request, and to post and mail appropriate notices. As
to the mailing requirement, I note that Respondent employs
employees at multiple jobsites, that the record evidence shows
that jobs involved in Respondent’s unfair labor practices have
been completed, and that Respondent has likely completed
other jobs since its unfair labor practices began. See Jo-Del,
Inc., 326 NLRB 296 (1998); 3E Co., 313 NLRB 12 fn. 2
(1993), enfd. 26 F.3d 1 (1st Cir. 1994). Because the beneficiar-
ies of this Order may include individuals who have never
worked and will never work for Respondent, in addition to
mailing notices, and posting notices at its own places of busi-
ness, Respondent will be required to sign copies of the notice to
be posted by the Union, if it is willing, at places where notices
to employees seeking referral from the Union are customarily
posted; see Bufco Corp., 291 NLRB 1015, 1018, 1033 (1988),
enfd. 899 F.2d 608 (7th Cir. 1990). Because the information
requested by the Union but relevant only to whether Staunton
and CIC are alter egos or a single employer has been rendered
unnecessary by the hearing stipulation that Staunton and CIC
occupy that status, and because the other information which
Respondent unlawfully withheld from or falsified to the Union
is included in the instant record, the Order will not affirma-
tively require Respondent to provide any specific information
to the Union. As to the order requested by the General Counsel
relating to records to be preserved and provided to the Board,
see Atwood Industries, 326 NLRB 1196, 1204 (1998).
[Recommended Order omitted from publication.]