Techno Construction Corp.

National Labor Relations Board - Board Decisions

Jan 23, 2001

333 N.L.R.B. 75 (N.L.R.B. 2001)

TECHNO CONSTRUCTION CORP. 75
Techno Construction Corp. and Janco Contracting
Corp. and Local Union 282, International Broth-
erhood of Teamsters, AFL–CIO. Cases 29–CA–
20330, 29–CA–20332, 29–CA–20522, and 29–
CA–20530
January 23, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On June 20, 1997, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel, Respondents, and the Union filed excep-
tions and supporting brief. The Respondent and Union
filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings, and conclusions,2 as
further explained below, and to adopt the recommended
Order.
We agree with the judge that the Respondents3 vio-
lated Section 8(a)(3) of the Act by temporarily laying off
the four drivers. The judge found the layoff constituted
an unlawful “defensive” lockout, i.e. that the Respondent
locked out its drivers in anticipation of a strike or con-
certed work stoppage. We affirm the judge’s finding of a
violation, but do not rely on his characterization of the
Respondents’ action. In agreement with the General
Counsel, we find that the Respondents temporarily laid
off the four drivers in retaliation for their expression of
desire for continued union representation.
In order to prove discrimination in violation of Section
8(a)(3) of the Act, the General Counsel must first per-
suade the Board that antiunion sentiment, or animus, was
a substantial or motivating factor in the challenged em-
ployer decision. The burden of persuasion then shifts to
the employer to prove its affirmative defense that it
would have taken the same action even if the employees
had not engaged in protected activity. Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S.
393 (1983). See also Manno Electric, 321 NLRB 280 fn.
12 (1995).

1 The Union has requested oral argument. The request is denied as
the record and briefs adequately present the issues and positions of the
parties.
2 In adopting the judge’s conclusion that the Respondent did not vio-
late Sec. 8(a)(5) by withdrawing recognition from the Union, we spe-
cifically agree with his definition of “employees engaged . . . in the
building and construction industry” under Sec. 8(f) of the Act and with
his application of that definition to the facts of this case.
3 We agree with the judge, for reasons set forth in his decision, that
the Respondents are a single employer. We do not, however, rely on
his finding that the unit drivers were always supervised by either Mario
Leperuta and/or Sam Houston. The record nevertheless supports find-
ing that a common group of supervisors from both companies super-
vised the drivers’ work.
The record shows that Respondent Techno’s coowner,
Joseph Mutino, conversed with each of the unit drivers
about converting operations to nonunion status. At least
three of them expressed the desire for continued repre-
sentation by the Union and coverage by a union contract.
Thereafter, the Respondents told the drivers to stay home
on the following Monday, July 1. They were not recalled
to work for two or three working days.
We find that the timing of the purported layoff, imme-
diately following notice that most of the drivers desired
continued union representation, warrants the inference
that animus against such protected employee activity
motivated Mutino’s peremptory decision to take them off
the ongoing job. This inference is reinforced by the pre-
textual nature of Respondents’ attempts to explain Mu-
tino’s action. Respondents claim that he laid off the
drivers in anticipation of an industry-wide strike, with
attendant possibility of vandalism. We agree with the
judge that “there . . . [was] no objective evidence to sup-
port this opinion of Mutino’s.” There is no evidence
substantiating the possibility of vandalism. As to the
possibility of a strike, the only evidence is Mutino’s tes-
timony about “rumors” and the testimony of employee
Kish regarding the discussion several months before of
the possibility of an industrywide strike in the event that
negotiations for a multiemployer collective-bargaining
agreement failed. We find that Mutino did not have any
reasonable apprehension of a strike affecting the Re-
spondents’ operations when he told the drivers not to
come to work on Monday. The pretextual nature of this
defense became even more manifest when the drivers
appeared on Tuesday at a jobsite unaffected by any strike
action and were still not asked to return to work.
Under the circumstances, we think it is quite clear that
Mutino reacted to the drivers’ message of continued de-
sire for union representation by sending a message of his
own: no union or no work. Accordingly, we find that the
Respondents violated Section 8(a)(3) and (1) by laying
off the drivers in retaliation for their expression of con-
tinued support for the Union.4
4 Our dissenting colleague states that the Respondent lawfully laid
off the employees based on their expressions of unwillingness to work
on a nonunion basis. We disagree. The employees did not quit, and
they did not insist on the Respondent’s recognition of the Union as a
condition for their continuing to work. There is no evidence that the
Respondent viewed the employees’ statements in the manner suggested
333 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Techno Construction Corp.
and Janco Contracting Corp., Staten Island, New York,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order.

MEMBER HURTGEN, dissenting in part.
I agree with my colleagues and the judge that, based
on its Section 8(f) relationship with Teamsters Local 282
(the Union), the Respondent did not violate Section
8(a)(5) by withdrawing recognition from the Union at the
expiration of the 1996 collective-bargaining agreement.
I also agree that the Respondent did not violate Section
8(a)(1) by informing employees of this intended with-
drawal. Unlike the judge and the majority, however, I
further find that the Respondent did not violate Section
8(a)(3) by briefly laying off its drivers immediately after
the withdrawal of recognition. Rather, I find that the
evidence fails to establish that this temporary layoff was
discriminatorily motivated.
It is well settled that “to find a violation of [Section]
8(a)(3) the Board must find that the employer acted for a
proscribed purpose.” American Shipbuilding Co. v.
NLRB, 380 U.S. 300, 311 (1965); Best Plumbing Supply,
310 NLRB 143 (1993). Phrased differently, “[u]nlawful
motivation is a critical component of a prima facie case
of discrimination under Section 8(a)(3).” Raymond Engi-
neering, 286 NLRB 1210, 1221 (1987). Under Wright
Line,1 the General Counsel has the burden of establish-
ing, as part of the prima facie case, that unlawful anti-
union animus was a substantial or motivating factor in
the challenged adverse action. See, e.g. Allegheny Lud-
lum Corp., 320 NLRB 484 (1995), enfd. in relevant part
104 F.3d 1354 (D.C. Cir. 1997). Here, I find that the
General Counsel has not met this burden.
As my colleagues concede, the Respondent’s June 28,
1996 discussion with its drivers was the catalyst that
prompted the temporary layoff. Contrary to their posi-
tion, however, I find nothing in that conversation which
establishes the requisite unlawful motive. In that discus-
sion, the Respondent informed its four drivers that it
would no longer be affiliated with the Union and told
them that it would try to provide them with comparable

by the dissent. Instead, as accurately summarized by the judge, Mutino
testified “that he understood their responses as being ambiguous and
indicating that there might be a general strike.” We have found that the
Respondent’s reliance on the professed apprehension of a strike—the
only reason offered by the Respondent for its layoff action—was pre-
textual.
1 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 495 U.S. 989 (1982).
benefits. As found by the judge, and conceded by the
majority, both these statements were lawful. Next, the
Respondent informed the drivers that they could get to-
gether and form their own union, vote for Teamsters 282,
or select any other labor organization. Certainly, this
credited testimony is the antithesis of anti-union conduct.
Finally, the Respondent inquired (again, lawfully),
whether the drivers would be willing to continue working
for it after the withdrawal of recognition. Most stated
that they would not, explaining that they would not work
without union representation. Following this announce-
ment, the Respondent temporarily laid them off. In do-
ing so, it made no statement or took no other action indi-
cating that the layoff was in retaliation for their desire for
continued union representation.
Based on this credited evidence, I find that the General
Counsel failed to establish a prima facie case that the
Respondent’s layoff decision was discriminatorily moti-
vated. In particular, I note that following its lawful and
union-neutral comments in the June 28 discussion, the
Respondent simply inquired whether its drivers would
continue working for it. The question did not suggest or
imply that the Respondent would not permit the employ-
ees to work. Rather, the question was whether they
would be willing to work in view of the withdrawal of
recognition. The employees said that they would not be
willing to do so. In sum, Respondent’s lawful condition
of employment was that there would be no Union; the
employees were unwilling to work under that condition.
Faced with this, the Respondent lawfully laid them off.
My colleagues assert that the employees were laid off
because they expressed a preference for the Union.
However, Respondent made it clear to them that they
were free to select the Union as their representative.
Thus, the Respondent’s act of layoff was not in retalia-
tion for their support of the Union; Respondent had just
reaffirmed that the employees could make that choice.
Further, even if the General Counsel established prima
facie that antiunion animus was a reason for the layoff,
Respondent would have laid them off in any event be-
cause Respondent feared a work stoppage. Contrary to
my colleagues, I conclude that the evidence is sufficient
to establish that the Respondent reasonably anticipated
that its drivers might engage in a work stoppage in re-
sponse to the withdrawal of recognition, or as part of an
industry-wide strike.2 As found by the judge, Respon-
dent
2 In my view, the majority misses the mark by arguing that the tem-
porary layoff was unlawful because the employees neither quit their
employment nor formally demanded recognition of the Union as a
condition of continued employment. What is dispositive is that, as
found by the judge, most employees made clear that they would not
TECHNO CONSTRUCTION CORP. 77
. . . told the employees that they should not come in on
Monday because [it] anticipated that they might engage
in a work stoppage, either in conjunction with a general
strike by the Union vis a vis the industry, or because of
[its] withdrawal of recognition.
The employees did not respond that no such work
stoppage was planned. On the contrary, they told Re-
spondent that they would not work because of the with-
drawal of recognition. In addition, the Respondent pre-
viously had heard that, following the June 30 expiration
of the contract there might be an industrywide strike.3
Accordingly, I find that the evidence does not establish
that the layoff violated Section 8(a)(3) and I would dis-
miss the complaint.

April Wexler Esq., for the General Counsel.
Alexander A. Miuccio Esq., for the Respondents.
Russell Holland Esq. and Peter Zwiebach Esq., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in Brooklyn, New York, on March 4, 5, and 6,
1997. The charges were filed on September 17, December 6,
and December 10, 1996. A complaint based on these charges
was initially issued on January 16, 1997 and a consolidated
amended complaint was issued on February 27, 1997. In perti-
nent part, the amended complaint alleges as follows:
1. That the Respondents Techno and Janco, both New York
corporations, are engaged in the construction industry and con-
stitute a single employer.
2. That the Respondents have each executed a memorandum
agreement dated November 9, 1993, pursuant to which they
have each agreed to be bound by the terms of a collective-
bargaining agreement between the Union and the General Con-
tracting Association of New York (GCA), effective by its terms
from July 1, 1993, through June 30, 1996.
3. That the appropriate bargaining unit of the collective Re-
spondent is

All full-time and regular part-time drivers, excluding guards
and supervisors as defined in Section 2(11) of the Act.

work for the Respondent if it withdrew recognition from the Union. In
those circumstances, I find that the Respondent lawfully laid them off.
Further, to the extent that there was any ‘ambiguity’ in the employ-
ees statements—as to whether they were signaling a general industry
strike or more narrowly announcing their refusal to work for the Re-
spondent after it withdrew recognition—the net effect was the same.
3 I disagree with the majority’s assertion that the judge found that
there was no objective evidence to support either the Respondent’s
claims that it feared an industrywide work stoppage or that it antici-
pated that such stoppage would be accompanied by vandalism. At most,
the judge found a lack of objective evidence as to the vandalism claim.
To the extent that the judge’s finding was broader, I disagree with it,
for the reasons discussed above.
4. That the Union is the 9(a) representative of the employees
in the foregoing bargaining unit.
5. That on or about June 28, 1996, the Respondents, (a)
promised employees medical benefits, guaranteed work, and
401(k) retirement benefits if they abandoned their membership
in the Union; (b) told them that they would be laid off effective
July 1, 1996; and (c) urged them to join another union.
6. That on June 28, 1996, the Respondents bypassed the Un-
ion and dealt directly with the employees.
7. That on June 30, 1996, the Respondents withdrew recog-
nition from the Union.
8. That since June 30, 1996, the Respondents have failed to
remit contributions to contract funds and have failed to apply
differentials fees, travel time benefits, wages, and other terms
set forth in the collective-bargaining agreement.
9. That on July 1, 1996, the Respondents for discriminatory
reasons laid off employees Fred Shaaf, and Earl Eddy from July
1 to July 3, and laid off employees Thomas Kish and Richard
Marotta from July 1 to July 8.
10. That in mid-August 1996, the Respondents threatened
employees that they would sell their trucks and lay off their
employees if they joined or supported the Union.
11. That in mid-August 1996, the Respondents interrogated
their employees.
12. That on September 25, 1996, the Respondents interro-
gated employees concerning their testimony provided to the
Board.
The Respondents assert that the contracts they had with the
Union were prehire agreements under Section 8(f), which were
repudiated effective July 1, 1996. In this regard, the Respon-
dents argue that as their recognition was based on Section 8(f)
of the Act, and not Section 9(a), they were free to repudiate the
contract and withdraw recognition from the Union at the expi-
ration of the contract term, irrespective of whether they had any
doubt as to the Union’s continuing majority status. Assuming
that the Respondents are correct in this assertion, then the other
alleged violations would be explained by the circumstances
peculiar to this case.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents are New York corporations engaged in the
building of water and sewage systems. They admit and I find
that they are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5) of the
Act.
1 The Respondent’s unopposed motion to correct the Record is
granted. In this regard, the transcript of March 5, 1997, misidentified
Mr. Miuccio, the attorney for the Respondent, as Peter Zwiebach, the
attorney for the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78
II. ALLEGED UNFAIR LABOR PRACTICES
Techno Construction Corp. was formed in 1988 and is
owned by Anthony Carpeniello and Joseph P. Mutino who each
own 50 percent of its stock. It is engaged in the business of
installing and repairing water and sewer pipes and mains.
There is no question that it is engaged in the construction indus-
try and that in performing its work, it employs construction
employees such as laborers, carpenters, and operating engi-
neers, all of whom are represented by their respective unions.
Techno’s principal customer is the New York City Department
of Design and Construction.
Janco Contracting Corp. was formed around 1990. Its presi-
dent and majority owner is Nigel Singh who owns 51 percent of
the Company’s stock. Carpeniello and Mutino each own 24-½
percent of Janco’s stock and the directors of this company are
Singh, his wife, and Mutino. Janco is certified as a minority
contractor and because of that, apparently is able to have an
edge in obtaining public contracts. Its business is essentially
the same as Techno’s and it uses many of the same supervisors.
As in the case of Techno, there is no dispute that Janco is en-
gaged in the construction industry and that it employs construc-
tion workers who are represented by construction unions.
Many of Janco’s jobs have been done for the Port Authority. In
terms of volume, Janco is much smaller than Techno.
While Techno and Janco may bid for and receive their own
contracts, it is agreed that from time to time they will also work
as joint venturers. Thus, during the last 4 to 5 years, at least
four jobs were done by Techno and Janco as joint venturers
under the name of Techno Contractors.
In relation to the performance of their work, both Techno
and Janco use truckdrivers. In this regard, Techno employs four
men who are drivers and when Janco needs drivers, it will nor-
mally lease them and the trucks from Techno. (Janco neither
directly employs truckdrivers nor owns trucks.) The four em-
ployees in question are Fred Shaaf, Richard Marotta, Earl
Eddy, and Thomas Kish. Whether they work on a Techno job,
a Janco job, or a joint venture job, the drivers would be super-
vised by Mario Leperuta and/or Sam Houston. The General
Counsel contends, and I agree, that given these circumstances,
Techno and Janco constitute a single employer vis-a-vis the
employment of these truckdrivers. Pathology Institute, 320
NLRB 1050 (1996).
The uncontradicted testimony of Mutino was that Techno
initially recognized the Charging Party in late December 1990,
or early January 1991, by signing an agreement before hiring
any drivers. Mutino testified that he signed this agreement be-
cause Techno had obtained a contract to perform certain work
at Fulton Street which required the company to have collective-
bargaining agreements with all the local unions representing the
categories of employees that it would have working at the job-
site. In this regard, what Techno signed was an agreement to
bound by the collective-bargaining agreement that had been
negotiated between Teamsters Local 282 and the General Con-
tractors Association (GCA) and which ran from 1990 to 1993.
(This agreement is entitled the “New York City Heavy Con-
struction and Excavating Contract”). When Techno began to
utilize people to drive trucks, (sometime in March or April of
1991), these people were paid wages and benefits in accordance
with the Local 282/GCA collective-bargaining agreement. And
when that contract expired, Techno agreed to be bound to the
succeeding agreement that ran until June 30, 1996.2 Although it
is not entirely clear as to timing, the record indicates that Janco
also signed an identical agreement.
On April 26, 1996, Techno and Janco sent letters to the Un-
ion stating:

Upon expiration of the existing collective-bargaining agree-
ment on June 30, 1996, we will repudiate our pre-hire collec-
tive-bargaining relationship with Local Union No. 282 and,
further, withdraw recognition from the union as their repre-
sentative of our bargaining unit employees.

As noted above, there is a dispute as to whether the collec-
tive-bargaining relationship between the Union and the Re-
spondents was initiated and maintained in accordance with
Section 8(g) or Section 9(a) of the Act. It is my opinion that
this relationship will be determined by the kind of work the
truck drivers have done during their employment and not by
what the parties intended back in 1990 and 1991. (I doubt that
either party, and certainly not the employer, had these statutory
provisions in mind when Techno recognized the Union).
When asked what work he did, Earl Eddy, with admirable
succinctness, testified, “I drive a truck.” Nevertheless, the
question here is where does he and the other drivers, drive their
trucks. (Or hang out when they are not actually driving).
Clearly all their driving is connected to the construction work
that is being undertaken. But some of their driving is done to
bring materials to and from the locus of where the construction
work is being done, while at other times their driving is done
directly on the jobsite itself.
A typical type of job would be to remove old pipes and to in-
stall new water pipes and sewer pipes to a particular street or
groups of streets. In this circumstance, the jobsite would con-
sist of the streets where the work was being done and it would
sort of move along as work went from one end to the other.
Depending on the size of the job, the company’s vehicles or
machinery (such as backhoes, bulldozers, etc.) would be parked
near the trenches or nearby on adjacent streets or on a nearby
vacant lot if available. On some jobs, the trucks might be
parked on the jobsite. In other cases, trucks are kept at
Techno’s yard where they are driven to the jobsite each day.
To accomplish a job as described above, a trench is dug us-
ing heavy equipment, (such as backhoes), operated by operat-
ing engineers. If old pipe is there, it is removed and transported
away from the site. Crushed stone is put into the trench, whose
sides have been shored up by carpenters. After this, new pipe
is placed into the trench and connected. When pipe is placed in
one end of a trench, it is covered by dirt, much of which had
been excavated when the trench was first dug, and this portion

2 The Local 282 agreements with the GCA that were applied to the
Respondents did not contain hiring halls and did contain 30-day union-
security clauses. In addition, the agreements required employers on
projects of a certain size to employ “on site shop stewards” whose
function, according to Business Agent Lawrence Kudler, would be to
handle grievances of truckdrivers employed by the company. As the
Respondents have never worked on jobs which met the triggering size,
they have never employed an “on site steward.”
TECHNO CONSTRUCTION CORP. 79
of the trench would then be covered by asphalt. As the work
proceeds down the street or streets, there is a continual process
of excavation, trench making, pipe installation, and trench cov-
ering.
In a pretrial affidavit Thomas Kish, one of the truckdrivers,
described his typical work day as follows:

My typical workday driving a dump truck is this—In the
morning I would go to Techno’s yard and pick up the truck
and then go to the nearest jobsite where we were working. I
would be loaded by an excavator, operated by an operating
engineer on site. Then I would, if it was asphalt, bring it to
Staten Island landfill. Most dirt and fill would be used for
back fill and we stockpile it on the jobsite. They put pipe in
the ground and they dig out the dirt for that piping. I would
dump that dirt that they dug up the day before at another loca-
tion on the site for back fill. So for example, you would take
an empty dump truck to one part of the site, where an operat-
ing engineer with an excavator would load the dump truck
with fill dirt, and then I would drive it over to another part of
the jobsite and dump it where it was needed for fill. There
was no other job I performed on the jobsite besides moving
fill. Sometimes we take the unwanted fill or broken concrete
and bring it to the land fill outside the jobsite. At times we
would pick up stone or paving at the nearest facility and then
we’d bring this material to the jobsite on our dump truck or on
a dump trailer. This is a tractor and a trailer connected, its a
trailer with a dump body. I work an 8 to 9 hour day, and
sometimes we spend all day on the job, they don’t send you
away. Sometimes they can put 100 to 200 feet of pipe in the
ground so they have trucks line up so they load one and he’ll
go dump on the jobsite around the block, and they’ll load an-
other truck and he’ll go and dump in the site, its a big circle.
If all our trucks are working, the employer needs more trucks,
he’ll hire outside trucks and send them to dump at other sites.

Each side’s witnesses gave estimates as to what percentage
of the time the truck drivers spent at a jobsite as opposed to
being away from a construction site. Frankly it was my opinion
that the testimony of both sides regarding these estimates was
not particularly reliable as there had been no prior need to
quantify this issue. The General Counsel’s witnesses testified
that they spent a majority of their time away from the jobsite,
while the company’s witness testified that the drivers spent a
majority of their time on the jobsites.
Based on the testimony from all witnesses, it seems that the
percentage of time that any of the truckdrivers spends at a con-
struction site will depend on the type of work being done, the
type of truck to which he is assigned, and what has to be done
on any given day.
The company uses three types of trucks that are operated by
the four people involved in this case. It has two dump trucks,
one tractor dump truck, and one boom truck. The dump trucks
are 10 wheeled trucks and look like what they are called.
The tractor truck consists of a tractor and a separate con-
tainer, which holds more stuff than can be held by a dump
truck. Earl Eddy, who is number one in seniority, is normally
assigned to drive the tractor-trailer. Everyone agrees that the
tractor-trailer is mainly used to take materials to and from job-
sites and will not ordinarily be operated on a site. Accordingly,
for the most part, Eddy does not drive on a construction site.
The boom truck is a vehicle with a hydraulic arm having a
hook and which is used to move materials such as steel plates
etc. around a jobsite as needed. In this regard, driver Kish
testified that the boom truck is used on a jobsite to unload and
load things such as pipe, fittings, steel rebar, steel plates, the
small roller, and other small equipment. The boom truck is
operated by one of the teamster truckdrivers and not by an op-
erating engineer. In my opinion, when operated on a jobsite by
one of the teamster drivers, that person is engaged in on-site
construction work.
In my opinion, the record shows that although the dump
trucks can and are used to carry materials such as sand, asphalt,
steel plates, and stone to and away from jobsites, a substantial
and perhaps a majority of their time is used to move dirt from
the trench being excavated to a pile on the jobsite and back to
the trench when it is ready to be closed. Thus, Mutino’s testi-
mony regarding this subject was not really much different from
the employees who used these dump trucks and conceded that
they spent a lot of their time at the jobsites. Mr. Kish’s testi-
mony was that if he drove the tractor-trailer most of his time
was spent away from the jobsite. Nevertheless he also testified
that; “If I’m driving a ten wheel dump truck, I would normally
spend most of the entire day on the job, dumping from the site
of the excavation to wherever on the job we have a stockpile,
unless they instruct me to go off the job and get a load of stone
or a load of asphalt or something.”
There is no dispute that on Friday, June 28, 1996, Mutino
spoke separately to the four drivers and told them that the com-
pany was no longer going to be affiliated with the Union.
Fred Shaaf testified that he was told that the company was
going to stop being in the union but that the employees would
keep the same benefits. Shaaf testified that he was asked if he
would continue to work and that he responded that he would
rather be laid off than work without a union.
Earl Eddy testified that he didn’t recall much of what was
said at the June 28 meeting. To the extent that he recalled the
event, he testified that the employer said that they were going
to repudiate the contract with the Union and that there was
some talk about the men forming their own union. Eddy said
that there was a mention of the men getting benefits without
having a union contract and that there was some confusing
discussion about “core” membership. Eddy testified that he did
not tell the employer that he would not work if there was no
union contract.
Mr. Kish testified that Mutino told him that the company was
no longer going to be affiliated with Local 282 and that he was
asked if he would continue to work for them. He states that he
responded that he would not under those conditions. According
to Kish, he asked if there were any options and Mutino said that
the company hadn’t really looked into anything but that it
would in the future. Kish stated that insurance and a 401(k)
plan was mentioned as a possibility for future exploration but
that no specific promises were made to him. Kish further testi-
fied that there was no discussion about a possible strike, al-
though his testimony clearly indicates that he told Mutino that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80
he would not be willing to work if the Company disaffiliated
from Local 282.
Mutino’s version of the June 28 conversations is not much
different from the version given by the employees.3 Mutino
states that he told them that under NLRB rules and regulations,
the company was no longer required to recognize the Union
and that the law permitted the company to give the employees a
comparable package of wages and benefits. Mutino states that
he told them that there were a lot of options and if they couldn’t
continue to be covered by the Union’s medical plan, the com-
pany would put them into the plan that covered the Company’s
office workers. Mutino states that he told the employees that he
was not an expert and would try to research what the Company
could legally do to protect the men. According to Mutino, he
mentioned something about financial core membership, but it is
evident from his testimony and the testimony of the employees
that he really didn’t know what he was talking about and this
reference confused everyone. Mutino agrees that he told the
drivers that they could get together and form their own union.
Mutino states that he also told the employees that they could
vote for Local 282 or any other union. According to Mutino,
the men were very confused and concerned about their em-
ployment and benefits and he asked them if they were coming
to work. He testified that Fred Shaaf said that he wanted to
take a week off but that the other drivers said that they didn’t
know what they were going to do and that there probably was
going to be an industry-wide strike on Monday.
At some point during, or immediately following these inter-
views, the 4 drivers were told not to come in on Monday, July
1, 1996, and they did not. In this regard, Mutino testified that
because the next week had the holiday anyway and because he
thought that there might be the possibility of a general strike by
Local 282, he told the drivers to stay home on Monday and that
they would see what was going on. According to Mutino he
anticipated that if there was a general strike by the Union, there
might be some vandalism. There is, however, no objective
evidence to support this opinion of Mutino’s.
The drivers visited the Willowbrook jobsite on Tuesday, July
2, but were not asked to return to work.
On Wednesday, July 3, two of the drivers, Shaaf and Eddy,
were recalled to work. As July 4 fell on Thursday, no one
worked on July 4 and 5. Kish and Marotta were called back to
work on Monday, July 8, 1996.
There is no dispute that as of July 1, 1996, the Company has
failed to comply with the terms and conditions of the expired
collective-bargaining agreement and has not, inter alia, remitted
any moneys into the Pension and Welfare Funds. There is also
no dispute that the company has unilaterally changed the condi-
tions of employment for the drivers (as represented in the prior
collective-bargaining agreement), without affording the Union
an opportunity to bargain.
Kish also testified to a conversation he had with Carpeniello
in mid-August 1996. In this regard, he stated that Carpeniello

3 Marotta did not testify about his conversation with Mutino on June
28, as it was represented that his testimony would be essentially the
same as the others and his testimony in this regard was cumulative.
asked if he was looking for work elsewhere to which Kish re-
plied no.
Kish finally testified that in late September 1996, Mutino
asked him if he thought that the Company was threatening him.
When Kish asked Mutino what made him say this, Mutino re-
sponded to the effect that the Union had brought legal proceed-
ings against the Company and that he, (Mutino), thought that
Kish was the only employee who would say anything like that.
Kish states that he told Mutino that he never claimed that the
Company had threatened his job and that he liked his job and
wanted to keep it.
III. ANALYSIS
(a) The withdrawal of recognition
Section 8(f) of the Act reads as follows:

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 indus-
try with a labor organization of which building and construc-
tion employees are members (not established, maintained, or
assisted by any action defined in section 8(a) of this Act as an
unfair labor practice) because (1) the majority status of such
labor organization has not been established under the provi-
sions of section 9 of this act prior to the making of such
agreement, or (2) such agreement requires as a condition of
employment, membership in such labor organization after the
seventh day following the beginning of such employment or
the effective date of the agreement, whichever is later, or (3)
such agreement requires the employer to notify such labor or-
ganization of opportunities for employment with such em-
ployer, or gives such labor organization an opportunity to re-
fer qualified applicants for such employment, or (4) such
agreement specifies minimum training or experience qualifi-
cations for employment or provides for priority in opportuni-
ties for employment based upon length of service with such
employer, in the industry or in the particular geographical are:
Provided, That nothing in this subsection shall set aside the
final proviso to section 8(a)(3) of this Act: 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 pursu-
ant to section 9(c) or 9(e).

The employers take the position that they are engaged in the
construction industry, that the employees in the bargaining unit
are engaged in construction industry work, and that pursuant to
John Deklewa & Sons 282 NLRB 1375, enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), the
employers were free, after the last contract expired, to withdraw
recognition from the Union. Obviously, if the employers could
repudiate the agreement and withdraw recognition, they could
also unilaterally refuse to continue the terms and conditions set
forth in the expired contracts.
In John Deklewa & Sons, supra, the Board held that prehire
collective-bargaining agreements in the building and construc-
tion industry, entered into pursuant to Section 8(f) of the Act,
will be enforceable through the refusal to bargain provisions of
TECHNO CONSTRUCTION CORP. 81
the NLRA at Section 8(a)(5) and 8(b)(3), unless the employees
vote, in a Board-conducted election, to reject or change their
bargaining representative.

Taken together, the four basic principles we advance today
provide an overall framework for the interpretation and appli-
cation of Section 8(f), which will enable parties to 8(f) agree-
ments and employees to know their respective rights, privi-
leges and obligations at all stages in their relationship. When
parties enter into an 8(f) agreement, they will be required, by
virtue of Section 8(a)(5) and Section 8(b)(3), to comply with
that agreement unless the employees vote, in a Board-
conducted election, to reject (decertify) or change their bar-
gaining representative. Neither employers nor unions who are
party to 8(f) agreements will be free unilaterally to repudiate
such agreements. During its term, an 8(f) contract will not
act as bar to petitions pursuant to Section 9(c) or (e). In de-
termining the appropriate unit for election purposes the Board
will no longer distinguish between “permanent and stable”
and “project by project” work forces and singe employer units
will normally be appropriate.

In John Deklewa & Sons, supra, the Board also held that the
party asserting that a contract between a union and a construc-
tion industry employer covering construction workers is a 9(a)
agreement has the burden of proof. See also J & R Tile, 291
NLRB 1034, 1036 (1988), where the Board noted, in a case
involving a construction industry employer, that it “will require
positive evidence that the union sought and the employer ex-
tended recognition to a union as the 9(a) representative of its
employees before concluding that the relationship between the
parties is 9(a) and not 8(f).” In J & R Tile, the Board specifi-
cally distinguished the facts from those in Island Construction
Co., 135 NLRB 13 (1962), where it was clear that the union
demanded and received recognition as the 9(a) representative.
Central to the Employers’ case is the assertion that the con-
tracts it had with the Union were made pursuant to Section 8(f)
of the Act and were never converted to a 9(a) relationship by
any subsequent demonstration of majority status and agreement
by the employers. In support of its position that recognition of
the Union was initially granted by virtue of Section 8(f), the
employers asserts that no drivers had been hired at the time that
the first contract was signed. The Respondent’s main witness,
Joseph Mutino, testified that the initial recognition which is
evidenced by the labor agreement, which is not dated, was
signed by him either in December 1990, or in January 1991. In
either case, he testified that the Respondents did not, at that
time, employ any truckdrivers; the first being hired in February
1991. Although the Union made an offer of proof during the
course of the hearing, that offer would not have contradicted
the testimony of Mutino regarding the initial recognition.4

4 At most, the Union’s offer of proof would only establish that a
copy of an agreement executed by the employer was received in the
Union’s office on March 15, 1991. Thus, the offer of proof, even if it
might tend to establish that a union representative executed the agree-
ment on or after March 15, 1991, would show only that the employer,
at some point before March 15, 1991, executed a document which, in
effect constituted an agreement to recognize the Union. There is noth-
ing in the Union’s offer of proof, and it can offer no witness, who can
The General Counsel contends that even if the original rec-
ognition was granted at a time when the Respondents did not
employ any bargaining unit employees, the work done by the
drivers is not construction work and therefore the bargaining
relationship would fall within the ambit of Section 9(a) and not
Section 8(f) of the Act. In this regard, she argues that even if
the original recognition was made at a time when the Respon-
dents did not employ any bargaining unit employees, and there-
fore would have violated Section 8(a)(2) at that time, (as a pre-
hire agreement), the fact is that as no 8(a)(2) charge was filed
within 6 months of the granting of recognition, it can no longer
be challenged at the present time. See Gibbs & Cox, Inc., 280
NLRB 953, 967 fn. 21 (1986); International Hod Carriers
(Roman Stone Construction), 153 NLRB 659 (1965).
There is and can be no dispute that the Respondents are pri-
marily engaged in the construction industry as general contrac-
tors. In Teamsters Local 83, 243 NLRB 328, 331 (1979), the
Board, in finding a particular group of employers to be outside
the construction industry, stated:

Thus the Board has found that Section 8(f) applies to employ-
ers who provide both labor and materials for construction
without regard to whether the greater amount of revenue
comes from the labor or from the materials. The exemption
has also been applied to employers whose general business is
not in the industry, but who are engaged in construction work
on a specific project. In addition, Section 8(f) has been ap-
plied to companies engaged in the general contracting busi-
ness which involves employees working and performing ser-
vices at construction sites, such as sheet metal contractors.
However, the 8(f) exemption has been denied to employers
whose business involves the manufacture of construction ma-
terials which are installed by employees of a different em-
ployer and to employers who have only a minimal involve-
ment in the construction process. [Citations omitted.]

Notwithstanding the fact that the Respondents are employers
engaged in the construction industry, if the collective-
bargaining agreements do not cover employees who are en-
gaged in, or who, upon their employment, will be engaged in
the building and construction industry, then the successive con-
tracts between the Respondents and the Union would fall out-
side the scope of Section 8(f) and would therefore be 9(a)
agreements, which even if unlawfully made at the time of initial
execution, could no longer be attacked at the present time.
Under such a circumstance, the Union would enjoy a presump-
tion of majority status and the Respondents, at the expiration of
the contract, could only withdraw recognition on showing an
objective basis for doubting the Union’s majority status, or
proof that the Union did not in fact represent a majority of the

contradict Mr. Mutino’s assertion that he recognized the Union in De-
cember 1990 or January 1991, before any unit employees were hired.
Moreover, even assuming arguendo that the Respondents did recognize
the Union at some point after it had hired truckdrivers, there is nothing
in the Union’s offer of proof which would show that the granting of
recognition was in any way based on the Union having demonstrated its
majority support to the Respondents or that the Respondents had
granted recognition based on the Union’s asserted majority status.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82
bargaining unit employees. Laidlaw Waste Systems, Inc., 307
NLRB 1211 (1992). In the present case, the Respondents of-
fered no evidence that they had any such objective basis for
doubting the Union’s majority status and their entire defense on
this point is that they are entitled to withdraw recognition on
the basis of John Deklewa & Son, supra.
On the other hand, if the employees involved herein are en-
gaged in construction work, then the burden of proof would fall
on the Union to demonstrate that the collective-bargaining rela-
tionship was initiated as a 9(a) relationship or that it was there-
after converted from an 8(f) to a 9(a) relationship. John Dek-
lewa & Sons, supra.5 Assuming for arguments sake that these
employees are, in fact, engaged in construction work, the Union
has not come close to sustaining this burden of proof.
There is no real dispute that on occasion, the drivers perform
onsite driving and at other times perform offsite driving. In the
case of offsite driving, it could be argued that such work should
not be construed as construction work within the meaning of
Section 8(f). How much time the drivers expend in either type
of activity is in dispute.
Deciding whether or not a particular employee or group of
employees is engaged in construction work may come up in the
context of two separate provisions of the statute. (Sec. 8(e) and
Sec. 9(f)). As noted below, these provisions were enacted for
differing reasons.
There are a group of cases involving the construction indus-
try proviso to Section 8(e) which is typified by a case such as
Teamsters Local 282 (Allco Concrete Products), 234 NLRB
770 (1978). In that case, the union was charged with violating
the hot cargo provisions of the Act set forth in Section 8(e).
(This prohibits a union and an employer from agreeing in ad-
vance to a secondary boycott whereby the employer agrees not
to do business with any person with whom the Union has a
primary dispute.) The union defended on the grounds that its
agreement fell within the construction industry proviso to Sec-
tion 8(e) because the agreement sought only to bar from the
construction site, employees of employers who were doing
onsite work. The administrative law judge rejected this defense
and held that the proviso to Section 8(e) would not apply to
truckdrivers who only were making deliveries to or from a
construction site. In reaching this conclusion the administrative
law judge relied on Teamsters Local 982 (J.K. Barker Truck-
ing), 181 NLRB 515, 517–518 (1970), enfd. 450 F.2d 1322
(D.C. Cir. 1971); Teamsters (Island Dock Lumber), 145 NLRB
484 (1963), enfd. 342 F.2d 18 (2d Cir. 1965); and Teamsters
Local 294 IBT (Rexford Sand & Gravel), 195 NLRB 378
(1972). (The cited cases all involved the question of whether
the Union’s actions in seeking to enforce agreements were pro-
tected by the construction industry proviso to Section 8(e) of
the Act and none involved the question of whether a collective-

5 In Goodless Electric, 321 NLRB 64 (1996), recognition initially
granted via Sec. 8(f) was subsequently converted to a 9(a) relationship
when the employer agreed to recognize the union as a 9(a) representa-
tive based on a majority showing of authorization cards. In this case
the Board held that because of the conversion, the employer could not
withdraw recognition after the contract expired without objective evi-
dence that it doubted the union’s presumption of continuing majority
status.
bargaining relationship was pursuant to Section 9(a) or 8(f) of
the Act).6 The administrative law judge noted:

The Board has held the delivery by a contractor of
ready-mixed concrete to a construction site to be merely a
delivery of work performed offsite rather than onsite and
not within the protection of the proviso to Section 8(e).
Similarly the unloading of sand at several locations on a
construction site was found to be merely a delivery of ma-
terials and not work at the site of construction exempted
by the proviso to Section 8(e).7

The number of cases specifically defining construction work
within the context of Section 8(f) are quite limited.
In J.P. Sturrus Corp., 288 NLRB 668 (1988), the employer
operated a quarry, batch plant, and delivery service for ready-
mixed concrete. One of the issues was whether the company
was a successor to a company having a contract with the Union
and whether it could either refuse to recognize or withdraw
recognition from the Union. The company argued, inter alia,
that it was an employer engaged in the construction industry
and therefore was free to withdraw recognition under DeKlewa
& Sons, supra. The Board agreed with the administrative law
judge’s conclusion that the employer was not in the building
and construction industry within the meaning of Section 8(f). It
stated:

[W]e note that its drivers occasionally, and at their own dis-
cretion, assist the contractor at the construction site with
screening and spreading of concrete, after they have poured it,
when the contractor’s own employees are unavailable. The
drivers are not required or asked to perform these functions by
the Respondent or the contractor; nor were they asked to do
so by Wheeler, the Respondent’ predecessor. Rather, the
drivers offer their assistance on occasion in order to finish the
job faster so that they can move on to their next assignment.
The drivers also regularly hose the contractor’s tools as part of
their cleanup. We find that these incidental tasks do not bring
the Respondent within the building and construction industry
as contemplated by Section 8(f) of the Act.

6 It should be noted that the legislative motive for creating 8(f) and
the construction industry proviso to Sec. 8(e) are completely different.
In connection with the 8(e) proviso, the purpose was to prevent poten-
tial labor strife between union and nonunion workers at a construction
site. Joint Council of Teamsters Local 42, 248 NLRB 808, 815 (1980).
As to 8(f), the legislative purpose was to allow construction unions to
represent workers who in this particular industry tend to work on a
project-by-project basis for limited or short periods of time and where
representation elections, in a large segment of the industry, would not
be feasible. Operating Engineers Pension Trust v. Beck Engineering &
Surveying Co., 746 F.2d 557 (9th Cir. 1984).
7 Joint Council of Teamsters Local 42, 248 NLRB 808 (1980), Joint
Council of Teamsters Local 42 (Inland Concrete Enterprises), 225
NLRB 209 (1976), Teamsters Local 282, 197 NLRB 673, 675 (1972),
and Teamsters Local 294, 195 NLRB 378, 381 (1972), are also cases
involving the interpretation of the proviso to Sec. 8(e) with the conclu-
sion that mere transportation of good or materials to or from a construc-
tion site is not onsite work and therefore not covered by the construc-
tion industry proviso.
TECHNO CONSTRUCTION CORP. 83
In St. John Trucking Inc., 303 NLRB 723 (1991), the em-
ployer, who was engaged in the transportation of stone and
sand to jobsites, contended that it was a construction industry
employer entitled to withdraw recognition under DeKlewa &
Sons. The Board rejected this contention, a conclusion that was
not surprising given the past precedent regarding this type of
employer and these types of employees. Nevertheless, the ad-
ministrative law judge also noted, in support of his conclusion,
that the agreement contained a 30-day union-security provision
which is not typical of prehire agreements in the construction
industry. The latter argument is not particularly relevant in my
opinion as it is certainly possible that a construction industry
contract may contain either a 7-day or 30-day union-security
clause as agreed to by the parties. The fact that such an 8(f)
agreement may legally contain a 7-day union-security clause
does not mean that all construction industry labor contracts will
necessarily contain such provisions or that agreements not con-
taining such a clause are, a fortioriari, not 8(f) agreements.
In U.S. Abatement Inc., 303 NLRB 451 (1991), the adminis-
trative law judge concluded that the employer which was en-
gaged in the business of asbestos abatement was an employer
engaged in the construction industry within the meaning of
Section 8(f) of the Act. He stated:

It is evident that the asbestos removal activities in
which Respondent is engaged affect the structure of build-
ings and equipment, such as boilers and pipes, which after
installation, have become an integral part of the structure
itself. Asbestos removal involves the alteration and repair
of buildings and permanently attached fixtures and equip-
ment. It is readily distinguishable from building mainte-
nance and removal of waste . . . . Logically, it follows that
the removal of one type of insulation, for which anther
type of insulation is to be substituted, is a necessary part of
the overall insulation installation or reinsulation process.
One essential part of the process is just as much a part of
the construction industry as is the other. For purposes of
the definition of the building and construction industry, as
used in Section 8(f), removal and substitution are but two
halves of the whole.

The Respondent cited in support of its position Operating
Engineers Pension Trust v. Beck Engineering & Surveying Co.,
746 F.2d 557 (9th Cir. 1984). This case, which did not proceed
before the National Labor Relations Board, was an action by
the union’s Pension Trust Fund to recover contractually re-
quired payments. The case was brought under Section 301 of
the Labor Management Relations Act (LMRA) and Section
502(a)(3) of the Employee Retirement Income Security Act
(ERISA). The employer contended inter alia that its contract
with the union was made under Section 8(f) of the National
Labor Relations Act (NLRA); that the employee for whom
benefits were sought spent a substantial portion of his time
doing construction work; and that accordingly it was permitted
to disavow the contract at any time prior to the union’s attain-
ment of majority status. The company was engaged in civil
engineering and surveying and the individual involved, (Gary
Giesseman), was employed as an office manager and secretary.
Nevertheless, there apparently was no dispute that in addition
to his office duties, Giesseman also did surveying work in the
field. Thus, in this case, we had a situation, where an employee
spent part of his time doing “construction” work and part of his
time doing nonconstruction work. In concluding that the labor
contract was an 8(f) agreement, the court stated:

By its terms, Section 8(f) imposes three prerequisites
on a pre-hire agreement in order to bring the agreement
within its coverage: (1) it must cover employees who are
engaged in the building and construction industry; (2) the
agreement must be with a labor organization of which
building and construction employees are members; and (3)
the agreement must be with an employer engaged primar-
ily in the building and construction industry.
. . . . .
In adopting Section 8(f), Congress recognized that the
representation procedures prescribed in Section 9 of the
Act were largely unsuited to the peculiar circumstances of
the construction industry, where employers ordinarily hire
on a project-by-project basis. In such a situation, “repre-
sentation elections in a large segment of the industry are
not feasible to demonstrate such majority status due to the
short periods of actual employment by specific employers.
Instead, Congress acknowledged that pre-hire agreements
were appropriate in an industry where an employer who
might employ no one unless he is working on a project,
must nevertheless know his anticipated labor costs before
making a bid and must have access to a readily available
pool of skilled craftsmen . . . .”
We believe that the statutory requirement is satisfied if
a substantial part of an employee’s work is in the building
and construction industry. We note that in defining the
class of employers qualified to enter Section 8(f) agree-
ments, Congress emphasized that it is not enough that an
employer be merely one who is engaged in construction.
Instead, the employer must be “engaged primarily in the
building and construction industry.”
. . . .
No such limitation is placed on the definition of em-
ployees who may be covered by a Section 8(f) pre-hire
agreement. All that is required that they be “engaged (or
. . . upon their employment, will be engaged) in the build-
ing and construction industry.” As noted above, counsel
have not cited to us any cases in which the inquiry focused
on the degree to which the employee’s work, as opposed
to the employer’s business, was construction related.
We believe that the congressional purpose, which was
to balance the Act’s policy disfavoring recognition of mi-
nority unions against the specialized needs of the construc-
tion industry, would be satisfied by a requirement that a
substantial part of the work performed by employees cov-
ered by a pre-hire agreement be in the building and con-
struction industry.

In my opinion, the court’s opinion in Operating Engineers
Pension Trust v. Beck Engineering & Surveying Co., supra, is
consistent with the statutory language of Section 8(f) and is not
inconsistent with any Board case on the subject. And if the test
for finding that an agreement is presumptively an 8(f) agree-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 84
ment when the employees employed by a construction industry
employer are substantially engaged in construction work, this
means that the construction portion of their work must be more
than minimal, but need not constitute a majority of their work.
This seems to be the import of the court’s decision and it is
consistent with Board cases in other contexts where the word
“substantial” means less than a majority. See for example,
Harte & Co., 278 NLRB 947 (1986), where the Board held that
in a relocation case, the employer would be bound to honor the
existing contract if a substantial number of its employees were
employed at the new location at a time when it became substan-
tially operative. (In that case the number was 40 percent.) See
also General Extrusion, 121 NLRB 1165 (1958), where in an
expanding unit situation the Board held that a contract would
constitute a contract bar if a substantial number of employees
had been hired (at least 30 percent), and a majority of the job
classification had been created.
It is my opinion that (a) the employers herein are primarily
engaged in the construction industry and (b) that the employees
covered by the agreements are substantially engaged in doing
construction work (onsite truck driving). Therefore, I conclude
that the agreements have, at all times relevant, been made pur-
suant to Section 8(f) of the Act. As there has been no showing
that the initial recognition was made in accordance with a ma-
jority claim and as there is no evidence to show that the 8(f)
relationship was at any subsequent time converted to a 9(a)
relationship, I conclude that the employers were free to repudi-
ate the collective-bargaining relationship on the expiration of
the labor contracts. Accordingly, I shall recommend that the
8(a)(5) allegations be dismissed.8
(b) The other allegations
The General Counsel contends that the Respondents violated
Section 8(a)(1) of the Act by various statements made to the
employees on June 28, 1996. She accuses the Respondents of
making illegal promises and with direct dealing and bypassing
of the Union. She also asserts that the Company laid off the
four employees effective on July 1, 1996, albeit for only 2 or 3
days.
If the Respondents had the right to repudiate the contracts
and the collective-bargaining relationship, they had the right to
tell the employees that this was what they were going to do.
And if they had the right to terminate the bargaining relation-
ship along with the old contract, I see nothing unusual or illegal
in assuring the employees that the Respondents would attempt
to maintain the status quo, by giving them benefits equivalent
to what they had been receiving under the collective-bargaining
agreement. Clearly such statements cannot be construed as
bypassing the Union if the employers had the right to withdraw
recognition and the Union no longer was the employees’ bar-

8 It should be noted that the Union, at any time after being recog-
nized, could have sought to have the employer recognize it as the 9(a)
representative by seeking an agreement based on a showing that the
Union represented a majority of the drivers. If the employer had re-
fused to recognize the Union on a voluntary basis, there was nothing to
prevent the Union from obtaining authorization cards from these em-
ployees and filing a petition for an election with the Board under
Sec. 9 of the Act.
gaining representative. Nor, under these peculiar circumstances
can the statements be construed as illegal promises of benefits
as the Union had not filed a petition for an election and was not
engaged in any campaign to organize the employees. Finally,
as I credit Mutino’s statement that he told employees that they
had the option of voting for Local 282 or any other union, I
shall not sustain the allegation of the complaint that he illegally
urged employees to form another union.
Under the circumstances of this case, I also cannot say that
the Respondents cannot ask the employees if they would be
willing to work if the Company withdrew recognition, if the
withdrawal of recognition was itself legal. Such a question
would clearly be justified by normal business considerations as
the Respondents are entitled to know if the employees would
refuse to work if they disaffiliated from the Union.
There still remains the question as to whether the temporary
layoff of the four drivers constituted a violation of Section
8(a)(3) of the Act. In this regard, the General Counsel’s theory
is that if the Respondents illegally withdrew recognition and
illegally failed to continue the terms of the expired agreement,
then even if one construed the employees’ June 28 statements
as constituting “quits,” they should nevertheless be construed as
being constructively discharged in violation of the Act. In
Goodless Electric Co., 321 NLRB 64 (1996), the Board noted
that employees “who quit work as a consequence of an em-
ployer’s unlawful withdrawal of recognition . . . and unilateral
implementation of changes in their terms and conditions of
employment have been constructively discharged in violation
of Section 8(a)(3) and (1).”
The above theory can’t work if the withdrawal of recognition
was legal and if the unilateral implementation of new terms and
conditions was also legal. Nevertheless, it seems to me that the
statements made on June 28 by some, but not all of the employ-
ees, to the effect that they would not be willing to work without
union representation, were not intended and were not under-
stood by Mutino as meaning that the employees were quitting
their employment. Indeed, Mutino’s testimony was that he
understood their responses as being ambiguous and indicating
that there might be a general strike on Monday, July 1. Thus,
from his perspective, it seems that Mutino told the employees
that they should not come in on Monday because he anticipated
that they might engage in a work stoppage, either in conjunc-
tion with a general strike by the Union vis-a-vis the industry, or
because of his withdrawal of recognition.
Interestingly, there is a line of old cases such as American
Brake Shoe Co., 116 NLRB 820 (1956), vacated 244 F.2d 489
(7th Cir. 1957), where the Board held that it is a violation of
Section 8(a)(3) for an employer to lock out its employees in
anticipation of a strike to avoid the “ordinary” losses that are
incidental to such a strike. The court disagreed with the
Board’s finding, but in subsequent cases, the Board reaffirmed
this view. See Hercules Powder Co., 127 NLRB 333, vacated
on other grounds 297 F.2d 424 (5th Cir. 1961), and J.R. Simplot
Co. 145 NLRB 171 (1963), remanded 60 LRRM 2096 (9th Cir.
1965).9 Of course, the practical consequence of these Board
9 The Court remanded J.R. Simplot with instructions to reevaluate
the Board’s finding in light of the Supreme Court’s decision in Ameri-
TECHNO CONSTRUCTION CORP. 85
decisions was negated by the Supreme Court’s decision in
American Ship Building v. NLRB 380 U.S. 300 (l965), when the
Court held that an employer may engage in an offensive lock-
out in order to press its proposals made in negotiations.
In the present case, I would analogize the “layoff” of the four
drivers as being similar to a defensive lockout, equivalent to
what was described in American Brake Shoe Co., supra. That
is, the employer sent the drivers home in anticipation of a strike
or concerted work stoppage. However, as such a “lockout”
could not have been in furtherance of the Respondents’ bar-
gaining position, because they no longer intended to bargain
with the Union, the “lockout” cannot be described as a pro-
tected offensive lockout pursuant to American Ship Building v.
NLRB, supra. If the decision in American Brake Shoe Co. re-
tains any vitality in these unusual circumstances, I would con-
clude that the layoff of the four drivers therefore constituted a
violation of Section 8(a)(3) of the Act.
The final allegations of the complaint concern conversations
between Kish and Mutino in August 1996. These conversa-
tions are not, in my opinion, coercive and therefore do not vio-
late Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By temporarily laying off employees Fred Shaaf, Earl
Eddy, Thomas Kish, and Richard Marotta, the Respondents,
Techno Construction Corp. and Janco Contracting Corp., vio-
lated Section 8(a)(1) and (3) of the act.
2. By the aforesaid conduct, the Respondents have engaged
in unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
3. Except as set forth above, it is recommended that the
other allegations of the complaint be dismissed.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondents having discriminatorily laid off employees,
they must make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of lay off
until the dates that they were recalled, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). As all of the employees herein
were recalled shortly after the layoff, there is no need for a
reinstatement order.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10

can Ship Building v. NLRB. A search through Shepard’s did not indi-
cate what the Board did with the case thereafter.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
The Respondents, Techno Construction Corp. and Janco
Contracting Corp., Staten Island, New York, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees in anticipation of a strike or con-
certed work stoppage.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, make Fred
Shaaf, Earl Eddy, Thomas Kish, and Richard Marotta whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in the
remedy section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs and notify the
employees in writing that this has been done and that the lay-
offs will not be used against them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at their
facility in Staten Island, New York, copies of the attached no-
tice marked “Appendix”11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 29, after being
signed by the Respondents’ authorized representative, shall be
posted by the Respondents immediately on receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the tendency of these pro-
ceedings, the Respondents have gone out of business or closed
the facility involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees em-
ployed at any time since September 17, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
11 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 86
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has 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 lay off or otherwise discriminate against
any of you for joining or supporting Local Union 282, Interna-
tional Brotherhood of Teamsters, AFL–CIO or because we
anticipate a strike or concerted work stoppage, except as other-
wise permitted under the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make Fred Shaaf, Earl Eddy, Thomas Kish, and
Richard Marotta whole for any loss of earnings and other bene-
fits resulting from their layoffs, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful layoffs
of Fred Shaaf, Earl Eddy, Thomas Kish, and Richard Marotta
and WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that any such references will not be
used against them in any way.

TECHNO CONSTRUCTION CORP. AND JANCO
CON-TRACTING CORP.