Van-Note Harvey Associates

National Labor Relations Board - Board Decisions

Feb 6, 1980

247 N.L.R.B. 927 (N.L.R.B. 1980)

VAN-NOTE HARVEY ASSOCIATES
Van Note-Harvey Associates and Nassau Surveying
and Local 825 A, B, C and D, International Union
of Operating Engineers. Case 22-CA-8511
February 6, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 24, 1979, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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
attached 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
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Van Note-Harvey Asso-
ciates and Nassau Surveying, Princeton, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
I Respondent has 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 credibility 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), enrd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE: This proceeding involves allegations
that Van Note-Harvey Associates and Nassau Surveying
(herein called Respondent) violated Section 8(aX1), (3), and
(5) of the National Labor Relations Act, as amended (herein
called the Act). The proceeding was initiated by the charge
filed in Case 22-CA-851 1, on June 8, 1978.' On July 28 a
complaint thereon issued, and on January 15 and 16, 1979, a
hearing was held before me in Newark, New Jersey.
I Unless otherwise indicated, all dates hereinafter are in 1978.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs of the parties,
I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Van Note-Harvey Associates (hereinafter referred to
individually as Van Note and collectively with Nassau
Surveying as Respondent) is a consulting engineering firm
engaged in business in Princeton, New Jersey. The com-
plaint alleges, and Van Note admits, that Van Note derived
in excess of $500,000 in 1977 in the performance of services.
of which at least $50,000 was derived directly from custom-
ers located outside the State of New Jersey. The complaint
alleges, Van Note admits, and I find that Van Note is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The complaint also alleges that Nassau Surveying (herein-
after referred to individually as Nassau and collectively with
Van Note as Respondent) is an alter ego of Van Note and/or
a single employer with Van Note within the meaning of
Section 2(2) of the Act. For reasons hereinafter set forth, I
find that Nassau is an alter ego of Van Note and that it and
Van Note constitute a single employer within the meaning of
Section 2(2) of the Act.
IT. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(S) Allegations
1. The facts
In 1972 Local 825 A, B, C and D, International Union of
Operating Engineers (herein called the Union), was certified
as bargaining representative of that portion of Van Note's
employee complement engaged in surveying work. Thereaf-
ter, successive collective-bargaining agreements were entered
into, the most recent of which was for the period March 19,
1977-March 19, 1978. After due notice, negotiations for a
new agreement were begun on January 31.
At the January 31 meeting the Union, represented by
Business Representative Raymond Polgar and Steward
Louis Tramontana, presented a written proposal containing
14 items. Van Note was represented by its executive vice
president, Robert Jamieson. The parties discussed each item
briefly and reached agreement on none.
On March I the same individuals held a second meeting,
at which Jamieson presented a written counterproposal
patterned on the Union's proposal, the details of which are
not here relevant except with regard to Jamieson's proposal
relative to the recognition clause and scope of the work to be
covered by the agreement. The contract then in effect
provided as follows:
247 NLRB No. 139
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE I-RECOGNITION
1. The Employer recognizes the Union as the sole and
exclusive bargaining agent of all employees in the
following collective bargaining unit:
All survey crew personnel including party chiefs,
instrument men, and rod-chain men assigned to and
working out of the Employer's Princeton, New Jersey
location, but excluding office clerical employees,
professional employees, draftsmen, engineers, junior
engineers, guards and supervisors as defined in the
Act and all other employees.
2. This Agreement shall apply to all work and
activities of the Employer in connection with engineer-
ing survey, preliminary survey, property surveys, soil
and percolation tests and soil log and any work
pertaining to surveying and field engineering as now
carried on by the employees of the Employer.
In his March I proposal Jamieson proposed that para-
graphs 1 and 2 be modified to provide as follows:
1. The Employer recognizes the Union as the sole and
exclusive bargaining agent for all employees in the
following collective bargaining unit:
All survey crew personnel including party chiefs,
instrument men and rod-chain men assigned to do
engineering surveys and construction stakeout work-
ing out of the Employer's Princeton, New Jersey
location, but not including surveying crews working
on property surveys, office clerical employees, profes-
sional employees, draftsmen, engineers, junior engi-
neers, guards and supervisors as defined in the Act
and all other employees.
2. This agreement shall apply to all work and
activities of the Employer in connection with engineer-
ing surveys, construction stakeout.
This proposal effected certain changes in the unit. It
excluded preliminary surveys, property surveys, and soil
percolation and soil log work, theretofore covered by the
contract. Jamieson's asserted reason for these changes was
that Van Note was no longer doing such work due to its
excessive costs as compared with the costs of its competitors.
In this connection, Jamieson stated he was considering
subcontracting the work out. The proposal added construc-
tion stakeout to the work done by the unit. As to his reason
for this addition, Jamieson asserted that it was because the
employees were engaged mostly in construction stakeout
work. Polgar told Jamieson that the Union could not agree
to a provision including construction stakeout work under
the conditions and wages paid by Van Note because of the
Union's construction agreements with various associations
throughout the State of New Jersey and certain counties of
New York State precluding the Union from negotiating an
agreement with anyone for less than the wages and condi-
tions provided in such agreements. Polgar indicated that his
understanding of the term "construction stakeout" was not
the same as Jamieson's, but that in any event the Union was
willing to do the work in question, avoiding the use of the
term "construction stakeout" in the agreement.
The next meeting was on March 6 with the same
individuals present. The Union presented a modified propos-
al, deleting certain of its demands, but no significant
progress was made. Jamieson still adhered to his proposal
for a change in the recognition provision, but the Union
would not agree.
The same individuals met again on March 14. At this time
Jamieson made an oral proposal of a 5-percent wage increase
per year across the board for a 3-year period. The Union
accepted the proposal with certain modifications, and, after
some further discussion, according to Polgar, they came to
agreement on wages, sick pay, holidays, vacations, and the
recognition clause that had been in effect in prior years. The
parties were not in agreement, however, on a union proposal
for a successor clause, an 8-hour day and 40-hour workweek,
and a provision to cover loss of work due to inclement
weather. It appears, nevertheless, that the Union was willing
to drop these demands, because Polgar agreed to return to
the employees to see if the package agreed to was acceptable.
In Jamieson's case, he testified that he already had authori-
zation within the range of wage increases he had agreed to.
On March 21 the employees rejected the proposal because
of the absence of provisions for an 8-hour day and 40-hour
workweek. Jamieson was informed of this rejection, and the
same individuals met again on March 27. At this meeting
Jamieson, in effect, withdrew his agreement to the wage
increases and fringe benefits agreed to on March 14, because
it provided for a 5-percent wage increase plus fringe benefits
which were costly. In 1977 the parties had agreed to a
contract without fringe benefits in return for a higher wage
increase. In 1978 not only did the Union want yet another
wage increase, but it also wanted to reintroduce fringe
benefits that were costly. Jamieson's March proposal had
indicated that his wage proposal was based on a lower wage
rate than that which the Union relied upon because the
Union wanted to reintroduce fringe benefits. In other words,
Jamieson correlated the wage rate with the cost of fringe
benefits. Despite this, it is clear, and I find, from Polgar's
and Tramontana's testimony, that on March 14 Jamieson
had agreed to a wage increase based on the Union's figures,
plus fringe benefits. Polgar reminded Jamieson of this, and
Jamieson indicated that he was sorry, but that he had made
a mistake. Polgar said that was unacceptable, and after
further exchanges the parties agreed to meet on March 29.
On March 29 the same individuals met with a state board
mediator. After they had reviewed with him what had
preceded this meeting, Jamieson presented a written propos-
al (G.C. Exh. 9). Upon examining it, Polgar noted that the
recognition clause was a modification of what it had been
prior to March 19 and was also a modification of Jamieson's
position on March I wherein Jamieson had included
construction stakeout and eliminated property and prelimi-
nary surveys and soil and percolation tests. In this proposal
he was still including construction stakeout, and while he
was reinserting soil percolation and soil log work, he had not
included property and preliminary surveys. Polgar pointed
out to Jamieson that they had agreed to the old recognition
clause on March 14, but Jamieson rejoined that he did not
know if he was going to be doing that work any more, that
the Company had not been doing it because it was
noncompetitive in that area, and that they might subcontract
928
VAN-NOTE HARVEY ASSOCIATES
that work out. Polgar reminded him that he had an
agreement with the Union covering these people, and
Jamieson denied it, saying that the agreement had expired on
March 19.
Turning to the wage proposal, Polgar noted that it was
based on a lower wage figure than that from which the
Union was computing its demand for an increase. Jamieson
said there were certain things Van Note was not doing
anymore, that they were out of preliminary surveys and
property surveys, and he had made his offer.
The Union met with the mediator and afterwards made a
proposal to Jamieson wherein it dropped demands for
vacation and holiday pay in return for an increase of 10
percent across the board. Jamieson said, "[n]o," there was
his proposal; take it or leave it. He added that he did not
know if he was going to be in business anyway, because he
and a few professionals had formed a new company, and
they were going to do the work. He said that he no longer
had to do business with the Union, because the contract was
over. Polgar told him that if he persisted in trying to ram a
contract down their throat, the men probably would not
report for work the next day, and Jamieson said he did not
give a damn if they did or not, that he was not going to be in
business anyway. He also said that if they did not come back
to work, it was fine with him and that he could get
somebody else to do the work. Polgar decided to leave and
told Jamieson that he was going to talk with the men and
that he would be talking to him later. Jamieson said he
would not be talking to him, because the contract was over,
and he did not have to talk to him anymore. Polgar said that
if he was not talking to him he would be talking to his
lawyer.
Polgar left the meeting and reported to the employees
what had happened in the meeting with Jamieson. The men
decided to strike, and the strike began on March 30. The 11
unit employees participated in the strike.
On March 31 Van Note sent a letter to all the strikers,
notifying them that it considered them no longer to be
employees.
During the first week of April Jamieson proceeded to
reactivate Nassau Engineering, a dormant corporation
whose sole stockholders were Jamieson and Harvey, who
were also the principal stockholders of Van Note. The name
"Nassau Engineering" was changed to "Nassau Surveying,"
and Harvey and Jamieson, who were the officers of Nassau,
resigned from their positions, and Conrad Brennflek and
Don Allen, who were vice presidents of Van Note, resigned
from their positions, and Brennflek became president and
treasurer of Nassau, and Allen became vice president and
secretary. In the first week of April Van Note authorized
Nassau to complete the survey work it had outstanding.
Since that time Nassau's business has consisted of 50 percent
referrals from Van Note and 50 percent generated by itself.
It has employed as many as 12 employees (6 as of the date of
the hearing), and they are supervised by Brennfek and
Allen, who were the supervisors of the work crews under
Van Note before the strike.
Nassau occupies the same office as Van Note, using the
same facilities and equipment. Assertedly, the arrangement
between Van Note and Nassau is pursuant to a lease,
although no lease was produced at the hearing. The
arrangement is terminable at will.
On May 19 Van Note, by Attorney Richard Casey,
advised Region 22 relative to a charge filed by the Union in
Case 22-CA-8330 that it was withdrawing its demand for
changes in the unit description as set forth in its March 28
proposal and would abide by the unit description in the last
agreement of the parties. A copy of Van Note's letter was
sent to Polgar.
On May 22 Van Note sent a letter to all the strikers,
withdrawing from its position that they were no longer
employees.
The next meeting was held on June 6. It was attended by
the same individuals, plus Attorney Casey for Van Note and
Attorney Morton List for the Union. After review of what
had happened before, the Union asked to negotiate on behalf
of the employees of Nassau, and Casey refused to recognize
the Union for that company on the grounds that it was a
different company and that the Union did not represent its
employees. Casey was willing to discuss conditions relative
to Van Note, but he pointed out that the work had been
subcontracted, and there was no longer any work to do, and
he did not know if VaniNote could get it back in the future.
However, wages were discussed, and the Union asked for a
substantial wage increase, adverting to the understanding
reached on March 14. According to Polgar, Casey said that
Van Note could not afford to pay wage increases of the
nature sought by the Union, or "that you could not compete.
That there were other people doing this work and that you
couldn't afford the wage increases." List asked how much
the Company was willing to pay, and Casey said, "[W]e
couldn't afford the wage increases." List said then that he
would like to see the Company's books. Casey refused.
On July 7 the Union sent a letter to Van Note, advising it
of its position that Nassau and Van Note constituted either a
single employer and/or that Nassau was the alter ego of Van
Note and accordingly demanding recognition. No reply was
received.
On July 21 the Union sent a letter to Jamieson, confirming
a conversation of that date wherein an unconditional offer to
return to work was made on behalf of the employees. The
strike and picketing ceased on that date.
The next meeting was on August 10. Again there was a
discussion of recognition of the Nassau employees with
recognition being denied. As to reinstatement of employees,
it appears three employees were reinstated by Van Note, two
of whom were subsequently transferred to nonunit work and
one of whom was laid off. Tramontana was never reinstated.
Around August 31 the Union received a new contract
proposal. There were no meetings after that proposal.
2. Analysis and conclusions
Except as noted hereinafter, the foregoing facts are
essentially undisputed. On the basis thereof, General Coun-
sel contends that a finding is warranted that Van Note
violated Section 8(a)(1) and (5) of the Act by bargaining
with no intention of reaching agreement, unilaterally trans-
ferring unit work, withdrawing recognition from the Union,
and refusing to provide information upon request.
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contention that Van Note bargained with no intention
to reach an agreement finds support in Jamieson's position
throughout the negotiations relative to certain unit work, in
particular property and preliminary surveys. It appears from
Jamieson's statements to Polgar that Van Note believed it
had become noncompetitive in property and preliminary
surveys, and assertedly for that reason Jamieson excluded
such work from his March proposal. The Union refused to
accede to this exclusion. Jamieson appeared to have receded
from his position when a tentative agreement was reached on
March 14. However, when it later developed that there had
been no meeting of the minds on wages, he submitted his
March 29 proposal, wherein he again excluded property and
preliminary surveys, and this time he was adamant about the
exclusions, as he was about his wage proposal.
The obligation to bargain imposed by the statute does not
require an employer to abandon a position fairly held, but
Van Note's position cannot be so characterized. It has long
been established that the duty to bargain about wages, hours,
and other terms and conditions of employment includes the
duty to bargain about subcontracting out unit work,2 and
while it could be said that by excluding survey work from its
contract proposal, Van Note was, in effect, giving notice to
the Union of its intention to subcontract and offering to
bargain about the matter, the record militates against a
finding to such effect. The fact of the matter is that Jamieson
did not offer to bargain about the survey work; rather, he
claimed not to be doing the work. While referring to his
inability to compete, he did not once point out what relief he
needed or seek relief. This is not what the statute contem-
plates as bargaining over the issue of subcontracting.
As to his inclusion of construction stakeout work,
Jamieson never indicated what problem existed which gave
rise to his inclusion of the term in his proposal. The
employees were doing whatever work was required of them,
and there is no showing of a need for a change in the
recognition clause. The inference is therefore warranted that
the proposal was made to obstruct negotiations.
After the strike Van Note continued in its resolve not to
bargain not only over survey work, but apparently over all
aspects of the work previously performed by Van Note's unit
employees. It did this by reactivating Nassau and assigning
the unit work to it. This action can be viewed in two ways.'
On the one hand, it can be viewed as a subcontracting of
work. So viewed, the action was unlawful, as it was taken
without giving the Union an opportunity to bargain.
Certainly, Jamieson's statements that Van Note was not
competitive and was no longer doing the work and it was
considering subcontracting did not constitute either an offer
to bargain or bargaining. To the contrary, such statements
conveyed the idea there was nothing to bargain about and
precluded any discussion.
On the other hand, if Nassau was the alter ego of Van
Note, the reactivation of Nassau and the assignment of the
work to it can be viewed as a subterfuge to avoid bargaining
with the Union. In my judgment, this is the proper view of
the case.
: Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964).
' Arguably, the action could be viewed a third way; namely, that the
assignment of the work to Nassau was only a temporary expedient to remain
It is too clear to require extended discussion that Nassau
was the alter ego of Van Note. Nassau occupies the same
office as Van Note and uses the same facilities and
equipment. The work performed is the same as had
previously been performed by Van Note, and the supervi-
sors, Brennflek and Allen, are the same. While there has
been a change in the officers of Nassau, there has been no
change in ownership. Jamieson and Harvey are sole owners
of both corporations, and there is no showing that Brennflek
and Allen have any authority to direct the labor relations
policies of Nassau or are anything other than figureheads.
(The record indicates that Jamieson interviewed and hired
one applicant for employment with Nassau.) Finally, Jamie-
son's own testimony indicates the complete dependence of
Nassau on Van Note inasmuch as 50 percent of its work is
obtained from Van Note, and the arrangement between the
two is terminable at will.
For the foregoing reasons I find that Nassau is the alter
ego of Van Note and that Nassau and Van Note constitute a
single employer within the meaning of Section 2(2) of the
Act. The creation of this alter ego, coupled with Jamieson's
statements at the bargaining table and Van Note's and
Nassau's refusal to recognize and bargain with the Union for
the unit of employees of Nassau doing the work previously
performed by Van Note employees demonstrate that Van
Note had no intention of reaching an agreement with the
Union and that from on or about March 29 it did not
bargain in good faith. It should be added that Van Note's
purported retraction of its earlier proposals on contract
coverage and its asserted willingness to meet with the Union
were meaningless acts inasmuch as, when it did meet
thereafter, it claimed it did not have the work anymore and
refused to recognize the Union for the work being done by
Nassau. Furthermore, it should be noted that the fact that
the employees of Nassau may not have designated the Union
to represent them is no defense. As the strike was an unfair
labor practice strike, the strikers were entitled to reinstate-
ment upon their unconditional offer to return. Moreover, in
view of its unfair labor practices, Respondent could not
question the Union's majority status.
In summary, I find that Van Note violated Section 8(a)(1)
and (5) of the Act by bargaining with no intention of
reaching agreement and by transferring the unit work to
Nassau, its alter ego. I further find that Van Note and
Nassau violated Section 8(a)(l) and (5) of the Act by
refusing to recognize and bargain with Union for the
employees doing the unit work previously performed by Van
Note.
The allegation that Van Note refused to furnish informa-
tion poses a threshold question of fact. As set forth above,
Polgar testified that on June 6 Casey told the Union that the
Company could not afford the wage increases sought by the
Union. Thereupon, the Union requested to see the Compa-
ny's books, and Casey refused. According to Casey, how-
ever, at the June 6 meeting the Company had pointed out
that it was not in a competitive position, that there were
many licensed surveyors in the area whose prices the
Company could not match. In the course of the discussion
in operation during the strike. As the subsequent events show. this was not the
case.
930
VAN-NOTE HARVEY ASSOCIATES
Attorney List, "Mr. Casey, you said earlier that you can't
afford to pay us any wage increase," and he asked to see the
Company books. Casey replied that he did not believe the
Union had a right to see the books. He told List he had never
said the Company could not afford increases, because the
Company was a big one, and surveying was a small part of it,
so there was no question of affording a wage increase. The
question was one of the Company's competitive position,
and Casey offered to show the Union its cost analysis in that
particular. List said he had every right to see the books
generally, without reference to the offered information.
Jamieson also testified on this point, but his testimony
added nothing to Casey's. Steward Tramontana testified that
Jamieson said he could not afford a wage increase because it
would make him noncompetitive.
Upon weighing all the foregoing testimony, I am persuad-
ed that Casey's testimony, which was clearly more detailed
than that of the other witnesses, is the more accurate, and I
credit it. On the basis thereof, I conclude that Van Note did
not violate the Act by its refusal to furnish the Company's
books. In N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956),
wherein the Supreme Court laid down the principle underly-
ing the obligation of an employer to provide information in
the context of a claim of inability to pay, the Court stated at
153:
We do not hold, however, that in every case in which
economic inability is raised as an argument against
increased wages it automatically follows that the
employees are entitled to substantiating evidence. Each
case must turn upon its particular facts. The inquiry
must always be whether or not under the circumstances
of the particular case the statutory obligation to bargain
in good faith has been met.
Applying this approach, I find that Van Note did plead an
inability to pay when it adverted to its competitive position.
However, the plea related only to a portion of its business,
and, as to that portion, Van Note offered to substantiate its
position by offering to show the Union a cost analysis.
Whether this would have been sufficient information cannot
be determined on this record, but that is because the Union
rejected the offer. In the circumstances, as Van Note's
position was not that the Company as a whole could not
afford wage increases, the offer of a cost analysis was a
sufficient response. Accordingly, I shall recommend dismis-
sal of the allegation relative to this issue.
B. The 8(a) (3) allegations
The complaint alleges that Van Note violated Section
8(aX)() and (3) of the Act by transferring the unit work from
Van Note to Nassau and by imposing nonmembership in the
Union as a condition of employment with Nassau.
I find the evidence insufficient to warrant a finding that
either Van Note or Nassau imposed nonmembership in the
Union as a condition of employment. The only evidence to
support such a finding is the testimony of Jerome Sodowich,
a union member, who applied for employment with Nassau
and was interviewed by Jamieson. Sodowich testified that he
asked Jamieson if he would have to join the Union and that
Jamieson told him he would not and that Jamieson said if he
did join the Union he would be dismissed.
Jamieson did not expressly deny that he made such a
statement to Sodowich; nevertheless, I do not credit Sodo-
wich. It is abundantly clear that Sodowich did not apply for
a job because he really wanted a job (he was told to report to
work and never did); rather, he applied to learn what he
could about Nassau. Significantly, it was he who brought up
the subject of belonging to the Union, not Jamieson. It
appears to me that, if it was Jamieson's intent to impose
nonmembership in the Union as a condition of employment
with Nassau, he would have broached the subject, not the
applicant.
In addition to Sodowich's testimony, General Counsel
relies on evidence that two striking employees resigned from
the Union and were employed by Nassau. That fact does not
support a finding that Van Note or Nassau imposed
nonmembership as a condition of employment. The resigna-
tions may have been to avoid union fines. In the case of one
striker, Brennflek testified he learned of the resignation only
because the employee volunteered the information.
While I do not deem the evidence sufficient to warrant a
finding that Van Note and/or Nassau imposed nonmember-
ship in the Union as a condition of employment, I am
persuaded and find that the transfer of the unit work to
Nassau was motivated by a desire to avoid bargaining with
the Union and that Van Note thereby violated Section
8(a)(1) and (3) of the Act. I predicate this on the fact that
Van Note created an alter ego, refused to recognize the
Union as bargaining representative of the employees of
Nassau, and denied reinstatement to the striking employees
assertedly because there was no work for them, although
Nassau had a crew of nine employes hired after the strike.
Although three strikers were reinstated by Van Note, after a
brief period two were transferred to nonunit work, and one
was laid off. Steward Tramontana was never reinstated. In
these circumstances a finding that the transfer of work to
Nassau was unlawfully motivated is warranted.
Although it appears that more than one employee was
discriminated against relative to reinstatement, either by not
being reinstated, by being reinstated and laid off, or by being
transferred to nonunit work, the complaint alleges only the
denial of reinstatement to Tramontana. As the record
indicates that Tramontana was denied reinstatement, al-
though work was available with Nassau, I find that Van-
Note and Nassau violated Section 8(aXI) and (3) of the Act
by denying him reinstatement since on or about July 24.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring in
connection with its operations described above, have a close,
intimate, and substantial relationship 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.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aX), (3), and (5) of
the Act, I shall recommend that it be ordered to cease and
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist therefrom and to take appropriate and affirmative
action designed to effectuate the policies of the Act. In
particular, as I have found that Respondent unlawfully
denied reinstatement to Louis Tramontana, I shall order it
to offer him immediate and full reinstatement to his former
job or, if such job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and to make him whole for any
loss of earnings he may have suffered by reason of the
unlawful refusal of reinstatement by payment to him of a
sum of money equal to that which he normally would have
earned as wages from the first workday after his uncondi-
tional offer to return to work to the date of the offer of
reinstatement, less net earnings, to which shall be added
interest to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).'
CONCLUSIONS OF LAW
1. Van Note-Harvey Associates and Nassau Surveying
constitute a single employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. At all times material herein, Nassau Surveying has been
the alter ego of Van Note-Harvey Associates.
3. Local 825 A, B, C and D, International Union of
Operating Engineers, is a labor organization within the
meaning of Section 2(5) of the Act.
4. All survey crew personnel employed by Respondent at
its Princeton facility, including party chiefs, instrument men,
and rod-chainmen, engaged in engineering surveys, prelimi-
nary surveys, soil or percolation tests and soil log, and any
work pertaining to surveying and field engineering, but
excluding office clerical employees, draftsmen, engineers,
junior engineers, guards, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. The Union has been at all times material herein the
exclusive representative of the employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
6. By meeting and bargaining with the Union with no
intention of reaching an agreement and by transferring unit
work from Van Note-Harvey Associates to Nassau Survey-
ing without bargaining with the Union, Van Note-Harvey
Associates has engaged in, and is engaging in, unfair labor
practices within the meaning of Sections 8(a)(1) and (5) and
2(6) and (7) of the Act.
7. By refusing to recognize and bargain with the Union
with respect to the employees in the unit described above
employed by Nassau Surveying, Respondent has engaged in,
and is engaging in, unfair labor practices within the meaning
of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act.
8. By transferring unit work from Van Note-Harvey
Associates to Nassau Surveying for the purpose of avoiding
its obligation to bargain with the Union, Van Note-Harvey
See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
' 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
Associates has engaged in, and is engaging in, unfair labor
practices within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the Act.
9. By failing and refusing to reinstate Louis Tramontana
upon his unconditional offer to return to work, Respondent
engaged in, and is engaging in, unfair labor practices within
the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'
The Respondent, Van Note-Harvey Associates and Nas-
sau Surveying, Princeton, New Jersey its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
Local 825 A, B, C and D, International Union of Operating
Engineers, or any other labor organization, by transferring
unit work from Van Note-Harvey Associates to its alter ego,
Nassau Surveying, for the purpose of avoiding the obligation
to bargain with said labor organization as the representative
of its employees in the appropriate unit and by denying
reinstatement to unfair labor practice strikers upon their
unconditional offer to return.
(b) Refusing to bargain with the above-named labor
organization as the representative of its employees by
meeting and bargaining with no intention to arrive at an
agreement, by transferring unit work to alter ego Nassau
Surveying without bargaining with the above-named labor
organization as the exclusive bargaining representative of the
employees of Nassau Surveying in an appropriate unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain with the Union with respect to
the unit employees employed by Van Note-Harvey Asso-
ciates and Nassau Surveying.
(b) Offer Louis Tramontana full, immediate, and uncondi-
tional reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent job, and make him
whole by paying to him a sum of money equal to the amount
he normally would have earned as wages from the date of
the failure to reinstate him to the date of his reinstatement in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for examina-
tion and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records relevant and necessary to a determination of
the amount of backpay due under the terms of this
recommended Order.
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.
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VAN-NOTE HARVEY ASSOCIATES
(d) Post at its Princeton, New Jersey, facility copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 22,
after being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Decision, what steps Respon-
dent has taken to comply herewith.
' In the event that this Order is enforced by a Judgement 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
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and ordered us to post
this notice.
WE WILL NOT discourage membership in Local 825,
A, B, C and D, International Union of Operating
Engineers, or any other labor organization, by transfer-
ring work from the firm of Van Note-Harvey Asso-
ciates to Nassau Surveying for the purpose of avoiding
our obligation to bargain with the above-named union.
WE WILL NOT discourage membership in Local 825,
A, B, C and D, International Union of Operating
Engineers, or any other labor organization, by refusing
to reinstate strikers upon their unconditional offer to
return to work or otherwise discriminating against
employees in regard to hire or tenure of employment or
any other term or condition of employment.
WE WILL NOT refuse to bargain with the above-
named union as the representative of our employees by
meeting and bargaining with no intention to arrive at an
agreement, by transferring work to Nassau Surveying
without bargaining with the above-named union, or by
refusing to recognize the above-named union as the
representative of employees employed by Van Note-
Harvey Associates and Nassau Surveying in the appro-
priate unit.
WE WIL.l. NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Nation
Labor Relations Act, as amended.
WE WI.LL offer Louis Tramontana full, immediate,
and unconditional reinstatement to his former job or, if
such job no longer exists, to a substantially equivalent
job, and WE WILL make him whole for any loss of pay
he may have suffered as a result of our refusal to
reinstate him.
WE Wit-l., upon request, bargain with the above-
named union in the appropriate unit described below
concerning rates of pay, wages, hours of work, and
conditions of employment of our employees, and, if an
understanding is reached, embody such understanding
in a signed agreement. The appropriate unit is:
All survey crew personnel employed by Van-Note
Harvey Associates and Nassau Surveying at its
Princeton facility, including party chiefs, instrument
men and rod chainmen, engaged in engineering
surveys, preliminary surveys, soil or percolation tests
and soil log, and any work pertaining to surveying
and field engineering, but excluding office clerical
employees, draftsmen, engineers, junior engineers,
guards and all supervisors as defined in the Act.
VAN NOTE-HARVEY ASSOCIATES
NASSAU SURVEYING
933