Haberman Construction Co.

HABERMAN CONSTRUCTION COMPANY Haberman Construction Company and United Broth- erhood of Carpenters and Joiners of America, Local No. 1266 and Mobley-Speed Cement Contractors, Party to the Contract. Case 23-CA-6391 May 16, 1978 DECISION AND ORDER On October 11, 1977, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed limited exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)5 and (I) of the Act by unilaterally changing the terms and conditions of employment and abandoning its bar- gaining agreement with the Union: Section 8(a)(l) of the Act by announcing to employees that it was going to go "open shop"; and Section 8(a)(3) and (1) of the Act by constructively discharging Charlie Lee Franks, G. L. Lockhardt, Candido Molina, Tom Temmons, and L. B. Tippie. As a remedy, the Ad- ministrative Law Judge recommended, inter alia, that Respondent bargain with the Union, rescind its abandonment of the contract, retroactively apply the contract, and pay wages and fund benefits due under the contract.2 However, the Administrative Law Judge, citing the likelihood that the projects had been completed, declined to recommend reinstate- ment of the discriminatees and recommended that they be made whole only for losses incurred from Because Respondent unilaterally abrogated the agreement with the Union at a time when the majority, if not all, of the unit employees were union members, we find that Respondent's reliance on R. J. Smith (on struction (o. Inc. 208 NLRB 615 (1974). and other cases involving contrac- tural relationships under Sec. 8(f) of the Act is misplaced The Board has not held that an employer is free to repudiate an 8(f) agreement where. as here, a majority of unit employees supported the union at the time of repu diation. See, generally, V L.R B v Local Union No. 103. International Asso: ciarion of Bridge, Structural and Ornamental Iron Workers, AFL C(IO, et a (Higdon Contracting Company), 98 S.Ct 651 (1978). Accordingly) we find it unnecessary to consider, and do not rely on, the Administratise L as Judge's discussion of under which conditions majority status may or ma\ not be presumed in an 8(f) bargaining relationship. 2 The Administrative Law Judge includes a brief statement in the remeds section which arguably suggests that he is ordering Respondent to compl) with Union-AGC agreements which succeed the 1974-77 agreement How- ever, it is clear from the terms of his Order, which we are adopting in relevant part, that Respondent need not honor any such agreement unless it agrees to do so after bargaining with the Union. their discharges until completion of the projects on which they had been working. We find merit to the General Counsel's exceptions thereto. We are aware that, even absent the unfair labor practices, Respondent, which hired employees on a project-by-project basis, might have discharged the discriminatees in the normal course of business when the projects were completed. However, there is a dis- tinct possibility that, absent its discrimination, Re- spondent would have retained, transferred, or rehired at least some of the discriminatees for new projects.' Accordingly, to remedy fully Respondent's unfair la- bor practices and protect the discriminatees' rights, we shall order Respondent to reinstate the discrimi- natees to their former or substantially equivalent po- sitions and to make them whole for any losses they suffered as a result of the discrimination against them. Backpay is to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and interest thereon is to be computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).4 The determination of which employees, if any, would have continued in Respondent's employ- ment and for how long can best be made at the com- pliance stage of the proceedings, to which we defer the matter.5 'The record establishes that a number of employees, including discriml- natee L. B. Tippie and carpenters Fort. Frost. Kirk, Marshall, Murphy. Rodriguez, Swoda, Sylvester. and Whitfield enjoyed continued employment with Respondent over several projects. Although not conclusive, the record evidence, including the testimony of Respondent's former Superintendent Jessie Beshears, concerning Respondent's hiring practices. raises the possi- bility, as indicated above, that some or all the discriminatees involved in this case might also have been carried over or rehired for new projects but for Respondent's discrimination against them. See, generally. Isis Plumbing & Heating Co, 138 NLRB 716 (1962). 'Member Penello would limit the remedy herein to the duration of the projects under way at the time Respondent repudiated its agreement with the I nion. To do otherwise would. in his view. go beyond the intent of Sec 8{f} of the Act. Because an 8(f) agreement does not create a presumption of majority status. a union. to enforce the contract, must show that it repre- sent, a majority of employees, N L R B v. Local Union N'o. 103. Internation- al .Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO [Higdon Contracting Company], supra. Where, as here, an employer hires on a project-by-project basis, majority status can be shown for only those pro- jecls then under way. Dee Cee Floor Covering, Inc., et al, 232 NLRB 421 (1977). Thus. Member Penello does not view an 8(f) agreement, In these circumstances, as enforceable beyond the projects under way. Had Respon- dent herein waited until the projects had been completed. it would be free to repudiate its agreement with the Union. In Member Penello's viev., the remedy ordered by the majority would interfere with Respondent's prisi- leges under Sec. 8(f) of the Act. As to the matter of the carryover of the bargaining obligation from one project to the next, in Member Murphy's opinion Dee Cee Floor Covering,. Inc, supra., is distinguishable There was no showing there that the union would have majority status on the next project. Here, it is conceivable that the evidence at the compliance stage will demonstrate that the Union. as a result of normal carryovers, retains its majority status from project to pro- ject. If such carryovers are insufficient to warrant such a conclusion, Mem- ber Murphy would find that Respondent then was free to withdraw recogni- tion. However. regardless of the outcome of the extent of the bargaining obligation. Member Murphy would continue backpay for those employees who would have been carried over but for the discrimination against them. See Don Burgess Construction Corporation, etc. 227 NLRB 765 (1977). 236 NLRB No. 7 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 modified below, and hereby orders that the Respondent, Ha- berman Construction Company, Austin, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following for paragraph 2(d): "(d) Immediately offer Charlie Lee Franks, G. [.. Lockhardt, Candido Molina, Tom Temmons, and L. B. Tipple full reinstatement to their former posi- tions of employment or, if those jobs no longer exist, to substantially equivalent positions of employment, without loss of seniority or other privileges enjoyed. discharging if necessary other employees who may have been hired in their places. If those projects on which these employees worked have been completed, then the offers of reinstatement shall be to substan- tially equivalent positions of employment on any other project of Respondent's that these employees would have worked on but for Respondent's unlaw- ful conduct." 2. Add the following as paragraph 2(e) and relet- ter the remaining paragraphs accordingly: "(e) Make whole Charlie Lee Franks, G. L. Lock- hardt, Candido Molina, Tom Temmons, and L. B. Tippie for any loss of wages or other benefits, plus interest, suffered as a result of their being terminated by reason of the discrimination against them, in the manner set forth in the body of this Decision." 3. Substitute the attached notice for that of the Administrative lIaw Judge. APPENDIX NOTICE To EMPLOYEES POS I i) BY ORDER OF FilL NAII()NAI LABOR RiI.lAl(NS BOARI) An Agency of the United States Government Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form. join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE wiill NOI do anything to interfere with these rights. WF Wi.L NOI refuse to give effect to and corn- ply fully with the terms of the standard agree- ment with the Associated General Contractors Austin Chapter-United Brotherhood of Car- penters and Joiners of America, Local No. 266, dated September 1. 1974, with respect to the em- ployees in an appropriate unit represented by the United Brotherhood of Carpenters and Join- ers of America, Local No. 1266. The appropriate unit is: All Haberman Construction Company em- ployees engaged in carpentry work on Haber- man Construction Company's Austin, Texas, jobsites excluding guards, watchmen, and supervisors as defined in the Act. WE WILL Nor fail or refuse upon request to bargain collectively and in good faith with the above-named Union as exclusive bargaining representative of employees in the above unit. WE WILL. NOT unilaterally change terms and conditions of employment of employees in the above unit without prior notice to or consulta- tion with said Union. WE wiil. NOT unlawfully discharge employees or otherwise discriminate against them because they are members of the Union. Wi wIl.l. NOT tell our employees that we will not comply with the terms of the agreement with the Union. Wi wil.I NOI in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights mentioned above. W}i w.l. in all respects comply with the union agreement of September 1., 1974. Wui W\ILL make all payments to the welfare, pension, and apprenticeship training funds on behalf of those employees in the unit for whom we previously made contributions. and for whom such contributions would have continued had we fully complied with the agreement of September 1. 1974. W Wil.L. offer Charlie Lee Franks, G. L. Lockhardt, Candido Molina, Tom Temmons, and L. B. Tippie reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions of employ- ment, without loss of seniority or other privi- leges. We v.ii make Charlie Lee Franks, G. L. Lockhardt. Candido Molina, Tom Temmons, and I. B. Tippie whole for any loss of wages or other benefits the) may have suffered as a result of our discrimination against them, plus interest. HABiKRMAN CONSTRUC TION COMPAN\ 80 HABERMAN CONSTRUCTION COMPANY DECISION STATEMENT OF THE CASE HUTTrroN S. BRANDON. Administrative Law Judge: This case was heard at Austin, Texas, on June 16, 1977.1 The charge was filed by United Brotherhood of Carpenters and Joiners of America, Local No. 1266, herein called the Union, on February 22, and the complaint was issued on April 4. The primary issues are whether Haberman Con- struction Company, herein called Respondent, (a) unlaw- fully withdrew recognition from the Union in violation of Section 8(a)(5) and (1) of the Act when it ceased making deductions for various fringe benefit programs for employ- ees and went "open shop," (b) constructively discharged certain of its employee members of the Union in violation of Section 8(a)(3) and (1) of the Act, and (c) threatened its employees in violation of Section 8(a)(l) of the Act through an announcement to the employees that it was going "open shop." 2 Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent. I make the following: FINDINGS OF F4CT I JURISDICTION Respondent is a partnership existing under the laws of the State of Texas with an office and place of business in Austin, Texas, where it is engaged in the building and con- struction industry as a contractor in the building and con- struction of commercial lease buildings and warehouses. During the 12-month period preceding the issuance of the complaint, Respondent performed services valued in ex- cess of $50,000 to firms located in the State of Texas which firms in turn sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State. Respondents answer admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. The complaint alleges. the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11 THE UNFAIR LABOR PRACTICES A. The Facts Respondent operates as a partnership with Bert Speed and Richard Haberman as the only partners. The exact date of the establishment of the partnership is not clear but the general manager of the partnership, Howard Haher- man, brother of the partner, testified that it was formed in the 1971-72 period. He further testified that Respondent's All dates are in 1977 unless otherwise stated : This issue was raised by an amendment to the cnmplaint at the hearingi which amendment v.as allowed in the absence of obhection from the Re- spondent. first construction job, a warehouse construction job at 3101 Longhorn Boulevard in Austin, Texas, was begun in the latter part of 1972. The work on this building and another adjacent to it was subcontracted to other employers, among them Mobley-Speed Cement Contractors, herein called Moblev-Speed. The record does not reflect the corporate status of Mob- les-Speed or its makeup although the evidence does reflect that Bert Speed, a partner in Respondent, was a principal in the Mobley-Speed concern. Mobley-Speed was essen- tially engaged in the construction industry as a cement contractor with a principal office and place of business in Dallas. Texas. Aside from doing work for Respondent on Respondent's early jobs on a subcontract basis Mobley- Speed also rented equipment to Respondent on an occa- sional basis. While it does not appear that Mobley-Speed was a member of the Austin Chapter of the Associated General Contractors which had a contract with the Union covering carpenters it is undisputed that Mobley-Speed through its then superintendent. Joe Thomas. in October or November 1972, executed a contract with the Union iden- tical to the Union-Associated General Contractors. Austin Chapter, contract hereinafter referred to as the Union- AG( contract, which was effective from July 1. 1970, through August 31. 1973. Thereafter. Mobley-Speed uti- lized the Union's referral service to obtain carpenters and made contributions to the Ulnion's pension and welfare funds pursuant to Article 18 of the contract whenever it worked in the Union's jurisdiction during the period when the contract was in effect. It does not appear that Mobley- Speed signed a new contract with the Union upon expira- tion of the old one in 1973. Notwithstanding Bert Speed's involvement with both Respondent and Mobley-Speed or the subcontracting or equipment rental relationship between the two concerns there is no contention in this case that Mobley-Speed was, or is, the alter ego of Respondent. Mloble)-Speed continues to operate out of Dallas, and Respondent continues to operate out of Austin. It is clear from the record that Respondent has never formally execu- ted a collective-bargaining agreement with the Union. nor has it ever assigned bargaining rights to the Austin Chapter of the Associated General Contractors. About 1973. Respondent hired Jessie Ray Beshears as a carpenter foreman. At that time Respondent made no de- ductions and forwarded no payments to the Union for pen- sion and welfare benefits for Beshears although he was a member of the Union at the time. While Beshears had been advised by the superintendent of Respondent at the time, N. D. Zaccus, that Respondent would pay his union fringe benefits it subsequently came to Beshears' attention through Albert J. Rosentritt. business agent of the Union. that Respondent was not paving his "benefits." Beshears made inquiry and was subsequently assured by Lee Stark, an employee in Respondent's office, that Kay Speed daughter of Bert Speed, had been called in Dallas and she had stated that thereafter Beshears' benefits would be paid. Subsequently. Respondent did submit payments to the ' KsI1 S'pecd'' p'o"slion Ullh eliher \Iohles Speed or Respondent 'as not ct.libslhed oin lh rc.ord 81 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union for Beshears' "benefits" for the period from about 3 months after Beshears was hired by Respondent until Beshears' employment ceased about November 1976, and even though Beshears became superintendent of Respon- dent about 1973. As superintendent for Respondent, Beshears hired em- ployees including carpenters, laborers and equipment oper- ators. With respect to carpenters, Beshears testified that he used "strictly union carpenters." On occasions Beshears would secure referrals of carpenters through the Union's hall but on other occasions Beshears would hire carpenters directly based upon his knowledge of their work ability through previous experience with them. It is undisputed that subsequent to at least May 1973, Respondent paid its carpenters at the rate provided for in the Union-AGC contracts including the one which suc- ceeded the 1970-73 contract (G.C. Exh. 8) and was effec- tive from September 1, 1974, through March 31, 1977 (G.C. Exh. 9). In this regard Beshears testified that he received notice of any changes in the union pay scale for journey- men, apprentices, and carpenter-foremen by mail from the Union addressed to Respondent. It is also undisputed that after 1973 and until February 16, 1977, Respondent made appropriate deductions for the carpenters' welfare, pen- sion, and apprentice training funds, the "benefits" which were forwarded to the Union. The Union-AGC contract did not contain a checkoff provision and there is no evi- dence Respondent made or forwarded any dues deductions to the Union. Further, the Union-AGC agreement con- tained no union-security provisions. During the same 1973-77 period, with the knowledge of at least Beshears, the carpenters on the job maintained a steward whose function, at least in part, was to ascertain the union membership status or standing of employees hired by Respondent. While one function of a steward is the processing or handling of grievances it appears that no disputes or grievances ever arose among Respondent's car- penters and, thus, the steward never exercised any griev- ance-handling functions. In November 1976, Beshears' employment with Respon- dent ceased. His duties, if not his title, were assumed by Carpenter Foreman Randolph Whitfield. About February 1977, Respondent hired a new superintendent, Robert Mc- Elyea. According to Respondent's general manager, How- ard Haberman, after McElyea was hired Haberman and Bert Speed talked to McElyea who expressed the opinion that he could "do the job that we had on an open shop basis, without us having the pay the union pension thing ...." It was concluded that Respondent should proceed on that basis because the pension "thing" was a costly item running a $1000 to $1200 a month toward the latter part of the year 1976. McElyea was authorized to tell the employees of Re- spondent's decision to cease paying the "benefits." How- ever, rather than a general direct announcement to all em- ployees it appears from the record that McElyea only advised the Carpenter foremen, Randolph Whitfield and Jack Swoda, on February 14, and they in turn told the employees. According to Whitfield, McElyea stated Re- spondent would continue to pay the union scale but not the benefits. Whitfield, himself a union member, subsequent to Mc- Elyea's announcement of February 14, contacted Union Business Agent Rosentritt who proceeded to meet with McElyea, Whitfield, and Swoda at the jobsite at noon on February 16. McElyea confirmed to Rosentritt that Re- spondent was going "open shop." Rosentritt testified that he then told the boys to "go back there and finish your day . . .and leave them with a clean taste in their mouth." On February 16, Respondent, in addition to some labor- ers and perhaps one equipment operator, utilized at least seven carpenters including two carpenter foremen, Whit- field and Swoda, four carpenters, L. B. Tippie, Charlie Lee Franks, Tom Temmons, and G. L. Lockhard, and one car- penter apprentice, Candido Molina. All of the foregoing proceeded to testify at the hearing that they were members of the Union and upon completion of their day's work on February 16 quit their employment with Respondent be- cause of Respondent's determination to cease paying their fringe benefits. B. Alleged 8(a)(5) Violations; Findings and Conclusions I. The appropriate unit The complaint alleges the appropriate unit herein to be composed of all of Respondent's employees engaged in carpentry work on Respondent's Austin, Texas, jobsites, excluding guards, watchmen, and supervisors. Respon- dent's answer denied the appropriateness of the unit and counsel for Respondent argued in his brief that the unit was inappropriate because Respondent's carpenters did not constitute a homogeneous skilled, separate group of craftsmen so as to warrant their segregation in a unit apart from Respondent's other employees. In support of this po- sition the counsel for Respondent argued that the carpen- ters worked under common supervision with other employ- ees and performed a wide variety of tasks in order to accomplish a collective job objective. While there was evidence in the record of common su- pervision and although the record reflected that carpenters "pitched in" with the laborers on occasions to complete a particular task to avoid weather complications it is never- theless clear that the carpenters performed for the most part traditional carpenter work. Their rate of pay ($9.41 per hour) as compared to that of the laborers ($3 per hour) constitutes an acknowledgement by Respondent of the car- penters' greater skills. The Board has held that carpenters who exercise craft skills may constitute a separate unit even though they may work in conjunction with, and under common supervision with other groups of employees. See General Electric Company, 89 NLRB 726 (1950); Rheem Manufacturing Company, Wedgewood Division, 100 NLRB 1298 (1952). With respect to the unit description reference to Respondent's jobsites the evidence revealed that at the time of the alleged unfair labor practice involved herein Respondent had two jobsites in operation, and utilized two crews. According to the testimony of Howard Haberman, the crews were interchangeable for the jobs and Respon- dent had sent them back and forth between jobs although Respondent usually tried to keep them separate. In view of the interchangeability of the crews the unit reference to "jobsites" does not appear to be inappropriate. I therefore 82 HABERMAN CONSTRUCTION COMPANY find that the unit alleged in the complaint defines a ho- mogeneous unit of craft employees and a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. With respect to inclusions in the unit the record reveals a dispute between the parties regarding the supervisory sta- tus of Randolph Whitfield and Jack Swoda, who were em- ployed as carpenter-foremen, and. in the case of Whitfield. acting job superintendent for a period beginning about No- vember 16, 1976, when former job superintendent Beshears resigned. The General Counsel takes the position that Whitfield and Swoda were not supervisors within the meaning of Section 2(11) of the Act, while Respondent takes a contrary position. The record reflects that both Whitfield and Swoda re- ceived carpenter-foreman rates amounting to 50 cents per hour above union scale for journeymen carpenters. Neither received any special benefits not granted regular unit em- ployees although each received an automobile allowance of $40 per month as an expense reimbursement for the use of their cars in running errands for Respondent, an item not covered by the Union-AGC contract. Whitfield testified he had authority to fire employees and that he and Swoda had in fact fired one employee with Howard Haberman concurring in their decision. Swoda testified he also had authority to hire and fire employees and had been advised by Haberman that he had that au- thority. Both Whitfield and Swoda testified they had hired employees. Based on this testimony I find that Swoda and Whitfield are supervisors within the meaning of Section 2(11) of the Act and are properly excluded from the unit. 2. The majority issue Counsel for the General Counsel in his posthearing brief took a somewhat cavalier approach to the majority issue by stating that there appeared to be no real issue as to the majority status of the Union at Respondent's Austin, Tex- as, jobsites. In claiming establishment of such majority sta- tus counsel relied upon the testimony of former job super- intendent Jessie Ray Beshears who testified that he used "strictly union carpenters." The General Counsel also re- lies upon the testimony of union job steward L. B. Tippie to the effect that he checked every new employee's union card when they came on the job to assure that they "were all paid up to date." Tippie testified that while he was em- ployed by Respondent he had never seen a carpenter on Respondent's jobs who was not a member of the Union. Beshears likewise testified that while he was employed as superintendent there was never, to his knowledge, any car- penters working under his supervision who were not mem- bers of the Union. Finally, with respect to majority the General Counsel contended that the seven carpenter em- ployees who resigned on February 16, 1977, were all mem- bers of the Union and comprised Respondent's entire com- plement of employees. This last contention is not necessarily supported by the record as will be seen in fur- ther discussion below. Respondent's counsel in his posthearing brief presents several arguments attacking the Union's majority status. First, without abandoning its primary argument that it had no collective-bargaining agreement with the Union, Re- spondent argues that even if such agreement existed it would be a prehire agreement within the meaning of Sec- tion 8(f) of the Act 4 so that no presumption of majority status attaches as a result of the agreement. In support of this position, Respondent cites Local Union No. 103, Inter- national Association of Bridge. Structural and Ornamental Iron Wforkers. AFL-CIO (Higdon Contracting Company. In(.i), 216 NL.RB 45 (1975); R. J. Smith Construction Co.. Inc., 208 NLRB 615 (1974), and David F Irvin, et al. dI ha ' The Irvin-McKelvv Comnpany, 194 NLRB 52 (1971). enfd. 475 F.2d 1265 (C.A. 3, 1973). It is not open to dispute that Respondent is engaged in the building and construction industry and that Section 8(f) would be applicable to it so that a union would not be protected from inquiry into its majority status during the contract term. R. J. Smith Construction Co., supra. How- ever. Section 8(f) is applicable to initial contracts only. Briclk hiers & Alasons International Union Local No. 3 (Eastern W4ishington Builders Chapter of the Associated Gen- eral Contractors of America, Spokane, Washington), 162 NLRB 476 (1966). Here, if there was a contract adoption or ratification it occurred initially in May 1973. and related to the then current Union-AGC contract which was effec- tive through August 31, 1973. (G.C. Exh. 8). The succeed- ing contract effective September 1. 1974. through March 31, 1977 (G.C. Exh. 9) if adopted by Respondent would then be based upon an already established relationship be- tween the parties so as to make Section 8(f) inapplicable to the instant case. The fact that there may have been a hiatus between the contracts does not preclude this result. Nor does the fact that Respondent may not on occasions have had any carpenter employees require a different result. In this regard the record does not specifically establish that Respondent had no employees at any particular time dur- ing the term of the second contract. I therefore find Re- spondent's argument based upon Section 8(f) to be without merit and find that the bargaining obligations of Respon- dent here must be measured by the usual 8(a)(5) criteria. Accordingly. I find that the Union would be entitled to a presumption of majority status, assuming there was in fact a collective-bargaining agreement between the Union and Respondent as discussed hereafter. Even if the Union is not entitled to a presumption of majority status, I find, contrary to Respondent's conten- tion in its posthearing brief, that the Union did have a numerical majority on February 14, 1977, when Respon- dent first announced its decision to go "open shop." Re- spondent contends that the General Counsel failed to in- troduce evidence establishing the total number of 'ec 8(f) prov ides in relerant part: ht shall not he an .infar lahbor practice under subsections (a) and (b) of this ection for an emploser engaged primarils in the building and con,trucilll Inlrdustr . Io, make an agreement covering emploees en- gaged lor ,hi). upon iheir enmplosment. will be engaged In the building and cniirucLCoin Industr, .ith a labor organization of Ahich building and contruinon emploisee, are members Inot established. maintained. or assisted hb arns action defined In section 8(a)[( 1 l of this Act ls an uinfalir llhabo prattlce hbec.luse (1) the majorit status of such labor org.nia.tio ll his niet been establlshed under the proisions of sectiolln 9 of this S.ct prior Io the malll kin f such agreement 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "employees engaged in carpentry work" on all of Respon- dent's Austin jobsites, and therefore a numerical majority was not established. In this regard Respondent pointed out that Respondent had employees at more than one jobsite at the time of the alleged refusal to bargain and the Gener- al Counsel introduced evidence with respect to the number of employees only at one jobsite, the site involving Build- ing 10 and II on Longhorn Drive. It was at this site that the alleged constructive discharges took place. As Respon- dent's brief correctly points out the record reflects that Re- spondent had at least one otherjobsite in operation in Feb- ruary, the Winnebago job in South Austin where carpenters were employed. Contrary to Respondent's contention, I find that the rec- ord does contain evidence of the total number of unit em- ployees and that the Union did in fact represent a majority of those employees. This evidence is found in General Counsel's Exhibit 7(b) which is an employer reporting form utilized by Respondent to report to the Union's welfare, Pension and Apprentice Training Funds the total hours of work by each carpenter by name and the resulting amounts due the funds based on the hours worked for the month of February 1977. This exhibit reflects that during February, Respondent utilized 14 carpenters and/or apprentices, in- cluding Whitfield and Swoda, whom I have found above to have been supervisors. Excluding Whitfield and Swoda as well as an employee named Hubbard who Whitfield testi- fied he discharged prior to the time Whitfield left the job, the total complement of employees would be 11, a majority of which would be 6. The record clearly reflects through their own testimony that L. B. Tippie, Charlie Lee Franks, Tom Temmons, G. L. Lockhardt, and Candido Molina, all of whom are named on General Counsel's Exhibit 7(b), were members of the Union and had been from 2 to 10 years. In addition, there is uncontradicted testimony in the record of Carpenter Foreman Randolph Whitfield, whom I credit, that two employees working on the Winnebago job and listed on General Counsel's Exhibit 7(b), Harold Syl- vester and Ronny Dean, were members of the Union. It is thus clear from record evidence, and I find, in the absence of any contention of Respondent that the General Coun- sel's exhibit is not an all-inclusive listing of its February unit employees, that at least 7 out of 11 unit employees were members of the Union on February 14, 1977, when Respondent announced its decision to cease making con- tributions to the fund and go "open shop." 5 It is Respondent's final contention with respect to the Union's majority status that such status is tainted by the hiring practices of Respondent and the Union and there- fore there is no basis for concluding that the Union repre- sented an uncoerced majority of unit employees. In sup- port of this position, which has considerable appeal, Respondent points to the testimony of its own former job superintendent, J. R. Beshears, who testified as follows: The record is clear that Tippie, Franks. Temmons. Lockhardt, and Mo- lina were all employed during the period February 1 through February 16 The record is not clear with respect to whether Sylvester and Dean. or ans other employee listed on (.C. Exh. 7(b), were employees on February 14 In any event, if either one or both or any other employee listed on G.C. Exh 7(b) were not employees on that date the Union's numerical majority would not be affected. Q. (By Mr. Ruiz) What was your practice as far as hiring was concerned? A. I had one rule I always went by. I used strictly union carpenters. Q. Where would you hire from? A. Once in a while I would call through the hall and get some. Mostly it was people I worked with over the years and knew the type work I was doing. When they'd give me a building to build then I'd get on the telephone, and I'd usually get my old crew back. In further testimony, Beshears testified that he would over the years call the Union for employees and estimated he had called the hall some "15, 20, maybe 30 times." Union Business Agent Rosentritt testified with respect to the Union's hiring procedures and acknowledged that dur- ing the period from May 1973 to February 1977 the Union had referred quite a few employees to Respondent. Refer- ral slips utilized by the Union in referring men to Respon- dent which were introduced in evidence by General Coun- sel (G.C. Exhs. 13(a) through 13(bb)) show 28 such referrals.6 Rosentritt also testified that it was necessary to be a member of the Union to be referred to an employer. The Union-AGC contract in effect during the period May 1973 through March 31, 1977 (G.C. Exhs. 8 and 9) does not contain an exclusive hiring hall arrangement. Rather, the contract states at article I that "contractors recognize that the Carpenter's Union is a source of such skilled manpow- er, and will, therefore, use it as a source when in need of carpenters." (Emphasis supplied.) Respondent also points to the testimony of L. B. Tippie, the union steward, who related that new men came to re- port to him as steward and he checked their "cards" to see that they were all paid up to date, and if they weren't he would tell Business Agent Rosentritt "or something to that effect." Accordingly, Respondent contends that the Union did not occupy the status of an "unassisted" labor organization and no bargaining order may be based upon a tainted ma- jority. In consideration of this argument, I first note that there appears to be no unlawful or discriminatory provisions in the Union-AGC contract nor is there an exclusive hiring hall agreement. There was no exclusive hiring arrangement between the Union and Respondent as admitted by Besh- ears who testified that he "mostly" called his new hires directly without contacting the Union. Finally, while Union Steward Tippie "checked the cards" of new hires there is no evidence that such checking was a part of the hiring process or that hiring was conditioned insofar as the "card checks" were concerned on union membership. Thus in the absence of an exclusive hiring hall, arrangement, or practice the Union could prefer its own members in refer- ral. There does not appear, therefore, to be unlawful or discriminatory conduct on the part of the Union which would "taint" the Union's February majority status. The testimony of Beshears does, however, reflect con- 6 The last three referrals were in September 1976. However, from an ex- amination of G.C. Exh. 7(b) it does not appear that any of the persons referred by the Union were employed in February 1977. 84 HABERMAN CONSTRUCTION COMPANY duct which could be considered as "tainting" the Union's majority. While Beshears also appears to have based his selction in hiring to some degree on his past experience with the persons hired and their knowledge as to the "type of work" to be done, the discriminatory implication in the rule he went by in hiring strictly union people cannot be avoided. Nevertheless, I find that Beshears' conduct for which Respondent was responsible was not of such a na- ture as to taint the Union's majority and may not be relied upon by Respondent under the circumstances of this case 7 to relieve it of any recognition or bargaining obligation it might otherwise have. Respondent stands in a poor posi- tion to raise an attack on its own bargaining obligation because of its own unlawful conduct. See Ivo H. Denham, et al., d/b/a/ The Denham Company. 187 NLRB 434 (1970), enfd. 469 F.2d 239 (C.A. 9, 1972). So here, Respon- dent may not escape whatever recognition or bargaining obligations otherwise required of it simply by virtue of its superintendent's hiring rule which insured the majority. To hold otherwise would allow Respondent to subvert the col- lective-bargaining process. Based upon the foregoing, I find that the Union did in fact represent a majority of Respondent's employees in the appropriate unit on February 14. 3. The contract issue It is the General Counsel's position that Respondent adopted the 1970-73 Union-AGC contract about May 1973, and began payments to the Union's funds. In addi- tion, to the evidence of such adoption as found in the pay- ments to the funds through February 1977, the General Counsel points to other evidence including Respondent's utilization of the Union as a source of employees already discussed herein, the maintenance of a job steward, the payment of contract rates for carpenters, foremen, and ap- prentices, and adherence to the contractual holiday provi- sions. Thus, the determination by Respondent on February 14 to go "open shop" and the cessation of payments to the union funds constituted an abandoment of the 1974-77 AGC agreement and a unilateral change in the terms and conditions of its carpenter unit employees in violation of Section 8(a)(5) and (1) of the Act. Respondent, on the other hand, argues that it voluntarily and unilaterally elected to observe the hourly wage and fringe benefits schedules provided for in the AGC con- tracts and that voluntary compliance with hourly wage and fringe benefit schedules does not constitute an "adoption" so as to form a bilateral agreement. In support of its posi- tion Respondent points to the undisputed fact that it was not a member of the contractor association which negotiat- ed the contract nor had it ever assigned bargaining rights to that group. Other than occasional referrals of employees from the Union Respondent had little contact with the These circumstances also include evidence gleaned from Respondent's trust fund reports since May 1973 (G.C Exhs. 3(a) through 7(b) ). that three employees on Respondent's February payroll, SSlsester, Tippie. and Mar- shall, had been previously hired outside the 10(b) period and were presum- ably "coerced" at that time. Further, others referred to herein as constitut- ing the Union's February majority, Lockhardt, Temmons, Molina. and Franks, testified they had been members of the Utnion from 2 to 10 years. Union although the evidence presented did establish that Respondent did receive from the Union notice, along with "three to four hundred other employers," of changes in the prevailing wages, changes which were implemented by Re- spondent's former Superintendent Beshears. Since, accord- ing to Respondent, its observance of the Union's wage and fringe benefit schedules was purely voluntary and unilater- al it could elect to cease such observance without violating the Act. The General Counsel in support of his position relies primarily on two cases, Marquis Elevator Company, Inc., 217 NLRB 461 (1975), and Vin James Plastering Companvy, 226 NLRB 125 (1976). In Marquis the Board found, based on facts similar to the instant case, that the employer had violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the union involved and unilaterally changing existing terms and conditions of employment. There the employer in 1968 had signed an interim agree- ment with the union adopting the then existing association negotiated contract. The interim agreement was to expire at the time the association, of which the employer was not a member, negotiated a new contract. While the associa- tion and the union negotiated a new industrywide contract in 1972, the employer never executed a new agreement with the union but did observe the terms and conditions of the new association union contract as "close as possible." In this regard the employer made monthly contributions to the union's funds, used 'union personnel exclusively secur- ing all personnel through the union's hiring hall, and dis- played a wall plaque which signified he was a union em- ployer and adhered to the industrywide agreement, which plaque the employer returned to the union with the an- nouncement that it was going "nonunion." In addition, the employer had acquiesced in penalties imposed by the union for a breach of the agreement occasioned by the employer's supervisory personnel's performance of unit work contrary to the agreement. As previously indicated the Board on these facts found an 8(a)(5) violation. Similarly, in Vin James Plastering Company, supra, the employer had not formally executed an agreement with the union but had abided by the terms of a union-employer association contract including payments to various union funds, payment of union scales and deducting dues from its employees who authorized such deductions. The Ad- ministrative Law Judge in the case, with Board approval, found an 8(a)(5) violation when the employer advised the union it was abandoning its "prior policies" of abiding by the terms of the union-association agreement. Hlowever, the issues in both cases are identical to the principal issue in the instant case. They are whether Re- spondent Employer had engaged in a course of conduct which manifested an intention to adopt and be bound by the association agreement and whether Respondent Em- ployer is estopped from asserting its failure to formally sign the agreement as a defense. Each case in this area must be decided upon its own facts. It is well established that in deciding whether an employ- er and a union have agreed upon a contract the Board is not bound by the technical rules of contract law. Lozano Enterprises v. N.L.R.B., 327 F.2d 814 (C.A. 9, 1964). See also John Wiley, & Sons, Inc. v. Livingston, President of Dis- 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trict 65, Retail, Wholesale and Department Store Union, AFL-CIO, 376 U.S. 543, 550 (1964). Nevertheless, forma- tion of a binding contract on the theory of adoption or ratification must be based on some element of mutual con- sent and obligation. Local 529 Carpenters v. Bracy Devel- opment Co., 321 F.Supp. 869 (D.C.W.D. Ark., 1971). An employer's voluntary payment of union scale wages, and voluntary contributions to union trust funds do not alone constitute ratification of, or adoption of, a collective-bar- gaining agreement. Moglia v. Geoghegan, 403 F.2d 110 (C.A. 2, 1968), cert. denied 394 U.S. 919 (1969). Nor does an employer's temporary making of payment to a union trust fund in order to secure some job referrals from the union, without more, constitute ratification or adoption of an agreement. Hann v. Harlow, 271 F.Supp. 674 (D.C. Ore., 1967). There must be something more to manifest that mu- tual consent and obligation necessary for the finding of ratification or adoption. The Marquis Elevator and the Vin James cases, supra, relied on by the General Counsel are somewhat stronger on their respective facts demonstrating the existence of a continuing relationship between respondent and union and an intent to adopt the union agreement. Thus in Marquis Elevator, the owner admittedly adhered to the union agree- ment "as close as possible" with the expressed intention of keeping good relations with the union and working under the agreement. Likewise, in Vin James, the respondent em- ployer admittedly had voluntarily abided by the terms of the agreement with which it was well familiar by virtue of having been a member of the association which negotiated the past agreements with the Union and by attending and participating in the association meetings the same year but prior to abandoning its "policy" of abiding by the terms and conditions of the current union agreement. Nevertheless, the evidence in the instant case of Respon- dent's adoption of the Union-AGC agreement must be re- garded as substantial. Respondent's contributions to the Union's trust funds from May 1973 through February 1977, its use of union members exclusively as far as the record shows, its observation of the Union-AGC holidays, its use of the union for referrals, its payment of the union wage scale, its allowance through Beshears of the appointment of a union job steward, and the undisputed testimony of Besh- ears, whom I credit, to the effect that on some but not all occasions when he wanted to start work at an earlier hour than called for in the union agreement he would check with Business Agent Rosentritt, all reflects an intention to adhere to the terms of the Union-AGC agreement. The announce- ment of its decision to go "open shop" constitutes recognition of the earlier intention to operate in accordance with the union agreement. s I am persuaded that by the conduct outlined immediate- ly above Respondent manifested a clear intention to adopt and be bound by the 1974-77 Union-AGC agreement and While Respondent was not a succiessor to, or alter ego of, Mobley-Speed, the two concerns shared a common authoritative official. Bert Speed. I conclude that Bert Speed, by virtue of his position of authority with Mob- le)-Speed as testified to by Howard Haberman, was aware of, and ac- quainted with, the terms of the Union Moble)-Speed contract, and, hence. the Union-AGC contract with which it was identical the preceding such agreement. As a consequence, and be- cause Respondent engaged in this conduct over a period approaching 4 years, it is now estopped from asserting the defense of failure to formally sign the agreement with the union. Such formal execution is not a condition precedent to the existence of the agreement under the circumstances here. See Vin James Plastering Company, supra. Accord- ingly, Respondent, when it announced its intention to its employees to go "open shop" and to cease paying the "fringes" as well as when it actually ceased paying "fringes" violated Section 8(a)(1) and (5) of the Act. I so find. 4. The alleged constructive discharges The General Counsel alleges that Respondent's elimina- tion of its contributions to the Union's funds caused seven employees, Charlie Lee Franks, G. L. Lockhardt, Candido Molina, Jack B. Swoda, Tom Temmons, L. B. Tippie, and Randy R. Whitfield to quit their employment on February 16 and that by so doing Respondent constructively dis- charged those employees in violation of Section 8(a)(3) and (I) of the Act. The testimony of all of the foregoing named employees at the hearing with respect to the reasons for quitting was not contradicted by Respondent. I therefore credit their testimony which clearly establishes that the basis for their quitting was Respondent's decision to go "open shop" and no longer pay their "fringes," i.e., payments to the Union's funds. To Respondent's argument that a constructive discharge can only be found where the employer's action makes working conditions intolerable it is sufficient to respond that Respondent's action in deciding to go "open shop" did make working conditions "intolerable" for the employees who decided to quit rather than work under these condi- tions. The Board has previously found constructive dis- charges on similar facts. See Marquis Elevator Company, Inc., supra, Johnson Electric Company, Inc., 196 NLRB 637 (1972). The fact, pointed out by Respondent's brief, that the benefits to the employees represented by the contributions to the Union's funds were not specified on the record, does not in itself preclude the application of the constructive discharge principle. It is sufficient triat the employees in- volved believed that the contributions which had been negoti- ated for by their Union were to their benefit and were a condition of their employment. I therefore find that the separations of Charlie Lee Franks, G. L. Lockhardt, Candido Molina, Tom Tem- mons, and L. B. Tippie constituted constructive discharges in violation of Section 8(a)(3) and (1) of the Act. However, since I have previously found that Jack B. Swoda and Ran- dy R. Whitfield were supervisors within the meaning of 2(11) of the Act I do not find that their separations were violative of the Act. 5. The alleged 8(a)(l) violations The General Counsel premises his argument on the 8(a)(l) violation on Respondent's announcement to em- 86 HABERMAN CONSTRUCTION COM'PANY ployees his intention to go "open shop." From the evidence presented, I conclude that such announcement by Respon- dent conveyed to employees an intent of Respondent to refuse to abide by the terms of an applicable contract and to discontinue dealing with a union with which it was obli- gated to deal. Accordingly. I find that such announcement to the employees constituted a violation of Section 8(a)( 1) of the Act. See Chase Man/,lrctulri,ng In.. 200 NL.RB 886 (1972); Cf. Johnson Electric Conimpoa. Inc., d ha, .Johnson Electric Companr, 196 NLRB 637 (1972); AAA Electric. Inc. and Simms Electric Co.. 190 NLRB 247 (1971). CONCLUSIONS OF LAW I. Haberman Construction Company is an employer en- gaged in commerce and activities affecting commerce with- in the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, Local No. 1266 is a labor organization within the meaning of Section 2(5) of the Act. 3. All Haberman Construction CompanN employees en- gaged in carpentry work on Haberman Construction Company's Austin, Texas, jobsites excluding guards. watchmen and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been at all times material to this case and is now the exclusive bargaining representative of the employees in the above unit. 5. At all times material to this case Htaherman C'onstruc- tion Company has recognized the Union as the exclusive bargaining representative of its employees in the unit de- scribed above. 6. Haberman Construction Company adopted and be- came bound by a written collective-bargaining agreement between the Union and the Associated General Contrac- tors, Austin Chapter, effective September 1. 1974. through March 31, 1977. 7. Haberman Construction (ompany v iolated Section 8(a)(1) and (5) of the Act by announcing on FebruarN 14. 1977, that it would no longer make contributions to the union's trust funds as provided under the 1974- 77 collec- tive-bargaining agreement: by unilaterally, without bar- gaining with the Union, changing the terms and the condi- tions of employment for employees in the unit set out above; by ceasing payments to the lnion's funds. 8. By constructively discharging Charlie Lec Franks. G. L. Lockhardt, Candido Molina, T]om I emmons, and L. B. Tippie. Haberman Construction Company has en- gaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 9. By announcing that it was going to go "open shop" and thereby conveying to its employees an intent to refuse to abide bv the terms of an applicable contract or agree- ment, Haberman Construction Company has engaged in unfair labor practices in violation of Section 8(a)( ) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. Haberman Construction Company did not violate Section 8(a)( ) and (3) of the Act through the separations from employment of Jack Swoda or Randy R. Whitfield. THE REMEDY Having found that Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below designed and found necessary to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (5) of the Act, Respondent will be di- rected to cease and desist from engaging in the conduct found unlawful herein or any such conduct and Respon- dent will be directed to bargain collectively in good faith upon request with the Union as the bargaining agent of the emplovees in the unit found appropriate herein. Respon- dent will be directed to rescind and revoke its unlawful abandonment of the terms and conditions of employment of the unit employees as contained in the 1974-77 Union- AG( collective-bargaining agreement: to give retroactive effect to the terms and conditions of employment as con- tained in that agreement from the date of Respondent's unlawful abandonment on February 14. 1977: to make whole the employees in the unit found appropriate herein for any loss of wages or other benefits by paying all health and welfare funds, pension funds, joint apprenticeship fund. industrial advancement fund benefits as provided for under the expired 1974-77 collective-bargaining agreement or succeeding agreement which have not been paid and which would have been paid after Respondent's unlawful discontinuance of such agreements; and to post the at- tached notice. See Vin James Plastering Company. 226 NILRB 125 (1976). From the record it appears that the jobs from which the employees were constructively discharged were almost completed at the time of the discharge and most likely by now have been long since completed. Since it appears that the job complement of carpenters was not always the same from job to job. reinstatement in the sense of restoring a carpenter to a particular job from which he has been dis- charged is neither practical nor required. I shall therefore not recommend reinstatement, but shall recommend that the discharged carpenters be made whole for wages and other benefits lost from the time of their discharges until thev would have separated upon completion of the jobs on which they were working at the time of the discharges. The backpay herein recomnmended shall be computed in the manner set forth in F 1:. H'oolvorth Company, 90 NLRB 289 (1950(), with interest at the rate of 7 percent per annum as provided in Florida Steel Corporation, 231 NLRB 651 (1977). It will also be required that Respondent preserve and, upon request, make available to authorized agents of the Board, all records necessary and useful in determining compliance with this Order, or in computing the amount of backpa.y due. IUpon the foregoing findings of fact, conclusions of law, and the entire record. and pursuant to Section 10(c) of the Act, there is issued the following recommended: 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 9 The Respondent, Haberman Construction Company, Austin, Texas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Failing or refusing to give full effect to and to com- ply with the standard agreement between the Associated General Contractors, Austin Chapter and United Brother- hood of Carpenters and Joiners of America, Local No. 1266, executed September 1, 1974, and effective through March 31, 1977, according to its tenure and effect with respect to employees in the unit set forth above. (b) Failing or refusing, on request, to bargain collective- ly with the aforesaid labor organization as exclusive collec- tive-bargaining representative of the employees in the aforesaid unit. (c) Unilaterally changing the terms and conditions of employment of the employees of the aforesaid unit without prior consultation with aforesaid labor organizations as ex- clusive collective-bargaining representative of said employ- ees. (d) Unlawfully terminating employees or otherwise un- lawfully discriminating in regard to employees' wages and terms and conditions of employment. (e) Coercing or restraining employees in the aforesaid unit by telling employees that in effect it intended not to comply with the terms of an applicable collective bargain- ing with the union. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or pro- tection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. and in good faith with United Brotherhood of Carpenters and Joiners of America, Local No. 1266, as exclusive bar- gaining representative of the employees in the above unit with respect to the rates of pay, wages, hours of work and other terms and conditions of employment. (b) Restore and place in effect all terms and conditions of employment as provided in the above agreement which were unilaterally changed and abandoned by Respondent. (c) Make such health, welfare, and pension, and appren- ticeship training fund payments on behalf of those employ- ees in the above unit for whom such contributions were not previously made that would have continued to be made had Respondent not unlawfully abandoned the above col- lective-bargaining agreement. (d) Make whole Charlie Lee Franks, G. L. Lockhardt, Candido Molina, Tom Temmons, and L. B. Tippie for any loss of wages or other benefits suffered by reason of Re- spondent's conduct as provided in the section hereof enti- tled "The Remedy." (e) Preserve and, upon request, make available to au- thorized agents of the Board, for examination and copying, all payroll records, social security payment records, time- cards, personnel records, and reports and all other records necessary to analyze the moneys due under the terms of this Order. (f) Post at its facility in Austin, Texas, the attached no- tice marked "Appendix." O0 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found herein. 'l In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted b) Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. 88