United Contractors Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1975

220 N.L.R.B. 463 (N.L.R.B. 1975)

UNITED CONTRACTORS INCORPORATED
United Contractors Incorporated and JMCO Truck-
ing Incorporated , Joint Employers and Chauffeurs,
Teamsters and Helpers "General" Local Union No.
200, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case 30-CA-2885
September 19, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On May 30, 1975, Administrative Law Judge John
F. Corbley issued the attached Decision in this pro-
ceeding . Thereafter, the Respondents filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents , United Contractors In-
corporated and JMCO Trucking Incorporated, Joint
Employers, Milwaukee, Wisconsin, their officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order.
1 The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F .2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his finding.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY , Administrative Law Judge: A hearing
was held in this case on February 4 and 5, 1975, at Milwau-
kee, Wisconsin, pursuant to a charge filed by Chauffeurs,
Teamsters and Helpers "General" Local Union No. 200,
affiliated with the International Brotherhood of Teamsters,
463
Chauffeurs, Warehousemen and Helpers of America, here-
inafter referred to as the Union or Local 200, against Unit-
ed -Contractors Incorporated and JMCO Trucking Incor-
porated, sometimes hereinafter referred to as United,
JMCO, or collectively as Respondent, on October 11, 1974,
and served by registered mail on Respondent, on the same
date, and upon a complaint and notice of hearing issued by
the Regional Director of Region 30 of the National Labor
Relations Board on December 30, 1974, which was also
thereafter duly served upon United and JMCO. The com-
plaint alleges that United and JMCO are a single employer
within the meaning of the Act; that the Union has been the
exclusive collective-bargaining representative, at all times
material hereto, of the truckdriver employees involved
herein ; and that United and JMCO, individually and col-
lectively, have violated Section 8(a)(1), (3), and (5) of the
Act by: dealing directly in May or June 1974 with their
employees, instead of the Union, in respect to their terms
of employment ; threatening employees with layoff or dis-
charge if they persisted in their union activities or contin-
ued to insist upon contractually provided wages or bene-
fits ; discriminatorily laying off its truckdriver employees,
Mix, Bourdo, and Williams in reprisal for their union or
concerted activities and insistence on contractual benefits,
thereafter refusing to reinstate them and instead replacing
said employees with new employees hired at less than con-
tractual rates; and refusing to bargain in good faith with
the Union by failing to apply the terms of United's labor
agreement to their trucking operations and employees. In
their answer, which was also duly filed, United and JMCO
deny that they are a single employer within the meaning of
the Act and deny that they have, individually or collec-
tively, engaged in any unfair labor practices.
For reasons which appear hereafter I find and conclude
that United and JMCO are a single employer within the
meaning of the Act and that they have violated the Act
essentially as alleged in the complaint.
At the hearing the General Counsel and Respondent
were represented by counsel. The parties were given full
opportunity to examine and cross-examine witnesses, to in-
troduce evidence and to file briefs. The General Counsel
and Respondent waived the right to make closing argu-
ments . Briefs have subsequently been received from the
General Counsel and Respondent and have been consid-
ered.
Upon the entire record in this case , including the briefs
and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF UNITED AND JMCO
United, a Wisconsin corporation, with its principal of-
fice located in Menomonee Falls, Wisconsin, is engaged
primarily in the business of road construction at various
sites located in the Milwaukee County, Wisconsin, area.
During the past calendar year, a representative period,
United derived revenues in excess of $50,000 for services it
performed for the city of Milwaukee within the State of
Wisconsin, said city in turn having purchased goods and
220 NLRB No. 88
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services valued in excess of $50,000 from points located
directly outside the State of Wisconsin.
JMCO is a Wisconsin corporation with its principal of-
fice located in Menomonee Falls and, as will be detailed
more fully hereinafter , it is engaged in providing trucking
services, substantially for United, at various sites located in
the Milwaukee area.
Since I will conclude, infra, that United and JMCO con-
stitute a single employer for the purposes of collective bar-
gaining within the meaning of the Act, I find, on the basis
of United's services to the city of Milwaukee, that said
single employer is an employer engaged in commerce, or in
operations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits and I find, that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. BACKGROUND AND SEQUENCE OF EVENTS
A. The Single Employer Issue
A proper understanding of the question whether JMCO
and United are a single employer within the meaning of
the Act necessarily requires a recitation of the corporate
history of these two companies and the part played by Jim
Mews, who is president of both, in managing the affairs
and labor relations of each.
United was organized in January 1965 and is engaged in
such general contracting activities as road building, exca-
vation, and demolition. Until 1970, United operated its
own dump trucks which were driven by employees of Unit-
ed.2
JMCO was incorporated in December 1969 and com-
menced operations as a trucking service in 1970 under a
contract motor carrier license issued by the Public Service
Commission of the State of Wisconsin.
In 1970 United's dump trucks were sold and its drivers
were transferred by Mews to the JMCO payroll. Also in
1970 new dump trucks were purchased or leased by JMCO
from Mack Financial Corporation in Chicago and the for-
mer United drivers were assigned by Mews to drive them.
Since 1970 United has continued in the road paving, ex-
cavation , and demolition business but, with the exception
of a short time in 1974, as will appear, it has not operated
dump trucks with its own drivers. It has, however, utilized
the services of JMCO's dump trucks and drivers. Indeed,
80 percent to 100 percent of the dollar volume of JMCO's
work has been performed for United in each year since
1970. While United also contracts for the services of other
trucking companies besides JMCO, 61 percent of United's
trucking costs in 1974 involved reimbursements to JMCO.
i Stemons Mailing Service, 122 NLRB 81 (1958); Carroll-Naslund Disposal,
Inc., 152 NLRB 961 (1965 ), enfd . 359 F.2d 779 (C.A 9, 1966).
2 In October 1968, these employees were transferred by Mews to drive
trucks for another company, Jim Mews Construction Company, during a
strike by Local 200.
If United's costs attributable to the hiring of readi-mix
(concrete) trucks were excluded, United's reimbursements
to JMCO amounted to about 88 percent of United's truck-
ing costs in 1974.
Jim Mews is the president of both JMCO and United.
Mews' wife, Marlene, is vice president and secretary of
both companies. Mews signs the paychecks for employees
of both companies. Mews is the sole corporate stockholder
of JMCO. He owns 90 percent of the corporate stock in
United, the remaining 10 percent being owned by La Verne
Schlei, United's paving foreman.
Jim Mews directs and controls the employees of both
United and JMCO and he hired all the employees of both
corporations. Schlei, United's paving foreman, also gives
directions to JMCO's drivers. Jim Mews is in charge of the
labor relations of both companies and actively directs the
operations of each. More particularly, he prepares his own
estimates and makes bids on behalf of United for public
road construction jobs. When a bid is accepted he sched-
ules the job and makes arrangements for the equipment,
including the trucks, to do the job. Based on dollar volume
as described above, his choice of a trucking contractor has
usually been JMCO.
JMCO and United are both located at N59 W14508 Bo-
bolink Avenue, Menomonee Falls, Wisconsin. Dorothy Ol-
son is the office secretary for both JMCO and United and
she prepares the payroll for both companies. United and
JMCO both have the same accountant, Harold Wernecke,
and both companies were represented by the same law firm
in this proceeding.
While JMCO has employed only truckdrivers and Unit-
ed, since about 1970 (with the exception of September
1974), employs operating engineers, laborers, and cement
finishers , United 's laborers and operating engineers have
driven JMCO trucks and the JMCO drivers have done la-
borers' work for United. For a time in September 1974 Jim
Mews put all of JMCO's truckdrivers on United's payroll.
Their duties remained the same , however , as they had been
with JMCO and their supervision, which emanated from
Schlei or Mews, also remained the same before and after
their transfer to United in September 1974.
Although JMCO and United have separate books and
records, maintain separate bank accounts, do not make
loans to each other and bill one another for services ren-
dered,3 it is clear from the foregoing that the operations of
JMCO are substantially integrated with those of United;
that employees of the two companies are interchanged,
that both corporations are managed, controlled, and large-
ly owned by Jim Mews and that he also controls their labor
relations including the hiring , transfer and, as will appear,
discharge of employees. In these circumstances, and based
upon all the facts recounted above and the record as a
whole , I conclude that United and JMCO are a single em-
ployer within the meaning of the Act .4 They will occasion-
JMCO bills United for trucking services United bills JMCO for repair
work on JMCO's trucks and for secretarial services.
° E.g., Macke Laundry Service Company of D.C. and Wash-O-Matic Serv-
ices Co, 190 NLRB 1 (1971), Manitowoc Shipbuilding, Inc. and The Manito-
woc Company, Inc., 191 NLRB 786 (1971). The genesis of JMCO's work
force as a part of United's, the subsequent return of JMCO's employees to
the United payroll, the substantial integration of JMCO's operations with
those of United , employee interchange, and Mews' control of the operations
UNITED CONTRACTORS INCORPORATED 465
ally be referred to hereinafter , collectively, as Respondent.
B. Respondent 's Hierarchy
The complaint alleges , the answer admits and I find, that
Jim Mews and LaVerne Schlei at all times material herein
have been , and are now , agents of JMCO and United, act-
ing in their behalf , and their supervisors within the mean-
ing of Section 2(11) of the Act.
C. Chronology of Events
During the period 1966 to 1970 when United operated its
own dump trucks using drivers on the United payroll,
United made payments for its drivers into Teamsters pen-
sion and welfare funds, just like employers who had collec-
tive-bargaining agreements with Local 200 even though,
according to Mews, United had no collective-bargaining
agreement with Local 200 at that time.
In 1970, after JMCO had been formed and the former
United truckdrivers had gone on the JMCO payroll,
JMCO made the instant pension and welfare fund pay-
ments . In 1971 JMCO entered into a collective-bargaining
agreement with Local 200 and thereafter continued these
payments and also paid its drivers the wage rates as speci-
fied in this contract. These practices obtained throughout
the life of this contract which expired on May 31, 1974. All
payments into the Teamsters pension and welfare fund
from 1966 to 1974, whether made in the name of JMCO or
United, were made on the basis of checks signed by Jim
Mews.
In the fall of 1973 Jim Mews began to discuss with his
JMCO drivers-outside of the presence of Local 200-
Mews' plans for the future remuneration of the drivers.
The place was a jobsite and the drivers included Milan
Mix, Guy Bourdo, Blaine Struve, and an employee named
Don (apparently Gloede). Mews told his employees that in
lieu of an hourly wage plus health and welfare fund pay-
ments he wanted to pay them on the basis of 25 or 30
percent of JMCO's charges to the user of its truck services.
Mews advised his drivers that under this arrangement the
drivers would make their own health and welfare pay-
ments . After explaining the operation of this proposal to
the drivers Mews asked them if they would accept it. They
told Mews they were against it.5
of both companies and their labor relations are all facts which distinguish
this case from Milo Express, Inc., 212 NLRB 313 (1974), which is relied
upon by Respondent.
6 These findings are based on the credible testimony of Bourdo in this
regard as essentially corroborated by Mix. To the extent that the testimony
of Mews disagrees with these findings , I discredit it. I found Mews to be an
argumentative , hence evasive , witness (his own counsel had to correct him
in this regard at one point , as the record shows ) and I was not satisfiied that
he testified in a straightforward manner when he testified as to matters in
dispute . One aspect of this argumentativeness was his reference to himself as
United or JMCO when one or the other denomination suited his position in
the case . Finally, his testimony was at odds with the probability of events
and other evidence , as I will point out from time to time later in this Deci-
sion . Bourdo and Mix on the other hand impressed me as forthright witness-
es who testified generally to the best of their knowledge and belief More-
over, in discrediting Mews' version of this incident which was that he merely
told the employees that he intended to negotiate the change to a percentage
rate with the Union- I note that he never did so and , as will appear, im-
On December 31, 1973, Jim Mews sent a letter to Local
200 on JMCO stationery advising the Union that JMCO
wished to discontinue its collective-bargaining agreement
and was providing 60 days' notice. Local 200 did not re-
spond to this letter but, instead, on March 19, 1974, sent its
own letter to JMCO stating that Local 200 proposed to
terminate the then current contract on May 31, 1974. In
this letter the Union also offered to meet and confer with
JMCO for the purpose of negotiating a new contract.
On March 22, 1974, Mews replied to Local 200's letter of
March 19 noting merely that JMCO had already notified
Local 200 of JMCO's intention to terminate the contract.
By the end of April 1974 Local 200 had finalized a new
contract with the Southeastern Wisconsin Construction
Materials Association covering, inter alia, various truck-
driving operations of its employer-members. Actual copies
of the contracts were not printed up until late July or Au-
gust 1974, although the new wage rates set forth in the
contract went into effect on July 1, 1974. Mews was not a
member of the Association but, as will appear, he was pre-
sented with a contract for his signature in August 1974.6
In late May 1974 Jim Mews called driver Mix into
Mews' office and again discussed with Mix the matter of
going on a percentage rather than an hourly rate. Mews
told Mix that the drivers would have the opportunity to
make more money on a percentage basis. Mix responded
that he did not think this proposal was a good idea.7
On or about June 7, 1974, Mews had another conversa-
tion with Mix in Mews' office in which Mews repeated his
desire to pay his drivers on a percentage basis . Mews ad-
vised Mix that Mews was "out of" or had "quit" the
Union. Mews again tried to persuade Mix that the drivers
would make more money on a percentage basis but that
they would have to pay their own benefits and would get
no paid vacation (contrary to the employer paid benefits
and vacation arrangements of the just expired contract
with Local 200). Mix agreed to try this arrangement to see
what would happen.
In June 1974 (after the expiration on May 31, 1974, of
his contract with Local 200) Mews instituted the percent-
age system which he had been discussing with his drivers
since the fall of the previous year. Under the system the
employees received a flat $7.50 an hour (as contrasted with
their prior contract rate of about $6.65 per-hour). Howev-
er, they received no paid vacations, benefits or holiday
pay.9 The additional 85 cents per-hour was intended to
cover the amounts needed for the employees to make their
own contributions to the Teamsters welfare and pension
funds-an arrangement which Mews had explained to the
posed this remuneration system in June 1974 without even offering Local
200 the opportunity to bargain over this change in working conditions.
6 These findings are based on the credible and undisputed testimony of
Local 200 representative, Hammer, in this regard.
r The findings as to this meeting are based on the credible testimony of
Mix in this regard , which was not denied by Mews.
8 These findings are based on the credible and undisputed testimony of
Mix in this regard
9 The finding that they received no holiday pay is based on the credible
testimony of Mix in this regard who stated that he received no pay for July
4th or Labor Day. Mews testified that he did not know if the employees
were paid for Labor Day and only "believe(d)" they were paid for July 4th.
I credit Mix here for the reason, among others , that holiday pay was not
mentioned and is indeed inconsistent with Mews' percentage program
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and which they understood. This change in the
employees' wage and benefit structure was established uni-
laterally by Mews without negotiating with Local 200.
The change, when implemented, did not sit well with
Mews' drivers. As a result Mews telephoned Bourdo and
told Bourdo that Mews had heard the drivers were disgust-
ed with the new rate. Bourdo admitted that this was true,
pointing out that as far as he personally was concerned he
could not afford to pay his own benefits.
Bourdo thereafter spoke with Mix and the two agreed
that they were losing too much money under the new ar-
rangements. They further decided to file a grievance and
contacted Local 200 to obtain its assistance.
Several days after the Mews-Bourdo telephone call Lo-
cal 200 representative Jerry Sprague delivered the griev-
ance form to Bourdo and Mix. Mews saw Sprague at the
jobsite and asked Bourdo what the problem was. Bourdo
explained that the drivers were not going for the new per-
centage pay. Mews argued with Bourdo that the drivers
would make more money under the new system but Bour-
do insisted that they would lose money. Mews then told
Bourdo that Mews desired no trouble with the Union and
that Mews would return to the old payment system.
Bourdo and Mix had dined together that evening, dis-
cussed the matter of the grievance and agreed to delay
filing it in order to give Mews the opportunity to carry out
his promise to Bourdo.
When Bourdo and Mix received their next paychecks
they observed that Mews was continuing to pay them on a
percentage basis. On June 28, 1974, Mix and Bourdo joint-
ly filed a grievance with Local 200 complaining that since
the expiration of the last contract Mews had put them on a
percentage remuneration, had taken away their vacation
and holiday pay, had required them to pay their own bene-
fits, and had taken away their driving time to a jobsite.
This grievance was given to Local 200 and eventually
came into the hands of its business representative, Ham-
mer. On July 9, 1974, Hammer wrote a letter to Mews
enclosing the June 28 grievance and informing Mews that
Mews was in violation of "the Labor Agreement." The let-
ter continued that, if Mews did not correct the situation
covered by the grievance immediately, Local 200 would
take all necessary economic action to correct the situation.
Mews did not reply to this letter and took no action. As
will appear, Mews' failure to act was based on his position
that without a collective-bargaining agreement with Local
200 he had no responsibility to act on its grievance.10
As previously found, Local 200 completed its negotia-
tions with the Southeastern Wisconsin Construction Mate-
rials Association covering, inter alia, the truck operations
of the employer-members of that Association. Copies of
the contracts were returned from the printer in July or Au-
gust 1974.
On or about August 8 or 9, 1974, Local 200 representa-
10 The findings as to the change to the percentage rate , the sequence of
events involving Bourdo and Mews, and the filing of the June 28 grievance
based on the credible testimony of Bourdo in this regard as corroborated in
part by Mix and corroborated or not disputed by Mews . Mews did not
execute a new contract with Local 200 at any time during the period May
31, 1974, until August 20, 1974.
tive Duane Kraemer took several copies of the new con-
tract and visited the office of JMCO and United at Meno-
monee Falls, Wisconsin. Mews was not present at the time
so Kraemer spoke to the office secretary, Dorothy Olson.
Kraemer told Olson that Kraemer was from Local 200 and
that he had the new contracts. Olson told Kraemer that
Mews was not going to sign them. Kraemer left the con-
tracts anyway and departed."
On or about August 20, 1974, Kraemer in the company
of another Local 200 representative, Jerry Sprague, visited
a jobsite at which Mews was working and spoke to Mews.
Kraemer asked Mews if he would sign the new contract.
Mews responded that he had the contracts in his office and
that he would sign them and mail them in. Kraemer turned
down this offer pointing out that he, Kraemer, had brought
other copies of the new contract with him. Mews then ad-
vised Kraemer that he, Mews, did not intend to sign a
contract for JMCO because it was too much paper work
for three or four people. Mews said he would instead put
the drivers back under United.
Kraemer, being recently appointed as a business repre-
sentative, was uncertain whether such an arrangement
would be proper. Kraemer and Sprague then left the prem-
ises and Kraemer telephoned Hammer and inquired if
Mews' proposal was acceptable. Hammer replied that it
was.
Kraemer and Sprague then returned to the jobsite on the
same day where both Mews and Kraemer signed a copy of
the contract and its addendum. Mews signed as president
of United Contractors Inc. This contract is effective from
June 1, 1974, to May 31, 1977.
Kraemer then asked Mews about the grievance which
had been filed (by Bourdo and Mix) protesting the non-
payment of their fringe benefits. Mews responded that, in-
sofar as he was concerned, there was no contract 12 so there
was no grievance. Kraemer responded that if this was
Mews' position, Mews should put it in writing and send it
to him. 3
11 These findings are based on the credible testimony of Kraemer in this
regard. I do not credit Olson's testimony to the extent it is contrary to that
of Kraemer 's. Olson's testimony was characterized by an element of uncer-
tainty which I did not find, generally, in that of Kraemer's. Moreover, I find
in Olson's testimony no precise denial that Kraemer left contracts in the
office.
In its brief , Respondent contends that Olson should be credited as a
disinterested witness. I reject this contention Olson is a paid employee of
United who works for both United and JMCO and who also works directly
for Mews as his office secretary.
12 Apparently speaking of the time when the grievance was filed on June
28, 1974.
13 These findings are based on the credible testimony of Kraemer in this
regard, as corroborated by Sprague and also corroborated in part by Mews.
To the extent that the testimony of Mews is contrary to that of Kraemer, I
do not credit Mews nor do I credit the testimony of Mews, denied by
Kraemer. that Kraemer told Mews that if Mews did not sign the contract
right at that time the job would be picketed or shut down. I have already
commented on the credibility of Mews and Kraemer, respectively.
In discrediting Mews here I also note the following . Among other things
denied by Mews was that he told Kraemer that JMCO was so small that it
was not worthwhile from an administrative standpoint for JMCO to contin-
ue in business Mix credibly testified on cross-examination that Mews told
him, Mix (after Mix began working in September 1974 on the United pay-
roll), that the reason why Mix was no longer working for JMCO was that it
would involve too much bookwork or paperwork to continue JMCO as the
employer of two or three drivers.
UNITED CONTRACTORS INCORPORATED
In late August 1974 another driver, Percy Williams, was
hired by Mews.
For a time after the August 20 collective-bargaining
agreement with United covering the drivers was signed,
these three drivers , i.e., Mix , Bourdo , and Williams (who,
according to paychecks submitted in evidence, were the
only drivers employed at the time), 14 continued to be paid
on JMCO checks and on the percentage basis which had
been in effect since June 1974. In September all the em-
ployees were paid with checks drawn on United and Bour-
do began receiving the contract wage rate . Williams and
Mix continued to receive the percentage rate , however, and
neither Mix nor Bourdo received holiday pay for July 4th
and Labor Day. Williams likewise received no pay for La-
bor Day.
Mix conferred with Bourdo about these matters and they
agreed that Mix would prepare a grievance ("complaint
form") to be filed with Local 200. This was done by Mix on
September 17, 1974, but the grievance named both Mix
and Bourdo (misspelled on the form) as the grievants. The
grievance stated that "Wages and Holliday (sic) pay have
not been straightened out from now to June 1, 1974."
On September 26, Local 200 representative Kraemer for-
warded this grievance to Mews enclosed with a letter in
which Kraemer requested Mews to advise Local 200, in
writing, of the grievance 's disposition.
On or about September 27, 1974, Kraemer visited Mews
at the latter's office . Kraemer sought to discuss with Mews
the latter's failure to pay fringe benefits to the drivers.
Mews admitted that he had not paid these benefits but
took the position that he, Mews, had no contract and that
there could therefore be no grievance. Kraemer responded
that Mews should put his position in writing. On October
1, 1974, Mews sent Local 200 a letter stating that Mews'
response to Local 200's letter of September 26 was that
JMCO had terminated its contract with the Union.15
On or about September 30, 1974, Mix reported for work
and found a note on his (Mix's) truck, signed by Mews,
telling Mix not to start work until Mews spoke to him.
Mews was away from the shop at the time so Mix waited
for him. A little while later on the same morning, Mews
arrived. Mews asked Mix what "Mix was trying to pull."
When Mix inquired what Mews meant , Mews showed Mix
the grievances he had filed and the letter from the Union,
all of which Mews had attached to a clipboard. Mews then
asked Mix how they could work like this "with three par-
ties involved" (the parties apparently being the employer,
Mews, and the Union). Mews then asked Mix why he had
filed the grievance . Mix responded that Kraemer and
Hammer from Local 200 had advised him that Mews could
not operate by paying a percentage rate to the drivers. Mix
also told Mews that Hammer had told Mix that Mews was
supposed to be making the health and welfare payments
14 Another JMCO employee, Richard Benson , was not paid after August
23, 1974, hence must have terminated by that date.
15 The findings as to the meeting on or about September 21, 1974, are
based on the credible testimony of Kraemer in this regard, which was not
denied by Mews. Mews testified only that no union representative met with
him for contract negotiations during this period . Olson, Mews' secretary,
testified that she saw Kraemer talking to Mews at Mews' office on one
occasion.
467
for the drivers. Mix added that he, Mix, was particularly
anxious to straighten out the health insurance payments
because Mix's son needed an expensive medical brace. Af-
ter some further discussion of the medical payments Mews
told Mix that Mix had better turn in his truck keys until
the matter was straightened out. Mews told Mix that Mix
should contact the Union to accomplish this. Mix then put
his keys on the table and asked Mews if Mews was firing
him. Mews told Mix that Mix was laid off and that Mews
had no further work for him. Mix then left.16
On or about October 4, 1974, Bourdo met Mews at the
shop and Mews gave Bourdo his paycheck. Mews then
asked Bourdo if Bourdo had any company keys. When
Bourdo admitted that he did, Mews told Bourdo to turn in
these keys and that there would be no work for Bourdo
until he got his labor or union problems straightened out.
Mews also told Bourdo that he, Mews, had spoken to
Kraemer and Mews then asked Bourdo why "you guys"
had waited 6 months to turn in a grievance. Bourdo denied
that they had waited 6 months, pointing out that they had
turned in their first grievance in June 1974. Bourdo then
said that there was no point in arguing about the matter
since it was in the Union's hands.'
Also on or about October 4, Percy Williams reported to
Mews at a jobsite with a truck. Mews gave Williams his
check and told Williams to take the truck back to the shop
and leave the keys in it. Williams did as he was directed.
No mention was made to Williams at this time that he was
being laid off nor was he criticized at the time for any prior
deficiencies in his driving.18 Williams has not subsequently
been reemployed by JMCO or United.
On or about October 6, an advertisement appeared in a
local newspaper for five axle semidrivers with Jim Mews'
home phone number. Bourdo had been driving this type of
truck when last employed by Mews in September.
On or about October 8, 1974, Bourdo went to a jobsite
where he observed JMCO trucks (his and Mix's) in opera-
tion. He spoke to at least one of the drivers who said he
was not a union member. On this same occasion Bourdo
observed Mews in conversation with a representative of the
Operating Engineers and telling this individual about
Mews' dispute with the Teamsters. On or about the same
date Mix also observed his and Bourdo's trucks being driv-
16 The findings as to this incident are based on the credible testimony of
Mix in this regard, as not directly denied by Mews In Mews' version of the
incident , Mews stated that he sought to have Mix contact the Union so that
Mews and the Union could bargain for a contract covering JMCO. Mews
also testified that he merely laid off Mix from United and offered Mix a job
with JMCO, which Mix refused, because JMCO did not have a union con-
tract. To the extent that Mews' version differs from that of Mix, I do not
credit Mews. More will be said in my "Concluding Findings" in respect to
Mews' claimed efforts to negotiate a contract for JMCO and in regard to
my reasons for discrediting Mews' version of Mix's discharge (and also
Mews' version of Bourdo's discharge).
17 These findings are based on the credible testimony of Bourdo in this
regard . I do not credit the contrary version of Mews which was the same as
that already discredited in respect to Mix.
18 These findings are based on the credible testimony of Williams in this
regard . Williams impressed me as a forthright witness who testified in a
straightfoward manner . His candor is well demonstrated by his ready ad-
missions in respect to criticisms made by Mews and Schlei in August 1974
about deficiencies in his driving . These matters will be discussed in my
"Concluding Findings." I do not credit Mews' contrary version of Williams'
separation . I have already commented on Mews' credibility.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
en by other drivers.
On or about October 13, 1974, Williams called Schlei to
inquire why Williams wasn't working. Schlei replied that
only a small job was in progress at the time and that Mews
was away. Schlei said other work would be coming up and
he would let Williams know. Williams has not subsequent-
ly been contacted.19
On or about October 14, 1974, Williams also observed
Mix's and Bourdo's trucks being driven by other drivers.20
By letter dated January 24, 1975, JMCO, through its at-
torneys, offered Bourdo and Mix reemployment to begin
on January 27, 1975, with wages and hours as provided in
the latest contract between Local 200 and Southeastern
Construction Materials Association (the same as the con-
tract between United and Local 200, executed on August
20, 1974), although the letter denied that JMCO was bound
by that contract. Both Mix and Bourdo had agreed to re-
turn to work at the time of the hearing on February 4,
1975.
Concluding Findings; Respondent' s Defenses
A. The Appropriate Unit; Local 200's Majority; Unilateral
Changes in the Drivers' Terms and Conditions of
Employment
A unit of truckdrivers is appropriate for collective bar-
21gaining within the meaning of Section 9(b) of the Act.
Here it is clear that Mews has always considered his truck-
drivers as a separate group and there is a history of bar-
gaining in which they have been represented in their own
unit. Thus, when they were employed by United prior to
1970, he paid welfare and pension benefits on their behalf
into the Teamsters fund. From at least 1971 to May 31,
1974, Mews, as JMCO, was a party to a collective-bargain-
ing agreement with Local 200 covering their terms and
conditions of employment. Inasmuch as Mews admitted
that JMCO was and is only involved in truckdriving opera-
tions, and in the absence of any showing that JMCO ever
had employees in any other classification on its payroll, I
conclude that Mews' truckdrivers were the only employees
covered by the instant agreement. Further, in August 1974
when Mews, as United, entered into the 1974-77 collective-
bargaining agreement with Local 200, such agreement was
applied to Mews' truckdrivers at least for a time in Septem-
ber 1974 after Mews transferred them all from the JMCO
payroll to that of United. It does not appear that any other
United employees were covered by this agreement. Indeed,
Mews admitted at the hearing that United has collective-
bargaining agreements with the Laborers Union, Cement
Finishers, and Operating Engineers covering other United
employees.
In these circumstances and in view of my finding that
United and JMCO are a single employer within the mean-
ing of the Act, I conclude that a unit of truckdrivers em-
19 Mews testified that no work was available for Williams during October,
November , and December 1974
20 Mews admitted that two of his trucks were in operation during Octo-
ber, November , and December 1974.
21 Ballentine Packing Company, Inc., 132 NLRB 923 (1961).
ployed by United and/or JMCO is an appropriate unit
within the meaning of Section 9(b) of the Act.
In its answer to the complaint Respondent admits that
Local 200 is, and was at all times material herein, the duly
designated majority representative of JMCO's truckdrivers,
but denies that United has any truckdrivers on its payroll.
In view of this admission, and also in consideration of my
finding that United and JMCO are a single employer with-
in the meaning of the Act, coupled with the fact that
Mews, as United, entered into a collective-bargaining
agreement covering the truckdrivers with Local 200 on Au-
gust 20, 1974, without raising any question of Local 200's
majority status, I further conclude that Local 200 is, and
has been at all times material herein , the exclusive majority
representative of the appropriate unit of Respondent's
(United and/or JMCO) truckdrivers within the meaning of
Section 9(a) of the Act. Further supporting this conclusion
are: the presumption of majority that attaches to
Respondent's continuous dealings with Local 200 as the
truckdrivers' exclusive representative;22 the fact that when
the 1971-74 contract expired on May 31, 1974, the only
employees who received paychecks from JMCO at that
time were Mix, Bourdo, and Duquaine, at least two of
whom (Mix and Bourdo) were members of Local 200, and
the further fact that at about the time the 1974-77 contract
was executed by Mews (as United) in August 1974, the
only truckdrivers were Mix, Bourdo, and Williams, all of
whom were members of Local 200.
Inasmuch as Local 200 is, and has been, the exclusive
majority representative of Respondent's truckdrivers at all
times material herein, it follows that at such times Respon-
dent was obligated to deal directly with Local 200-and
not with its employees-in respect to the wages, hours, and
other terms and conditions of employment of the truckdri-
vers. I, accordingly, conclude that by Mews' efforts to ne-
gotiate a percentage wage system with his employees in
May and June 1974 and by Mews' implementation of that
system in June 1974 and thereafter (including not only the
change in wages but also the elimination of vacation and
holiday pay and the elimination of payments to the Team-
sters health and welfare fund) without negotiations with
Local 200, Respondent has violated, and is violating, Sec-
tion 8(a)(1) and (5) of the Act 23
22 Manor Research, Inc., 165 NLRB 909 (1967).
23 N L.R.B v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co,
369 U.S. 736 ( 1962); Tulsa Sheet Metal Works, Inc., 149 NLRB 1487, 1503,
enfd . 367 F.2d 55 (C.A. 10, 1966). The General Counsel further urges that
Respondent 's refusal to process the June 28 grievance was in violation of
Sec. 8(a)(5) and ( I). Since the complaint does not allege this omission to be
an unfair labor practice I shall make no unfair labor practice findings in
respect to it. In any event , the subject matter of the grievance was
Respondent 's unilateral change in working conditions which I have found
to be a violation , supra, and for which I shall recommend a remedy
Respondent's sole defense , which I reject, in respect to this matter is as
follows. Respondent says that Mews raised the pay of his drivers to a figure
(based on a percentage of the trucks' use charge ) which translated for their
purposes into $7 50 an hour The 85 cent excess of this amount over union
scale was intended , Respondent says, to provide funds to the employees to
make their own welfare and pension fund contributions because Mews be-
lieved that the fund would not accept such payments from Mews without a
contract . Mews' belief in this regard purportedly developed from his deal-
ings with other unions which had such a "no contract-no fund payment"
policy
I reject this defense because it is irrelevant to the issue . What arrange-
UNITED CONTRACTORS INCORPORATED 469
I shall treat with Respondent 's subsequent refusal to
honor its contract of August 20, 1974, later in this Deci-
sion , after disposing of the allegations of the complaint in
respect to the discharges of all three of the Union's drivers
in early October 1974.
B. The Discharges
Based on my findings , supra, it is manifest that Mix (on
or about September 30, 1974) and Bourdo (on or about
October 3, 1974) were discharged because they had filed
the grievance with Local 200 over Respondent's failure to
provide them with the wages and holiday pay due them
under the contract executed by Mews on August 20, 1974
(which was effective from June 1, 1974).
Respondent 's defense in respect to these discharges is
based on the testimony of Mews that he merely laid off
Mix and Bourdo from United and then offered them work
with JMCO, which they refused. More specifically, Mews
testified that after he had signed the contract of August 20,
1974, in the name of United, he transferred his drivers to
the United payroll but United continued to rent trucks
from JMCO. Mews said he then learned that this proce-
dure might cause him to lose his motor carrier license from
the State of Wisconsin pursuant to which JMCO was re-
quired to provide both trucks and drivers to contractors
requesting JMCO's services . To avoid this penalty, Mews
claimed, he then simply laid off Bourdo and Mix from
United but offered them work with JMCO. He testified
that both Bourdo and Mix refused to work for JMCO un-
der nonunion conditions despite Mews' claimed requests to
them at that time to persuade Local 200 to meet with him
and negotiate a contract with JMCO-requests which, ac-
cording to Mews , were in addition to attempts he and his
secretary had made to get an appointment with Local 200
representatives to enable Mews and the Union to bargain
for JMCO employees.
Respondent takes the position that Mix and Bourdo
continued to refuse work with JMCO until their reemploy-
ment under union conditions in 1975 , which has been de-
scribed . It also points out a letter from Mews to the NLRB
Regional Office dated October 21, 1974, in which Mews
advised the Region that Mix, Bourdo , and Williams were
offered work with JMCO on October 8, 1974, but refused it
and further advised the Region that work had been avail-
able to them since that time.
I have already rejected, on the basis of my credibility
findings , Mews' version of the separation of Mix and Bour-
do as well as that of Williams of which more will be said
hereinafter . It follows that Respondent's defense-that
ments Mews may, or may not , have thought were proper have no bearing on
his obligation to bargain with the exclusive representative of his employees
in relation to their wages , hours, or other terms and conditions of employ-
ment . Any substantial change in those conditions of employment, as here,
made by an employer unilaterally is in derogation of that duty and is in
violation of the Act . N.L.R.B v Katz, et a!, supra
In addition to the foregoing I am constrained to observe , since it relates
to Mews' credibility , that his claimed mistaken belief that the Teamsters
fund would not accept his health and welfare payment without a contract is
directly contradicted by his earlier claim that he made such payments to
that fund during the period 1966 to 1970 at a time , he said , when he had no
contract with Local 200.
Bourdo and Mix were not discharged in October 1974 but
instead refused employment with JMCO at that time-
must fail.
I will explain my credibility findings in this regard in
more detail at this point, because these findings relate so
intimately to Respondent's defense. I have rejected Mews'
claimed revelation about the possible loss of his motor car-
rier license because his testimony in this regard is substan-
tially inconsistent with his own earlier testimony that the
reason he carved out United's trucking operation in 1970
and used it as a base to establish JMCO was to enable him
to obtain a license as an exclusive contract carrier. If he
knew the requirements for such an exclusive license in
1970, he obviously knew them in 1974.
His claim that he could not get Local 200 to send a
representative to bargain with him in September 1974 is at
odds with the fact that Kraemer came out to see Mews
personally on or about September 27, 1974,-at the very
time these events were taking place-to discuss with him
Mix and Bourdo's grievance of September 17, 1974, which
dealt with contract matters.24 There is no indication that
Mews made any effort at this meeting to negotiate a con-
tract in the name of JMCO although he must have
known-from Kraemer's signing of the August 20, 1974,
contract in the name of United-that Kraemer had author-
ity to negotiate a contract.
Mews' letter of October 21, 1974, to the Board' s Region-
al Office likewise belies his testimony. That letter recites
the following, in pertinent part:
On August 30, 1974, Milan Mix, Guy Bourdo and
Percy Williams left our employment and went to work
for another firm. These former employees were of-
fered work on October 8, 1974 under the same terms
of their employment since the expiration of our con-
tract with Local #200 May 31st, 1974. They declined
to work. Work has been available for them. This cor-
poration does not have a contract with Local #200.25
Since Mix, Bourdo, and Williams are all named in the
first sentence of this paragraph, the obvious intention of
the phrase "These former employees," appearing in the
second sentence, is the inclusion of Mix, Bourdo, and Wil-
liams . The pronouns "they" and "them" appearing in later
sentences (in the absence of any statement to the contrary)
also must be presumed to include Mix, Bourdo, and Wil-
liams. While the letter states that work has been available
for "them" (i.e. all three) Mews testified at the hearing that
only two of his trucks were in operation from October 1 to
December 31, 1974, and that there was no work for Wil-
liams during this period even if Williams had wanted to
come to work.
A further reason for my discrediting Mews' version of
the separation of Mix and Bourdo is that he admittedly did
not contact unemployment authorities to inform them of
his claim that Mix and Bourdo were refusing to work even
24 While I will find such claimed efforts to be irrelevant to the Sec. 8(a)(5)
allegations of the complaint , such claims nonetheless bear on the credibility
of Mews testimony in connection with the Sec. 8(a)(3) allegations.
25 Even this letter is evasive . On or about August 30, 1974, Mix, Bourdo,
and Williams hadn't "left employment"-they were transferred by
Mews . The other " firm" they "went to work" for was United'
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though, he said, he was aware that both were drawing un-
employment compensation . Mews also claimed that Mix
and Bourdo were on strike during this period but the rec-
ord is barren of any suggestion that Local 200 picketed at
Mews' office or any of Mews' projects. Finally, unlike
many of Mews' other actions in this case, he did not then
make any written offer of reemployment by JMCO to Mix
or Bourdo.
In view of the foregoing I am satisfied that Mix and
Bourdo were discharged by Respondent on or about Sep-
tember 30 and October 4, respectively, for the reason that
they, in concert , filed grievances against Respondent over
working conditions and that Respondent thereby violated
Section 8(a)(1) and (3) of the Act 26
Since Mews criticized both Mix and Bourdo in their dis-
charge interviews about their filing of a grievance and fur-
ther told them that there would be no work for them until
they got their union problems straightened out, I find that
Respondent also thereby threatened both Mix and Bourdo
with reprisal for the exercise of their Section 7 right to
engage in union activities and that Respondent thus violat-
ed Section 8(a)(1) of the Act 27
This brings us to the discharge of Williams. Williams has
been a member of Local 200 since 1958. I conclude that
Mews was aware of Williams ' union affiliation because
when Mews hired Williams in August 1974, Mews made a
point of telling Williams that he, Mews, did not then have
a contract with Local 200-a comment which would have
been unnecessary unless Mews knew or suspected that Wil-
liams was a Local 200 member. It should also be noted that
Williams, as an employee in the truckdrivers unit, would
have been a beneficiary of the successful prosecution of the
Mix-Bourdo grievance of September 17, 1974, even though
he did not sign it or participate in the filing of it.
In its brief Respondent argues that Williams was laid off
because of lack of work and because of Mews' dissatisfac-
tion with Williams' performance as a truckdriver. I con-
clude, however, that neither of these reasons was the cause
of Williams' separation.
To begin with, no mention was made of either matter
when Mews asked Williams for the keys to Williams' truck,
which was the last time prior to the hearing when Mews
spoke to Williams 28 Further, Williams' testimony stands
unrebutted that the driving incidents 29 (which occasioned
26 E.g ., Chatfield Paper Corporation, A Division of The Mead Corporation,
172 NLRB 307 (1968). Even if I were to accept Mews ' explanation , which I
have not, that Mix and Bourdo refused to work under nonunion conditions,
I would nonetheless conclude that Respondent , by offering them work only
under nonunion conditions , constructively discharged them in violation of
Sec. 8(a)(l) and (3) of the Act. Barwise Sheet Metal, Co., Inc., a Division of
Airtron, Inc; American Air Conditioning Co, Inc, Fahnestock, Inc., a Divi-
sion of Airiran, Inc, as Joint and Successor Employers, 199 NLRB 372 (1972).
My reasons for so concluding would be that (as will be more fully discussed
hereinafter) the United contract of August 20, 1974, was also binding on
JMCO (since the two corporations are a single employer within the meaning
of the Act) and therefore , these employees were entitled to work under the
conditions set forth in that contract.
27 See Trailmobile Division , Pullman Incorporated v. N L.R B, 407 F.2d
1006, 1008 (C.A. 5, 1969)
28 1 have already discredited Mews ' testimony that he told Williams at
that time that Williams was being laid off due to lack of work and poor
performance
29 In one incident Mews criticized Williams for dumping at a time when
the criticisms by Mews and Schlei of Williams' driving per-
formance) both occurred in August. This means that Mews
must have been satisfied with Williams' overall perfor-
mance because Mews continued to employ Williams for a
month after the incidents occurred. And there is no indica-
tion that the poor performance was repeated during that
month. Finally, while I have given no weight to Mews'
letter to the Board, dated October 21, 1974, as support for
Mews' claim that he offered Mix and Bourdo employment
on October 8, 1974, this letter nonetheless stands as an
admission that Mews was sufficently satisfied with Wil-
liams' performance to reemploy him. For this letter, which
has been discussed and analyzed, supra, makes no mention
that Williams was discharged nor that he had been a sub-
standard employee 30 It rather avers that, as of October 21,
1974, Mews had work available for Mix, Bourdo, and Wil-
liams.
I therefore conclude that Williams was discharged be-
cause he was a member of Local 200 and stood to benefit
from the Mix-Bourdo grievance-the very grievance which
had caused the discharges of Mix and Bourdo.
With the discharge of Williams, Mews had rid himself of
his last union truckdriver and set the stage , at least in
Mews' mind, for him to hire nonunion drivers to replace
his union drivers. I accordingly conclude that by discharg-
ing Williams Respondent violated Section 8(a)(1) and (3)
of the Act 31
C. The Ultimate Refusal to Bargain
The complaint alleges that Respondent has, since Sep-
tember 1974, refused to bargain collectively with Local 200
by failing to apply "United's" agreement with Local 200 to
Respondent's trucking operations and employees . In its an-
swer to the complaint Respondent admits that JMCO has
not applied the "United" contract to its trucking opera-
tions and employees by reason, Respondent says, of the
separate identity of these companies. It also appears that,
in view of Mews' testimony that United is no longer en-
gaged in trucking operations, there are no "United" opera-
tions to which the "United" contract with Local 200 can be
applied. In sum it is clear that Respondent-either as Unit-
ed or JMCO-did not apply the "United" contract to
Respondent's trucking operations or employees at least
from the beginning of October 1974 until it rehired Mix
and Bourdo just prior to the hearing-and even then with-
out agreeing that it was bound to do so.
Respondent offers essentially two defenses to its failure
to live up to its contract with Local 200. First it says that,
since United and JMCO are separate employers, there is
no obligation for JMCO to honor United's contract with
Local 200. Secondly, it argues that, even if United and
JMCO are a single employer, the United contract is a nulli-
his dump truck was not level. In another incident Schlei criticized Williams
for rolling off (apparently moving his truck after a dump ) before lowering
the dump box into place.
30 Mews, in any event, waffled on cross-examination as to his reasons for
discharging Williams . He ultimately testified that he did not terminate Wil-
liams because of his poor performance but rather for lack of work.
31 1 deem of no significance Williams ' testimony that , as far as he knew,
his separation had nothing to do with the Union . For Williams could not
necessarily be expected to know what motivated Mews in discharging him.
UNITED CONTRACTORS INCORPORATED 471
ty because it was entered into by Mews under threats of
strikes and picketing by Kraemer.
I reject Respondent 's first defense for the reason that, as
I have found, United and JMCO are a single employer
within the meaning of the Act.32 Respondent's second de-
fense must also fail because , on the basis of my credibility
findings, I have concluded that no such threats were made
by Kraemer to Mews at the time the contract was execut-
ed.33 I further conclude that Mews ' insistence that the con-
tract be entered into in the name of United was just anoth-
er aspect of his lack of good faith and evasiveness in
dealing with Local 200. Consistently, after entering into the
contract, Mews delayed putting its terms into effect. Even-
tually he discontinued the short lived United trucking op-
erations and discharged all of his union drivers after a
grievance was filed in respect to his performance under
that contract . Indeed , his entire course of conduct strongly
suggests , and I find, that he never had any intention of
living up to the United contract of August 20, 1974.
In view of all the foregoing , I conclude that by failing to
apply the terms of "United's " contract with Local 200 to
Respondent 's trucking operations and employees at all
times since early October 1974, Respondent has refused to
bargain in good faith with Local 200 in violation of Section
8(a)(5) and (1) of the Act 34
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above , have a close , intimate and sub-
stantial relationship to trade , traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
commerce or in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening Milan Mix and Guy Bourdo with re-
prisal for engaging in union or other concerted activities
Respondent has violated Section 8(a)(1) of the Act.
4. By discharging Milan Mix, Guy Bourdo, and Percy
Williams, Respondent has violated Section 8(a)(1) and (3)
of the Act.
5. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act: All truckdrivers employed
by United or JMCO excluding all other employees, guards
and supervisors within the meaning of the Act.
6. At all times on and since June 1, 1974, the Union has
been the exclusive collective-bargaining representative of
the employees in the aforesaid unit within the meaning of
Section 9(a) of the Act in respect to their wages, hours, and
other terms and conditions of employment.
7. By dealing directly with its employees in respect to
the terms and conditions of employment of its employees
in the appropriate unit found above and by changing such
terms and conditions of employemnt on and after June 1,
1974, without bargaining with the employees' exclusive col-
lective-bargaining representatives Respondent has violat-
ed, and is violating, Section 8(a)(5) and (1) of the Act.
8. By failing to abide by the terms of its contract excut-
ed on August 20, 1974, with the Union, Respondent has
violated, and is violating, Section 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
CONCLUSIONS OF LAW
1. United and JMCO are a single employer engaged in
32 This renders irrelevant Mews' claimed efforts to negotiate a contract
with Local 200 on behalf of JMCO in September 1974. There was no need
for Local 200 to negotiate a contract. It already had one . But if Mews was
truly interested in negotiating a contract for JMCO in September 1974, as
he claimed, he offered no explanation of his failure to bring this matter up
with Kraemer when , as has been mentioned , Mews and Kraemer met on
September 27, 1974.
3 Even if I were to find, which I have not, that Kraemer had made such
a threat, I would nonetheless conclude that the contract was validly execut-
ed. For economic pressure of this type is not in and of itself inconsistent
with a labor organization 's duty to bargain in good faith with an employer.
N. L. R. B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins.
Co.) 361 U.S. 477, 490-491 (1960). It is only when such pressure is coupled
with evidence , significantly lacking here, of a union 's intention not to afford
an employer the opportunity to bargain collectively and such union's fur-
ther intention not to bargain in good faith, that such pressure becomes
unlawful and would negate the effect of any resulting collective -bargaining
agreement . Compare Operative Plasterers' & Cement Masons' International
Association Local #2, AFL-CIO [Arnold M Hansen], 149 NLRB 1264
(1964).
34 See Barwise Sheet Metal Co., Inc., supra. While it is true that Respon-
dent rehired Mix and Bourdo under the conditions set forth in that contract,
its letter of reinstatement to Mix and Bourdo makes clear that Respondent
takes the position that no valid agreement exists between it and Local 200.
The recommended Order will contain the conventional
provisions for cases involving findings of interference, re-
straint, coercion, unlawful discharge, and unlawful refusal
to bargain in violation of Section 8(a)(1), (3), and (5) of the
Act. This will require Respondent to cease and desist from
the unfair labor practices found and to post a notice to that
effect which will also state the affirmative action Respon-
dent will be required to take to remedy these discharges
and its refusal to bargain with the Union.
Thus, Respondent will be required to offer Mix, Bourdo,
and Williams reinstatement to their former or substantially
equivalent positions,35 without prejudice to their seniority
or other rights and privileges. Each will be made whole for
any loss of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he would have earned from the
date of the offer of reinstatement, less his net earnings, if
any, during such period to be computed in the manner
35 In so recommending I am not unmindful that Mix and Bourdo have
already been reinstated . But since Respondent questions their right to reem-
ployment under the conditions of the August 20, 1974, contract with the
Union. this order of reinstatement will insure their employment without
question under the provisions of that agreement, viz, substantially equiva-
lent employment in this context means, inter aha, employment under work-
ing conditions provided by the instant union contract.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with 6 percent interest thereon as required by Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to honor or abide by
its agreement with the Union , I shall also recommend that
it be required to honor and abide by that agreement for its
term . 36 This will require that Respondent provide all the
employees who were in the collective-bargaining unit on or
after June 1, 1974, any wages , paid holidays , paid vaca-
tions , or other benefits which have not already been paid
under the provisions of the agreement which is effective
from June 1, 1974, to May 31, 1977. To further insure that
Respondent will live up to its bargaining obligation I shall
also recommend that Respondent be directed to bargain
upon request with the Union and, if any further under-
standing is reached , that such understanding be embodied
in a written agreement.
Finally, it will be recommended , because of the nature of
the unfair labor practices in which Respondent has en-
gaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532,
536 (C.A. 4) ), that Respondent be ordered to cease and
desist from infringing in any manner upon the rights guar-
anteed employees by Section 7 of the Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER37
Respondent, United Contractors Incorporated and
JMCO Trucking Incorporated, the officers, agents, succes-
sors , and assigns of both these corporations, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Local 200, Chauffeurs, Teamsters and Helpers "Gener-
al" Local Union No. 200, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discriminating in regard to the hire or tenure of employ-
ment , or in any other manner in regard to any term or
condition of employment, of any of Respondent's employ-
ees in order to discourage union membership or union or
other concerted activities.
(b) Threatening its employees with reprisal for filing
grievances with the above-named Union or in any other
manner interfering with, restraining, or coercing employees
in the exercise of their rights guaranteed by Section 7 of the
Act.
36 Eklund's Sweden House Inn, Inc, 203 NLRB 413 (1973).
77 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall , as provided in
Sec.102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
(c) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the above-named Union as the exclusive
bargaining representative of its employees in the following
unit found to be appropriate for the purposes of collective
bargaining: All truckdrivers employed by United or JMCO
excluding all other employees, guards and supervisors
within the meaning of the Act.
(d) Dealing directly with its employees concerning their
wages, hours, or other terms and conditions of employment
and unilaterally changing or cancelling employees' wages,
hours, holidays, vacations or other terms and conditions of
employment without first bargaining over said matters
with their exclusive collective-bargaining representative.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Milan Mix, Guy Bourdo, and Percy Wil-
liams immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges and make each of
them whole for any loss of earnings he may have suffered
as the result of his discriminatory discharge in the manner
set forth in "The Remedy" section of this Decision.
(b) Honor and enforce the terms of the collective-bar-
gaining agreement with the above-named Union effective
from June 1, 1974, to May 31, 1977.
(c) Bargain collectively, upon request, with the above-
named Union with respect to the rates of pay, wages,
hours, and other terms and conditions of employment of
the employees in the above-mentioned appropriate unit,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(d) Provide to all employees in the collective-bargaining
unit all unpaid wages, holidays and vacation pay, and
other benefits established under the aforesaid collective-
bargaining agreement and in effect since June 1, 1974.
(e) Preserve and, upon request, make available for ex-
amination 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.
(f) Post at its Menomonee Falls, Wisconsin, place of
business copies of the attached notice marked "Appen-
dix." 38 Copies of said notice on forms provided by the
Regional Director for Region 30, after being duly signed
by Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 30, in writ-
ing, within 20 days of the date of this Order, what steps the
Respondent has taken to comply herewith.
38 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
UNITED CONTRACTORS INCORPORATED 473
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to give
evidence, it has been decided that we, United Contractors
Incorporated and JMCO Trucking Incorporated, have vio-
lated the National Labor Relations Act and we have been
ordered to post this notice.
The National Labor Relations Act gives you, as em-
ployees , certain rights including the rights:
To self-organization
To form, join and help unions
To bargain collectively through a representative
of your own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
Accordingly, we give you these assurances:
WE WILL NOT threaten to take away your jobs be-
cause you file grievances or otherwise join or support
a union or engage in any other concerted activities
and WE WILL NOT interfere with the exercise of any of
your rights set forth above.
WE WILL NOT discharge you or take any other reprisal
against you because you file grievances with a union
or because you join, support, or engage in union or
other concerted activities.
WE WILL NOT change or eliminate your wages , hours,
holidays, vacations or other terms and conditions of
employment established by collective-bargaining
agreement with Chauffeurs , Teamsters and Helpers
"General" Local Union No. 200, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, without the
approval of that union, which is your exclusive bar-
gaining representative.
WE WILL NOT bargain with you concerning your wag-
es, hours, or other terms and conditions of employ-
ment outside of the presence of your exclusive collec-
tive-bargaining representative.
WE WILL continue to recognize that Union as the
exclusive bargaining representative of our employees
in the following appropriate collective bargaining
unit: All truckdrivers employed by United or JMCO,
excluding all other employees, guards and supervisors
within the meaning of the Act.
WE WILL, upon request, bargain collectively with
that Union with respect to your rates of pay , wages,
hours and other terms and conditions of employment
and, if an understanding is reached, WE WILL embody
such understanding in a signed agreement.
Meanwhile, WE WILL honor and enforce the provi-
sions of our contract with that Union effective from
June 1, 1974, to May 31, 1977, and WE WILL provide
our employees in the above-mentioned collective-bar-
gaining unit all benefits including wages, paid holi-
days, and vacations and other benefits which we have
not yet paid pursuant to that agreement.
WE WILL offer to reinstate Milan Mix, Guy Bourdo
and Percy Williams to their former or substantially
equivalent positions with full seniority and all other
rights and privileges, as the Board has found that they
were discharged because of their union or other con-
certed activities.
WE WILL make up all pay lost by Milan Mix, Guy
Bourdo and Percy Williams because of their dis-
charges with 6-percent interest.
UNITED CONTRACTORS INCORPORATED, JMCO
TRUCKING INCORPORATED, JOINT EMPLOYERS