Victor Block, Inc. And Syracusa Sand And Gravel, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 676 (N.L.R.B. 1985)

676 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Victor Block ; Inc. and Syracusa Sand and Gravel,
Inc. and International Union of Operating Engi=
neers, AFL-CIO, Local 832 . Case 3-CA-11884
26 September-1985
DECISION AND ORDER,
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 20 July 1984 Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
the Charging Party filed a• cross-exception, and
both the Charging Party and the General Counsel
filed answering briefs to the Respondent's excep-
tions.
The National Labor Relations Board_ has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered' the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and 'orders that the Respondent, Victor
Block, Inc. and Syracusa Sand and Gravel, Inc.,
Victor, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order. - -
Michael Cooperman, Esq., Buffalo, New York, for the
General Counsel.
David Butch, Esq. (Kinney, Buch A Mattrey, Esgs.), Buffa-
lo, New York, for the Respondent.
DECISION
.STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to a charge filed on October 28, 1983, by the Internation-
al Union of Operating Engineers, AFL-CIO, Local 832
(the Union), a complaint was issued by Region 3 of the
National Labor' Relations Board on December 2, 1983,
against Victor Block, Inc. (Block) and Syracusa Sand
and Gravel, Inc. (SSG). The complaint alleges that Re-
spondents Block and SSG violated Section 8(a)(5) and
(1) and Section 8(d) of the Act.
Respondent's answer denies the material allegations of
the complaint and a hearing was held before me -in
Rochester, New York, on March 26-and 27, 1984.
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
276 NLRB No. 70
FINDINGS OF FACT
I. JURISDICTION
Block, a New York corporation, having its principal
office and place of business at Malone Road, Victor,
New York, has been at all times material herein engaged
in the business of providing and performing services as a
common carrier and road construction contractor and re-
lated services. During the past calendar • year, - in the
course of its operations, Block performed services valued
in excess of $700,000 for Ontario County, a governmen-
tal entity which' in the past year purchased goods and
services in excess of $50,000, which goods were shipped
to and received at locations in Ontario County directly
from points- outside. New York State. Ontario County is
directly engaged in interstate commerce but is exempt
from the Act pursuant to Section 2(2) of the Act. -
SSG, a New York corporation, having its principal
office and place of business at Malone Road, Victor,
New York, is and -ha's been at all times material herein
continuously engaged in the business of operating' a sand
and gravel pit. During the past calendar year, SSG, in
the course of its operations, sold goods and materials, in-
cluding sand and gravel, valued in excess of $50,000, to
customers located within New York State, including
Flower City Builders Supply Corp., a New York corpo-
ration located in Rochester, New York, which is en-
gaged in the sale of cement block and construction mate-
rials. Annually, Flower City Builders Supply Corp.' pur-
chased goods and materials valued in excess of $50,000,
which goods were shipped directly from outside New
York State to Flower City locations in Rochester, New
York.
Based on the above facts, I find and conclude that Re-
spondents Block and SSG are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. It is admitted and I find that the Union is
a labor organization within the meaning of Section' 2(5)
of the Act. '
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts i
Respondent SSG, owned by Donald Syracusa, is en-
gaged in the operation of a sand and gravel pit in which
it sells unprocessed gravel , and also processes gravel.
SSG has had continuous . collective -bargaining agree-
ments with the Union for the past 10 to 15 years, the
current contract running from June 1,, 1982, to May 31,
1985. The contracts between SSG and the Union have
been negotiated by the Producers Association (producers
contract).2
The producers contract covered "all employees, who
are employed in the operation and, maintenance of all
types of plants (concrete, sand and , gravel , asphalt and
crushing) and power equipment as listed hereinafter."
i These facts are a synopsis of the testimony of the two witnesses,
union agent Richard Clark and Respondent's president Donald Syracusa
The facts are not in material dispute
2 It is unclear whether SSG is a member of that association.
VICTOR BLOCK, INC
Two production employees, Eldon Lyke and Leo
Randolph, are the only employees employed in the SSG
gravel pit.
Respondent Block, established in 1973 or 1974, is en-
gaged in trucking, hauling, and-highway construction,
and operates out of the same office and has the same
phone number as Respondent Syracusa. Donald Syracusa
is a 60-percent owner of Block.3
In 1979 Block bid upon and obtained-a, contract for
highway construction work. Richard Clark, the union
business manager, learned that Syracusa owned Block.
Clark inquired of Syracusa and was told that Syracusa
intended to operate the job as an "open shop" contrac-
tor. However, thereafter, on June 27, 1979, Syracusa exe-
cuted, as a "non association employer," the agreement
between the Associated General Contractors of America,
New York State Chapter, and the Union. That agree-
ment (AGC contract) ran from April 1, 1979, to March
31, 1982, and covered employees engaged in "heavy and
highway construction." The contract, by its terms, pro-
vided that it
shall continue in effect from the first day of April,
1979 ,until, and including the 31st day of March,
1982, and during each calendar year thereafter,
unless on or before the 1st day of February, 1982,
or any year thereafter, written notice of proposed
changes in this Agreement shall be served by either
party on the other party. In the event that such
written nctice shall have been served and changes
in this Agreement have been agreed upon, a new
Agreement embodying such changes shall be drawn
up and signed.
That job lasted from June 1979 to about November 1979
and was performed by Block's employees with equip-
ment rented from L. B. Smith. That was the only job
performed by Block in 1979. Syracusa could not recall
whether Block earned any money in 1980 or 1981, but
stated that it did not earn any revenue in 1982 or in 1984.
When the AGC contract expired in 1982, no notice
was given .to Block or, to Syracusa, and neither the
Union nor Syracusa notified each other of an intent to
alter, modify, change, or terminate the expiring contract.
Thereafter,- a new AGC contract was negotiated and
agreed to by the AGC and the Union to run from April
1982 to March 31, 1985.' - ,
In early 1983, Block bid upon and obtained a contract
to perform certain highway construction work on
County Road 32, notwithstanding that at the time it em-
ployed no employees represented-by the Union (operat-
ing engineers) and owned no excavating 'equipment.
Block then entered into'an agreement with SSG where-
by SSG would supply employees, equipment, and materi-
als to peform that highway job. Ontario County paid
Block in excess of $700,000 for the job, and Block paid
SSG $118,246. Block bid on the job because it had a
"track record" for highway construction If SSG had bid
on that job its bid would not have been accepted because
it had no "track record"' for such projects.
3 Syracusa's two sons each own 20 percent of the stock in Block
677
The operating engineers employed by SSG for that
project were all members of the Union. SSG, being the
employer of those employees, paid their benefits pursu-
ant to its producers contract then in effect Their wages
were the "posted rate" which were higher than the
wages provided in' that contract. However Block em-
ployed laborers for that road job and paid them pursuant
to "posted rates."4 _
Shortly after, Block was awarded the bid for that 1983
job, Union Business Representative Charles Marr asked
Syracusa to sign the new AGC contract,: which ran from
April 1, 1982, to March 31, 1985. Syracusa told him that
he did not need to sign that contract because he intended
to use SSG equipment and employees who were on
layoff status for that job. Marr demanded that Syracusa
sign the new AGC contract and Syracusa answered that
he had a valid producers contract- with the Union for the
SSG employees-who would be performing the work, and
asked Marr to 'show him why-,he could not use such em-
ployees for the road work.5
Thereafter, in May', 1983, Union -Agents Richard Clark
and Marr met.Syracusa at the road construction job and
asked him to sign'-the new AGC contract Syracusa re-
fused, adding that, he intended, to use the producers con-
tract for the work. 'Clark told Syracusa that the 1979
AGC contract executed by Block was still in effect, inas-
much as it had been automatically renewed after its expi-
ration in 1982. Syracusa replied that he did not have a
current AGC contract.
There was no evidence that Block performed any
work requiring the use of operating engineers from the
conclusion of the 1979 job until May 1983.
B. Issues
Simply stated , then , Block was a nonassociation
member which agreed to be bound to .the 1979 AGC
contract which expired in 1982 . Block won a contract to
perform work in 1983 , but SSG used its (SSG 's) employ-
ees for that job,and applied its current producers con-
tract. -
The General Counsel alleges that (a) SSG and Block
are a single employer (b) because the operating engineers
of both companies performed the road construction work
in May 1983 , their operating engineers constitute a single
appropriate bargaining unit-for the performance of high-
way. construction work (as provided ,by the AGC con-
tract), and therefore (c) the AGC contract is binding on
SSG. Moreover, the General Counsel further contends
that the 1979 AGC contract ,, having been automatically
renewed on its expiration in 1982 should have been ap-
plied by Respondent to the May 1983 highway work
even if the operating engineers ' work was performed by
employees of SSG . The violation of Section 8(a)(5) is set
forth as Respondent 's failure to apply the terms of the
automatically renwed 1979-1982 AGC contract.to the
employees who performed that work , including its fail-
ure-to make contributions to the Union 's trust funds pur-
The laborers, of course, are not covered by the contracts with the
Union, which applied to operating engineers
5 Marr was deceased at the time of the hearing
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suant to that contract . The violation of Section 8(d) is al-
leged as Respondent 's midterm modification of the AGC
contract by failing to apply its terms to the employees
involved.
.It should be noted that , with respect to May 1983, the
AGC contract provides for higher wages and greater
contributions to the trust funds than the producers, con-
tract.'
Respondent argues that (a) it is not a single employ-
er-that SSG and Block are separate entities ; (b) the
Block-AGC contract expired in 1982 and was 'not in
effect in May 1983 ; and (c) if the contract was in effect
the issues raised by ' this case should be deferred to the
parties ' grievance -arbitration clause in their contract.
III. ANALYSIS AND DISCUSSION
-A. The Single-Employer Issue •
A threshold issue is whether SSG and ' Block constitute
a single employer -within the meaning of the Act. The
Supreme Court held in Radio Union 1264 'v. Broadcast
Service, 380 U .S. 255 , 256 (1965), -that in - determining
whether enterprises constitute a single employer:
The controlling criteria set out and . elaborated in'
Board decisions ' are interrelation of operations,
common management , centralized control of labor
relations and common ownership.
The Board in Blumenfeld Theatres Circuit, 240 NLRB
206, 214, 215 (1979), held that a "single employer " status,
for the purpose of the National Labor Relations Act, de-
pends on all the circumstances of the case and that not
all of the "conrolling criteria" specified by the Supreme
Court (Radio Union, supra) need be present.
The facts here readily support a finding that SSG and
Block are a single employer.
Both companies are located at the 'same premises, _
share an office , telephone , and office personnel . Donald
Syracusa , the- only management person in the common
office , is the sole owner of SSG and a majority owner of
Block . His two sons own the remaining shares of stock
in Block . Both companies utilize the service of the same
accountant . Syracusa, the president of both firms, hires
employees for both companies and makes the final deci-
sion concerning discipline and discharge of such employ-
ees. The operations of SSG and - Block are closely inter-
related . For certain jobs, Block hauls sand and gravel for
SSG. Regarding the May 1983 job, Block bid on and re-
ceived the contract to perform the road job, -while the
work was actually done by the employees of SSG. Syra-
cusa recognized that a bid by SSG for that contract
would not have been successful because it had no "track
record" in road construction , and sought that job as an
"outlet" for the sand and gravel produced by SSG.
Block had no employees when the job was bid , and Syr-
acusa sought to and did use the SSG -employees who
were then on layoff. - • • '
In view . of the evidence, I find and conclude that SSG'-
and Block constitute a single -integrated enterprise and a
single employer within the meaning of . the Act . Better
Building Supply Corp., 259 NLRB 469 , 471 (1981).
B. The .Appropriate Unit
Although I have concluded that SSG and Block con-
stitute a single employer , such conclusion does not neces-
sarily support a finding that a single employerwide unit
is 'appropriate for bargaining . In this connection , the Su-
preme Court , following the Board 's theory in a line of
prior Board cases , held in South Prairie Construction Co.
v. Operating Engineers Local 627, 425 U. S. 800, 805
(1976), that a determination that two affiliated firms con-
stitute a single employer "does not necessarily establish
that an ' employerwide unit is appropriate , as the factors
which are relevant - in identifying the breadth of an em-
ployer 's operation are not conclusively determinative of
the scope of an appropriate unit ." The Supreme Court
reminded to the Board for , determination of the question
of ' whether the employees employed by Peter Kiewit
Sons ' Co. and South Prairie Construction Co. constituted
an appropriate unit within the meaning of Section -9 of-
the Act.
On-remand , the Board in Peter Kiewit Sons' Co., 231
NLRB 76, 77 ( 1977), held that in determining the appro-
priate bargaining unit , the following factors • were par-
ticularly relevant : "the bargaining history ; the functional
integration of operations ; the differences in the types of
work and skills of employees ; the extent of centralization
of management and supervision , particularly in regard to
labor relations , hiring, discipline , and control of day-to-
day operations ; and the extent of interchange and contact
between the groups of employees."
The General Counsel alleges that a single bargaining
unit consisting of the operating engineers of SSG and
Block is appropriate . It is clear , as argued by the General
Counsel , that many of the indicia exist for finding such a
single unit appropriate . Thus, the ' evidence, is over-
whelming that the operations of both companies are inte-
grated , with SSG producing and Block hauling the sand
and gravel ; the employees of Block and SSG performing
work at both the sand and gravel pit and on highway
jobs, and common supervision and control of labor rela-•
tions by Syracusa . It is thus clear that the -employees of
SSG and Block share a community of interest sufficient
to render appropriate a single employerwide unit of op-
erating engineers . Pasha Services , 235 NLRB- 871, 872
(1978).
However, in determining the appropriateness of such a
unit , the Board also considers the bargaining'-history' of
the employees involved . Here there is a longstanding
bargaining relationship in. which the industry and the
parties recognized the appropriate of a separate unit for
(a) the sand and gravel pit employees incorporated in the
producers contract with SSG , and (b) the highway and
heavy construction employees incorporated in the AGC
contract with Block:
Board law , is clear and unequivocal that it will not
disturb a bargaining unit which is the product of a
longstanding collective -bargaining relationship un-
less such is clearly repugnant to the purposes and
policies of the Act ._ [Towne Plaza Hotel, 258 NLRB
69, 76 (1981). See also Marion Power Shovel Co. Inc,.
230 NLRB 576, 579 ( 1977).] _
VICTOR, BLOCK, INC 679
The Board sated in Continetal Can Co, 217 NLRB
316, 317 (1975).
Although the factors of common supervision of all
production employees and the close integration of
coating and printing functions carried on exclusive-
ly at the . . . plant clearly militate against the re-
quested lithographic production unit, we are per-
suaded . . . that they are outweighed by the history
of bargaining on the basis of separate units of litho-
graphic and nonlithographic employees . . . predi-
cated on the dominant patterns of bargaining in the
can industry
The industry has a longstanding history of separate
bargaining'for the producers and highway heavy units:
Union Agent Clark testified that the sand and gravel
(producers) unit has been recognized and contracts nego-
tiated since at least 1942, and the highway and heavy
(AGC) unit has been. recognized and contracts negotiat-
ed since 1950. In addition, SSG has had a separate pro-
ducers contract covering its sand and gravel employees
continuously for the past 10 to 15 years, and Block has
had a separate AGC contract, as discussed infra, cover-
ing its heavy and highway employees since 1979.
I accordingly view this case as one in which a single
employer has one collective-bargaining agreement con-
taining two different units, with each unit having a dif-
ferent rate of pay and benefits. When employees of the
company perform work in one unit (heavy and highway
road construction) as was the case here, they are enti-
tiled to the compensation set forth for that unit. In other
words, this case'is no different than one in which a com-
pany having a factory employs separate units of (a) pro-
duction employees, which include plant clericals and (b)
office clerical employees. When the plant clerical is as-
signed to perform work as an office clerical, that person
would be entitled to the contractual pay and benefits for
the office clerical unit.
Moreover, I believe that it would be unfair, as urged
by the General Counsel, that I find that SSG and Block
are bound by each other's contracts. Under such a
theory, work performed in SSG's sand and gravel pit
would have to be compensated by Block's AGC contract
which applies to road construction and which contains
higher wage and benefit rates than SSG's producers con-
tract.
Furthermore, although Block had no employees at the
time of the 1983 job, it is possible that Block-will again
employ its own workers for road. construction work pur-
suant to the AGC contract, as it had in the performance
of the 1979 job.-
I accordingly find and conclude that the two histori-
cally separate and recognized bargaining units cannot be
merged. -
C. The Automatic Renewal of the AGC Contract - '
As set forth above, on the expiration of the 1979 AGC
contract with Block in 1982,, no notification was sent;to
Block or' Syracusa and neither the Union nor Syracusa
notified each other of an intent to alter, modify, change,
or terminate the expiring contract. Thereafter, a new
contract was agreed to by the AGC and the Union to
run from April 1, 1982, to March 31, 1985.
Under these circumstances, I must find that the Block
1979-1982 AGC contract was automatically renewed.
That agreement provided for automatic renewal from
year to year, unless notice was given by February 1,
1982, by either party of proposed changes. I reject the
Respondent's argument that renegotiation of the contract
between the AGC and the Union -in 1982 . caused a termi-
nation of the 1979-1982 contract Lifetime Shingle Co.,
203 NLRB 688 (1973).' Furthermore, the fact that in
April or May 1983 the Union asked Syracusa to sign the
1983 AGC. contract did not affect the continuing vitality
of the automatically renewed 1979-1982 agreement. Such
a request to sign the new contract, if viewed as a notice
of a proposed change, was ineffective to forestall the
automatic renewal of the old contract 'since such notice
would have had to have been given more than 1 year
earlier, before February 1, 1982.
I accordingly find and conclude that the 1979-1982
AGC contract was in full force ,and effect in May 1983,
having been automatically renewed for the period April
1, 1982, to March 31, 1983, and for the period April 1,
1983, to March 31, 1984.
D. The Failure'to Apply the AGC Contract
The General Counsel alleges that Respondent did not
apply the AGC contract to the employees performing
the 1983 County Road 32 job including a failure to make
contributions to the Union's trust fund , and such failure
to abide by the terms of the contract constitutes a refusal
to bargain and a'midterm modification of the-collective-
bargaining agreement in violation of Section 8(a)(5) and
Section 8(d) of the Act. I-agree.
The AGC contract having expired , but having been
automatically renewed , was still in effect in 1983 when
employees of Respondent performed work pursuant to
the Block-AGC contract . Inasmuch as the employees
were employed in the unit recognized by the Block con-
tract , they were entitled to the benefits set forth in that
agreement. Respondent concedes that it did not make
payments for union benefits pursuant to the Block con-
tract . Rather it made payments pursuant to the SSG pro-
ducers contract , which does not cover the County Road
32 work performed by the employees in 1983.
I accordingly find and conclude that Respondent must
make contributions to the Union 's trust fund pursuant to
the 1979-1982 AGC contract . I will recommend , howev-
er, that Respondent be given a setoff for the amounts
that it has paid to the ' employees and Union 's trust find
pursuant to its producers contract for the same employ-
ees for the County Road 32 work performed in 1983.
Bay Area Sealers,'251 NLRB 89 ( 1980).
E. The Deferral Issue -
At the hearing and in its brief Respondent argues that
the Block - 1979-1982 contract was not in effect at the
time of the 1983 road job and alternatively argues that if
it is found that that contract was in effect , this proceed-
ing should - be deferred ' pursuant to the Board 's deferral
policies as enunciated in Collyer Insulated Wire, 192
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 837 (1971), in which the Board dismissed a com-
plaint alleging unilateral changes in wages and working
conditions in violation of Section 8(a)(5) in.deference to
the parties' grievance-arbitration machinery. The Collyer
majority articulated several factors favoring deferral:
The dispute arose within the confines of a long and pro-
'ductive collective-bargaining relationship; there was no
claim of employer animosity, to the employees' exercise
of protected rights; the parties' contract provided for ar-
bitration in a very broad range of disputes; the arbitra-
tion clause clearly encompassed the dispute at issue; the
employer had asserted its willingness to utilize arbitration
to resolve 'the dispute; and the dispute was eminently
well suited to resolution by arbitration.
The Block contract-contains a broad grievance and ar-
bitration provision which states that it applies to "all
grievances or disputes involving any controversy, dis-
pute or misunderstanding arising as to the meaning, ap-
plication or observance of, any provision of this agree-
ment." The clasue. also states that it applies to "all mat-
ters pertaining to the interpretation of this agreement."
Nonassociation members, such as Block, may request
through the Association that grievances be handled pur-
suant to this provision.
It thus appears that the issues raised by this case are
well suited to resolution by arbitration. However, the
Board has held that (a) the respondent seeking deferral
must be willing to arbitrate the dispute and must be will-
ing to waive any timeliness provisions of the grievance-
arbitration clause and (b) deferral would be inappropriate
"where the respondent's conduct constitutes a rejectid'
of the principles of collective bargaining." United Tech-
nologies Corp., 268 NLRB 557 (1984).
Respondent, 'although alternatively arguing that this
case should be deferred, has consistently maintained the
position, as early as May 1983, that it had no AGC con-
tract. In addition, it has not specifically agreed to arbi-
trate the dispute or indicate a willingness to waive the 7
working days' time limit on filing a grievance which of
course has long since expired. -
Under these circumstances, I cannot defer the issues
raised by this case to the 'parties' grievance-arbitration
machinery.
CONCLUSIONS OF LAW
1. -Respondent Victor Block, Inc. and Syracusa Sand
and Gravel, Inc. constitute a single-integrated business
enterprise and a single employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, AFL-
CIO, Local 832 is a labor organization within th e mean-
ing of Section 2(5) of the Act.
3. All operating engineers performing heavy highway
construction work, including road construction work, ex-
cluding guards, professional employees and supervisors
as defined in the Act, constitute an appropriate collec-
tive-bargaining unit within the meaning of Section 9(b)
of the Act.- ,
4. All operating engineers performing sand and gravel,
pit operations, excluding guards, professional employees
and supervisors as defined in the Act, constitute an ap-
propriate collective-bargaining unit within the meaning
of Section 9(b) of the Act.
5. The Union is now, and at all times material herein
has been, the exclusive bargaining representative of all
the employees defined in paragraphs .3 and 4 above for
the purposes of'collective bargaining within the meaning
of Section 9(a) of the Act. - -
6. Respondent at all times material herein 'has been
bound by the automatically renewed 1979-1982 AGC
contract signed .by Respondent as an independent signa-
tory. .
7. Respondent has violated Section 8(a)(5) and Section
8(d) of the Act by unilaterally failing and refusing to
apply the terms of the 1979-1982 AGC contract to its
employees who performed work in the unit set_ forth in-
paragraph 3 above ' .
-8. The . above-described unfair labor practices are
unfair labor practices affecting commerce within • the
meaning of Section 2(6) and (7) of the Act.
.THE REMEDY
Having found that Respondent Victor Block, Inc. and
Syracusa Sand and Gravel, Inc. has engaged in certain
unfair labor practices, I recommend that•it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the.policies of the Act. -
Having -found that Respondent failed and refused, to
honor the Block-AGC contract for its employees who
performed such work on the County Road 32 job in
1983, I recommend that Respondent make such employ-
ees whole for any losses they may have. suffered by
reason of Respondent's failure to honor the Block-AGC
contract, including all contributions the Union would
have received in accordance with the Block-AGC con-
tract. However, a setoff shall be made for all payments
and contributions made by Respondent to the employees
and the Union pursuant to its producers contract for the
same employees for the County Road 32 work per-
formed in 1983. .
The amount of backpay and other moneys due shall be
computed in the manner set forth in F. W.' Woolworth
Co., 90 NLRB 289 (1950), with interest thereon to be
computed in the, manner prescribed in Florida Steel
Corp., 231 - NLRB 651 (1977);- Isis Plumbing Co., 138
NLRB 716 (1962).
On these findings of fact and conclusions of-law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, Victor Block,' Inc. and Syracusa
Sand and' Gravel, Inc., Victor, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules- and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board - and all objections to -them shall be deemed waived for all pur--
poses. - -
VICTOR, BLOCK , INC. 681
(a) Failing and refusing to apply the terms and condi-
tions of its 1979-1982 AGC collective-bargaining con-
tract with International Union of Operating Engineers,
AFL-CIO, Local 832, to its employees who performed
work in the following appropriate bargaining unit.
All operating engineers performing heavy highway
construction work, including road construction
work, excluding guards, professional employees and
supervisors as defined in the Act.
(e) Notify the Regional Director 'in writing within 20
days from the date of this Order what' steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the-United States Government
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Apply the terms and conditions of its 1979-1982
AGC collective-bargaining contract with the Union to
its employees who performed work in the unit covered
by such contract, set forth in paragraph 1(a) above, for
the County Road 32 job in 1983.
(b) Make whole the individuals who performed work
for the County Road 32 job in 1983 for any losses they
may have suffered by reason of the failure of Respondent
to apply the terms and conditions of the 1979 AGC col-
lective-bargaining contract, including all contributions
the Union would have received in accordance with that
agreement, less a setoff, as set forth in the section of this,
decision entitled "The Remedy."
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Victor, New York location copies of the
attached notice marked, "Appendix."7 Copies of . the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensuie-
that the notices are not altered, defaced, or covered by,
any other material.
The National Labor'Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to apply' the terms and
conditions of our 1979-1982 AGC collective-bargaining
contract with International Union of Operating Engi-
neers, AFL-CIO, Local 832, to our employees who per-
form work in the following appropriate bargaining unit:
All operating engineers performing .heavy highway
construction work, including road construction
work, excluding guards, professional employees and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL apply the terms and conditions of our 1979-
1982 AGC collective-bargaining contract with the Union
to our employees who performed work in the unit cov-
ered by such contract, set forth above, for the County
Road 32 job in 1983.
WE WILL make whole the individuals who performed
work for the County Road 32 job in 1983 for any losses
they may have suffered by reason of our failure to apply
the terms and conditions of the 1979-1982 AGC collec-
tive-bargaining contract, including all contributions the
Union would have received in accordance with that
agreement, less a setoff, for sums paid pursuant to the
1979-1982 producers contract.
VICTOR BLOCK, INC. AND SYRACUSA SAND
AND GRAVEL, INC..
' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " ,