Torrington Construction Co., Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1972

198 N.L.R.B. 1158 (N.L.R.B. 1972)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Torrington Construction Company, Inc. and Local
545-D , International Union of Operating Engi-
neers, AFL-CIO. Cases 3-CA-4409 and
3-CA-4476
August 31, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On December 16, 1971, Trial Examiner Thomas F.
Maher issued the attached Decision in this proceed-
ing. Thereafter, Respondent and General Counsel
filed exceptions and supporting briefs. Respondent
also filed a brief in answer to General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions with the following
modifications.
The Trial Examiner found that in the spring of
1971 Respondent had discriminatorily refused to
rehire six field survey employees who had been laid
off the previous winter because of inclement winter
weather. We agree for the reasons given by the Trial
Examiner with this finding. The Trial Examiner
further found, however, that Respondent had not
refused to bargain with the Union in violation of
Section 8(a)(5) by rejecting the Union's request to
bargain for the field survey employee unit' in late
December 1970, and by subsequently unilaterally
subcontracting out the work previously performed by
its survey employees. The Trial Examiner based his
dismissal of the 8(a)(5) allegation on his finding that
when the survey employees ceased working for
Respondent in December 1970 they were terminated
and not simply laid off, and that Respondent
therefore had no employees in the unit for which the
Union claimed to be the representative, either at the
time the Union requested bargaining or at the time it
subcontracted its surveying work to an independent
engineering company. We do not agree with the Trial
Examiner's finding that the survey employees were
terminated in December 1970 or with his conclusion
based thereon that by its subsequent conduct
Respondent did not unlawfully refuse to bargain
with the Union.
In December 1970, Respondent employed two
survey crews each consisting of three members. All
six crewmen were members of the Union. Cashin, a
survey party chief, described the circumstances
under which his employment on the Schaghticoke
Highway project had ended on December 8, as
follows: "I was told by Mr. Sullivan [Respondent's
superintendent] that, you know, the weather was
getting bad and they were unable to work and
consequently they would have to lay me off; and
they laid off the other two members of the crew
.... When asked if anything was said about
returning to that project Cashin responded as
follows, "Well, Mr. Sullivan, indicated, you know, I
would probably get a call in the spring to come
back." Testimony of the other survey crew leader,
Borst, who was working on the Indian Castle project
is quite similar. He testified that on December 24,
1970, "... Jim Coughlin, superintendent, called me
over . . . and said that we were going to be laid off,
and, well that I was going to be laid off and my crew.
He gave me the checks and unemployment slips. He
said he thought that we did a good job for him and
he expected us to come back to work in the spring,
possibly in February." This testimony of the two
crew chiefs was credited by the Trial Examiner.
Regardless of any "termination" slips issued to the
survey employees, we find on the basis of the above
evidence that all six of the survey employees here
involved were laid off and not discharged in
December 1970. They entertained a reasonable
expectancy that they would be recalled by Respon-
dent in the spring of 1971 to perform field survey
work on its highway projects. There had thus
occurred by December 24, 1970, an ordinary season-
al layoff of Respondent's field survey teams, such as
often occurs for valid economic reasons in the
highway construction industry with the approach of
inclement weather.2 Accordingly, we find that as the
six members of the Respondent's two survey teams
were laid off and not terminated in December 1970,
they remained employees of the Respondent in the
field survey unit for which the Union was requesting
Respondent to bargain in late 1970 and early 1971.
As the six men were also members of the Union at all
I We find that all field survey employees, including party chiefs, rodmen,
and instrument men employed by Respondent on heavy and highway
construction projects within the geographical jurisdiction of the Union,
excluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act constitute a unit appropriate for the
purposes of collective-bargaining within the meaning of Sec 9(b) of the Act
Respondent's survey were covered by a collective-bargaining agreement
between the Union and Associated General Contractors on behalf of
contractor -members, including Respondent, effective from May 15, 1967, to
December 31, 1970. As found by the Trial Examiner , Respondent timely
served notice of contract termination and of withdrawal from the
multiemployer bargaining unit Under these circumstances, a unit limited to
Respondent's survey employees is appropriate Respondent has not
seriously contended otherwise.
2 Glar-Ban Corporation, 172 NLRB No. 222
198 NLRB No. 170
TORRINGTON CONSTRUCTION COMPANY, INC.
relevant times, we further find that the Union
represented a majority of employees in the appropri-
ate unit.
The obligation of Respondent to bargain with the
Union therefore not only existed throughout 1970,
but also survived the expiration of the parties'
collective-bargaining agreement on December 31 of
that year, as the Union continued to represent a
majority of the survey employees.3 As a conse-
quence, we find that Respondent violated Section
8(a)(5) and (1) of the Act not only by refusing on
January 6, 1971, and thereafter, to meet with the
Union to discuss possible renewal of the parties'
Heavy-Highway Labor Agreement,4 but also by
unilaterally subcontracting to McKee, a professional
land surveyor, on February 24, 1971, the highway
survey work performed until late December 1970 by
its own bargaining unit employees, without any
notice to or discussion with the Union about the
subcontracting decision and its potential impact
upon the unit employees.5
THE REMEDY
We have found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily failing
and refusing, on February 24, 1971, and thereafter,
to recall its six field survey employees from a
seasonal layoff occurring in connection with its
highway construction projects. To remedy these
violations we shall order that Respondent offer said
employees, namely, John Borst, Robert B. Cashin,
Michael Conte, Robert Makar, Richard D. Ortlieb,
and Thomas Smaldone, full and immediate reinstate-
ment to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges. We shall also order that
Respondent make each of them whole for any loss of
earnings suffered by reason of said discrimination
from February 24, 1971, the date on or about when
the subcontracted surveying operations commenced
after the winter shutdown of operations to the date
that reinstatement is offered, in accordance with the
formula prescribed in F. W. Woolworth Company, 90
NLRB 289, together with interest as prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716.
We have also found that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing on
January 6, 1971, and thereafter, to bargain with the
Union representing its field survey employees and by
unilaterally subcontracting its field survey work to F.
Donald McKee, a professional land surveyor, on
3 See Celanese Corporation of America, 95 NLRB 664, 671-673
4 The union letter which constitutes the bargaining demand was dated
December 29, 1970 It is not clear exactly when Respondent received the
letter but Respondent answered the letter on January 6, 1971, stating that
we do not have any employees in the categories for which you seek to
1159
February 24, 1971, without bargaining with the
Union over its decision to do so. We shall therefore
order that Respondent cease and desist from unilat-
erally subcontracting field survey unit work or
otherwise making unilateral changes in the terms and
conditions of employment of its field survey employ-
ees without consulting their designated bargaining
agent. To adopt the remedy to the situation which
here calls for redress, we shall also order the
Respondent to restore the status quo ante by
reinstituting its own field survey operations and
fulfilling its statutory obligation to bargain.
CONCLUSIONS OF LAW
1. Respondent, Torrington Construction Compa-
ny, Inc., is an employer engaged in commerce within
the meaning of the Act.
2. Local 545-D, International Union of Operat-
ing Engineers, AFL-CIO, a labor organization
within the meaning of the Act, has been at all
material times, and continues to be, the exclusive
representative of Respondent's employees in the
appropriate unit set forth below for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
3. All field survey employees, including party
chiefs, rodmen, and instrument men employed by
Respondent on highway and heavy construction
projects within the geographical jurisdiction of the
above-named Union, excluding office clerical em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act, constitute a unit
appropriate for bargaining within the meaning of
Section 9(b) of the Act.
4. By failing and refusing to recall its field survey
employees from layoff status, upon the resumption of
highway construction operations after a seasonal
shutdown, because of their membership or interest in
the above-named Union, Respondent has violated
Section 8(a)(3) and (1) of the Act.
5. By refusing to bargain in good faith with the
above-named Union on and after January 6, 1971,
and by unilaterally subcontracting on and after
February 24, 1971, the work formerly performed by
its field survey employees to a professional land
surveyor, Respondent has violated Section 8(a)(5)
and (1) of the Act.
6. The unfair labor practices described above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
bargain "
8 Fibreboard P a p e r Product C o r p v NLRB, 379 U S 203. Town &
Country Manufacturing Company, Inc, and Town & Country Sales Company,
Inc, 136 NLRB 1022, 1027
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Torrington Construction Company, Inc., Torrington,
Connecticut , its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(at) Refusing to bargain collectively in good faith
with Local 545-D, International Union of Operating
Engineers , AFL-CIO, as the exclusive representative
of its employees in the unit found appropriate herein
and subcontracting the work performed by such
employees or otherwise unilaterally changing their
wages , hours , and other terms or conditions of
employment without prior consultation and bargain-
ing with the above-named Union or any other
bargaining representative which its employees may
select.
(b) Discouraging membership in Local 545-D,
International Union of Operating Engineers,
AFL-CIO, or any other labor organization, by
failing or refusing to recall its employees from layoff
status upon resumption of operations after seasonal
shutdown because of their membership or interest in
the above -named Union.
(c) In any other manner interfering with , restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Reinstitute its own field survey operations and
offer to John Borst , Robert B. Cashin , Michael
Conte, Robert Makar , Richard D . Ortlieb, and
Thomas Smaldone immediate and full reinstatement
to their former positions or, if those positions no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges , and make them whole for any loss of
earnings suffered as a result of the discrimination
against them in the manner set forth in The Remedy
section of this Decision.
(b) Upon request , bargain collectively with Local
545-D, International Union of Operating Engineers,
AFL-CIO , as the exclusive representative of all
employees in the appropriate unit , with respect to the
subcontracting of its field survey operations , rates of
pay, wages , hours of employment , or other terms or
conditions of employment , and embody any under-
standing reached in a signed agreement.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records , social security payment records,
timecards , personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(e) Post at its Little Falls and Mechanicsville, New
York, highway construction projects and at all of its
heavy and highway construction projects within the
jurisdiction of the Union, copies of the attached
notice marked "Appendix."6 Copies of said notice,
on forms provided by the Regional Director for
Region 3, after being duly signed by the Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutvie days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
6 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and we intend
to carry out the Order of the Board , and abide by the
following.
WE WILL NOT discourage membership in Local
545-D, International Union of Operating Engi-
neers, AFL-CIO, or any other labor organization,
by failing or refusing to recall our field survey
employees from layoff status upon the resump-
tion of operations after seasonal shutdown be-
cause of their membership or interest in the
above -named Union.
WE WILL NOT subcontract the work performed
by our field survey employees or otherwise
unilaterally change their wages, hours , or working
TORRINGTON CONSTRUCTION COMPANY, INC. 1161
conditions without prior consultation and bar-
gaining with the above-named Union.
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of
your rights guaranteed by the National Labor
Relations Act.
WE WILL reinstitute our field survey operations
on highway and heavy construction work and
offer immediate and full reinstatement to John
Borst, Robert B. Cashin , Michael Conte, Robert
Makar , Richard D . Ortlieb , and Thomas Smal-
done , to their former positions , or if those
positions no longer exist , to substantially equiva-
lent positions.
WE WILL make whole the above-named em-
ployees for any loss of pay incurred by them as a
result of our discrimination against them.
WE WILL, upon request , bargain with Local
545-D, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive bargaining
representative of our employees in the following
appropriate unit:
All field survey employees , including party
chiefs, rodmen , and instrument men em-
ployed by us on highway and heavy con-
struction projects within the geographical
jurisdiction of the Union, excluding office
clerical employees , professional employees,
guards, and supervisors as defined in the
Act.
All of our employees are free to remain or become,
or to withdraw from or refrain from becoming,
members of Local 545-D, International Union of
Operating Engineers , AFL-CIO, or any other labor
organization.
TORRINGTON
CONSTRUCTION
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 60 Chapel Street , Seventh Floor,
Drislane Building , Albany, New York 12207, Tele-
phone 518-472-2215.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F . MAHER , Trial Examiner : Upon a charge filed
on March 22 , 1971, and thereafter amended on May 6,
1971, and a second charge filed on May 24, 1971, all by
Local 545-D International Union of Operating Engineers,
AFL-CIO, hereafter called the Union , against Torrington
Construction Company, Inc., Respondent herein, the
Regional Director for the Third Region of the National
Labor Relations Board , herein called the Board , issued a
complaint on behalf of the General Counsel of the Board
on May 21, 1971, and on May 24 , 1971, issued a second
complaint and an order consolidating both complaints,
alleging violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended (29 U.S.C., 151
et seq. ), herein called the Act . In its duly filed answer
Respondent , while admitting certain allegations of the
complaints , denied the commission of any unfair labor
practice.
Pursuant to notice a trial was held before me in Albany,
New York, where the parties were present , represented by
counsel , afforded full opportunity to be heard , to present
evidence and oral argument , cross-examine witnesses, and
file briefs . Briefs were filed by all parties on October 6,
1971.
Upon consideration of the entire record herein , including
the briefs filed with me, and specifically upon my
observation of each witness appearing before me, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Torrington Construction Company, Inc., Respondent
herein , is a Connecticut corporation engaged as a general
contractor in the heavy and highway construction industry
with its principal office and place of business at Torring-
ton, Connecticut, and with various jobsites in the States of
New York and Connecticut . Annually, in the course and
conduct of its business operations , the Respondent
purchases , transfers , and delivers to its jobsites in the State
of New York goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000 were transported to said jobsites directly from
states of the United States other than the State of New
York.
It is conceded upon the above facts, and I accordingly
conclude and find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded, and I accordingly conclude and find, that
Local 545-D International Union of Operating Engineers,
AFL-CIO, is a labor organization within the , meaning of
Section 2(5) of the Act.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES Mechanicsville, New York, known as the Schaghticoke job.
On each of these jobs Respondent operated a survey party
of three , consisting of party chief, instrument man and
rodman . Members of these survey parties were all members
of the Union and had obtained employment with Respon-
dent either by direct recruiting or referral by the Union.
When operations closed down in December 1970 because
of weather conditions, Robert Cashin was party chief on
the Schaghticoke job and Robert Makar and Thomas
Smaldone , the crew members , all referred to the job
through Business Agent Scott . John Borst was party chief
on the Thruway job when the job shut down, Michael
Conte was the instrument man and Richard Ortlieb the
rodman. All three were likewise referred to the job by
Scott.
On or about December 8, 1970, Party Chief Cashin was
notified by his superintendent , Sullivan , that the work of
the survey team at the Schaghticoke job was being
terminated , as was much of the rest of the job , because of
the weather . Cashin in turn notified the two members of
his team , Makar and Smaldone . When informing Cashin of
the decision to close down because of the weather,
Superintendent Sullivan was credibly quoted by Cashin as
saying that he and the men had done a good job and that
.,we will probably see you in the spring time, probably give
you a call." Cashin conveyed the substance of this
conversation to Makar and Smaldone , both of whom
credibly testified to their understanding that the closedown
was because of the weather and that they expected to be
called back when the weather broke.
Similarly, John Borst and his crew were terminated from
the Indian Castle job on December 24 because of the
weather . For some days prior to this termination the men
were occupied at related duties at the project office,
principally involved in computations correcting an out-
standing survey error, referred to as a "bust ," in its routine
work. Borst was advised of the shutdown by the project
superintendent, Coughlin, who told them that he thought
the crew had done a good job for him and that he wanted
them to come back in the spring when the weather
permitted.
While testifying to the practice followed in the construc-
tion industry of calling back the same employees after a
winter shutdown , the members of the survey teams further
testified that throughout the spring they each sought and
obtained employment with other construction companies.
Each testified , however , that he had anticipated a call from
Respondent and had received none , except Borst.
Borst, who began work with Winkleman Construction in
April 1971 , testified to having received a call in January
from one Anson , Respondent's assistant superintendent on
the Indian Castle job, telling him they needed a survey
crew. When Borst told Anson they would have to clear this
through the Union, Anson asked him if he would consider
working nonunion . Borst replied that he would not. Anson
then asked Borst if he would come on thejob to supervise a
consulting engineering firm and Borst again refused. Borst
ultimately reported the substance of this conversation to
Business Agent Scott and also the fact that he had
A. Contractual Relations Between the Parties
Contractual relations between Respondent and the
Union in matters relating to surveyors were governed by
an agreement entered into on May 15, 1967, between the
Union and the members of the Labor Relations Division,
Associated General Contractors, New York, hereinafter
referred to as the AGC, executed in behalf of the
individual contractor-members, including Respondent. By
its terms the contract was to expire on December 31, 1970
unless, "on or before the first day of November .. .
written notice of proposed changes . . . shall be served by
either party upon the other party." On September 11, 1970
Theodore Zoli, Jr., Respondent's vice president, wrote to
Harvey Scott , the Union's business agent , as follows:
This is to advise you that the Torrington Construction
Co., Inc., and the Theodore Zoli Construction Co.,
Inc., and any affiliated companies as individuals
signatory to Local 545-D contract are not members of
a multi-employer group for this contract. But, if it were
held that we are members of a multi-employer group,
we hereby withdraw from any such multi-employer
bargaining , elect to terminate our agreement with you
as of December 31, 1970. All future labor relations on
behalf of these companies will be conducted by
company personnel and/or their designated representa-
tives or and on behalf of these companies only.
Upon the foregoing evidence I would find and conclude
that the contract between the parties governing surveyors
expired on December 31, 1970, pursuant to the terms of the
contract itself.
In the correspondence quoted above it is indicated that a
copy of the notification to the Union was sent to Laverne
O'Dell, designated in the contract as Secretary of the
Labor Relations Division , AGC. The notification clearly
states Respondent's determination not to be represented by
the AGC henceforth in bargaining with the Union, and to
withdraw from the multiemployer bargaining arrangement
of which it had been a part. By the standards of the Board,
as generally applied,' this is not only an effective
notification of withdrawal from multiemployer bargaining,
but, coming as it did at a date within the purview of the
contract itself, it was also timely. Upon the foregoing,
therefore, I conclude and find that after December 31,
1970 Respondent was no longer a member of a multiem-
ployer bargaining arrangement, was no longer represented
by the AGC, and was no longer bound by the contract
which, so far as it applied to Respondent, had expired on
December 31, 1970.
B. Sequence of Events
During the period relevant to the issues presented here,
Respondent was engaged in highway construction opera-
tions at two locations , one involving ramp construction on
the New York State Thruway near Little Falls, New York,
referred to in the record as the Indian Castle or Thruway
job, and the other a state highway construction job near
I McAnary and Welter, Inc, 115 NLRB 1029, 1031, Southwestern
Colorado Contractors Association, 153 NLRB 1141
TORRINGTON CONSTRUCTION COMPANY, INC.
thereafter visited the jobsite and had observed the
consulting engineer there doing the survey work. He
identified the consulting engineer as F. Donald McKee.
Thereafter, towards the end of February Borst and
Business Agent Scott visited the jobsite and again noted
the presence of the McKee survey team on the job. The
two men met Anson, the assistant superintendent, and
asked him why Borst had not been recalled to do the work
being performed by McKee and Anson replied that all
such arrangements had been made by the main office.
Whereupon they left the project.
C. The Subcontracting of Survey Work
Following its decision not to renew the AGC contract
when it expired in December 1970 Respondent's president,
Zoli, on February 21, 1971, had communicated with F.
Donald McKee, a professional land surveyor, and the two,
after looking over the project involved, agreed by letter
dated February 23 to an arrangement whereby McKee
would perform the survey work on the Indian Castle job. A
similar arrangement was later entered into for the
Schaghticoke job, and much later on for a job at Ausable
(N.Y.) High School. By the terms of the letter of agreement
McKee obligated himself to provide a surveying crew on
the Indian Castle job at a set price beginning on February
24. The Respondent accepted the contract and the survey
work required thereafter by Respondent has exclusively
been performed by McKee and his employees.
Meanwhile, after the jobs had been closed down in
December 1970 and before the contract with the Union
had expired, Business Agent Scott, on December 29, 1970,
wrote to Zoli requesting in behalf of the Union that
Respondent enter into negotiations for the renewal of a
labor agreement for the technical engineering employees of
his firm. In reply on January 6, 1971, Zoli advised Scott
that Respondent did not then have employees in the
categories in which bargaining was sought. He further
stated that if at some future date Respondent had such
employees "it would appear to us that you should
demonstrate that you represent a majority of such
employees in an appropriate unit for bargaining." Nothing
appears in the record of this case that would suggest that
Respondent has employed technical engineering employees
since that date. On the contrary, it is generally conceded
that all such work has been performed by subcontract.
D. Conclusions
At the outset it is to be noted that during the period of
the unlawful conduct alleged herein Respondent was
neither obligated to the Union by contractual agreement
nor was it a member of a multiemployer bargaining
arrangement or otherwise represented by the AGC. I have
already found and concluded that its withdrawal from
these arrangements was both effective and timely and that
the contract expired by its own terms. One other fact
emerges from the findings: When the contract expired on
December 31, 1970, Respondent employed no technical
engineering employees, and for only one reason-incle-
ment weather. Nothing in the record suggests that the six
1163
who were terminated early in December were still
employees. This was not a layoff. It was what everyone
understood it to be-a termination-and each received a
separation slip and considered himself unemployed. Such
being the case any discrimination that may exist here is in
the failure to rehire these people. Or, expressed in other
terms, a failure even in the absence of a contract with the
Union to hire union members rather than subcontract the
work.
Much has been said in the record and briefs of the
subcontracting obligations in the contract and the require-
ment that arbitration of disputes in this area are provided
for and have not been availed of. The short answer to this
is that when the subcontract with McKee was executed in
February 1971 no labor agreement was in effect between
the Union and Respondent. Therefore, unless Respon-
dent's exercise of its right to withdraw from the multiem-
ployer bargaining is in itself a violation of the Act, the
consequence of its withdrawal from multiemployer bar-
gaining and the expiration of the contract disposes of any
notion of limitations upon subcontracting or arbitration
concerning it, as a contract violation.
While it cannot be suggested here, in the absence of
contract, that hiring obligations had been disregarded,
there still remains for consideration the reason for failing
to recall Respondent's terminated employees when work
resumed, and its reason for engaging the services of F.
Donald McKee.
None of the six members of the survey crew were
employed after the winter shutdown. Nevertheless, when
they were terminated each one had been told in so many
words that they would be called back when the weather
broke. Accordingly, when they were not called back, when
one of their number, Borst, was "propositioned" to come
back nonunion, and when F. Donald McKee' s services
were called upon, then a new ingredient was added to the
status of the six surveyors-their relationship to the Union.
Actually it is of little consequence that these men were
not then, in the strict sense, employees, although each had
been told in effect that he would be called back, and
custom in the industry dictated it. For whether they be
employees on leave status or something akin to that, they
are certainly applicants for rehire by the understanding
they had when they left. They therefore would be entitled
to the protection of the Act in any case. The United States
Supreme Court recognized this in Phelps Dodge Corp. v.
N.L.R.B., expressly stating that restrictions on the hiring of
individuals for union reasons was as discriminatory as
discharging them as employees for the same reasons.2
Accordingly, we must look to Respondent's motives and
purposes in early 1971 when Borst was asked to hire on as
nonunion and the other five union members were not
recalled.
Respondent's motives may fairly be read as being in
opposition to the Union, as was its right. It refused to
renew the contract with it, it withdrew from the AGC, and
it refused to bargain concerning a new contract , claiming
no employees and requiring proof of the Union's majority
status when it did have employees. And, by the simple
expedient of having someone else perform the employees
2 313 U.S, 177, 186
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs, it contrived never to have employees in the surveying
category. Were this latter action the result of improved
business methods or had it occurred by some combination
of accidentals and not for reasons related to the unioniza-
tion of his employees Respondent would have, as it should
have, every right to run its business without interference.
But this employer has, by the combination of his expressed
feelings towards the Union and his outright refusal to
effect the rehire of his surveyors, manifest "an abuse of his
rights by interfering with the countervailing right of self-
organization."3 For nothing could conceivably curtail self-
organization more effectively than refusing to hire union
members, as occurred here.
This then is the precise effect of Respondent's failure to
recall Employees Borst, Tashin, Makar, Smaldone, Conte,
and Ortlieb, and the subcontract with F. Donald McKee to
do their work.
Citation of authority and extended discussion is hardly
necessary to demonstrate that the end result of Respon-
dent's actions discriminated against these six individuals in
violation of Section 8(a)(3) of the Act and by implications
flowing therefrom, interfering with the self-organization of
employees in violation of Section 8(a)(1), and I so conclude
and find.
The foregoing does not, however, in my view, suggest
that Respondent has thereby unlawfully refused to bargain
in violation of Section 8(a)(5). Certainly he is not required
to return to the AGC complex from which he had
effectively and timely withdrawn. Nor am I persuaded that
he becomes automatically obligated to bargain with the
Union on a single employer basis simply because he
withdrew from the larger group. Here it must be remem-
bered, Respondent, between December 24, 1970 and
January 24, 1971 had no employees, having completely
terminated them for a legitimate reason-the weather.
Consequently, it correctly informed the Union that it had
no employees in the bargaining unit when the Union
requested that it bargain. Moreover, the record discloses
that the respective terms of employment of the members of
the survey crews amounted to but a few months in most
cases. This in itself suggests a degree of turnover not
conducive to a stabilized bargaining unit, even when it
contained employees. How then is there to be established,
for the purposes of this proceeding, a viable bargaining
unit? Certainly on December 29, 1971, when the request
was made the employees had been terminated for good
cause, inclement weather. Truly the Union represented no
one, and thus had no basis for its request for bargaining.
This is an absolute, and regardless of how vehemently an
employer may feel towards a union he cannot be made to
bargain for employees he does not have nor may his
expressed feelings require him to bargain for employees he
may have later on, as here.
From the Union's point of view it must establish its right
to bargain by claiming to represent, as best, those
individuals who would become employees thereafter- when
the weather broke and the men were rehired. All of this
would indeed be a tenuous basis for determining majority
status and I am not disposed to recommend its adoption.
The issues presented here suggest, as I have found and
concluded, the discrimination against six eligibles for
reemployment and the consequent interference with their
and their fellows' statutory rights of self-organization. To
repeat, this in itself does not establish their Union's right to
bargain in their behalf at a point in time-during the
closedown-when they were not employees.
Section 8(a)(5) requires an employer to bargain with his
employees or their representative. When requested to do so
on December 29 Respondent had no employees. Nor did
the six discriminatees thereafter become employees, nor
will they unless and until they accept reinstatement under
the terms of such order as results from this proceeding.
Thus, the only individuals eligible for representation are
applicants for employment. While it is clear that Phelps
Dodge (supra) bestows employees status upon such individ-
uals for the purpose of remedying unlawful discrimination
against them, I am not persuaded that that case makes
them eligible for representation puposes under Section
8(a)(5) or Section 9 of the Act.
To say that Respondent is nonetheless required to
bargain with the Union imposes upon Respondent an
additional penalty for its 8(a)(3) violation, the unusual
condition of being required to bargain with a Union that
did not represent its employees when bargaining was
requested or thereafter. This, I believe, adds a substitute
for union majority status not contemplated by the Act. I
accordingly recommend that so much of the complaint as
alleges an unlawful refusal to bargain in violation of
Section 8(a)(5) of the Act be dismissed.
IV. THE REMEDY
It has been found that Respondent has violated the Act
by discriminatorily failing and refusing to hire six of its
former employees. I will accordingly recommend that an
order issue requiring it to cease and desist therefrom; and
because the nature of the unfair labor practices committed
are of such gravity as to present a threat of future
violations of the Act, I shall recommend that Respondent
cease and desist in any other manner interfering with,
restraining, or coercing its employees in the exercise of
their statutory rights. Affirmatively, I shall recommend
that Respondent offer employment to John Borst, Robert
B. Cashin, Michael Conte, Robert Makar, Richard D.
Ortlieb, and Thomas Smaldone and that they each be
made whole from February 24, 1971, the date on or about
when survey work commenced after the 1971 winter
closedown of operations, to be computed in the customary
manner with interest at the rate of 6 percent per annum.4
Although I have found that the Respondent did not
violate Section 8(a)(5) of the Act, I shall nonetheless
recommend that a remedial order requiring the Respon-
dent, upon request, to bargain with the Union as the
representative of its technical engineering employees, i.e.,
field survey employees, including party chiefs, if, when and
as any one or more of the discriminatees named above
accept employment offered them by Respondent, pursuant
to the order to do so recommended herein. It is clear and I
3 -Phelps Dodge Cor v N L RB , supra, 187
4 Isis Plumbing & Heating Co , 138 NLRB 716
TORRINGTON CONSTRUCTION COMPANY, INC.
conclude and find that the unit described in the complaint
is an appropriate one, it being the separate unit in
Respondent's organization covered by the contract which
expired on December 31, 1970 , during the period when
Respondent and the Union bargained as a part of a
multiemployer arrangement . Moreover, this particular unit
was the one in which bargaining was nost recently
requested and in which Respondent by its correspondence
of January 6, 1971, implicitly agreed to bargain at some
future date when majority could be established.
Respondent discriminated against its employees by
refusing to rehire them unless they rejected the Union and
upon their failure to do so it subcontracted the work. Had
not the Respondent engaged in this unlawful discrimina-
tion it would have , as it said it would , rehired all six when
the weather improved , thus establishing them as employees
who had already selected the Union and employed in an
appropriate bargaining unit . As such Respondent would be
obliged , even as it had agreed in the January 6 , 1971, letter,
to bargain with the Union on behalf of these employees.
Respondent has thus sought to avoid its bargaining
1165
obligation by engaging in what I have found to be unlawful
discrimination . I accordingly find that to fully and
effectively remedy Respondent 's violation of Section
8(a)(3) and also to effectuate the policies of the Act, that
Respondent be ordered not only to employ these discrimi-
natees and make them whole but that it also be required to
bargain with the Union, upon request , as soon as it
employs them in the manner previously described in this
Section.5
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with its business operations
described in section I, above , have a close , intimate, and
substantial relation to trade , traffic , and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
[Recommended Order omitted from publication.]
5 Praseckr Aircraft Corporation, 123 NLRB 348, enfd 280 F 2d 575 (C A
3), cert denied 364 U S 933