B. N. Beard Co.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. N. Beard Company and International Union of Operating Engineers, Local Union No. 478, AFL-CIO and Charles Steeves, and Teamsters Local Union No. 677, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Cases -CA- 11491, 1-CA-13016, 1-CA-13017, and 1-CA- 13018 March 10, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On December 26, 1978, Administrative Law Judge Alvin Lieberman issued the attached Deci- sion in the above proceeding. Thereafter, the Gen- eral Counsel filed exceptions 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, 2 and conclusions 3 of the Administrative Law Judge4 and to adopt his recommended Order as modified herein. I The Respondent failed to file timely exceptions. 2 The General Counsel and Charging Parties 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect, Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 In the absence of exceptions thereto, we adopt pro forma the Admin- istrative Law Judge's finding that Respondent President Beard's state- ment to employee Steeves while picketing that he, Beard, would kill Steeves if he found him anywhere around the plant again did not violate Sec. 8(a)(1) of the Act. However, in adopting this result, we expressly disavow the Administrative Law Judge's analysis equating Beard's state- ment to lawful employee picketing conduct. 4 The Administrative Law Judge dismissed the complaint in Case 1- CA-11491 at the conclusion of the hearing herein. The complaint alleged that the Respondent unlawfully breached an agreement between it and the Union to reinstate Lawrence Poole, an employee who had been dis- charged for wrecking a company truck. There was no allegation that the discharge itself was unlawful. The Administrative Law Judge dismissed the complaint on grounds that the evidence failed to show that Flaminio, the Respondent's representative at the reinstatement meeting, had either actual or apparent authority to bind the Respondent to such an agree- ment and that the Union also doubted Flaminio's authority to act in this regard. We agree with the Administrative Law Judge's findings in this regard and adopt his dismissal of this matter. Our dissenting colleague contends, however, that Case -CA-11491 must be severed and remanded to the Administrative Law Judge for issu- ance of a decision setting forth his reasons, if any, for dismissal as re- quired by Sec. 102.45 of the Board's Rules and Regulations, Series 8, as amended. We agree that it would have been better if the Administrative Law Judge had done what the dissent insists that he must now do. How- ever, the Administrative Law Judge did set forth on the record his rea- sons for dismissing the complaint in Case I-CA-11491; the General Counsel has argued fully the merits of that dismissal; and no party has 248 NLRB No. 16 We agree with the Administrative Law Judge that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing pay- ments to health and welfare and pension funds, uni- laterally changing terms and conditions of employ- ment, bargaining directly with employees, and re- fusing to recognize its employees' bargaining repre- sentatives. We further agree with the Administrative Law Judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Bian- carelli for engaging in protected activity. In addi- tion, we agree with the Administrative Law Judge's findings that the Respondent violated Sec- tion 8(a)(1) of the Act by interrogating and threat- ing employees because of their union activity. 5 However, for the reasons set forth below, we do not adopt the Administrative Law Judge's conclu- sion that the Respondent did not discharge the strikers in violation of Section 8(a)(3) and (1) of the Act. Briefly, in April 1977,6 the Respondent was de- linquent in its payments to the International Union of Operating Engineers (herein IUOE) health and welfare and pension funds and to the International Brotherhood of Teamsters (herein IBT) health and requested a remand for the purpose of issuance of a decision such as that now sought by the dissent. Consequently, in the circumstances here, the Administrtative Law Judge's failure to set forth in his Decision his rea- sons for dismissing the complaint in Case I-CA-11491 was at most non- prejudicial error and a remand for compliance with Sec. 102.45 of the Board's Rules and Regulations would achieve nothing of any substance. For the reasons stated in his dissent in B. N. Beard Company, 231 NLRB 191 (1977), that the complaint in Case I-CA-11491 failed to set forth a cause of action under Sec. 8(aX5), Member Penello joins in adopt- ing the Administrative Law Judge's dismissal of that complaint. 5 We also adopt, contrary to the dissent, the Administrative Law Judge's conclusion that the Respondent did not violate Sec. 8(a)(3) and (1) in discharging Charles Steeves on April 7, 1977. On that day the Re- spondent's truckdrivers, of whom Steeves was one, were assigned to hauling material from a certain property and were instructed to keep their trucks moving and haul as much "stuff' as they could because, ac- cording to Respondent's lawyer, an injunction was about to issue pre- cluding any further hauling from the property. Nevertheless, and without notifying any superior as was customarily done, Steeves stopped work at 1:30 p.m., rather than at the 4:30 p.m. quitting time. Shortly thereafter Steeves was discharged, assertedly for leaving the job early without per- mission, and the Administrative Law Judge so found. To be sure, the Re- spondent's contemporaneous unlawful conduct does raise some suspicion concerning the actual motivation giving rise to Steeves' discharge. How- ever, as Respondent's intensification of work immediately prior to imposi- tion of a restraining order supports the Administrative Law Judge's find- ing that Respondent believed itself "under the gun," and as Steeves did stop work early without notice and without permission and at a time when he knew Respondent was under pressure to have as much of the hauling done that day as possible, we agree with the Administrative Law Judge that Respondent established a valid, persuasive economic basis for Steeves' discharge. We do not agree with the dissent that the Administrative Law Judge's mistaken conclusion that Respondent could have relied on an earlier inci- dent as a pretext to discharge Steeves undermines his finding, based on the above, that Steeves was discharged for quitting work early without receiving permission from a supervisor Accordingly, we find that the General Counsel has failed to prove that Respondent violated Sec 8(aX3) and (1) of the Act in discharging Steeves. 6 All dates referred to herein are 1977, unless otherwise indicated. B. N. BEARD COMPANY 199 welfare and pension funds.7 On April 6, the IUOE and IBT gave the Respondent 72 hours' notice of their intent to strike if the delinquencies were not paid. The record establishes and the Administrative Law Judge found that, on April 13, Allen Beard, the Respondent's president, unlawfully interrogated the employees about their strike intentions and threatened them that "if [they struck] the next day [they would] all be fired [and would] not work for the [Respondent] again." The record further estab- lishes that on April 13 Beard told employees Rhodes and Adams that, if they picketed, the em- ployees would not be paid, would be fired, and would never work there again, 8 The employees struck the Respondent from April 14 until June 24. The record indicates that the Respondent required the striking employees to turn in their keys and changed the locks on its doors. Nick Povenelli, a reporter for the New Haven Register, interviewed President Beard for an article which appeared on April 15. Povenelli testified that Beard told him that he had fired the men who were on strike.9 The Administrative Law Judge found that inas- much as the strike was caused by the Respondent's unlawful failure to make contributions to the wel- fare and pension funds as required by its contracts with IUOE and IBT, the striking employees were unfair labor practice strikers. In so doing, the Ad- ministrative Law Judge rejected the Respondent's contention that the Unions had breached the no- strike clauses.' 0 The Administrative Law Judge, however, further found that the strikers had failed to request reinstatement and therefore had not tested the Respondent's statement that he would discharge or had discharged the strikers. Thus, the Administrative Law Judge concluded that, in the absence of a request for reinstatement and its refus- al by the Respondent, the strikers were not dis- charged but, rather, were the object of "tactical A question exisl, a, to helhr the IBT oed the Respondent a credit fr oierpa men l to the IB'I pension fund In any eent, during Ihis period, the Respondent ceased making payments into the IBT pen- sIon fund ' In hi, affidavit to the Board, Heard stated that '"A of today [Ma 3 12. 19771] 1 ould nol lake hack an) of the striking engineer, if they offered ii conic hack to work " lie Administratie Lau Judge erroneousl) found that a second arti- cle puhlished in the Journal Courier did not mention the discharge Ex- amninatlon of the article reseals that it contains the statement. "Beard said he has fired all l orkers wkho refuse to sork and said he ,ill not hire them back " Beard admits being intersiened h a reporter from the Jour- nal Courier but dlnhaXous slating that he had discharged the striker In finding Respndent discharged thlie itrikers e do not give an) ueigh to Beard's alleged statement to that effect in the Journal Courier We do. of course, accept oiienli 'i tLllmony it Ihe hearing, as appa renl) cred- ,ted h the Adminlratrtile I Judge, that Beard told hinm he had fired the en (in trike ( onteqtiitl. e do nllot rcl oin the tailteienlts in )Io- venelli's article appearing i the Nes Hasen Register ' See . 1. R B .Ifrin, Puriil Crp . 214 F 2d 462 (2d Cir 1954) maneuvers designed merely to dissuade the strikers from persisting in their strike." Contrary to the Administrative Law Judge, we find that the Respondent intended to and in fact did discharge the striking employees. The Adminis- trative Law Judge, in finding to the contrary, relied on Woodlawn Hospital, 233 NLRB 782 (1977), in which the Board found that a letter to striking employees ordering them to clean out their lockers and notifying them that they were consid- ered to have resigned did not discharge the em- ployees since the employer offered them reinstate- ment a few months later and again during settle- ment talks. The instant case is distinguishable be- cause, inter alia, the Respondent herein did not offer any of the striking employees reinstatement. Indeed, as noted, the Respondent told the employ- ees first that they would be discharged if they struck and would not be reinstated and later told Povenelli that the strikers were discharged. In combination with these actions, the Respondent changed the locks on plant doors, requested a return of the employees' keys, and also withdrew recognition from the IUOE and IBT. In the cir- cumstances, we find that the foregoing facts show that the Respondent discharged the striking em- ployees as of the time they went out on strike and that it thereby violated Section 8(a)(3) and (1) of the Act. We also disagree with the Administrative Law Judge's finding that since the IBT pension fund ap- parently owed the Respondent a credit for over- payment, its discontinuance of payments to the fund as required by its agreement with the Union was excused. It is unclear from the record whether the IBT in fact owed the Respondent a credit for overpayment to the pension fund. The record, however, reveals that the Respondent, notwith- standing the IBT's request for bargaining did not negotiate with the Union with respect to the cessa- tion of the payments.'2 The Board has consistently held that an employer's failure to make contrac- tually required contributions to its employees' pen- sion fund constitutes a unilateral change in the em- ployees' terms of Respondent was not justified in unilaterally ceasing payments to employment in violation of Section 8(a)(5) and (1) of the Act.' 3 Thus, even assuming arguendo that the IBT owed the Respondent a credit for overpayment to the pension fund, we find that the the fund and in i M.IP Ii-orplraltd. 218 NI.R 33 (1'75) '' We no1t Iht, the Responldeit ce;t. ed mlaking Ot riutOllrh it l to the IL OF leililh lntd eclfare and petisioII tfids i.d e Iie lea ltrsn he.tlth atid nelfarc aid pennrit funds at ithc s InHc tinte i . Arqiirii Ehtor ii ('olpunlv. In,. 217 N[ RB 461 1975) B. N BEARD COMPANY 199 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing so thereby violated Section 8(a)(5) and (1) of the Act. 4 THE REMEDY We agree with the Administrative Law Judge that the Respondent engaged in certain conduct violating Section 8(a)(5) and (1) of the Act and adopt his recommended Order, as modified herein. Having additionally found that the Respondent un- lawfully discharged the employees who struck be- cause of its unlawful refusal to make contributions to the IBT pension fund, we shall order the Re- spondent to offer those employees reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, and to make them whole for any loss of pay they may have suffered by reason of such unlawful conduct, by payment to them of a sum of money equal to that which they would have earned from the date of their discharge to the date that they are offered reinstatement,1 5 less their net earnings during said period. Said sum is to be computed with interest thereon,' 6 in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).17 Furthermore, having found that the Respondent unlawfully failed to bargain with the IBT about cessation of payments to the pension fund, we shall order the Respondent to bargain with the IBT re- garding contributions to the pension fund and to pay IBT Local 677 pension fund the contributions unlawfully withheld.xs In so doing, we do not pass ~ Wayne Oive EKnoll Farmn. Inc.. d/u W 4'avne' Dairy. 223 NLRB 260, fn. 2 (1976) ' .4biliie5 and Goodeill. Inc.. 241 NLRB No 5 (1979). Member Pen- ello, for the reasons set forth in his dissent in Abilities aod Goodwill. would award the striking employees backpa) from the date the) request reinstatement or otherwise indicate they have abandoned the strike and are willing to return to work, to the date the Respondent offers them re- instatement In The Respondent's contract with IUOE provides that employees who engage in a strike resulting from the Respondent's failure to cottrib- ute to the pension fund and/or health and welfare funds "shall be made whole for any wages . lost as a result of the work stoppage." The General Counsel excepted to the Administrative Law Judge's failure to order backpay for the strikers in accordance with this provision Inas- much as we find that the Respondent ulawfully discharged these strikers and order the usual backpay remced. we ind it unnecessary to pass on the enforceability under the Act of this contract provsision 7 See. generally. Isi Plumbing & Heing Co., 138 NLRB 716 (1962) 1 Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicators stage of a proceeding for the addition of interest at a fixed rate on unlaw- fully withheld fund payments We leave to the compliance stage the question whether the Respondent must par alny additional amounts into the benefit funds in order to satisfy or 'rnake-w hole" remedy These ad- ditional amounts may be determined. depending on the circumstances of each case, by reference to provisiors in the documents governing he funds at issue and. where there are no governing prosisions. to evidence of any loss directly attributable to the ulawful ithholding action. which might include the loss f return on inv estmeni of the portion of on the issue of whether IBT Local 677 owes the Respondent a credit for past overpayments to the pension fund. 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, as modi- fied herein, and hereby orders that the Respondent, B. N. Beard Company, Derby and Seymour, Con- necticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) Threatening or discharging employees who have engaged in a lawful strike." 2. Substitute the following for paragraph l(f): "(f) Unilaterally discontinuing payments to or withholding payments from the Teamsters Union health and welfare and pension funds, or the Inter- national Union of Operating Engineers health and welfare and pension funds or any other fund main- tained for the benefit of employees where such payments are required to be made by provisions of a collective-bargaining agreement with any labor organization." 3. Substitute the following for paragraph 2(b): "(b) Offer the discharged strikers immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, discharg- ing, if necessary, any replacements hired after the date of their unlawful discharges, and make them whole for any loss of pay suffered as a conse- quence of the discrimination against them by paying them an amount equal to what they would have earned from the date of their discharge to the date that they are offered reinstatement. Such backpay is to be computed in the manner set forth in the section of the Decision and Order entitled "The Remedy." 4. Substitute the following for paragraph 2(d): "(d) Pay to the I.B.T. Local 677 health and wel- fare fund and the pension fund the contributions withheld from said fund since December 1976. 5. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, concurring in part and dissent- ing in part: I agree with my colleagues' decision in all re- spects but two. In the first place, I would sever funds ilthheld additional administralive costs. etl . but not collateral losses B. N. BEARD COMPANY 201 and remand to the Administrative Law Judge the complaint in Case -CA-11491.' 9 In so doing, I would direct the Administrative Law Judge to pre- pare, in conformity with Section 102.45 of the Board's Rules and Regulations, a written decision embodying "findings of fact, conclusions, and the reasons or basis therefore .... " My colleagues' willingness to sanction a procedure that flouts the requirements of Section 10(c) of the Act, Section 102.45 of the Board's Rules, and well-settled prece- dent is at once inexplicable and indefensible. 20 I would also find, contrary to the Administrative Law Judge and my colleagues, that the Respon- dent violated the Act by terminating employee Charles Steeves for unlawful reasons. In brief, the Administrative Law Judge found that the Respon- dent's president, Allan Beard, ordered Steeves' dis- charge on April 7, 1977, because on that date Steeves stopped work early without first receiving permission from a supervisor.2y The administrative Law Judge so found, despite his recognition that prior to the Steeves' discharge the Respondent had never rule-and indeed some drivers recieved no more than an oralwarning. In this connection the Administrative Law Judge terminated any driver for failing to comply with the asserted discounted the General Counsel's contention that the reason for the discharge was Steeves' involvement in the preparation of a grievance on behalf of several em- ployees over Respondent's failure to pay overtime for snowplowing in February 1977. The Adminis- trative Law Judge concluded, however, that had the Respondent sought to penalize Steeves for his protected concerted activity (of which, conceded- ly, it was aware) it could have seized upon an inci- dent that took place 2 months prior to the actual date of the discharge. 2 2 Thus as the Administrative Law Judge carefully pointed out, when a discharge is claimed to be pretextual but the record shows 19 That portion of the consolidated complaint alleges Respondent vio- lated Sec 8(a)(5) and (I) of the Act by breaching an agreement with the Union whereby employee Lawrence Poole would be reinstated The Ad- ministrative Law Judge failed to set forth in his Decision any reason for dismissing but instead asserted that his reasons are fully set forth in the record. Leaving aside the impropriety of such a procedure, my examina- tion of the record indicates the Administrative Law Judge's treatment of the issue "on the record" is wholly conclusory and inadequate. to See, for example. Plastic Film Products Corp.. 238 NLRB No. 22, slip op.. p. 2 (ALJ) (1978) See also John C Barr Marketing Co, 96 NLRB 875 (1951). wherein the Board recognized a decision "dictated into the record of the hearing necessarily lacks the precision of a written report " 21 Sleeves quit work early because he was notified that a pickup truck he had recently purchased had been vandalized and because the seller of the pickup requested that he move it from the seller's lot. Moreover, the record is full of contradictory testimony as to whether there was a clear- cut rule and whether the requirements of the rule could be satisfied simply by giving notice to the office, as Steeves apparently did 22 That incident involved a truck engine which blesw up while Steeves was driving The Administrative Law Judge declined to assess Sleeves' responsibility for the incident the employer did not take advantage of an earlier opportunity to discharge the alleged discriminatee, the basis for attributing an antiunion motive to the discharge is undermined. 2 3 The only problem with the Administrative Law Judge's analysis is that the facts of the case do not fit his theory. In the first place, it is clear that Beard knew of Steeves' involvement in protected concerted activity, resented it, and planned to re- taliate. Indeed in his affidavit (G.C. Exh. 24) Beard made the following admission: In about late March, or early April, Sanzo told me that Steeves was going to file a griev- ance against me over snow plowing. I told Sanzo that your man Steeves took over the snow plowing overtime and that what concern was it of Steeves. What right did he have to sign the grievance. Sanzo told me Steeves and Rossignal were plotting to get me. I told Sanzo, Steeves was stabbing me in the back and that I would get the son-of-a-bitch. I also told Sanzo that Steeves had blown an engine about a month earlier and I never said anything about it.2 4 [Emphasis supplied.] Not only does the above demonstrate Respon- dent's particular animus toward Steeves because of Steeves' involvement in protected concerted activ- ity, it also undercuts the Administrative Law Judge's basis for concluding the Respondent could have relied on the engine-blowing incident to ter- minate Steeves for pretextual reasons. Thus, con- trary to the Administrative Law Judge, who sug- gested that if the Respondent harbored animus toward Steeves it could have siezed on the engine- blowing incident, the record indicates the Respon- dent did not learn of Steeves' snowplowing griev- ance until long after the engine-blowing incident had occurred. Hence this is simply not a case in which an employer has passed up opportunities to rid itself of a known employee activist. Indeed, the Respondent could hardly have revived the engine- blowing incident as an excuse for discharging Steeves without leaving itself open to a charge of discrimination. Instead, it could only wait for an- other opportunity to get rid of Steeves to present itself. From the Respondent's standpoint, it was fortuitous that it had only to wait 2 weeks after the March 21 grievance meeting for such an opportuni- ty. 23 In this connection the Administrative La Judge cited. /,ler liu. erineer .Manrufacriuring Colmpany. 187 NLRB 882 (1971). and Farrrm In- suranoce Group, 174 NLRB 1294 (1969) 24 It is uncontroverted that follo ing a March 21. 1977. grirexance meeting involving. inter ulia. the overtime griexance. Beard torld the union president that he. Beard. ould take care of Steres and Sleeves had "a god damn nerve" for filing a grie.ance B. N. BEARD COMPANY 201 202 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD In sum, given the record as a whole, particularly the Respondent's admission of hostility toward Steeves, a known activist and union adherent, as well as the timing of the discharge, the circum- stances which demonstrate disparate treatment, and the Respondent's commission of other violations, I am persuaded that the General Counsel had made his case and that the discharge was unlawful. As indicated previously, in all other respects I join my colleagues in their decision. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the oppor- tunity to present evidence and arguments, it has been decided that we have violated the National Labor Relations Act, as amended. We have, there- fore, been ordered to post this notice and to carry out its terms. WE WILL NOT question you about anything connected with Teamsters Local Union No. 677, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or International Union of Operat- ing Engineers, Local Union No. 478, AFL- CIO. WE WILL NOT fire you, lay you off, suspend you, discipline you in any way, or do anything else to your disadvantage, or threaten to do any of these things, because you strike against us. WE WILL NOT purposely drive a motor ve- hicle in a way that results in our running over a striker or a picket and WE WILL NOT threaten to do this. WE WILL NOT fire you, lay you off, suspend you, discipline you in any way, or do anything else to your disadvantage because you refuse to work for wages lower than the wages called for in our contracts with the Teamsters Union and the Operating Engineers Union. WE WILL NOT deal directly with you about your wages, rates of pay, hours of work, or any condition under which you work as long as you are represented by a union. WE WILL NOT discontinue payments to any benefit fund to which we are required to make payments by our contracts with the Teamsters Union and the Operating Engineers Union. WE WILL NOT pay you wages for doing work covered by our contracts with the Teamsters Union and the Operating Engineers Union at rates lower than the rates called for by those contracts. WE WILL NOT refuse to recognize to bargain with the Teamsters Union as the representative of our truckdrivers. WE WILL NOT refuse to recognize to bargain with the Operating Engineers Union as the representative of our production and mainte- nance employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer the discharged strikers im- mediate and full reinstatement to their former jobs without prejudice to their seniority or other rights and privileges, discharging, if nec- essary, employees hired as their replacements, and make them whole for any loss of pay suf- fered as a consequence of the discrimination against them by paying them an amount equal to what they would have earned from the date of their discharge to the date they are offered reinstatement with interest. WE WILL pay to employees doing work covered by our contracts with the Teamsters Union and the Operating Engineers Union who, since April 11, 1977, have received wages at rates lower than those called for in those contracts the difference between the wages they received since April 11, 1977, and the wages called for by our contracts with the Teamsters Union and the Operating Engineers Union. WE WILL pay back to the Teamsters Union health and welfare fund and pension fund and to the Operating Engineers pension and health and welfare funds the contributions we failed to pay since December 1976. WE WILL again recognize the Teamsters Union as the representative of our truckdrivers and WE WILL notify the Teamsters Union, in writing, that we are doing so. WE WILL again recognize the Operating En- gineers Union as the representative of our pro- duction and maintenance employees and WE WILL notify the Operating Engineers Union, in writing, that we are doing so. WE WILL, if we are asked to do so by the Teamsters Union, bargain with the Teamsters Union as the representative of our truckdrivers about their rates of pay, wages, working hours, and other matters connected with their work. If we come to an agreement with the Teamsters Union about any of these things WE WILL put that agreement in writing and sign it. B. N BEARD COMPANY 203 WE WILL, if we are asked to do so by the Operating Engineers Union, bargain with the Operating Engineers Union as the representa- tive of our production and maintenance em- ployees about their rates of pay, wages, work- ing hours, and other matters connected with their work. If we come to an agreement with the Operating Engineers Union about any of these things WE WILL put the agreement in writing and sign it. As it has been decided that we fired George Biancarelli because he refused to work for wages lower than the wages called for in our contract with the Teamsters Union, WE WILL immediately offer George Biancarelli, immedi- ate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position and pay him any wages he lost because we fired him, with interest. B. N. BEARD COMPANY DECISION STATEMENT OF THE CASE ASI IN LIEBERMAN, Administrative Law Judge: The hearing in this case, with all parties represented, was held before me in New Haven, Connecticut, on the Gen- eral Counsel's complaints, amendments thereto made at the hearing, and Respondent's answer. In general, the issues litigated were whether Respondent violated Sec- tion 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended (Act). More particularly, the questions for decision are as follows: 1. What is the nature of the strike instituted against Respondent on April 14, 1977? 2. Did Respondent violate Section 8(a)(l) of the Act by: (a) interrogating employees, (b) threatening to dis- charge employees, (c) threatening to kill a picket, and (d) threatening a picket with vehicular assault? ' Set forth below are the reles ant prv,\ision of the sections of the Act nto hich reference has been made in the text Sec 8(a) II shall he an unfair labor practice for an employer- (l) to interfere u ith restrain, or coerce employees n the exercise of the rights guaranteed in section 7, (3) by discrimination in regard to hire or tenure of employment to encourage or di,courage membership in ally labor organiza- tion (5) to refuse to bargain collectixcly ith the representatises of his employees Insofar as pertinent. Sec 7 is a followsu Sec 7 Emplo ees shall hase the righ t sielf-organJtiaion, to form. join. or assist labor organ,alons, Io bargain collectively through rprcseptcallte,s of their osnill choosing, and to engage In other con- certed activities for the purpose of cllective hbargaining or other mutual aid r protcction, and shall ako h the righi to refrain from ant or all such actistie, 3. Did Respondent violate Section 8(a)(3) of the Act by: (a) discharging an employee, Charles Steeves, before the strike began, and (b) discharging strikers? 4. Did Respondent violate Section 8(a)(5) of the Act by: (a) withdrawing recognition from International Union of Operating Engineers, Local Union No. 478, AFL-CIO (herein the IUOE) and Teamsters Union Local No. 677, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (herein the IBT) 2 (b) refusing to negotiate with IBT and IUOE, (c) bargaining directly with employees, (d) making unilateral changes in terms and conditions of em- ployment provided for in its collective-bargaining agree- ments with IUOE and IBT? Upon the entire record,3 and having taken into ac- count the arguments made and the briefs submitted,4 I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Connecticut corporation, is engaged at Seymour and Derby, Connecticut, in extracting, process- ing, and selling sand, gravLl, and related products and in performing construction and demolition work. Respon- dent annually purchases material valued, in the aggre- gate, at more than $50,000 from suppliers located outside the State of Connecticut and from suppliers located within the State of Connecticut over which the National Labor Relations Board (Board) would exercise jurisdic- tion. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the as- sertion of jurisdiction over this matter by the Board is warranted. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local Union No. 478, AFL-CIO (IUOE) and Teamsters Local Union No. 677 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (IBT) are labor organizations within the meaning of the Act. IIl. THE COMPLAINTS In this proceeding several cases have been consolidat- ed for hearing. Thus, in April and May 1977 charges were filed in Cases -CA-13016, 13017, and 13018. By order dated June 2, 1977, these cases were consolidated for hearing and on the same date the General Counsel issued a single complaint (1977 complaint) pursuant to these charges. At the hearing this complaint was amend- ed in several respects. By order dated August 17, 1977, an earlier complaint, issued on April 21, 1976 (1976 com- plaint) in Case -CA-1491, was consolidated for the hearing with the 1977 complaint. I IBTs, full desiglnaihonl appears in the capionll : Errrs nIl the ral,,ripl hase been ll lted alld corrected 4 Although all hc argumentll of the parties anid the iulhorities ilted bh them. heiher appearing in their brief, or nmade orally at the hearing. nma! rlot hc dllCussClh each has beetl c.ilrefull ueighed and considered B. N. BEARD COMPANY 203 - 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After hearing argument at the conclusion of the hear- ing I dismissed the 1976 complaint. At the same time I dismissed paragraphs 9(c)5 and 9(d) of the 1977 com- plaint. 6 IV. THE GENERAL COUNSEL'S POST-HEARING MOTIONS Incorporated in the General Counsel's brief are mo- tions for the reinstatement of the 1976 complaint and paragraph 9(c) of the 1977 complaint. After much con- sideration and serious deliberation I have decided to grant the General Counsel's motion insofar as it relates to the reinstatement of paragraph 9(c) of the 1977 com- plaint. I have also decided to adhere to my ruling dis- missing the 1976 complaint. To this extent the General Counsel's motion is denied. Accordingly, it is ordered that paragraph 9(c) of the 1977 complaint be, and the same hereby is, reinstated.7 V. PRELIMINARY FINDINGS 8 A. Credibility My credibility resolutions are inherent in the nature of the findings set forth in this Decision. In resolving credi- bility I have fully considered and evaluated the testimo- ny on both sides of each issue requiring determination in the light of its inherent plausibility or implausibility and its consistency or inconsistency with related incidents. Furthermore, in determining whether to credit or dis- credit witnesses I have taken into account their demea- nor while testifying and their interest in the outcome of this proceeding. An additional statement is appropriate regarding my estimate of the veracity of the testimony given by Allan Beard, Respondent's president. For reasons set forth above, I have largely discredited him. However, con- cerning one issue in this case, that relating to the dis- charge of Charles Steeves, Beard's testimony had the ring of truth. Accordingly, his testimony concerning the termination of Steeves' employment has been accepted as true and conflicting evidence has been rejected. "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; noth- ing is more common in all kinds of judicial decisions than to believe some and not all." NL.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (1969), reversed on other grounds 340 U.S. 474 (1970). Relying upon Uni- versal Camera, the Board, as recently as July 11, 1978, stated in Maxirium Precision Metal Products, Inc., Re- nault Stamping Ltd., 236 NLRB 1417 (1978). "We do not believe . . . that an Administrative Law Judge is re- quired to discount all of the testimony of a witness be- cause he is not persuaded by some of it." I This paragraph alleges that Respondenlt constructively discharged George Biancarelli in fiolation of Sec 8(al)(3) of the Act NI M reasons for disnmising the 1976 complaint ad pars. 9(c) and (d) of the 1977 comnplainl are fully sel forth i the record The 1976 complailt hilig been dismissed and he General Counsel's motionl for its reinlstatement ha.ing been denlicd, all subsequent mention of the %sord "conmplaint" s ill hase referenlce to the 1977 complaint. ' The purpose of these findings is to furnish a frame of referenlce wsithin which It consider the facts relaling o Resplondent's alleged unfair labor practices B. Respondent's Business Respondent's principal business consists of extracting, processing, and selling sand, gravel, and related prod- ucts. Respondent also performs construction, demolition, and snowplowing work. Respondent's sand and gravel processing equipment is located at its facility in Derby, Connecticut. Its garage and offices are in Seymour, Connecticut, about 5 miles from Derby. Respondent obtains its bank run sand and gravel (raw material) from a gravel bank (bank) it owns in Seymour and from a nearby bank, which it does not own, known variously as the Inquest, Sabo, and Yagovane property. For convenience this bank will be referred to as the Ya- govane property. For several years there has been a dispute between the owner of the Yagovane property and the Town of Sey- mour as to whether zoning ordinances proscribed the ex- traction of raw material from that parcel of land. Be- cause of this, stop-work orders were issued from time to time prohibiting the taking of raw material from the Ya- govane property. However, until April 1977 those orders were desultorily enforced. In the beginning of that month, Respondent's lawyer informed President Allan Beard that the zoning counsel for the Town of Seymour was preparing "legal papers" and was "going to lower the boom on [Respondent] with an injunction" to prevent the further removal of sand and gravel from the Yagovane property. At the same time Respondent's lawyer advised Beard to "work dili- gently to complete what [Respondent] was doing" there. As a result, Respondent intensified its work on the Yago- vane property so that it could get as much material out as [it] could before the entry of a restraining order. 9 On April 6, 1977,' ° the Town of Seymour brought a proceeding in the Court of Common Pleas for the Judici- al District of Ansonia-Milford, Connecticut, seeking a temporary restraining order (TRO) and a permanent in- junction" "against the removal of sand, gravel, or other earth materials from the [Yagovane] property." The TRO was granted on April 7 and served on April 11. The TRO remained in effect until August 31, on which date a permanent injunction issued. C. Respondent's Contracts With IUOE and IBT Until it withdrew recognition from them, as will appear more fully below, Respondent recognized and bargained with IUOE as the collective-bargaining repre- sentative of its production and maintenance employees and with IBT as the collective-bargaining representative of its truckdrivers. Historically IUOE and IBT have negotiated collec- tive-bargaining agreements with trade associations on behalf of their employer members. Employers who were not members of these associations were given the oppor- tunity by IUOE and IBT to enter into similar contracts. I The findings in this paragraph are based upon. ad the quotations ap- pearilg i the text are take from. Beard's testimony i" All dites uhbsequentlly mentioned wilhoul stating a year fall within 1977 G C EXh 5 B. N. BEARD COMPANY 205 Respondent has never been a member of the associ- ations with which IUOE and IBT dealt. However, Re- spondent has been party to successive contracts identical with those earlier bargained out with the associations by IUOE and IBT. Its last such contract with IUOE was entered into on November 8, 1974, and with IBT on De- cember 12, 1974. The pertinent provisions of Respondent's contract' 2 with IUOE and its contract': with IBT are attached hereto as Appendixes C and D [omitted from publica- tion]. As will be set forth below in greater detail, on Octo- ber 22, 1976, more than 60 days before March 31, 1977, IUOE, pursuant to the "Termination" provisions of the foregoing contract notified Respondent of its "desire to . . negotiate a successor Agreement." I find, therefore, in accordance with its "Termination" section that Respondent's 1974 contract with IUOE re- mained in effect at least until March 31, 1978. D. The IBT Funds 1. The IBT Pension Fund The Agreement and Declaration of Trust establishing the New England Teamsters and Trucking Industry Pen- sion Fund (IBT Pension Fund), to which Respondent and IBT are parties, is physically incorporated in Re- spondent's contract with IBT.' 4 Its relevant provisions are set forth in Appendix E attached hereto [omitted from publication]. 2. The IBT H & W Fund The Health & Welfare Fund (IBT H & W Fund) men- tioned in article XIII of Respondent's contract with IBT was established by a separate instrument entitled "Agree- ment and Declaration of Trust Establishing the I.B.T. Local 677 Welfare Fund' s to which Respondent and IBT are signatories. The pertinent provisions of this agreement are set forth in Appendix F attached hereto [omitted from publication]. 3. The relationship between the IBT Pension Fund and the IBT H & W Fund The IBT Pension Fund and the IBT H & W Fund are different entities having no relationship to each other. They were established by separate trust declarations. They are administered by different sets of trustees. The trust declarations by which they were brought into exis- tence make no provision for the transfer of funds from one to the other, nor do they permit the commingling of contributions made separately to each. Finally, the two funds furnish different benefits to the persons on whose behalf contributions are made. Thus, the IBT Pension Fund provides pension and retirement benefits, whereas the IBT H & W Fund provides life in- surance, accidental death and dismemberment, and dis- 12 GC Exh, 12 and 18 " G.C Exh 48 1 GC Exh 48, p 26 ' GC Exh 62. ability benefits; and benefits covering hospital, surgical, and other medical expenses. E. The Strike and its Valure In April 1977 Respondent was delinquent in its pay- ments to the IUOE Health and Welfare (H & W) and Pension Funds and to the IBT H & W Fund. This being so, IUOE and IBT gave Respondent the requisite 72- hour notice of delinquency provided for in their collec- tive-bargaining agreements with Respondent. The IUOE notice was given orally on April 11, 1977, to Allan Beard, Respondent's president, by James McParland, IUOE's business representative. As McPar- land testified, he told Beard that "if the delinquent funds . . were not paid by the close of business of April 13 . . . [IUOE] would have to undertake action . . . to force [its] position with regard to those delinquent funds." The IBT notice was written' 6 and hand delivered to Respondent on April 6. It stated, in pertinent part, that Respondent was "delinquent in payments to both Health and Welfare and Pension Funds [and that] if [Respondent did not make up these delinquencies] within seventy-two (72) hours from receipt of this notice, [IBT] will take the necessary steps to collect." The money owed by Respondent to the IUOE H & W and Pension Funds and to the IBT H & W Fund not having been paid by the close of business on April 13, both Unions, without further notice to Respondent and without notifying the Federal Mediation and Conciliation Service and the Connecticut Board of Mediation and Ar- bitration, struck Respondent on April 14, and picketed its processing plant in Derby. Picketing in support of the strike continued until about June 23. The signs carried by the pickets referred to Re- spondent's failure to contribute to the IUOE and IBT H & W and Pension Funds. The General Counsel contends that the strike was an unfair labor practice strike. Respondent argues that it was economic. I reject Respondent's argument An employer's failure to comply with provisions of a collective-bargaining agreement requiring him to make payments to benefit funds constitutes an unfair labor practice. Marquis Elevator Company, Inc., 217 NLRB 461 (1975); Latin Quarter Cafe. Inc., 182 NLRB 997 (1970); George E. Light Boat Storage. Inc., 153 NLRB 1209 (1965), enfd. 373 F.2d 762 (5th Cir. 1966). The strike against Respondent by IUOE and IBT was, as found above, caused by its failure to make payments to welfare and pension funds mandated by its contracts with IUOE and IBT. The strike was, therefore, an unfair labor prac- tice strike and not, as Respondent argues, an economic strike. 7 This being the case, the employees participating in it were unfair labor practice strikers. Cagle's Inc., 234 NLRB 1148 (1978). ' ( C Eh 67 "[lJf an unfair labor practice had anylhlng to do with causing [a) strike It [is] an tInfair labor practice strike Gcu,,arl Driver a/d 11tcIpcrs l 'Um. Lo.'il 662. lwernmi lal Bro horlbod l/ i;uwtmi ,rs, Clhaufflrs IW r- chou,1oto ad lIlper, of 4mrwa I . [ R B 302 F 2d 908s, I (DC Cir 1962) To the sanme effect. see also Lrand Le mzzrl',. Ic 213 NI RH 147. 198. (194). enfd 52 F d 8I14 16th (l 1975) 13. N. BEARD COMPANY 205 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, in its brief, makes the additional argument that "the strike was illegal" because the unions failed to comply with the notice and strike deferral provisions of Section 8(d) of the Act. The short answer to this argu- ment is that Section 8(d) is not applicable to unfair labor practice strikes. Mastro Plastics Corp. et al. v. N.L.R.B., 350 U.S. 270, 286. A different answer is not required by General Marine Transportation Corp., 228 NLRB 1107, 1108 (1977), heav- ily relied on by Respondent in support of its position concerning the illegality of the strike. That case is read- ily distinguishable on its facts from the matter at bar. The strike in General Marine was not, like the strike here, an unfair labor practice strike. It was an economic strike instituted, the Board noted, "in support of negotia- tions for a new contract without complying with the [notice and] strike deferral requirements of Section 8(d) of the Act." Because of this the Board found that "the Union violated Section 8(d) . .. by striking within 60 days of giving notices of termination and by failing to give notice . . . to the mediation and conciliation ser- vices." The situation presented in General Marine is a far cry from the facts in the instant case. IUOE and IBT did not strike on April 14 "in support of negotiations for a new contract," the reason for the strike in General Marine. They struck, as has been found, because of Respondent's unfair labor practices in failing to comply with provi- sions of their separate existing contracts with Respondent requiring Respondent to make payments to health and welfare and pension funds. Respondent's argument that the strike was illegal, being thus not well taken it, like Respondent's argument that the strike was economic, is also rejected. VI. THE. ALEGED UNFAIR LABOR PRACTICES A. Facts Concerning Respondents Alleged 8(a)(1) and (3) Violations by Discharging Charles Steeves Charles Steeves began to work for Respondent as a truckdriver in 1968. He was discharged on April 7, 1977, under circumstances alleged in the complaint as having been violative of Section 8(a)(l) and (3) of the Act. Steeves had several unfortunate experiences while working for Respondent. In addition to being involved in collisions and mechanical mishaps, in February 1977, while he was plowing snow, the engine of his truck blew.'8 A substantial sum of money was spent by Re- spondent to repair the blown engine. Early on in Steeves' employment with Respondent he was appointed by IBT as its steward in Respondent's es- tablishment. In 1972 Jack Hayden replaced Steeves as IBT's steward. IBT notified Respondent in writing of this change. Hayden left Respondent's employ in January 1977, but no driver was immediately appointed to act as steward in his stead. Ultimately Steeves became steward. However, x' Respondent contends that these mishaps were caused by Steees' careles driving habits As to this. I make no judgment Respondent was not notified in writing, as it was in Hay- den's case, of Steeves' appointment. 9 In the absence of such notice and being without knowledge at the time as to the identity of IBT's ste- ward, Allan Beard, Respondent's president, asked Perley Rossignol, IBT's president, on or about March 21, "who the steward was." In Beard's words, Rossignol replied, "I am."2 0 Beard further testified 21 that Rossignol did not "at anytime tell [him] that . . . Steeves was . . . Hayden's replacement.' Beard also stated that he first learned of Steeves' appointment as steward after his dis- charge. In February 1977, at or about the time that the engine on Steeves' truck blew, Steeves and three other drivers, George Biancarelli, Alan Little, and Anthony Sanzo did snowplowing work 22 for which they thought they would be paid at premium rates. However, early in March when they were paid for that work their checks reflected that it was paid for at their straight-time rate. Steeves discussed the matter with Biancarelli and Sanzo and, at Steeves' suggestion, it was decided that a grievance should be filed with Respondent. Steeves un- dertook to prepare and file the grievance. But, as Steeves testified, he told Biancarelli and Sanzo that based upon his "previous experience as a steward23 [he] wanted 100 percent to sign it [so that] there would be no good guys and bad guys [and] we'd all be one." Because Little, the fourth employee involved in the snowplowing work, refused to sign the grievance, Steeves, as he further testified, informed Biancarelli and Sanzo that he "was going to scrap the idea of writing it up." Although no written grievance was filed, Respon- dent's president, Beard, soon learned that Steeves had in- tended to do so pursuant to a plan he initiated. As already found, early in April 1977 Respondent was informed by its lawyer that an injunction was about to issue preventing the further removal of material from the Yagovane property which, as noted above, was located in Seymour, Connecticut, adjacent to Respondent's garage. Following its lawyer's advice to "work diligently to complete what [Respondent] was doing" there, drivers hauling material from the Yagovane property to Respon- dent's processing plant in Derby were instructed, Beard testified, to "keep the trucks moving" and to "haul as much stuff . . . out of there" as they could. The drivers were also told why these instructions were given. 19 Although Steees testified that he had been appointed acting ste- ward by Hayden before Haden left, other drivers employed by Respon- dent gave conflicting testimony Thus. George Biancarelli testified that Perley Rossignol. IBT's president, informed him about a month before the strike started that Sleeves 'would be the acting steard." and Antho. ny Sanzo stated that Rossignol gave him similar information in April 'n Beard's testimony in this regard. as echoed b Nicholas Baran- owsky, a driver employed by Respondent. who stated that he had been informed by Hayden. before Hayden's departure, that "Perley Rossignol] w'as going to assume responsibility of the sltesard." 21 For reasons already noted, I have accepted as true Beard's testimo- ny on the issue raised by Steeves' dischalrge : Whether the engine on Sleeves' truck bless while he as ploswing sno on this occasion or while he sas plo ing snow on another occa- sion in February is unclear in the record "z It sill be remembered, il this conlnection that several years earlier Sleeves had been IBT"s stes ard in Rspolldenlt' establishment B. N. BEARD COMPANY 207 On April 7 Steeves and other drivers were assigned to haul material from the Yagovane property for the entire day; i.e., until 4:30 p.m., their quitting time. While at lunch on that day Steeves was informed by the person from whom he had recently bought a pickup truck, and from whose premises he had not yet removed the pickup, that parts had been stolen from it. The seller also asked Steeves to take the pickup off his lot. After lunch Steeves drove his truck to Respondent's processing plant in Derby where the load on his truck was dumped. Instead of returning to the Yagovane prop- erty for another load as he should have done, Steeves drove his truck to Seymour, arriving there at about 1:30 p.m., parked it in the yard outside Respondent's garage, and, without notifying any supervisor or receiving per- mission from a supervisor to do so, stopped worked for the day. Steeves then went to the place where his pickup was located to determine what had been stolen from it and to move it off the seller's premises. No evidence was ad- duced showing that Steeves could not have done these things after 4:30 p.m., the quitting time for Respondent's drivers. Steeves' stopping work on his own initiative at 1:30 p.m., on April 7 was contrary to Respondent's longstand- ing rule requiring employees to notify, and receive per- mission from, a supervisor before quitting work early. Steeves was aware of this rule, had complied with it in the past, and had been reprimanded on occasions when he had not done so. At or about 2 p.m., on April 7 President Beard came to its garage and saw Steeves' truck parked in the yard. Upon inquiry he learned that Steeves had not discussed his leaving work early with any supervisor and that none knew where Steeves had gone. Because, as Beard testified, Respondent "had a time limit on moving material out [of the Yagovane] property [he] wanted every truck . . . available that day to truck [that] material, [when he saw Steeves'] truck parked [he] decided that something's got to be done about it." What he did was to order Steeves' discharge. 24 Beard further stated that he "hadn't considered [firing Steeves] at all prior to April 7, and that it "was totally [his] own idea to fire" Steeves. Although before Steeves' discharge Respondent had never similarly penalized employees for not complying with its rule requiring them to notify, and receive per- mission from, a supervisor before quitting work early, drivers had been disciplined in other ways for violating the rule. Among these were oral reprimands, in one case an employee received a warning letter, and in another an employee was suspended for a week. B. Contentions and Concluding Findings Concerning Respondents Alleged 8(a)(1) and (3) Violations by Discharging Charles Steeves Respondent asserts that Charles Steeves was dis- charged for quitting work early on April 7, 1977, with- 2" L'pon hil discharge, StCCe, s Vae, flurnihed ith il dcumlent (CiC Exh 28) entitled. "Unemploymrcn Ntircc C- -lA". dated April 7. 1077. slating, "Discharged feir \'illfUl lS.olind i sucl I ft job uihout notilif~i ng a Slper ior" out complying with its rule. The General Counsel argues that Respondent's asserted reason for discharging Steeves is pretextual. In this regard, the General Counsel states, on brief, that "the actual reason [for the termination of Steeves' employment] was his union and concerted, pro- tected activity," consisting of his having been IBT's ste- ward; his "leadership role" in the aborted snowplowing grievance; and the fact that Respondent "had never treated leaving early as a basis for discharging in the past." As found, on April 7 Respondent was under pressure of an impending injunction which, when granted, would prevent it from removing material from the Yagovane property. Because of this and in accordance with advice received from Respondent's lawyer, Allan, President Beard instructed the drivers hauling material from the Yagovane property to "keep [their] trucks moving" and to "haul as much stuff ... out of there" as they could. Disregarding these instructions, and notwithstanding the urgency on April 7 for removing material from the Yagovane property, which was known to Steeves, Steeves, who on that day was hauling such material, quit work early without notifying or receiving permission to do so from a supervisor as required by Respondent's rule, of which Steeves was aware. These, Respondent argues, were the moving circumstances prompting Beard to discharge Steeves for violating the rule. Unlike the explanation for a discharge offered by an employer in another case, 25 which "fail[ed] to stand under scrutiny," the reason given by Respondent for dis- charging Steeves is supported by the evidence. Thus, on April 7 Respondent was fearful that an injunction would soon issue preventing it from removing material from the Yagovane property. 26 Although Steeves had knowledge of Respondent's rule relating to early quitting and was cognizant of Respondent's reason for urging drivers to move as much material as possible out of the Yagovane property, on April 7 he stopped work 3 hours before quitting time without notice to, or permission from, a su- pervisor. Seemingly, then, Respondent had sufficient cause to discharge Steeves. But this does not end the inquiry. There remains for consideration the General Counsel's argument that Respondent seized upon Steeves' quitting early on April 7 as a pretext to rid itself of an employee because he was a union steward and because he played a leading role in connection with the aborted snowplowing grievance. Of course, had Respondent done so it would have violated Section 8(a)(1) and (3) of the Act. Howev- er, I am not impressed by the General Counsel's conten- tion that this was the situation here. In the first place, Respondent. as I have found, had never been informed and had no knowledge that Steeves was the IRT steward. This completely refutes the Gener- al Counsel's theory that Steeves was, in fact, discharged because he was the IBT steward. The General Counsel's second contention that an addi- tional reason for Steeves' dismissal was the part he played in the snowplowing grievance also fails to pass " , i R B \ Da,! , i u. 207 F2d I5. It,lh7 91h r lS) ; As rteld clrlier. Ihe iljnctioi. I Ihe fLirrn of ai TR() as .tlilIJ isued 011 April 7. hill n11i sersed util Apri I1 B. N. B AR C A 207 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD muster. Had Respondent been looking for a pretext to mask Steeves' discharge for this reason it would not have had to wait until April 7 to find one. Respondent could have discharged Steeves 2 months earlier, ostensi- bly for permitting the engine of the truck he was driving to blow. This, it will be remembered, occurred about the same time as Steeves' involvement in the snowplowing grievance. In N.L.R.B. v. Newman-Green, Inc., 401 F.2d 1, 4 (7th Cir. 1968), cited with approval in Vermeer Manufacturing Company, 187 NLRB 888, 892 (1971), and Farmers Insur- ance Group, 174 NLRB 1294, 1300 (1969), it was held that where an asserted ground for a discharge is claimed to be pretextuous and availed of by an employer to con- ceal a proscribed motive the employer's failure to take advantage of an earlier opportunity to attain the same result "weakens the basis for the Board's attributing an anti-union motive to discharge." To the same effect see also Merle Lindsey Chevrolet, Inc., 231 NLRB 478 (1977), and Jenkins Manufacturing Company, 209 NLRB 439, 443 (1974). The General Counsel's final argument in support of her pretext position is that Steeves was the victim of a disparate application of Respondent's rule governing early quitting in that never before terminating Steeves' employment had Respondent discharged an employee for not complying with the rule. To shore up this argument the General Counsel asserts, on brief, "that no special circumstances existed on April 7, which warranted dif- ferent treatment" in Steeves' case. But, as is readily ap- parent, a very "special" circumstance did exist on April 7. This consisted of Respondent's being on that day "under the gun," so to speak, of an impending injunction precluding it from taking material from the Yagovane property. This being so, President Beard instructed driv- ers to "keep [their] trucks moving" and to haul as much material from the Yagovane property as they could. Having given these instructions to the drivers, who knew why they were issued, when Beard saw Steeves' truck parked at 1:30 p.m., he decided, as he stated, that "some- thing's got to be done about it." Accordingly, he dis- charged Steeves for quitting early without complying with Respondent's rule. In the premises, therefore, there were present on April 7 sufficient "special circum- stances" to warrant Steeves' discharge for violating the rule, even though the rule had never before been so ap- plied. For the foregoing reasons I reject the General Coun- sel's pretext contention. I find, rather, that Steeves' dis- missal was not motivated by considerations interdicted by Section 8(a)(1) or (3) of the Act. "Management can discharge for good cause, or bad cause, or no cause at all. It has . . . complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids .. An unlawful purpose is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one." 27 Upon careful analysis, I do not find such a "substantial basis" to be present here. Accordingly, I conclude, that Respondent did not vio- late Section 8(a)(1) or (3) by discharging Steeves. My order will, therefore, provide for the dismissal of para- graph 9(b) of the complaint. C. Facts, Contentions, and Conclusions Concerning Alleged 8(a)(1) Violations The complaint alleges that Respondent violated Sec- tion 8(a)(l) of the Act in several respects, the nature of which appears above in my statement of the questions for decision. These will be considered below in separate appropriate groupings. 1. The alleged interrogation and threat to discharge strikers As found above, President Allan Beard was informed on April 11, 1977, by James McParland, IUOE's business representative, that if Respondent did not liquidate its in- debtedness to IUOE's benefit funds by the close of busi- ness on April 13, IUOE "would have to undertake action . . . to force [its] position with regard to those delin- quent funds." Beard rightly interpreted this statement as a announcement that IUOE would strike on April 14 if Respondent had not, before then, paid what it owed to the funds. Respondent not having made the payments in accor- dance with IUOE's ultimatum, Beard, on April 13, as- sembled employees working at Respondent's processing plant and asked them whether they intended to strike the next day. All informed Beard that if they had to strike, they would do so. Upon hearing this, Beard told them, as Charles Rhodes, one of the employees present at the meeting, testified, that "if [they struck] the next day, [they would] all be fired [and would] not work for [Re- spondent] again." In the circumstances Beard's interrogation of the em- ployees as to whether they intended to strike might be deemed to have been uncoercive and, therefore, not pro- scribed by Section 8(a)(1) of the Act. However, the questioning was closely followed by Beard's threat to discharge them if they struck. This threat being inherent- ly coercive and, hence, violative of Section 8(a)(1), im- parted a coercive nature to the interrogation. Merle Lindsey Chevrolet, Inc., 231 NLRB 478. Accordingly, I conclude that, by interrogating em- ployees and threatening to discharge them if they struck, Respondent violated Section 8(a)(1) of the Act. 2. The alleged threat to kill a picket On April 14, 1977, the first day of the strike, Charles Steeves, pursuant to instructions given him the previous day by Perley Rossignol, IBT's president, came to Re- spondent's processing plant prepared to participate in the picketing. While Steeves was standing at the entrance to the plant President Allan Beard drove up. Approaching Steeves, Beard told him that he had "no business [at the 2 t7 \ I R B ' .t .McGauhcv. S. .I A cGahcr Jr Alr 4/ic Jon ' and trs. Wildo ruanc, .tGalohcr urrion . do illg haiu'ce a, Cilumhli t .Afi/rhl ['rr,. If Pa rcrrhip. 213 F 2d 40,. 413 (5lh Cir 156) B. N. BEARD COMPANY 209 plant]; that he had been "fired";28 that he was "no longer part of the company"; and that if he was "caught anywhere around [the plant] again, he [Beard] would kill him [Steeves]."2 9 The General Counsel argues that Beard's threat to kill Steeves violated Section 8(a)(l) of the Act. I do not agree. A usual concomitant of a strike is the use of intemper- ate language by people on both sides of the economic dispute, including, as was the case here and in Hartmann Luggage Comnpany, 183 NLRB 1246, 1253-54 (1970), a threat to kill. The threat in Hartmann was made by a striker while picketing, for which reason she was denied reinstatement at the conclusion of the strike. The Board held, however, that her threat did not warrant the refus- al of the striker's employer to permit her to return to work. Upon review, the Court of Appeals for the Sixth Cir- cuit agreed with the Board. 3 0 In doing so the court stated, "We have examined the testimony of the threat [to kill] made by Mrs. Taylor. It appears that it was made under circumstances which make it incredible that she intended it literally, and we regard it as picket line rhetoric." This, it seems to me, aptly sums up the situation here."' Like the court, I find it "incredible" that Beard "intended . .. literally" to kill Steeves. Also like the court, I "regard [Beard's threat] as picket line rhetoric," having no consequence insofar as Section 8(a)(1) of the Act is concerned. Accordingly, I conclude that Respondent did not vio- late Section 8(a)(l) of the Act by Beard's threat to kill Steeves. In view of this, my order will provide for the dismissal of paragraph 8(d) of the complaint. 3. The alleged threat of vehicular assault On April 15, 1977, Kenneth Adams, a striking employ- ee was picketing on the sidewalk in front of the road giving access to Respondent's processing plant in Derby. This road was wide enough to accommodate two 10- wheeled dump trucks traveling abreast of each other. While Adams was so engaged and as he approached the left side of the access road32 with his back toward the right side, President Allan Beard at the wheel of a pickup truck drove into the access road, crossing the sidewalk at a high rate of speed. No vehicles were then on the right side of the access road. Notwithstanding this, Beard entered the plant by driving on the left side of the road instead of the right, as would have been cus- 28 It ill be remembered that Seeves had been discharged a eek ear- lier under circumslt lces, as I haxe found. not x Illatie of Sec 8(a)(1) or (3) of the Act 211 he finldings in this paragraph are based upon. and the quotations appearing in the text are taken from. testimonyv gisen by Steeves. A '.NL.R B a Irrtann Luggage Cmpuat'. 453 F 2d 178. 185 (1971) :1 I recognize the faclual difference behltween Hartrunan and the case at bar Necserthelcess I am persuaded that the court's rallionale governs the incident precntl lrl nder conisderatiol 12 The directionls ppealiig ii ilc tlet are g en front a position facing the plilant ii Although, as carlic set forth, at le conllusion of the hearing I dis- missed tle al]egiltlOin of the coipl.i]til dealilig ikth Biancarelii's construc- ti'e dischairgc, I gralrted the G(;Cnral iousels pos-hearing 1lotlion fr its relistatement tomary. In doing so, he narrowly missed hitting Adams who would have been hit had another picket not shouted to warn him to get out of the way of Beard's pickup. As Charles Rhodes, a picket who saw what happened, testi- fied, Beard's pickup was "inches away [from Adams when Adams] jumped out of [its] way." I find that Beard deliberately drove his pickup close to Adams to "brush him off' as it were. I make this finding because Beard could have avoided even getting near Adams by driving into the plant on the right side of the access road, which was then clear, and because the speed at which Beard bore down on Adams was excessive. I further find that by driving close to Adams, Beard intended to frighten him because he was picketing. Im- plicit in Beard's behavior toward Adams was a threat to assault Adams by striking him with the pickup for the purpose of deterring him and others from continuing to picket. Such conduct violates the Act. As the Board held in Green Brier Nursing Home, Inc., 201 NLRB 503 (1973), "threatening [pickets] with vehicular assault con- stitutes conduct violative of Section 8(a)(l) of the Act." Accordingly, I conclude that by threatening Adams in the foregoing manner Respondent violated Section 8(a)(l) of the Act. D. Facts, Contentions, and Conclusions Concerning Respondents Alleged 8(a)(3) Violations by Constructively Discharging George Biancarelli and by Discharging Strikers The complaint alleges that Respondent violated Sec- tion 8(a)(3) of the Act by discharging George Biancar- elli.33 It also alleges that Respondent violated Section 8(a)(3) by discharging strikers. These allegations will be separately considered. 1. Biancarelli's alleged constructive discharge a. Facts George Biancarelli began to work for Respondent in or about 1970. He was employed as a truckdriver and was a member of IBT, whose last collective-bargaining agreement with Respondent expired on April 30, 1977. On April 12, after a -day absence, Binacarelli re- turned to Respondent's garage. While Biancarelli was waiting for his assignment David O'Connor, Respon- dent's superintendent, asked him if he intended to work that day. Upon receiving an affirmative reply, O'Connor told Biancarelli that if he remained in Respondent's employ, he would be paid at the rate of $6 an hour and would also receive an undefined insurance benefit. The wage rate thus offered to Biancarelli was $1.71 an hour less than the wage rate provided for in Respondent's contract with IBT, which also made provision for health insurance and pension benefits. Refusing to work under these conditions because they were substantially different from those set forth in Re- spondent's agreement with IBT, Biancarelli quit his em- ": Although, ais earlier sel forth, at the conclusion of the hearing I dis- nli ssd the allegaltion l the complaint dealhlng .ith Bianlcarelli's construe- ise discharge. I granted the General Counl el's posl-hearing imotion for its rel istaleellt 13. N BEARD COMPANY 209 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment with Respondent. As Biancarelli testified in this connection, he told O'Connor that he "wouldn't . . work unless [he] received [his] benefits and the rate of pay [he] was entitled to." A few days later Biancarelli informed President Allan Beard of the reason for his having quit. During their conversation Biancarelli stated, as he testified, that he had intended leaving Respondent's employ some time in the future and "was thinking of looking for a job not [in- volving] driving [, but] this [his having been told by O'Connor that if he wanted to continue working for Re- spondent, he would have to accept $6 instead of $7.71 an hour] just hastened it up." b. Contentions and concludingfindings It is settled law that employees have a right, protected and guaranteed by the Act, to work under the terms and conditions contained in a collective-bargaining agreement covering their employment, including its compensation provisions. Dust-Tex Service, Inc., 214 NLRB 398, 406 (1974). As a corollary, the Board has "long held that to condition employment upon the abandonment by em- ployees of the rights guaranteed them by the Act [which causes them to quit their employment] is equivalent to discharging them outright for union activity." Block- Southland Sportswear. Inc., Southland Manufacturing Company, Inc., 170 NLRB 936, 937 (1968), enfd. 420 F.2d 1296 (D.C. Cir. 1969). This being so, I find that Respondent constructively discharged Biancarelli in violation of Section 8(a)(3) of the Act when, on April 12, Biancarelli quit his job rather than relinquish his right, guaranteed by the Act, to be compensated for his work in accordance with Respon- dent's contract with IBT. In making this finding I have rejected Respondent's contention that it is precluded by Biancarelli's statement to President Allan Beard that his intention to leave Respondent's employ some time in the future was "hastened . . . up" by his being compelled to accept lower wages than those provided for in the IBT contract as a condition of his continued employment with Respondent. In several cases the Board has held that where an em- ployer's decision to discontinue an operation is acceler- ated by the advent of a union the discharge of employees occasioned by the acceleration is violative of Section 8(a)( 3) of the Act. See, e.g., Davis Wholesale Co., Inc., 166 NLRB 999 (1967), enfd. 413 F.2d 407 (D.C. Cir. 1968); and Ox-Wall Products Manufacturing Co., Ltd., Warren Products, Ltd. Pioneer Merchandise Corp. & Ox- Wall Products Mfg. Co., Inc., 135 NLRB 840, 842, enfd. 310 F.2d 878 (2d Cir. 1962). By a parity of reasoning, when an employee's decision to leave his employment at a later date is accelerated by his being deprived of a stat- utory right, as was the case here, the employee's quitting is likewise violative of Section 8(a)(3) as a constructive discharge. Accordingly, I conclude that Biancarelli was construc- tively discharged in violation of Section 8(a)(3) of the Act. a4 a4 The complainl alleges that Anthony Sanzo was actually discharged on April 14. 1977 It1 d(toes ot allege hat he ,ras constlruclivel) dis- 2. The alleged discharge of strikers a. Facts As earlier described, on April 13, 1977, President Allan Beard notified employees that "if [they struck] the next day [they would] be fired." Notwithstanding this threat, which has been found to have been violative of Section 8(a)(l) of the Act, employees of Respondent who were members of IBT and IUOE struck on April 14 and began to picket Respondent's premises in Derby. On the day the strike started Beard was interviewed by Nick Povinelli, a reporter on the staff of the New Haven Register (Register), a local newspaper. During the interview Beard told Povinelli, as the latter testified, that he had "fired the men who were on strike." Beard never retracted this statement. Based upon his interview with Beard and after "check[ing]," as Povinelli related," with . . . both unions," Povinelli wrote an article3 which was pub- lished in the Register on April 15. Among other things the article stated that "Beard, the company's owner, said Thursday [April 14] that the striking employees have been fired . . . The union spokesmen said they had no knowledge of anyone being fired." On April 21 an article concerning the strike 3 ap- peared in another local newspaper, the Journal Courier (Journal). Like the strike story carried earlier by the Register, interviews with Beard and union spokesmen formed the basis for the Journal article. But, unlike the Register story, the account published in the Journal did not attribute to any person interviewed a statement re- garding the discharge of strikers, and no reference either to the strikers' continued employment or their discharge appeared in the story. No agent of Respondent ever directly informed the strikers that they had been discharged. Furthermore, at no time during the picketing, or since its cessation on June 24, did the strikers, or any of them, offer to return to work. Nor was such an offer made on their behalf by IBT or IUOE. b. Contentions and concluding findings Notwithstanding that the strikers were never explicitly informed that they had been discharged and the April 21 story published in the Journal regarding the strike making no mention of the strikers' discharge and based principally upon the threat to discharge strikers made by President Beard on the day before the strike began; charged at an earlier date Notwithstanding this, the General Counsel argues that Sanzo was constructively discharged on April 7 because, as the evidence shows. he wsas told on that day b Beard and O'Connor. respecliely Respondentl' president and superintendent. that he, like Biancarelli. would have to work for 56 an hour. if he wanted to remain in Respondenl's employ. However, the eidence does not show that Sanzo quit working for Respondent rather than accept the terms laid down by Beard and O'Connor, as was the sltuation in Biancarelli's case A prime element of a constructive discharge is a quitting of employment Keller Ma.oufacturing Company. lnc.. 237 NLRB 712 (1978) There being no eidence showing that Santo did so upon being infornied that his swagc rate would be loswer than that set forth in Respotndent' s contract with IBT. I cannot find. a urged hby the General Counsel. hat Sanzo was constructivel) discharged G:' C Exh 22 :' G C Exh 25 B. N. BEARD COMPANY 211 Beard's statement, made on April 14, the day the strike started, to the reporter for the Register concerning the strikers' discharge; and the story appearing in the Regis- ter the next day, 37 the General Counsel argues that the strikers were discharged in violation of Section 8(a)(3) of the Act. I disagree. "The Board has often concluded that in strike situa- tions employers go through the motions and stated that they are terminating or discharging the strikers for the purpose of breaking the strike or dissuading the employ- ees from striking but without meaning to refuse reinstate- ment when requested by the employees. Under this type of tactical discharge there is customarily found to be a violation of Section 8(a)(1) of the Act since the employer has interfered with the exercise by the employees of their rights under Section 7; however, the determination of whether or not there has been an actual discharge and a violation of Section 8(a)(3) is dependent upon the par- ticular facts and whether the employer refuses to rein- state the strikers upon request and the reason therefor." Crookston Times Printing Company, 125 NLRB 304, 305, 317 (1959).38 As Crookston makes plain, an employer's statement that he would discharge, or had discharged, strikers must be tested by his refusal "to reinstate [them] upon request and the reason therefor." Here, Respondent was never put to this test. No request for reinstatement was made by the strikers or, on their behalf, by their unions. In the absence of such a request and its refusal by Re- spondent I cannot find, as urged by the General Counsel, that the strikers were discharged. In the circumstances I am persuaded, as was the Board in Crookston, that Beard's threat, made the day before the strike started, to discharge strikers and his statement to the Register's re- porter, made on the first day of the strike, were tactical maneuvers "designed merely to dissuade the [strikers] from persisting in their [strike]." Accordingly, I conclude that Respondent did not vio- late Section 8(a)(3) of the Act by, as the General Coun- sel contends, discharging strikers. My order will, there- fore, provide for the dismissal of paragraphs 9(a) and 10 of the complaint. E. Facts, Contentions, and Conclusions Concerning Respondent's Alleged 8(a)(5) Violations The complaint alleges several violations of Section 8(a)(5) of the Act by Respondent, the nature of which appears above in my statement of the questions for deci- sion. These will be considered below in separate appro- priate groupings. Jr It ill be remembered hat this article, in addition to reporting Beard's comment that the strikers had been discharged also reported that "union spokesmen said the. had no) knossledge of an>one being fired " : The CroooAson doctrine as recentlN reaffirnied ill Wbodlun lospi- rui 233 Nl RH 782 (19771 There. in language similar to that employed in Cr,,A tn,. it as held thai letters t strikers "though tantamounl to d- charges In their u ording, must hbe Iltcd as. al most, actical monruvers designed to lead the strikers to return Io "ork " I. Respondent's alleged withdrawal of recognition from IBT and IUOE and its alleged direct bargaining with employees It is well settled that in the absence of evidence show- ing that a union no longer represents a majority of the employees in a unit for which it is the recognized bar- gaining representative or that an employer has a good- faith belief founded on objective facts that the union has lost its majority status the employer may not, without violating Section 8(a)(5) of the Act, withdraw recogni- tion from the union. It is equally well settled that where a union represents a majority of employees in an appro- priate bargaining unit an employer is prohibited by Sec- tion 8(a)(5) from bypassing the union and bargaining di- rectly and individually with the represented employees. As will appear below, Respondent violated Section 8(a)(5) in both respects. For many years IBT and IUOE have represented Re- spondent's employees in separate appropriate units39 and, as noted earlier, Respondent has been a party to succes- sive separate collective-bargaining agreements with both Unions. By its terms Respondent's last contract with IBT expired on April 30, 1977, and, as I have found, Respon- dent's last contract with IUOE, entered into in 1974, re- mained in effect at least until March 31, 1978. Respondent offered no evidence showing that IBT and IUOE did not at any material time represent a majority of the employees in their respective units, 40 or that it had good reason to believe that this was the case. Not- withstanding this, the record is replete with evidence es- tablishing, as I find, that Respondent, before the expira- tion of its contracts with IBT and IUOE, withdrew rec- ognition from them. Thus, in February 1977 David O'Connor, Respon- dent's superintendent, told Richard LaGassie, who had formerly been employed by Respondent as a driver, that "after the contracts ran out there will be no more unions at the . . . company." On April 7 O'Connor informed employee Anthony Sanzo and a member of IBT that President Allan Beard "is getting rid of the union." Later that day Beard, himself, told Sanzo that "there would be no more union at the . . . company." On April II, in a conversation with James McParland, business representa- tive of IUOE, Beard stated that he "didn't want further contact with the union"; that Respondent "was going to be nonunion in the future"; and that "in the future none of [Respondent's] engineers would be coming from the union hall because [Respondent] was going to be non- 79 1 find. al alleged in the complaint, that the uit represented b IBT consisted of all truckdrivers employed by Respondent at its Derb and Seymour facilitlies, excluding production and maintenanlce employees, office clerical enlploees. guards. and supervisors I further find. as also alleged in the complaint, that the unit represented b IUOE consisted of all production ad maintenance emploees emploscd bh Respondenl at its Derby and Seymour facilities. excluding truckdrisers. office clerical employees, guards. aid supervisors 4o "(T]he existence of a contract raises a dual presumpton of majorit I a presumption that the Union uaas the mijoriI) represenlalie at the tinme the contract uas executed, aind a presunlption that its mainori cliltinued at least through the life of the contract Follostig the epira- tion orf he coltrac the presumption c0iitilles lind. though rebiutta- hle, the burden of rebutting it rests on the part! u ho u,ould do) '" Bar- tendurx. , I M, t cl/ ,d Restutrant Enploi.., s x r i(tlll~ y i , wtit ll / O Pst/,] Idhl ti .d i, Enpl.r-,fe-bMers. 21 N R H 51. 652 I 19't4) . N HEARD COMPANY 211 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union." On April 14 O'Connor stated, in essence, to Ray- mond Cardinal, hired a few days earlier as a driver and a former member of IBT, that Respondent was "going to withdraw from the Union." Finally, in this regard, in a discussion during the second week of the strike4 ' be- tween O'Connor and Gerald Pison, a striking employee and a member of IUOE, O'Connor said that "the unions would not be back." 42 Not only did Respondent withdraw recognition from IBT and IUOE, but I find that it also bargained individ- ually and directly with employees represented by IBT, thereby bypassing IBT. In this regard, as has already been found, during April 1977, Respondent offered Sanzo and George Biancarelli, members of IBT and cov- ered by IBT's contract with Respondent, terms and con- ditions of employment which differed substantially from those set forth in the IBT agreement. Accordingly, I conclude that Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from IBT and IUOE and by bargaining individually and directly with employees represented by IBT. 2. Respondent's alleged unilateral changes in terms and conditions of employment a. Respondent's allegedfailure to make contributions to health and welfare and pension funds Where a collective-bargaining agreement requires an employer to contribute to health and welfare and pension funds for the benefit of his employees, the employer's failure to do so constitutes a unilateral change in the em- ployees' wages violative of Section 8(a)(5) of the Act. Marquis Elevator Company, Inc., 217 NLRB 461 (1975); Latin Quarter Cafe, Inc., 182 NLRB 997 (1970); George E. Light Boat Storage, Inc., 153 NLRB 1209 (1965), enfd. 373 F.2d 762. (5th Cir. 1967). In this regard, the Board stated in Light Boat "where an employer refuses to con- tinue to make payments to [a welfare plan] in derogation of an existing contract, he in effect unilaterally changes the wages of his employees who are the beneficiaries of that plan and thus violates Section 8(a)(5) of the Act." Respondent's contracts with IBT and IUOE, which have been in effect at all material times, provide for con- tributions by Respondent to health and welfare and pen- sion funds for the benefit of employees represented by those unions. In December 1976 Respondent ceased making payments to these funds. Respondent does not defend its failure to contribute to the IUOE funds. Concerning its failure to make pay- ments to the IBT funds, Respondent claims that it is enti- tled to a credit from the IBT Pension Fund for payments erroneously made which more than offsets its combined arrearages to the IBT Pension Fund and the IBT H & W Fund. As to this, the evidence establishes that for several years before December 1976 Respondent made contribu- tions to the IBT Pension Fund for the account of four 41 It ,Nill be remembered. il ibis CliillICtir Ti hat the strike slartcd ioni April 14 42 The fillding i his paragraph are based upoi. arid the qlltatiuill appearing ill the text arc taken iriom. testin 5 im gi ien h taGa issie. Salito, Mcl'arland. Cardinal. ild Pisori supervisors--Kenneth Flaminio, Herbert Goen, George Howe, and William Krynitzky;43 that on December 7, 1976, Respondent received a credit from the IBT Pen- sion Fund of $7,809, broken down as follows: $2,732 for payments made on Flaminio's behalf from January 1974 to April 1976; $1,725 for payments made on Howe's behalf from November 1974 to April 1976; and $3,352 for payments made on Krynitzky's behalf from June 1973 to April 1976; 44 and that Respondent made payments to the IBT Pension Fund on Goen's behalf in the amount of $2,674 for which it received no credit. The evidence fur- ther establishes that Flaminio began to work for Respon- dent as a supervisor in April 1973; that from then until January 1974 Respondent paid $740 to the IBT Pension Fund on his account, for which it received no credit; that Krynitzky began to work for Respondent as a super- visor in January 1972; and that from then until June 1973 Respondent paid $1,294 into the IBT Pension Fund on his account for which it received no credit.45 It thus ap- pears that on December 7, 1976, Respondent was entitled to an additional credit of $4,708 from the IBT Pension Fund. Not taking into account the additional credit due it from the IBT Pension Fund, on April 13, 1977, the day IBT struck Respondent over its fund payment delinquen- cies, Respondent owed the IBT Pension Fund $2,313.22. At the same time Respondent owed the IBT H & W Fund $2,373.58.46 Respondent argues that its uncredited erroneous over- payments of $4,708 to the IBT Pension Fund should be applied to its combined arrearage of $4,686.80 to both funds and that, therefore, it owed nothing to either fund. This being so, Respondent's argument continues, it cannot be said that its failure to make payments to either fund constitutes a violation of Section 8(a)(5) of the Act, as alleged in the complaint. This argument fails to withstand analysis. The IBT Pension Fund and the IBT H & W Fund are, as I have found, separate entities having no relationship to each other. They are independently administered, provide dif- ferent benefits for persons on whose behalf contributions are made, the separate contributions to each are not commingled, and the respective trust declarations make no provision for the transfer of money from one to the other. Consequently, an overpayment to one fund cannot be applied to an indebtedness to the other. This being the case, I find that Respondent's failure to continue its contributions to the IBT Pension Fund is ex- cused by its erroneous overpayments to that fund for which it received no credit. I further find that its over- payments to the IBT Pension Fund does not excuse Re- spondent's failure to continue its contributions to the IBT H & W Fund. Accordingly, I conclude that Respondent violated Section 8(a)(5) of the Act by unilaterally changing terms and conditions of employment provided for in its con- tracts with IBT and IUOE in that Respondent failed to 4: A uperior i it a "Co etred tEiplio t as tLi er i dcFinid ill the I I nmisiii Iunid P'al ( C Exi , art I. ,cL . t 4 Resp Ex 4 i; Resp Exhl 5 Rcsl 1Ih 7 B. N. BEARD COMPANY 213 make contributions to the IBT H & W Fund, the IUOE H & W Fund, and the IUOE Pension Fund. b. Respondent's alleged reduction in wage rates Not only did Respondent unilaterally change terms and conditions of employment provided for in its con- tracts with IBT and IUOE by not making payments to the IBT H & W Fund and to the IUOE H & W and Pension Funds, but it also did so by undercutting the wage rates contained in those contracts. Thus, since April 11, 1977, Respondent has paid drivers and produc- tion and maintenance employees performing work cov- ered, respectively, by its contracts with IBT and IUOE at rates substantially below those prescribed by those contracts. 4 7 Having done this without consulting with either IBT or IUOE, I find that Respondent violated Section 8(a)(5) of the Act. In Oak Cliff-Golman Baking Company, 207 NLRB 1063, 1064 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974), the Board stated, in this regard, that an employer's "unilateral modification of the wage provi- sions of its contract [with a union] violated Section 8(a)(5) and (1) of the Act." In arriving at this result I have seriously considered, and rejected, Respondent's argument made on brief, that the employees paid at lower than contract rates were "hired . . . to replace . . . strikers [at] an agreed-upon wage for their services"; that Respondent "had no obli- gation to pay these strike replacements the wages set forth in the . . . agreement[s]; and that "thus [Respon- dent] made no unilateral change in wages nor committed any unfair labor practices in doing so." Respondent's argument ignores the fact, as shown by the summary of its payroll records, that not all drivers and production and maintenance employees paid at less than contract rates since April 11 were hired to replace strikers. Some were employees who did not participate in the strike. Furthermore, I disagree with Respondent's conclusion, unsupported by the citation of authority, that it "had no obligation to pay . . . strike replacements the wages set forth in its collective bargaining agreement[s]." I find, rather, that Respondent did have such an obligation during the effective period of its contracts with IBT and IUOE.48 Cf. Imperial Outdoor Advertising, 192 NLRB 1248, 1249 (1971), enfd. 470 F.2d 484 (8th Cir. 1972). Imperial Advertising was concerned with a strike upon the expiration of a collective-bargaining agreement. After the commencement of the strike, the Board found, the employer "began hiring replacements [for the strikers] at a wage rate of less than the hourly rate contained in the expired contract." On these facts the Board concluded that the employer "was under no obligation to hire the replacements at the wages in the [expired] contract and that the [employer] does not violate [Section 8(a)(5) of] the Act by paying them lower rates." Logically, the con- verse of this conclusion is that where, as here, an em- " My findings in this regard are based upon the contents of G.C. Exh. 23, a summary of Respondent's payroll records, which is attached as Ap- pendix B. 48 As noted earlier Respondent's contract with IBT, by its terms did not expire until April 30, 1977, and, as has been found, its contract with IUOE continued in force at least until March 31, 1978. ployer hires employees to replace those who struck during the existence of a contract he is under an obliga- tion to pay them at contract rates and that if he fails to do so he does violate Section 8(a)(5). Accordingly, I conclude that Respondent violated Section 8(a)(5) of the Act by unilaterally changing the wage rates provided for in its contracts with IBT and IUOE. 3. Respondent's alleged refusal to negotiate with IUOE and IBT As set forth above Respondent's contract with IUOE, 49 entered into on November 18, 1974, provides that it "shall remain in full force and effect through March 31, 1977, and shall then renew itself from year to year thereafter unless either party . . . gives written notice to the other party, at least sixty (60) days prior to said 31st day of March 1977 . . . of its desire to terminate this Agreement and negotiate a successor Agreement." By letter dated October 22, 1976,50 more than "sixty . . . days prior to the 31st day of March 1977," IUOE notified Respondent that it" desire[d] . .. to change the terms and conditions of our present Agreement for a new period, effective April 1, 1977." In the letter IUOE also stated that "subsequently" Respondent would be given IUOE's proposals for "specif- ic changes in terms and conditions . . . and arrangements will be made for negotiations." Respondent made no answer to this communication. As it undertook to do in its letter of October 22, 1976, on May 18, 1977, IUOE sent Respondent another letter setting forth its suggestions for an agreement to replace the one entered into in 1974. In addition IUOE renewed its request for bargaining and reminded Respondent that it had not replied to IUOE's previous letter. This letter, too, went unanswered. A similar situation obtained respecting IBT. Thus, on February 4, 1977, IBT notified Respondent by letter52 that it "desire[d] to meet with [it] to negotiate an Agree- ment effective May, 1977 to replace the Agreement ter- minating April 30, 1977." In the same document IBT re- quested Respondent to state "with whom [it was] to communicate as [Respondent's] Negotiator or Bargaining Agent." Respondent did not reply to this letter. On May 17 IBT sent Respondent a second request for bargaining and called Respondent's attention to its failure 49 G.C. Exh. 12 and 18 50 G.C. Exh. 6. 5L In a pretrial affidavit President Allan Beard admitted that this letter was received by Respondent. However, in his testimony at the hearing Beard, repudiating his affidavit in this respect, denied that Respondent had received the letter. For reaons already stated I discredit Beard's te,ti- monial denial. I credit, instead, the statement appearing in his affidavfit This, in view of Beard's position as Respondent's president, is taken as an admission against its interest and, therefore, not likely to be false .4/lvn J Bart and Co., Inc., 236 NLRB 242 (1978); Grove Shepherd Widson & Kruge, Inc., and Hendrickson Bros.. Inc., etc., 109 NLRB 209. 212 214 (1954). This being the case, I need not pass upon the General Counsel's contention that. even dehors Beard's admission, receipt of IUOE's letter can be predicated upon the presumption of receipt arising from proof of mailing. s2 GC. Exh. 58. B. N. BEARD COMPANY 213 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to respond to its previous request. Again Respondent made no response. Notwithstanding their requests for bargaining, Respon- dent did not negotiate with either IUOE or IBT. It needs no citation of authority to establish that an employer's failure to accede to a request for bargaining made by a union representing his employees in an appro- priate unit constitutes a refusal to bargain in violation of Section 8(a)(5) of the Act. This is the situation here Accordingly, I conclude that by failing to bargain with IUOE and IBT Respondent violated Section 8(a)(5) of the Act. VII. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices occurring in con- nection with its operations set forth in section I, 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 ob- structing commerce and the free flow of commerce. VIII. THE REMEDY I have found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the Act. My order will, therefore, provide that Re- spondent cease and desist therefrom and that it take such affirmative action as will effectuate the policy of the Act. Concerning the latter, Respondent will be required, among other things, to do the following: 1. Offer full and immediate reinstatement to George Biancarelli and make him whole for any losses he may have suffered by reason of his constructive discharge. Any backpay due to Biancarelli shall be computed in ac- cordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 5 3 2. Offer full reinstatement to employees who partici- pated in the unfair labor practice strike instituted against Respondent by IBT and IUOE immediately upon their unconditional request to return to work, discharging, if necessary, employees hired us their replacements. 54 Any striker not immediately offered reinstatement upon his unconditional application shall be made whole for any loss of earnings he may suffer as a result, including inter- est.55 :' See. geerally. lis Plumbinghii & Ifuating Co., 138 NlRB 716 (1962) All interest and specific make hole" requirements subsequently pro- Nided for shall be so calculated " In this connectiolln, Respondent contends that the strikers should not be reinstated hecause of misconduct during the picketing. This contention is wilhout merit Such misconduct by strikers as was disclosed by the evi- dence as. in m r opinion, of insufficient gravity to warrant their being found ineligible for reinstatement. ' Respondent's contract s ith IUOE, in effect at all material times, proides that employees ssho engage in a strike occasioned by Respon- dent's failure to make contributions to IUOE's Pension and H & Funds "he made whole fr an ages lost as a result of such xsork stloppage " Respondent's contract ssith IBT. which expired after the strike against Respondent started, contains similar language Based on these contract pros lsions the General Counsel requests that such relief be ordered oni hehli if the unfair labor practice strikers He,er. "it is settled Boa[d plio: not to aaid hackpay to striking employees until 3. Pay to employees performing services covered by the IBT and IUOE contracts, who on and after April 11, 1977, were compensated for their work at rates lower than those set forth in those contracts, the difference be- tween the wages they would have earned had they been paid at contract rates and the wages they actually re- ceived, together with interest on the difference. 4. Make the contributions withheld from the IBT H & W Fund and from the IUOE Pension and H & W Funds, with interest thereon. 5. Bargain with IBT and IUOE upon request. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. IBT and IUOE are labor organizations within the meaning of Section 2(5) of the Act. 3. The strike against Respondent instituted by IBT and IUOE was an unfair labor practice strike. 4. By the following conduct Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Coercively interrogating employees concerning matters relating to the strike referred to above in Con- clusion of Law 3. (b) Threatening employees with discharge if they par- ticipated in the strike referred to above in Conclusion of Law 3. (c) Threatening a picket with vehicular assault. 5. By discharging George Biancarelli, thereby discour- aging membership in IBT, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. Respondent has not in any other manner engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. The following units are appropriate for collective bargaining: (a) All truckdrivers employed by Respondent at its Derby and Seymour, Connecticut, facilities, excluding production and maintenance employees, office clerical employees, guards, and supervisors as defined in Section 2(11) of the Act. (b) All production and maintenance employees em- ployed by Respondent at its Derby and Seymour, Con- necticut, facilities, excluding truckdrivers, office clerical employees, guards, and supervisors as defined in Section 2(11) of the Act. 8. At all material times IBT has represented a majority of the employees in the unit described above in Conclu- sion of Law 7(a). they make an unconditional offer to return to sork. even wshere, as is not the case here. they are unlawfully discharged during the strike" Royal lipeuriier Coinpune, a Divison of Ltwn Binevs SstIsvn, Inc, a Subsid- iar, of Litio n Itdustries. Inc. and LitIon llndi/slres. Ic . 209 NLRB 1006. 101b (1974). efd. 533 F 2d 1030 (8th Cr 1975) In iew of this "settled polic.," I am constrained to deny the General Coulsel's request. B. N. BEARD COMPANY 215 9. At all material times IUOE has represented a major- ity of the employees in the unit described above in Con- clusion of Law 7(b). 10. By the following conduct Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. (a) Withdrawing recognition from IBT as the exclusive collective-bargaining representative of the employees in the unit described above in Conclusion of Law 7(a). (b) Withdrawing recognition from IUOE as the exclu- sive collective-bargaining representative of the employ- ees in the unit described above in Conclusion of Law 7(b). (c) Bargaining directly and individually with employ- ees represented by IBT in the unit described above in Conclusion of Law 7(a). (d) Unilaterally discontinuing contributions to the IBT H & W Fund. (e) Unilaterally discontinuing contributions to the IUOE Pension and H & W Funds. (f) Unilaterally changing the wage rates provided for in its collective-bargaining agreements with IBT and IUOE. (g) Failing and refusing since October 22, 1976, to bar- gain with IUOE as the exclusive collective-bargaining representative of the employees in the unit described above in Conclusion of Law 7(b). (h) Failing and refusing since February 4, 1977, to bar- gain with IBT as the exclusive collective-bargaining rep- resentative of the employees in the unit described above in Conclusion of Law 7(a). I 11. The unfair labor practices engaged in by Respon- dent, as set forth above in Conclusions of Law 4, 5, and 10, affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following: ORDERs5 The Respondent, B. N. Beard Company, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Coercively interrogating employees concerning any matter relating to any labor organization. (b) Threatening employees with discharge or any other form of reprisal for striking or effectuating any such threats. (c) Threatening pickets with vehicular assault. (d) Discouraging membership in any labor organiza- tion by discharging employees or by discriminating in any other manner against employees in regard to hire or tenure of employment or any term or condition of em- ployment. :' In the rerent nl exccptllon, arc filed a, pr,l ided h Set Il2 46 4 the Rules and Regulation, of the National I abor Relations ttilrd. the finding. rllncluloni, ll nd recommended Order herln hall a pl(-lded in Sec 102 48 f the Ruide and Regulanitmls, he dopled h the Hoa;lrd rand hecornlT iI findings. orchil ,ion,. ad Order. il ll lhicltons thereto shall h deemed , alld fr all prpoe, (e) Bargaining directly and individually with employ- ees represented for the purpose of collective bargaining by any labor organization. (f) Unilaterally discontinuing payments to health, wel- fare, and pension funds, or any other fund maintained for the benefit of employees where such payments are re- quired to be made by provisions of a collective-bargain- ing agreement with any labor organization. (g) Unilaterally changing wages, rates of pay, hours, or any other term or condition of employment of em- ployees in units represented for purposes of collective bargaining by any labor organization. (h) Failing or refusing to recognize Teamsters Local Union No. 677, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All truckdrivers employed at its Derby and Sey- mour, Connecticut, facilities, excluding production and maintenance employees, office clerical employ- ees, guards, and supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended. Or failing or refusing, upon request, to bargain with Teamsters Local Union No. 677, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America respecting wages, rates of pay, hours, or other terms or conditions of employment of its employees in the aforesaid appropriate unit. (i) Failing or refusing to recognize International Union of Operating Engineers, Local Union No. 478 as the ex- clusive collective-bargaining representative of its em- ployees in the following appropriate unit:Q04 All production and maintenance employees em- ployed at its Derby and Seymour, Connecticut, fa- cilities, excluding truckdrivers, office clerical em- ployees, guards, and supervisors as defined in Sec- tion 2(11) of the National Labor Relations Act, as amended. Or failing or refusing, upon request, to bargain with In- ternational Union of Operating Engineers, Local Union No. 478 respecting wages, rates of pay, hours, or other terms or conditions of employment of its employees in the aforesaid appropriate unit. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended. or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment in conformity with Section 8(a)(3) of the Act 2. Take the following affirmative action which, it is found, will effectuate the policies of the National l.abor Relations Act, as amended: B .N .B E A R D C O M P A N Y 2 1 5~ ~ ~ ~ ~ ~ ~ 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to George Biancarelli immediate and full re- instatement to his former job, without prejudice to his seniority or other rights or privileges and make him whole, in the manner set forth in the section of this De- cision entitled "The Remedy," for any loss of earnings he may have suffered by reason of his unlawful dis- charge. (b) Upon their unconditional application to return to work, offer strikers immediate and full reinstatement to their former jobs, without prejudice to their seniority or other rights and privileges, discharging, if necessary, em- ployees hired as their replacements, and make whole, in the manner set forth in the section of this Decision enti- tled "The Remedy," any striker not immediately offered reinstatement upon his unconditional application there- for. (c) Pay to employees performing services covered by its collective-bargaining agreement with Teamsters Local Union No. 677, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica or by its collective-bargaining agreement with Inter- national Union of Operating Engineers, Local No. 478, who on or after April 11, 1977, were compensated for their work at rates of pay or wages lower than those set forth in the aforesaid collective-bargaining agreements the difference between the wages they would have earned had they been paid at the wage rates provided for in the aforesaid collective-bargaining agreements and the wages they actually received with interest upon the dif- ference computed in the manner described in the section of this Decision entitled "The Remedy." (d) Pay to the IBT Local 677 Welfare Fund the con- tributions withheld from said Fund since December 1976 with interest computed in the manner set forth in the section of this decision entitled "The Remedy." (e) Pay to the Hoisting and Portable Engineers Wel- fare Fund, Local 478 and its branches, IUOE, and to the Hoisting and Portable Engineers Pension Fund. Local 478 and its branches, IUOE, the contributions withheld from said Funds since December 1976 with interest com- puted in the manner set forth in the section of this Deci- sion entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (g) Notify Teamsters Local Union No. 677, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, in writing, that it is again the recognized exclusive collective-bargaining rep- resentatives of the employees in the appropriate unit de- scribed above in paragraph (h) of this Order. (h) Notify International Union of Operating Engineers, Local Union No. 478, in writing, that it is again the rec- ognized exclusive collective-bargaining representative of the employees in the appropriate unit described above in paragraph l(i) of this Order. (i) Upon request bargain with Teamsters Local Union No. 677, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining representatives of the employees in the appropriate unit described above in paragraph l(h) of this Order respecting wages, rates of pay, hours, or other terms and conditions of employ- ment, and if an understanding is reached, embody such understanding in a signed agreement. (j) Upon request bargain with International Union of Operating Engineers, Local Union No. 478 as the exclu- sive collective-bargaining representative of the employ- ees in the appropriate unit described above in paragraph l(i) of this Order respecting wages, rates of pay, hours, or other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (k) Post at at its premises in Derby and Seymour, Con- necticut, copies of the attached notice marked "Appen- dix A." 57 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent or its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (1) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDREID that paragraphs 8(d), 9(a), 9(b), and 10 of the complaint be, and the same hereby are., dismissed. i 1 te ItClt lha.l hi, Order I, clnftlrced h?\ I Judgmenti of i tnited Slillr' Co rl of Appeal, Ihe \ ords i the lotice reading "Po,sted hb order of tlh National labor Relationils oard" hall read "Posled P'ursu- ,ll to . Judgmlltrll of the t oLilcd S1alte, (ltolrt of Appeails Inforcii g all ()ilcr ot Ihc Natiollal i[ aIhr Relitlns Board " B. N. BEARD COMPANY EXIIBIT B B. N. BEARD OMPANY mployees Wbrkinl From 1/77 Thru 4/14/77 217 Name Adams, Kenneth (OE) *Barancwsky, Nick (T) *Biancarelli, George (T) Cardinal, Raymond Clarke, Thcmas Dorman, Richard *Dickerson, Larry (T) *Eye, Charles (OE) Hall, Odell (L) Hall, Vernon (L) Haskins, Lawrence Hayden, John (Quit 1/29) *LaRowe, Charles Legassie, Richard Little, Alan (T) Lubera, Stanley Maloney, Edward (T) *Markey, Davis (T) Moir, Floyd Moir, John (OE) *Murhamer, Francis (T) Parker, Robert, Sr. (OE) Pison, Gerald (OE) Pitt, John (OE) Rhodes, Charles (OE) *Sanzo, Anthony (T) Steeves, Charles (T) (Fired 4/7) Stewart, Jerry (OE) Whittaker, Robert (OE) *Laid-off employees. Date Hired 4/73 It II II IF 4/11/77 II II 4/12/77 4/77 I, lf 4/8/77 II I 8/76 4/73 12/76 4/12/77 4/73 IF II I! II II II II II II II II II II ii 9/74 4/73 II II 11/75 11/75 Job Asphalt Truckdriver Truckdriver Truckdriver Truckdriver Operator Truckdriver Operator Laborer Laborer Mechanic Truckdriver Truckdriver Truckdriver Truckdriver Laborer Truckdriver Truckdriver Laborer operator Truck driver Loader Operator Mechanic Plant Operator Welder Truckdriver Truckdriver Mechanic Laborer Rate 9.09 7.51 7.51 6.00 6.00 6.00 7.51 9.96 4.00 4.00 4.50 7.71 7.51 6.00 7.51 4.00 7.07 7.51 5.25 9.96 7.51 8.69 9.09 7.96 8.42 7.51 7.51 8.42 4.50 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eployees Working as of May 12, 1977 Date Hired Name Job Rate 6.00 8.00 6.00 7.00 6.00 6.00 6.00 4.00 4.00 5.00 6.00 6.00 4.00 8.50 4.00 6.00 6.00 4.50 Baranowsky, Nick Bennett, John Cardinal, Raymond J. Charett, Richard T. Clarke, Thomas E. Dorman, Richard L. Ginicola, John J. Hall, Odell Hall, Vernon Haskins, Lawrence LaRowe, Charles Little, Alan Lubera, Stanley Moir, John Nelson, Leonard Oakman, Leslie R., Jr. O'Neal, Edward V. Whitaker, Robert 4/11/77 4/14/77 4/1/77 5/9/77 4/11/77 II of 4/8/77 7/76 5/76 6/73 1974 4/20/77 4/14/76 5/1/77 4a/1/76 Truckdriver Operator Truckdriver Welder Truckdriver Operator Truckdriver Laborer Laborer Mechanic Truckdriver Truckdriver Laborer Operator Laborer Mechanic Operator Laborer