Burlington Roadbuilders, Inc.

$URLINGTON ROADBUILDERS, INC. 77'9j WE WILL NOT maintain`aild enforce-clauses in any collective-bargaining agree- ment with that Association, or with any other employer over whom the Board would assert jurisdiction, that grants preferential treatment to employees or applicants for employment based upon prior experience -covered by contract between us and such employers. WE WILL NOT deny to nonmember applicants for employment opportunity to take our journeyman's examination where such examination is a factpr for orderly referral to employment out of our hiring hall. WE WILL NOT in any other manner restrain or coerce employees of, or appli- cants for employment with, members of Mercer County Division, New Jersey Chapter, National Electrical Contractors Association, or any other employer over whom the Board would assert jurisdiction, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent permitted by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL keep permanent records of our hiring and referral operations which will be adequate to disclose fully the basis-on which each referral is,made. WE WILL, upon request of the Regional Director of the National Labor Rela- tions Board, or his agents, make available for inspection, at all reasonable times, any records relating in any way to the hiring and referral system. LOCAL UNION No. 269, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated------------------- By--- ----------------------------_---------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. Burlington Roadbuilders, , Inc. and Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Team- sters, Chauffeurs, Warehousemen, &' Helpers of America; Local 649, International Union of Operating Engineers, AFL- CIO; and Local 992, International Hod Carriers , Building & Common Laborers Union of America, AFL-CIO and District 50, United Mine Workers of America, Party to the' -Contract. Cases Nos. 13-CA-5964, 13-CA-6012, and 13-CA-6075. Noven2- ber 18, 1964 DECISION AND ORDER On August 19, 1965, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to these allegations. Thereafter, Respondent filed exceptions to the Decision and a supporting brief and the General Counsel filed a reply brief. 149 NLRB No. 75. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, includ- ing the exceptions and briefs, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, except as mod- ified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner, and orders that Respondent, Burling- ton Roadbuilders, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order,, with the following modifications : Paragraphs 1(c), (d), (e), (f), and (g) shall be redesignated as paragraphs 1(d), (e), (f), (g), and (h). A new paragraph 1(c) shall be added and shall read : "Recognizing District 50, United Mine Workers of America, as the representative of any of its employees for the purpose of dealing with said labor organization concerning grievances, labor disputes, wages, hours of work, or other terms and conditions of employment, until after it has complied with the provisions of this Order requiring it to bargain with Chauffers, Teamsters & Helpers Local Union 15, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen ' & Helpers of America, and Local 649, International Union of Oper- ating Engineers, AFL-CIO, and unless and until said District 50, United Mine Workers of America, has been certified as such repre- sentative by the Board." Paragraph 2 (a) is amended to read as follows : "Withdraw and withhold recognition from District 50, United Mine Workers of America, as representative of any of Respondent's employees for the purpose of contracting, or negotiating or other- wise dealing with the respondent with respect to wages, rates of pay, or any other terms or conditions of employment, both until it has complied with the provisions of this Order requiring it to bargain with Chauffeurs, Teamsters & Helpers Local Union 15, International 'In its brief, the General Counsel requests that Respondent be ordered to execute the Operating Engineers' contract which , the General Counsel asserts, Respondent had agreed to sign. Respondent's motion to strike this request from the brief has no merit and is hereby denied. However, the General Counsel's requested remedial provision is inappropri- ate for, as is clear from the Trial Examiner's Decision, the Respondent engaged in dilatory tactics after receiving the Operating Engineers ' proposed contract and never agreed to its terms. , BURLINGTON ROADBUILDERS, INC. 793 Brotherhood of Teamsters, Chauffers, Warehousemen & Helpers of America, and Local 649, International Union of Operating Engi- neers, AFL-CIO, and unless and until said District 50, United Mine Workers of America, shall be certified as such representative by the Board." The sixth substantive paragraph- of the Appendix is amended to read as follows : WE WILL withdraw and withhold all recognition from District 50, United Mine Workers of America, as the representative of any of our employees for the purpose of dealing with us with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, until after we ,have bar- gained with Chauffeurs, Teamsters & Helpers Local Union 15; International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, and Local 649, International Union of Operating Engineers, AFL-CIO, and will not there- after recognize said organization as such representative unless and until it has been certified as the representative of our employees by the National Labor Relations Board. Add the following paragraph 2(e) .of the Trial Examiner's Recom- mended Order, and renumber the following paragraphs accordingly : "Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On October 24, 1963, Chauffeurs, Teamsters & Helpers Local Union 15, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter referred to as Teamsters , filed the charge in Case No. 13-CA-5964. On November 2 , 1963, Local 649, International Union of Operating Engineers , AFL-CIO, hereinafter referred to as Engineers, filed the charge in Case No. 13-CA-6012. On December 11, 1963, Local 992, International Hod Carriers, Building & Common, Laborers Union of America, AFL-CIO, hereinafter ' referred to as Laborers, filed the charge in Case No. 13-CA-6075. By order, dated March 3, 1964, of the Regional Director for Region 13, said cases were consolidated for hearing . Upon the aforesaid charges the consolidated complaint herein was issued on March 3, 1964. Said complaint , as amended during the course of the hearing ,' alleges that the Respondent, hereinafter referred to as New Burlington,2 violated Section 8 (a)(1), I The complaint was amended by changing the name of "Samuel Scott Coggeshall , Sr ,'." to "Samuel Scott Coggeshall , Jr.," In paragraphs V and VI. Paragraph X(a) of the e0111_ plaint was amended to add the word "mechanics" after the word "warehousemen " Para- graph XIV was amended by changing the number of three of the paragraphs referred to; therein, "VI(a)" to "VI," "VI (b)" to "VII (a)," and "VII" to "VII(b)." ---- --- - 2 As will be, discussed more fully hereinbelow another corporate entity, bearing the same name - as the Respondent and hereinafter . referred to as Old^Burlington, was dissolved, and Respondent acquired its name . In order to distinguish between the two corporate entities, throughout the record the prior corporation was referred to as Old Burlington and the Respondent as New Burlington. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2), (3), and (5) of the National Labor Relations Act, as amended. Respondent in. its answer, as amended during the hearing,3 denied that it committed the unfair labor practices alleged and that the units described in paragraph X of the complaint are appropriate for the purposes of collective bargaining within the meaning of the Act. Respondent also denied that the Teamsters represented the employees in the unit described in paragraph X(a) of the complaint and that the Engineers represented the employees in the unit described in paragraph X(b) thereof. Pursuant to notice, a hearing was held on April 7, 8, 9, and 10, 1964, at Carthage, Illinois, before Trial Examiner Stanley Gilbert. At the close of the hearing, oral argument was waived. Within the time designated, therefor, briefs were submitted by the General Counsel and Respondent. Upon the entire record herein, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation with facilities located at Carthage, Illinois, has been since March 4, 1963, engaged in the business of road construction. During the 12 months preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000 on highways located in Iowa and Missouri. As is conceded by the Respondent, it is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED As is conceded by the Respondent, the Teamsters, the Engineers, and the Laborers are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Relationship Between Old Burlington and New Burlington General Counsel contends that for the purposes of this proceeding New Burlington should be considered as the "successor" of Old Burlington. Old Burlington, a former Illinois corporation with the name of Burlington Road- builders, Inc., was engaged in the business of road construction with facilities in the city of Carthage, Illinois, from at least 1950 until about the end of February 1963. Norman Sippel and William S. Howard owned all the stock in Old Burlington during a considerable period immediately prior to its dissolution and were officers and directors. Loy M. Lovitt, although not a shareholder, was secretary of the corporation and a director. Charles L. Bower, president of and a stockholder in Respondent, was, prior to February or March 1963, a salesman of heavy road construction equipment. On occasions during the several years prior to 1963, he talked to Sippel about the sale of Old Burlington. On or about the beginning of 1963, their conversations with respect to such a sale became more serious. Sippel offered to sell to Bower all of the stock in Old Burlington (his and Howard's), which offer was declined by Bower. However; Bower did agree to buy the real estate and equipment on behalf of a corporation which was to be formed. On February 28, 1963, a certificate of incorporation was issued to Respondent as Carthage Roadbuilders, Inc. (hereinafter referred to as Carthage), pursuant to articles of incorporation signed on February 27, 1963, by Bower, Samuel Scott Coggeshall, Jr., and Samuel Scott Coggeshall, Sr. On February 27, 1963, at a special meeting of the stockholders of Old Burlington, a resolution was adopted transferring all the real estate and personal property of that corporation to its shareholders (Sippel and Howard) as a liquidating dividend. Also on that same day, February 27, Sippel and Howard executed a warranty deed to Carthage conveying the realty which they received from Old Burlington as a liquidating dividend. On March 4, 1963, this deed was delivered to Carthage, as well as a bill of sale executed on March 4, 1963, by Sippel and Howard for the personalty of Old Burlington which they had received from By amendments to its answer, Respondent admitted the allegation that Coggeshall was its supervisor and agent, and denied the allegation that Loy M. Lovitt was its supervisor and agent. BURLINGTON ROADBUILDERS, INC. 795 its liquidation.4 On the same day, March 4, Respondent engaged the services of the four employees who had been working in the shop (conveyed by the aforesaid deed) and of Lovitt. It appears that there was no break, in terms of time, in the employ- ment of Lovitt and the four men in the shop (Lester Webster, William Williams, Harlan Duffy, and William Twitchell). Webster testified that on March 4, Bower told him and the other three in the shop that he "had bought the company" and would continue operations as they had been "in the past for the first year." 5 The four employees continued to work in the shop doing the same work as they had been doing prior to March 4 and at the same wage rates they had been receiving. Lovitt, who was hired as a bookkeeper according to Bower's testimony, continued to work in the office. However, he did not become an officer or a director of Respondent.6 Sippel's services were also engaged by New Burlington. Both Sippel and Bower testified that he was to be paid a weekly salary to be paid "when I was working," according to Sippel, and "when he was there," according to Bower. Both also testified that he was "away" for considerable periods of time for which he was not paid. How- ever, the payroll records of Respondent from March 4 to November 3, 1963, disclose that Sippel earned $145 a week for every week during that period, $5 a week less than Bower and $20 a week more than Lovitt. Both Sippel and Bower were vague in their testimony as to what services Sippel was to perform, or did perform, for such remuner- ation except to aid Respondent in obtaining financing and to give advice. On March 14, 1963, Bower went to Springfield, Illinois, where he filed with the secretary of state articles of dissolution of Old Burlington and an amendment to Carthage's articles of incorporation changing its name to Burlington Roadbuilders, Inc., and received certificates of the dissolution and amendment. The name Burling- ton Roadbuilders, Inc., was never changed on the buildings or trucks acquired by Respondent, and Respondent used the printed forms of the former corporation, includ- ing its bank checks. Bower testified that differences between Old Burlington and New Burlington were that New Burlington had a new bonding company and a new bank. However, Lovitt, who was called by Respondent as a witness, testified that New Burlington used Old Burlington's checkbooks and that New Burlington maintained an account in one of the two banks used by Old Burlington. As the construction season commenced early in May, New Burlington employed additional men for its construction crews. Although Bower testified that previous employment by Old Burlington was not a criterion in hiring such personnel, it appears that most of those employees who were hired had previously worked for Old Burling- ton. For example, Lovitt testified that all of Respondent's employees during the workweek from May 13 to 19, 1963, had previously been employed by Old Burlington. Not counting Lovitt, Respondent had 16 employees on its payroll for that week. An additional factor bearing on the issue of successorship, according to the General Counsel, is Bower's admission that New Burlington completed a job (the "Henderson job") for which Old Burlington had successfully bid, but had not completed. Bower testified that approval was required for the takeover and that he obtained it verbally. Old Burlington's Relationship With the Teamsters and Engineers According to Sippel's testimony, Old Burlington had a collective-bargaining rela- tionship with the Teamsters extending over a period of approximately 15 years. In 1960 Old Burlington entered into an agreement with the Teamsters raising the wage scales of the people who worked in the shop during the winter months. In May 1961, Old Burlington agreed to check off dues for the Teamsters and did do so thereafter. 4 It appears that Sippel and Howard retained the accounts receivable, and it is inferred that Carthage did not assume any of the obligations of Old Burlington 6 Williams testified to a similar statement by Bower. Although Bower denied making such a statement, his denial is not credited. By reason of his demeanor while testifying, lack of candor, inconsistencies and changes in his testimony, and contradiction in several instances of his testimony by other of Respondent's witnesses and by certain of General Counsel's exhibits (to which references will be made), Bower was not a convincing witness. 6 Although the complaint and answer raised the issue of whether Lovitt was a super- visor and agent of Respondent, it does not appear necessary to resolve this issue, since there is no evidence that he engaged in unlawful interrogation, as alleged, and, at most, he played only a minor role in Respondent's efforts to induce its employees to become members of District 30, United Mine Workers of America, as alleged. Furthermore, as to the latter allegation, even if it were determined Lovitt was a supervisor and the testi- mony of General Counsel's witnesses as to Lovitt's conduct were credited, it would not alter or add anything to the results arrived at hereinbelow. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Old Burlington entered into a collective-bargaining agreement with the Engineers, which by its terms extended from May 1, 1961, to April 30, 1963. Sippel further testified that Old Burlington's employees were paid the rates agreed upon with the Teamsters or the Engineers, depending upon the work they performed, i.e., depending upon whether the various jobs each performed came within the classifications falling within the jurisdiction of one or the other of the unions. The Units Claimed by Teamsters and Engineers It is alleged in the complaint that the Teamsters represented an appropriate bar- gaining unit described as follows: All drivers of trucks and heavy transportation equipment, truckdrivers' helpers, warehousemen, mechanics, mechanics' helpers, greasers, and tiremen of the Respondent in or around Carthage, Illinois; but excluding office clerical employees, technical employees, engineers, bookkeepers, guards, and supervisors as defined in the Act and all other employees. It is further alleged that the Engineers represented an appropriate bargaining unit described as follows: All employees engaged in the operation and maintenance of hoisting and portable machinery and engines used on open and heavy construction work, and of machinery, engines, motors, boilers, and pumps used as asphalt or blacktop mixing plants of the Respondent in or around Carthage, Illinois; but excluding office clerical employees, guards, and supervisors as defined in the Act and all other employees. It appears that Old Burlington's bargaining relationship with the Teamsters and the Engineers involved similarly described units of its employees.? The General Counsel contends that the above-described units were appropriate collective-bargaining units, that Respondent, as successor to Old Burlington, was under an obligation to recognize and bargain with said Unions with respect to said units, that it did, in fact, recognize and bargain with said Unions. That it did not, however, sign contracts with said Unions as requested, and that it unlawfully recognized and entered into a contract with District 50, United Mine Workers of America (hereinafter referred to as District 50), as bargaining representative of all, employees including those in the units described New Burlington's Relationship With the Teamsters and Engineers When New Burlington commenced operations on March 4, according to the testi- mony of Webster and Williams, Bower told them that the "company" would be run as it had been before for the first year. Bobby Ferrell testified that, about the first part of April, he had a conversation with Bower in which he told him that he had heard that the Company had changed hands and "wondered what his position would be" to which Bower replied "there would be no change." He further testified that he said to Bower "he was one of the old employees in seniority and generally one of the first called back when the work started in the spring of the year" and that Bower assured him that was the way it would continue to be.8 Ferrell commenced working for Respondent, according to its payroll records, on May 6, 1963, the first week for which employees were hired in addition to those whose services were retained on March 4, 1963. New Burlington continued to check off dues for the Teamsters and remitted the amounts collected to the Teamsters. Bower testified that the checkoff was not based on the old checkoff authorizations, that Respondent was instructed by the employees to check off their dues, but that he did not know if the instructions were oral or in writing. Lovitt testified that no written authorizations were received by New Burling- ton, that he "never even thought about" asking for written authorization, that he did not think it was necessary. Employee Billy Walton testified that on the day he went to work he asked Lovitt about his Teamsters dues and that Lovitt told him that the checkoff would be continued. 7It appears that neither Old nor New Burlington had employees in all of the job classi- fications described in the units. 8 Bower denied the above testimony of Williams, Webster, and Ferrell. Since they were more convincing witnesses than Bower, whose testimony, as above indicated, is deemed to be unreliable, Bower's denial is not credited. In quite a few instances Bower's testimony was contradictory to that of other witnesses. In each instance where such contradiction occurred and Bower's testimony is not credited it will be so indicated without the need- lessly frequent repetition, however, of the reasons that Bower's testimony is not considered to be reliable. BURLINGTON ROADBUILDERS, INC. 797 Ray Carpenter, business representative for the Teamsters, testified that early in March 1963 he stopped off at New Burlington's place of business in Carthage on a periodic checkup and was talking to one of the employees when Bower came up to him, that Bower asked him for a copy of the standard contract, that he gave him a couple of copies, and that Bower said that he wanted.to look them over, that "he was new at this business," and that there might be some questions he would want to ask. To continue with Carpenter's testimony, Carpenter told Bower to look the contract over, that he would try to answer any questions he had, and that he wanted Bower to sign a copy of the contract. Carpenter further testified that Bower stated to him that his partner, Coggeshall, had "had trouble with the Teamsters" in his plant at Macomb and that he wanted to inform Carpenter that he (Bower) would be running New Burlington, that Coggeshall would not have anything to say pertaining to its opera- tions, that if there was any grievance "to come to him and not go out and shut the job down." According to Carpenter's testimony, Carpenter assured Bower that that was the way the Teamsters operated and that the Union would follow the procedures of the contract. Carpenter further testified that Bower stated to him "that there would be no change from the other company, that it [New Burlington] would be running just the same as it [Old Burlington] had been," and "that he would use the same employees that the Old Burlington had been using." According to Bower's testimony as to this incident, Carpenter merely handed him a copy of the contract, told him to look it over, and he would be back later. As has been above indicated, Bower was not a convincing witness. On the other hand Carpenter's testimony was inherently credible and his demeanor convincing. Furthermore, employee Harlan Duffy cor- roborated his testimony. Therefore, Carpenter's testimony is credited. Howard C. Lance, assistant business representative of the Engineers, Carpenter, and Bower testified as to conversations they had at a restaurant in Macomb, Illinois, around May 9, 1963. Lance testified that Bower told him that he wanted to con- tinue operating New Burlington as Old Burlington had been operating, that he told Bower that the Engineers had had a contract with Old Burlington, that a new contract had been negotiated with the Western Illinois Contractors Association, AGC, but that it was at the printers, that he told Bower what changes had been made in the old con- tract, and explained how the health and welfare fund operated and to what office New Burlington should send its "contribution." Lance further testified that he told Bower that he would mail two copies of the new contract to him, that he should sign one and retain the other, and that Bower told him he would do so. Lance also testified they discussed the types of equipment and the employees of Old Burlington who had operated them and that Bower said they "would get together on our referral system and get these people properly cleared." Carpenter testified that he had a conversation with Bower on that occasion after Lance had finished talking with Bower. Carpenter testified that Bower told him that "we are using the same employees ... Burlington used last year," that he mentioned the names of some of the employees who "would be going out" on the next construc- tion job, and that he assured Bower that "they were all right, as far as he was con- cerned [since] they were all members and worked previously with the Company." Bower admitted to talking to Lance and Carpenter on that occasion, but denied that there was any reference made to either of the Unions or to his employees. The testimony of Lance and Carpenter is credited. Both were convincing witnesses, whereas, as has been previously indicated, Bower was not. Furthermore, it is difficult to believe that the three men could have engaged in a conversation of any length with- out making any reference to the relationship between the Unions and New Burlington, whether their meeting had been prearranged or not .9 Lance testified that, about a week after his conversation with Bower in the restaurant, Bower called the Engineers' office in Peoria and "cleared" with him certain employees to start working on a construction project in Vermont, Illinois.10 He further testified that around the end of May he mailed copies of the new contract to New Burlington. Shortly thereafter, according to Lance's testimony, when he again cleared some employees, he asked Bower about signing the contract and Bower told him that he had not had a chance to look at it. Lance and Hewlee McCormick, busi- ness manager of the Engineers, testified that they called upon Bower about the first of July, requested a signed agreement, and Bower said he had the contract in the desk, 9 Bower testified that it had not been prearranged. Carpenter testified that Lance in- formed him that he had an appointment to meet Bower and invited him along. Lance's testimony did not indicate whether the meeting had or had not been prearranged. "William H. Williams testified that Bower informed him that representatives of the Teamsters and the Engineers would be at the Vermont job to clear the men, but that he did not see them at the lobsite. Bower denied making such a statement, but his denial is not credited. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he wanted to go over it with Coggeshall, and that he would send it in after Coggeshall and he went over it. Bower denied that he had ever cleared any employees with the Engineers or ever called that Union's office , He admitted that he saw Lance and McCormick around the first of July,'but testified that they merely asked him if he had looked over the contract, that he replied in the negative, and that nothing else was said. Lance's testimony with respect to the clearance of employees and the testimony of Lance and McCormick as to their conversation with Bower on or about the first of July are credited. , Donald C. Mohn, assistant representative of the Engineers, testified that on Octo- ber 2 Bower called the Engineers' office in Peoria and asked that two men be cleared, that he asked Bower if he was going to sign the contract, that Bower said that at the first of the year he was going to join the AGC, that he replied that the Engineers did not want to wait, that Bower said that he would take care of it, and that he cleared the two men for Bower. Mohn's testimony was denied by Bower, but it is credited. The record discloses that on October 18, 1963, McCormick called Respondent's office and talked to Lovitt, that he requested to speak to Bower, that Lovitt said that Bower was out of town, and that he asked Lovitt to give him a message that the Engineers wanted a signed agreement from Bower by the following Monday. Bower testified that he received the message. McCormick further testified that on October 20 he called Bower and stated that he had heard that New Burlington was going to enter into a contract with District 50, that Bower replied that it was true and he asked Bower if he discussed taking such action with Art Woodward of the AGC, and that Bower said he had and Woodward told him "it was legal enough." Bower testified that he had received a telephone call from McCormick on October 20, that McCor- mick asked him when he "was going to get that contract in," that he replied that he "wasn't because it didn't represent all of our employees," and that that was the full content of their conversation. McCormick's testimony as to what was said during their conversation is credited. Carpenter testified that around the first of July he met Bower and asked him if he had signed the Teamsters' contract, that Bower told him he did not even have a copy of it anymore, that he gave Bower another copy and told him that he wanted it signed, that Bower replied he had not had time to look it over, that he told Bower he had had plenty of time, that Bower replied he would check it over, and that he wanted more time. Carpenter also testified as to a conversation with Bower in September 1963 in which he again asked him about signing the Teamsters' contract and again Bower said that he had not checked it over. Bower testified that on two occasions Carpenter asked him to sign the contract, that on the last occasion, which was in late summer, he informed Carpenter he would not sign because it "didn't cover all my employees." Respondent's Actions With Respect to District 50 Bower testified that, in May 1963, Frank Weistart, a representative of District 50, came to his office and stated that he would like to talk to the employees. Bower told him that it would be difficult to talk to them, since they were out on construction jobs, that Respondent was having a dinner for the employees on June 8, and that "if he wanted to talk to the employees he could attend the dinner." The dinner was held on that date and about 15 to 20 employees were present. Also present were Bower, Coggeshall, Sippel, Lovitt, and Weistart. There is little dispute as to what occurred at the dinner. Bower spoke first and introduced himself, Cogge- shall, and Weistart. Bower stated that Weistart had something interesting to say to them (the employees) and asked that they listen to him. He also stated'that District 50 embraced all crafts which would be an advantage not only to the Respondent, but also to the employees. 'Weistart also spoke to the employees and then answered questions they raised. There is a dispute in the testimony, however, as to whether Bower, Coggeshall, Sippel, and Lovitt were present at the time Weistart spoke. Bower testified that he, Coggeshall, Sippel, and Lovitt 11 left the room after he (Bower) introduced Weistart and were not there during Weistart's speech. On the other hand, Coggeshall testified that he, Bower, and Sippel left when the men started asking questions of Weistart, which is consistent with the testimony of General Counsel's witnesses. They testified that Bower, Coggeshall, and Sippel left after Weistart's speech, ie., when the employees started asking questions of Weistart. It is, therefore, found that all four (Bower, Coggeshall, Sippel, and Lovitt) were present during the time Weistart delivered his speech setting forth the advantages of the employees being "There is a conflict in the testimony as to whether Lovitt was in the room after the other three left. However, this conflict is not resolved inasmuch as his presence or lack of presence appears to be of little significance . ( See footnote 6, supra.) BURLINGTON ROADBUILDERS, INC. - 799 represented by Dstrict 50.12 It appears that during the course of the discussion with Weistart after his speech none of the employees present indicated he was in -favor of having-District 50 represent them and those who did indicate their sentiment stated that.they were opposed to District 50. Bower testified that a few days after the dinner Weistart called on him and asked "if he could get me to go along with" District 50 and that he told him he was not interested. However, Bower also testified that a few days after this conversation with Weistart, he talked to seven or eight of the employees individually and asked them what they thought about having District 50 represent them, but denied that he ex- pressed "any feeling with respect to District 50." Employee Lester Webster testified that about 3 weeks after the dinner, Bower had a conversation with him in which Bower pointed out advantages that would accrue to Respondent and the employees if they were represented by District 50; and that he told Bower, he was not interested, ,and "was satisfied the way we had been working." Bobby Ferrell testified that in Au- gust Bower told him he had to "sublet a job at Rushville, because of the fact that it out of our Local's 13 jurisdiction, and-that if we had been District 50, we could have moved in and took the job." Bower denied making this statement to Ferrell, but his denial is not credited. Ferrell further testified to another conversation with Bower in early October in which Bower stated to him that "the working [the construction season] was about over, that if we were in District 50, he could bid more jobs and all of us would have more work." Billy Walton testified as follows to a conversation he had with Bower in the middle of the summer: He wanted to know if I had given any thought to joining District 50, it was looking to him more like very day that we were going to have to do something, we were going to have to change the way things were going. I told him I had not given it that-I told him that I had not given it any thought, I did not want to join District 50. Walton also testified to a-conversation with Bower in early October in which Bower asked him if he "had thought it over any more since he asked me before ... about joining District 50," and that he replied that he "still did not want any part of it." As has been previously stated, on October 18, 1963, Bower received a message that the Engineers insisted that a signed contract be in that Union's office on Monday, October 21. On Friday, October 18, five employees were told to report to work the following day to finish up "the Denver-Plymouth road job." They were unable to work on October 19 because of wet conditions. Bower was notified of their inability to work and came to the site. There is a conflict in the testimony as to what he stated to the employees when he arrived. Lester Webster, William Twitchell, Billy Walton, Albert Simmons, and Bobby Ferrell were present. Webster testified that Bower said, "You are officially or unofficially fired or laid off, whichever you see fit," and that "he had been advised by his attorneys to shut the job down, that he was going to be struck by the operators [Engineers] on a [the following] Monday morning," and that "he wanted everything moved off the job that we could ... that he didn't want anyone on his -payroll" in accordance with advice from his lawyers "so that he would have more negotiating power at this meeting [ostensibly with the Engineers]" on Monday. The testimony of Ferrell and Walton is substantially corroborative of that of Webster. Twitchell, who returned to-work on October 22, was called by Respondent as a witness and testified that Bower told the men they were laid' off, that there was no further work for them "at this time." However, it is not clear whether his testi- mony can be construed as a denial that Bower made the statements attributed to Bower by Webster, Walton, and Ferrell. Bower testified that he told the men "we were out of work" and that he said nothing else.14 The testimony of Webster, Ferrell, and Walton is credited.15 In the light of other action that Bower took and his own testi- mony, it appears that Bower did intend to have no one on his payroll as of October 21, la As an example of Bower's lack of candor as a witness , he testified that he did not know what Weistart "was going to talk to them [the employees ] about." is Although in the transcript the word is in the singular, i.e., "local's," in the context of other of Ferrell's testimony it is clear the word should have been in the plural and was intended to refer to the Teamsters and the Engineers. 14 Respondent does not contend that the men were laid off in anticipation of a strike being called by the Engineers, but because there was no work for them. ' It is noted that on another point Twitchell's testimony was contradictory to that of Bower. Bower testified that he supervised "the Missouri job" upon which Twitchell and two others were working, and that he, Bower, visited the job six or seven times. On the other hand, Twitchell testified that he never saw Bower at the Missouri job. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at'least no -one represented by the Teamsters and Engineers .15 Webster further testi- fied (which testimony is credited ) that later on the morning of October 19 he'asked Bower if he had District 50 in his mind, that he. (Webster ) wanted "no part of it," and that Bower replied, "That is the last thing from my mind ." (However, on the next day Bower called Weistart and arranged to meet with him for the purpose of recognizing District 50.) Harlan Duffy testified on October 19, Bower stopped by his house and told him he was laid off and he would let him know when he was coming back to work and that he, Bower; was' going to negotiate with the Engineers. Bower testified Duffy was,laid off on the 18th and he was not at work on the 19th . However, Bower did not testify as to when Duffy -was notified he was laid off. On the other hand, Bower testified Williams was told on the 19th that he was laid off effective on the 18th . Williams testified that the last day he worked was October 18, and, on October 19, "I was called to the shop and turned,in my timesheet and other papers I had and was told that I was fired, laid off legally; illegally, however I wanted to take it " He further testified it was Bower who told him this, and that Bower also stated, "By advice of his attorney, he didn't want anyone on his payroll Monday morning ." The testimony of Duffy and Williams as to Bower's action with respect to their employment status is credited. Bower testified that, although Respondent 's employment records show that the last day William Reed worked was October 18, he believed Reed was laid off at the Plymouth-Denver job on the 19th. It appears Reed was not among those on said job on Saturday, October 19. Reed was not called to testify and the record does not dis- close what action, if any, Respondent took with respect to Reed's employment . There- fore, it is concluded that Reed was in a layoff status as of the end of the day of October 18, 1963. On Sunday, October 20, Bower called Weistart and arranged to meet with him the next day in Springfield, Illinois, for the purpose of recognizing and bargaining with District 50. Bower testified that he had heard or read sometime prior thereto that, if all of Respondent's employees were laid off, it would be appropriate for Respondent to recognize and bargain with District 50. He further testified that all of Respondent's employees; with the exception of Lovitt , were laid off on October 19 , and that he might have stated that fact to the representatives of District 50 when he met with them. Such was his testimony on the first day of the hearing when he was called as a witness by General Counsel. However, on the fourth day of the hearing when Bower was called by Respondent's counsel to testify, it was his testimony that Respondent had four or five employees (other than those he had laid off on Octo- ber 19 ) on its payroll continuously from October 19 through the rest of the month. When asked by Respondent's counsel whether or not he recalled testifying preyiously that only Lovitt was on Respondent 's payroll as of October 21 , Bower responded that he did not recall so testifying. Respondent's payroll records which were received in evidence late in the hearing indicated that there were four men (not including Lovitt or those laid off on October 19) who worked on October 21 and whose employment continued through November 1 (the last regular workday covered by said records). According to the payroll records, Twitchell did not work on October 21 , but returned to work on October 22. Bower testified he laid off Twitchell on October 19 and recalled him on the evening of October 21. In a letter to the Board , signed by Bower, dated October 28 , 1963, Respondent implied that Twitchell was the only man on its then current payroll and stated that he (Twitchell ) had designated District 50.as his bargaining representative and that it had signed a contract with District 50.17 The letter made no reference to any other employee's choice of a bargaining representative or to the existence of other employees . Bower further testified that, as of October 21, none of his employees had signed an authorization card for District 50. "'As indicated hereinbelow, Bower's testimony contains contradictions as to whether Respondent had any employees on its payroll on October 21, but it demonstrates that he believed that it was appropriate to sign a recognition agreement with District 50 on that date because of the layoff of the seven employees on October 19. 17 The following is an - excerpt from said letter: 2-Wm V. Twitchell who is • presently & for past years a member of the above Local No 15 [Teamsters ] is on our current payroll. During the past year this man has been employed approximately 90% of the time as an operator, working under a per- mit from Local 649 of the Operating Engrs Mr Twitchell no longer desires to be represented by Local No 15 the charging party but has authorized District No. 50 United Mine Workers of America to be his bargaining representative. 3-We have not signed any current or -recently expired agreement with the above petitioner [Teamsters ] On October 21st we did sign a contract [ apparently referring to a recognition agreement ] with the United Mine Workers of America , Local No 50. BURLINGTON ROADBUILDERS,.INC. 801 To continue with Bower's testimony, he signed a recognition agreement with Dis- trict 50 on October 21 and negotiated about 5 hours with respect to terms of a contract. He testified that he agreed to recognize District 50 because it was the only union which would represent all of Respondent's employees in a single unit. He further testified that he had two more negotiation meetings with District 50 before executing a collective-bargaining agreement with it on October 28, 1963. Said con- tract contains a 7-day union-security clause. Ferrell testified that on the evening of Sunday, October 20, Bower called him and stated that the Engineers planned to strike "the job"; that "he was going to meet with them Monday to negotiate and he thought that everything would be settled and we would be back to work Tuesday"; that "if during the negotiations I [Bower] threatened to go District 50 I will probably have to go through with-it"; that Bower asked him if he would be willing to join District 50 and he told Bower that "he wanted no part of District 50." Ferrell further testified that early in the evening of the next day, Octo- ber 21, he received a call from Bower who stated he would like to talk to him (Fer- rell) "some more" and that he would meet him in the shop the next morning when he picked up his check. Webster testified that he had a conversation with Bower on October 21; that Bower stated that he had signed a contract with District 50 he could go back to work the next day; that he told Bower he was not interested; that Bower told him to think it over; and that he wanted Webster to be the first to sign with District 50 because that would give him seniority and he would like him to be at the top of the list. Harlan Duffy testified that on October 21 Bower stopped at his house and asked him if he would be interested in signing with District 50; that he told Bower he did not think so; that Bower told him one man had already signed and that if he signed he could come to the shop the next morning and "work in the road"; that he re- sponded he would have to have a day or two to think it over; and that he never joined District 50. Bower testified that on the evening of October 21, he called Twitchell, Duffy, Williams, and Webster to notify them to return to work, and that during the course of that week he offered reemployment to five or six others including Simmons, Walton, and Ferrell; that he did not, however, call Reed because he did not have work available of the type which Reed did. Bower further testified that he had laid the men off on October 19 because he had no work available for them; that on Octo- ber 21, he secured an oral contract to do further work on the "Augusta Road," but that no decision was made as to when the work was to be started. The contract, how- ever, was not signed until October 24, and called for the work to be started on November 4, 1963. Bower denied that, in notifying employees to return to work, he stipulated as a condition that they join District 50, but that those who refused to return did so because they said they did not want to work under a Disrict 50 contract. Bower's denial that he imposed such condition is not credited. It appears from Bower's letter to the Board, dated October 28, that Twitchell, who returned to work on October 22, did, at that time or sometime during the week prior to the letter, au- thorize District 50 to represent him. According to the testimony of several of General Counsel's witnesses, on Octo- ber 22, Miller and Carpenter, Teamster representatives, together with several of the employees, went into the Respondent's office where Miller stated to Bower that the Teamsters still represented his employees who were members, and that it was ex- pected when he resumed work that he would recall them. Bower replied that while the Teamsters might still represent these people, they were no longer employed by Respondent; that a couple of days before, on October 19, "he had gotten rid of these employees, they were no longer his, and that he had signed a contract with a new union." Miller asked Bower how he could negotiate with another union, and Bower replied he could do so because he had no employees. Bower testified as to his conversation with Miller on that occasion . His testimony was that the full extent of the conversation consisted of Miller asking him if he had signed a recognition agreement with District 50; that he told Miller that he had; that Miller said "he represented those employees," and that he (Bower) replied that "it was not to my knowledge that he represented them," and that he refused to have any further conversation with the Teamster representatives. The testimony of General Counsel's witnesses, as above outlined, is credited. Ferrell and Walton testified to statements made by Bower to them and two other employees (Bobby Ferrell and Albert R. Simmons, apparently also referred to as Raymond Simmons) who had remained behind after the Teamster representatives had left. According to their testimony; Bower told them they could return to work the next day if they would join District 50, but that they refused to join Webster testified that Bower again asked him on October 22 to join District 50 and that he 7 70-0 70-6 5-vo l 149--52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again refused. The above testimony of Ferrell, Walton, and Webster is credited., As indicated above, Bower's denial that he imposed as a condition to recalling employees who were laid off that they join District 50 is not credited. Re Supervisory Status of Webster and Williams Respondent contends that Webster and Williams were supervisors, "hence not entitled to" protection under the Act as discriminatees. Bower testified that, around the middle of April 1963, he informed Webster he would be in charge of the "dirt crew," gave him authority to discipline and run the job, and told him he would be paid accordingly. He also testified that he told Williams, about the same time, that he would be foreman of the "oiling crew" and that he observed both of them exer- cising the authority granted to them. He further testified that they had authority to hire crew members if they needed them, that Williams hired two men in Burlington, Iowa, "on his own," and that Williams and Webster transferred men from one crew to another. He also testified that the men in Webster's crew varied from 3 to 7 or 8, and in Williams' crew from 3 to 17 or 18, and that Williams and Webster were paid more money than other employees. However, in meeting the issue whether Lovitt was a supervisor, Lovitt and Bower testified that it was Bower who did all the hiring. Furthermore, the employment records show that Williams and Webster received the same rates of pay as did a number of the other men based on the amount of time each worked on the same type of jobs. It appears that Williams and Webster did receive extra pay for keeping timesheets for the crew on which they worked. This, however, cannot be said to be indicative of supervisory status. According to the testimony of Webster and Williams, they, at most, acted as lead- men and they denied being given or exercising any of the authority which Bower testified he had vested in them. As to the two men whom Bower testified Williams hired, Williams testified that he did not hire them but that he was informed at the jobsite by Gore, a Laborers representative, that Lovitt had arranged with him to supply two flag men for the "Burlington job." Lovitt, who attended the letting of the Burlington job, testified that he did not recall talking to Gore about hiring the two men, and denied telling Williams the two men had been hired. Williams' testi- mony is credited inasmuch as he was the more convincing of the two. Bower's testi- mony that he granted Williams and Webster supervisory authority and observed them exercising it is not credited. Williams and Webster did the same type of work as did other employees according to their credited testimony, which is corroborated by the payroll records. It further appears that Lovitt, who Respondent contends was not a supervisor, gave orders to Williams and Webster with respect to such matters as what work was to be done and which employees were to be contacted to return to work or to be laid off. Therefore, it is concluded that neither Webster nor Williams was a supervisor within the meaning of the Act. Concluding Findings 1. Old Burlington recognized and bargained with the Teamsters and the Engineers over an extended period of time with respect to the employees who were engaged in the work falling within the job classifications set forth in the above-described units. 2. New Burlington was the successor of Old Burlington and, as such, it was obli- gated to carry on the bargaining relations of Old Burlington. Quality Coal Corpora- tion, et at., 139 NLRB 492.18 There was no change in the business itself. The fact that Old Burlington's plant and equipment were not sold directly by Old Burlington, but were obtained by New Burlington through the legal device of transferring them as a liquidating dividend to the shareholders who then conveyed them to New Burlington, is of no significance in the circumstances. General Counsel does not contend, nor is it found, that New Burlington was not a bona fide purchaser. However, there was no break in the continuity of the employing industry nor in the continuity of em- ployment of the four men who worked in the shop at the time New Burlington com- menced its operations. In addition, a large percentage of the employees New Bur- lington subsequently hired for its construction crews had previously worked for Old Burlington. It appears that all of the first 12 additional employees whose services Is In reviewing the Board 's Decision , the court in International Union, Progressive Mine Workers of America, and, Local No. 4O8 v. N.L.R.B., 2,19 F. 2d 428 (C.A. 7), affirmed the Board's finding that a successorship existed and its holding that the successor , absent a "fair doubt" of the Union's majority representation, was obligated to maintain the bar- gaining relationship of its predecessor. BURLINGTON ROADBUILDERS, INC. 803 New Burlington engaged had previously worked for Old, Burlington. The issue here is not whether Respondent was bound by a Board Order against its predecessor as a successor or assign, or as a disguised continuance, but merely whether Respondent continued the enterprise of Old Burlington basically unchanged. The facts in this case disclose that the employing industry was substantially the same under New Burlington as it was under Old Burlington. 3. Respondent did recognize both unions as bargaining representatives for its employees when they were engaged in the type of work coming within the job classi- fications described in the respective units claimed by each Union.'9 The record discloses (as set forth in the subsection hereinabove entitled "New Burlington's Rela- tionship with the Teamsters and Engineers") that New Burlington indicated to both its employees and representatives of the two unions that it intended to carry on the bargaining relationship its predecessor maintained with them. Also, it bargained with each of them in clearing employees it intended to hire, and checked off dues for the Teamsters. Furthermore, at the time (March 4) New Burlington hired the four men in the shop who had been previously working for Old Burlington, one of them was a member of the Engineers and the other three were members of the Teamsters with working permits from the Engineers when engagd in work falling within the job classifications under the jurisdiction of that Union. 4. Although Respondent, in its relations with the representatives of Teamsters and the Engineers, did recognize both of them as bargaining representatives in respect to the above-described units and did bargain with them in clearing employees, it did not bargain in good faith with either of said unions in response to their repeated requests that Respondent enter into contracts with them. Instead of signing the contracts submitted to it or indicating that it wished to have alterations made in the contracts, Respondent engaged in dilatory tactics until, when pressed by the Engineers for a signed contract by October 21, it entered into a recognition agreement with District 50 on that very day. , 5. Respondent contends that the units claimed by the two Unions were not appro- priate for collective bargaining under the Act, and cites two cases in support of this contention, Broomall Construction Company, 137 NLRB 344, and R. P. Olinger, et al., d/b/a Olinger Construction Company, 129 NLRB 560. Neither of these cases, however, appears to be applicable to the circumstances in the instant case. , In neither of the cited cases was there an existing and long-established bargaining relationship between the labor organizations and the enterprises involved, but rather the labor organizations were seeking to establish a bargaining relationship. In the instant case the enterprise, under the predecessor and Respondent, had an existing and long- bargaining relationship with the Teamsters and Engineers with respect to the units described in the complaint. While it is true that the Board held in the cited cases that it would not be appropriate to establish separate units similar to those claimed herein, it does not appear that this holding would govern in a situation where the separate units were maintained over a considerable period of time and in accordance with the desires of the employees. The record clearly demonstrates that the em- ployees were opposed to having District 50 represent them in a single unit, but preferred to maintain the existing representation for the units which had existed for a number of years. While the record does disclose that Respondent, after several months of operations, formed the opinion that it would be preferable to have its em- ployees represented by District 50 in a single unit, there is no showing, even assuming Bower's testimony on this point is fully credited, that Respondent raised an objection with respect to the appropriateness of the units with the representatives of either the Teamsters or the Engineers until shortly before entering into the recognition agree- ment with District 50. In any event, the Respondent's preference, in the circumstances of this case, does not appear to be a controlling factor. It has been repeatedly held that the appropriateness of a unit depends upon the circumstances of the particular case. It is concluded that in the circumstances of this case the units described in the complaint are appropriate. 6. Respondent denies that the Teamsters and the Engineers represented the em• ployees in the respective units claimed by each of said Unions. The record demon- strates that, both at the time Respondent commenced its operations and at the time it laid off seven of its employees on October 19, said Unions did in fact represent the 19 There is no showing what bargaining relationship , if any, the Laborers had with either Old Burlington or New Burlington or what representation the employees had, if any, when engaged in work within the job classification of laborer. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of Respondent's employees within the units claimed 20 Even assuming that Bower's testimony on this point were credited, there is no showing that he ever questioned either union's majority representation until he decided to enter into a recognition agreement with District 50. Furthermore, based upon the dues checkoff for the Teamsters and Bower's interrogation of employees as to their willingness to have District 50 represent them, it must have been manifest to Respondent that the majority of its employees within said units desired representation by the Teamsters and the Engineers. 7. According to Bower's own testimony, he engaged in interrogation of his em- ployees as to their willingness to join District 50. This conduct constituted inter- ference in the exercise of the employees' rights guaranteed in Section 7 of the Act, there being no circumstances present in this case which would have justified such interrogation within the principles of the Blue Flash line of cases. (Blue Flash Ex- press Inc., 109 NLRB 591, and cases following it.) Furthermore, the interrogation reasonably must have tended to have had a coercive and restraining effect upon the employees in the context of the preference manifested by Respondent for District 50 at the dinner on June 8, 1963, and in various conversations Bower had with indi- vidual employees. 8. On Saturday, October 19 (the day after Bower had received a message from the Engineers that it insisted on a signed contract being delivered to it by Monday, Octo- ber 21), Bower laid off Webster, Walton, Simmons, Bobby Ferrell, and Twitchell,21 who were at work at the time, and notified, on that same day, William Williams and Harlan Duffy, who were not at work that day, that they too were laid off. It is concluded that all seven were laid off and not discharged, in view of Respondent's attempt to recall them to work immediately after signing the recognition agreement with District 50 on October 21. It is further concluded that they were laid off by the Respondent in order to put itself in a position which Bower believed would make it appropriate for Respondent to recognize and bargain with District 50. Bower testified that he had been informed of or read something which led him to this belief. Apparently that something had reference to Section 8(f) of the Act which permits employers in the building and construction industry to enter into a collective- bargaining agreement without violating the Act despite the fact that the majority representation of the labor organization has not been established. However, said section of the Act specifically provides that such an agreement cannot be entered into with a labor organization which had been "assisted" by any action defined in Section 8 of the Act as an unfair labor practice. Since it is concluded that the reason for the layoff of the seven men was not for lack of work as contended by Respondent, but for the purpose of removing from its payroll adherents of the Teamsters and Engi- neers and thus enabling it, as believed by Bower, to avoid Respondent's obligations to bargain with the Teamsters and the Engineers and to recognize District 50, it is concluded that Respondent by so doing violated Section 8(a)(1), (3), and (5) of the Act. By this conduct Respondent was attempting to assist District 50, and, there- fore, the recognition of District 50 and the collective-bargaining agreement which Respondent entered into with District 50 was not such action as is permitted under Section 8(f) of the Act. It is apparent that after October 19, 1963, Respondent ceased to recognize and bargain with the Teamsters and the Engineers. 9. The record supports the finding that Respondent conditioned the recall of Webster, Bobby Ferrell, Duffy, Williams, Simmons, and Walton upon their joining District 50. A recall from a discriminatory layoff predicated upon such a condition did not constitute an appropriate recall, but on the contrary constituted a constructive discharge, since it made it clear to the employees that their future employment by the Respondent was conditioned upon acceptance of District 50. Although it is alleged that William Reed was discriminatorily discharged, it is concluded that he was in layoff status as of the end of the day on October 18. Since the only testimony with respect to whether or not he was recalled is that of Bower, his testimony is credited that he did not recall Reed because he did not have any type of work available which Reed did. Therefore, it does not appear that Reed was discriminatorily laid off on October 19, or constructively discharged subsequently, in violation of the Act. 20 The payroll records show that three of the four men who were working on October 21 and had been working during the previous week were classified as laborers and the other as a foreman _ 21 Although Twitchell was laid off at the same time as were the others named, it is not alleged in the complaint that the Respondent discriminated against him although it is found that the layoff of all seven was discriminatorily motivated, no remedy will be pre- scribed with respect to Twitchell inasmuch as he returned to work on October 22, and in view of the omission in the complaint to allege discriminatory action with respect to his employment BURLINGTON ROADBUILDERS, INC. 805 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above , occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it shall be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Lester Webster, Bobby Ferrell, Harlan Duffy, William Wil- liams,22 Albert Simmons, and Bill Walton were discriminated against in respect to their hire and tenure of employment by reason of their layoff on October 19 and subsequent constructive discharge, it will be recommended that the Respondent be ordered to offer them full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges . It will be further recommended that Respondent make them whole for any loss of earnings they may have suffered because of the discrimination against them , by payment of a sum equal to the amount they normally would have earned as wages from October 21, 1963, to the date of the offer of reinstatement, together with the interest thereon as provided below. The loss of pay should be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and the interest, payable in accordance with Isis Plumbing & Heating Co., 138 NLRB 716, should be computed at the rate of 6 percent per annum on the amount due in each instance for each calendar quarter (under the Woolworth formula) be- ginning with the end of the first calendar quarter and continuing with each succeeding calendar quarter until payment of such amount is properly made. It has been found that Respondent unlawfully assisted District 50 by recognizing and entering into a collective -bargaining agreement with it and that thereby Respond- ent interfered with, restrained , and coerced its employees in the exercise of their right freely to choose their own bargaining representatives . In order to dissipate Respond- ent's said unfair labor practice , it shall be recommended that Respondent be ordered to withdraw and withhold all recognition from District 50 and cease giving effect to its collective-bargaining agreement with said Union or to any renewal or extension thereof. Having found that Respondent did, after October 19 , 1963, unlawfully cease to recognize and bargain with the Teamsters and Engineers with respect to the units described in said complaint , which are found to be appropriate bargaining units, it shall be further recommended that Respondent be ordered to recognize the bargain with said Unions with respect to the respective units each claims, and , if an under- standing is reached , such understanding be embodied in a signed agreement. Inasmuch as the unfair labor practices committed by the Respondent are of a 'character striking at the root of employees' rights safeguarded by the Act, it will be further recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Teamsters and Engineers are labor organizations within the meaning of Section 2 (5) of the Act. 3. The following are units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers of trucks and heavy transportation equipment , truckdrivers' helpers, warehousemen , mechanics, mechanics' helpers, greasers, and tiremen of the Respond- ent in or around Carthage , Illinois; but excluding office clerical employees , technical employees, engineers, bookkeepers , guards, and supervisors as defined in the Act and all other employees. 22 Although there is testimony that Williams uttered threats against Bower and pre- dicted that Respondent 's plant would be damaged, this testimony, even if it were credited, would not make Williams unemployable . National Packing Company, Inc, 147 NLRB 446. There is no showing that they were any more than idle statements provoked by Respond- ent's unfair labor practices. However, this should not be construed as condonation of such statements , if they were made 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees engaged in the operations and maintenance of hoisting and portable machinery and engines used on open and heavy construction work, and of machinery, engines, motors, boilers, and pumps used at asphalt or blacktop mixing plants of the Respondent in or around Carthage, Illinois; but excluding office clerical employees, guards, and supervisors as defined in the Act and all other employees. 4. By Bower's interrogation of Respondent's employees as to their willingness to accept District 50 as their bargaining representative Respondent did interfere with, restrain, and coerce its employees in violation of Section 8 (a) (1) of the Act. 5. By recognizing District 50 on October 21, 1963, and entering into and main- taining the collective-bargaining agreement which it executed on October 28, 1963, Respondent has violated Section 8(a)(1) and (2) of the Act. 6. By the layoff of employees Lester Webster, Bobby Ferrell, Harlan Duffy, William Williams, Albert Simmons, and Bill Walton on October 19, 1963, and by their subse- quent constructive discharge on October 21 and 22, 1963, Respondent violated Section 8(a)(3) and (1) of the Act. 7. By its dilatory tactics in response to repeated requests by the Teamsters and the Engineers to enter into agreements with them and by its ceasing to recognize and bargain with said Unions after October 9, 1963, as representatives of its employees with respect to the above-described appropriate bargaining unit each of said unions, claim Respondent violated Section 8 (a) (5) and (1) of the Act. General Counsel has failed to prove by a preponderance of the evidence that Re- spondent through the conduct of Coggeshall and Lovitt engaged in unfair labor practices, as alleged in the complaint, or that Respondent discriminatorily discharged William Reed, as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, Burlington Roadbuilders, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act, as amended, by unlawfully interrogating them as to their choice of a bargaining representative. (b) Assisting and supporting District 50, United Mine Workers of America, or any other labor organization, and from otherwise interfering with the representation of its employees through labor organizations of their own choosing. (c) Performing, enforcing, or giving effect to its collective-bargaining agreement of October 28, 1963, with District 50, United Mine Workers of America, or entering into or enforcing any extension, renewal, modification, or supplement thereof or any superseding collective-bargaining agreement with said labor organization. (d) Refusing to recognize and-bargain with the Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, as the collective-bargaining representative for the follow- ing appropriate unit: All drivers of trucks and heavy transportation equipment, truckdrivers' helpers, warehousemen, mechanics, mechanics' helpers, greasers, and tiremen of the Respond- ent in or around Carthage, Illinois; but excluding office clerical employees, technical employees, engineers, bookkeepers, guards, and supervisors as defined in the Act and all other employees. (e) Refusing to recognize and bargain with Local 649, International Union of Operating Engineers, AFL-CIO, as the collective-bargaining representative for the following appropriate unit: All employees engaged in the operation and maintenance of hoisting and portable machinery and engines used on open and heavy construction work, and of machinery, engines, motors, boilers, and pumps used at asphalt or blacktop mixing plants of the Respondent in or around Carthage, Illinois; but excluding office clerical employees, guards, and supervisors as defined in the Act and all other employees. (f) Discouraging membership in the labor organizations named in paragraphs (d) and (e) hereinabove, or any other labor organization of its employees, by discrimi- nating in regard to their hire or tenure of employment or any term or condition of employment. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join, form, or assist labor organiza- tions, including the above-named labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for BURLINGTON ROADBUILDERS, INC. 807 the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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 employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which it is deemed will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from District 50, United Mine Workers of America, as the representative of any of its employees for the purpose of dealing with it with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. (b) Upon request, bargain collectively with Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of the employees in the unit described in paragraph 1(d) hereinabove, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Upon request, bargain collectively with Local 649, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of the employees in the unit described in paragraph 1(e) hereinabove, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Offer to employees Lester Webster, Bobby Ferrell, Harlan Duffy, William Williams, Albert Simmons, and Bill Walton immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, as provided in the section of this Decision entitled "The Remedy." (e) 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 records necessay to determine the amount of backpay due under the terms of this Recommended Order. (f) Post at its plant in Carthage, Illinois, copies of the attached notice marked "Appendix." 23 Copies of such notice, to be furnished by the Regional Director for Region 13, shall, after being signed by an authorized representative of the Respond- ent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith.24 It is further recommended that the complaint be dismissed insofar as it relates to the alleged unlawful conduct of Loy M. Lovitt and Samuel Scott Coggeshall, Jr., and to the alleged discriminatory discharge of William Reed. 2' If this Recommended Order is adopted by the Board, the words " a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 24 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT unlawfully interrogate our employees as to their choice of a' bargaining representative. WE WILL NOT assist or support District 50, United Mine Workers of America, or any other labor organization, or otherwise interfere with the representation of our employees through labor organizations of their own choosing. WE WILL NOT perform, enforce, or give effect to our collective-bargaining agreement of October 28, 1963, with said District 50, United Mine Worker's of 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, or enter into or enforce any extension , renewal , modification, or supplement thereof or any superseding collective -bargaining agreement with said labor organization. WE WILL NOT discourage membership in Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, or Local 649, International Union of Operating Engineers, AFL-CIO, or in any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to join , form, or assist labor organizations , including the above -named labor organizations , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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 employment as authorized in Section 8 (a) (3) of the Act. WE WILL withdraw and withhold all recognition from said District 50, United Mine Workers of America, as the representative of any of our employees for the purpose of dealing with us with respect to rates of pay, wages, hours of employ- ment, or other terms and conditions of employment ' WE WILL, upon request, bargain collectively with Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of our employees in the following described unit, and, if an understanding is reached, embody such understanding in a signed agreement. All drivers of trucks and heavy transportation equipment , truckdrivers' helpers, warehousemen , mechanics , mechanics' helpers, greasers, and tire- men employed by us in or around Carthage , Illinois; but excluding office clerical employees , technical employees, engineers , bookkeepers , guards, and supervisors as defined in the Act and all other employees. WE WILL, upon request, bargain collectively with Local 649, International Union of Operating Engineers , AFL-CIO, as the exclusive representative of out employees in the following described unit, and, if an understanding is reached, embody such understanding in a signed agreement. All employees engaged in the operation and maintenance of hoisting and portable machinery and engines used on open and heavy construction work, and of machinery , engines, motors, boilers, and pumps used at asphalt or blacktop mixing plants in or around Carthage , Illinois; but excluding office clerical employees, guards, and supervisors as defined in the Act and all other employees. WE WILL offer to employees Lester Webster, Bobby Ferrell , Harlan Duffy, William Williams, Albert Simmons, and Bill Walton immediate and full rein- statement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of earnings they may have suffered as a result of our discrimination against them All our employees are free to become or remain members of Chauffeurs, Teamsters & Helpers Local Union 15, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America , and Local 649, International Union of Oper- ating Engineers , AFL-CIO, or any other labor organization , or to refrain therefrom except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. BURLINGTON ROADBUILDERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title), NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. PARKER SEAL CO., DIV. OF PARKER-HANNIFIN CORP. 809 This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any ques- tions concerning this notice or compliance with its provisions. Parker Seal Company, Division of Parker-Hannifin Corporation and District 50, United Mine Workers of America . Case No. 9-CA-3024. November 18, 1964 DECISION AND ORDER On August 13, 1964, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recom- mendations of the Trial Examiner with the addition noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner, and orders that Parker Seal Com- pany, Division of Parker-Hannifin Corporation, Lexington, Ken- 'We find without merit Respondent's contention that its pretrial motion for a bill of particulars was improperly denied. 21n the absence of exception thereto, we adopt the Trial Examiner's finding that the Respondent did not violate Section 8(a) (1) of the Act in the interrogation of an em- ployee as to whether he had given a Board agent a sworn statement . Member Leedom concurs in this finding on the basis of the majority opinion in Montgomery Ward & Co., Incorporated, 146 NLRB 76. 149 NLRB No. 73.