Kamminga & Roodvoets, Inc.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kamminga & Roodvoets, Inc. and Local 324, Interna- tional Union of Operating Engineers, AFL-CIO. Case 7-CA-8619 July 14, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 22, 1971, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the Union and the General Counsel filed exceptions and supporting briefs, and the Respon- dent filed an answer to the exceptions and a brief in support of its answer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' and to adopt his recommended Order, as modified herein.2 The Trial Examiner concluded, inter alia, that Respondent violated Section 8(a)(5) and (1) of the Act by advising its employees that their continued employment was conditioned on their withdrawing their membership from and support of the Union. Contrary to the Trial Examiner, we conclude that this conduct by the Respondent also violated Section 8(a)(3) of the Act in that it constituted a constructive discharge of certain employees. The evidence which compels this conclusion with respect to certain employees is based entirely on the testimony of the named employees. Respondent presented no witnesses to rebut the testimony of any of these employee 'witnesses whose testimony is hereinafter described. A. Evidence With Regard to Alleged Violations of Section 8(a)(3) As early as March 11, Respondent's general manager, Arnold Bordewyk, told employee Frank Simons that his return to work was conditioned on Simons' giving up his union membership. At a meeting of all employees on March 27, other employees were similarly advised that their contin- ued employment was conditioned on their withdraw- ing their membership and support from the Union. ' The Trial Examiner found that Respondent violated Sec 8 (a)(1) and (5) of the Act In the absence of exceptions these findings are adopted pro forma 2 The General Counsel has filed an exception to language appearing in As to the individual employees to whom Respondent made similar statements the record shows: 1. Larry Boss Bordewyk asked Larry Boss to resign from the Union on March 27 . Boss refused. At the same meeting, Respondent discussed its going nonunion. After the commencement of the strike, Boss was contacted by Respondent's foreman, Andy Hoover, on April 6 and by Respondent's foreman, Dick Spaans, on April 12, both of whom asked him if he was ready to come back to work . By this time some employees had given up their union membership and returned to work for Respondent . Boss told Hoover that he wanted to keep his union membership and would not return . Boss reiterated this position in a conversation with Spaans and specifically inquired whether he could keep his union membership and return. Spaans agreed to check on this and get in touch with Boss, but he never did. Finally, Boss said that he quit his job after the commencement of the strike and took anotherjob elsewhere because he did not want to give up his union membership. 2. David J. Brown On March 22, Bordewyk asked David J. Brown if he would give up his union membership in return for certain benefits offered by the Respondent. Brown refused to resign from the Union and did not sign a paper for such purpose offered by Bordewyk. Brown went on strike along with other employees of the Respondent on March 30 and thereafter decided to keep his union membership and take a job elsewhere. 3. Carl De Ruiter On March 27, Bordewyk gave Carl De Ruiter a form to sign to resign from the Union. De Ruiter refused to sign. Immediately thereafter, at a meeting of all Respondent's employees, Respondent posed the question whether the employees would give up their union membership and continue working for Respondent if the Respondent went nonunion. De Ruiter worked on March 29 and went out on strike with other employees on March 30. He later took a job with another employer. 4. Oliver Kemme On March 24, Foreman Dutch Workman asked Oliver Kemme whether he (Kemme) would quit his job if Respondent went nonunion. Kemme told section III, B, of the Trial Examiner's Decision, which implies that the Union failed to bargain in good faith with the Respondent Since an alleged violation of Sec 8(b)(3) was not before the Trial Examiner, we disavow this language of the Trial Examiner's Decision 198 NLRB No. 37 KAMMINGA & ROODVOETS Workman that he would keep his union membership. Although Workman's inquiry to Kemme was not as explicit as the alternative presented by Workman to other employees, namely, Mollette, Sherwood, and Vanderlaan, discussed infra, it is clear that Kemme's employment was, as was that of the other employees, conditioned on his abandoning the Union. 5. Lester Mollette On April 7, Foreman Workman told Lester Mollette that there was no way he (Mollette) could work for Respondent and maintain his union membership. Workman also told Mollette to give up the Union by the next day or someone else would replace him and run his rig. Mollette quit his job with Respondent and took another job soon thereafter. 6. Jack Rozema On April 3, Foreman Workman reviewed the union contract situation with Jack Rozema saying that the Company could not sign the contract and suggesting that Rozema return to work. During the conversa- tion, Rozema, who had been an employee of the Respondent for 7 years and a member of the Union for approximately 15 years, told Workman he did not want to give up his union membership. Soon thereafter, Rozema quit his job with the Respondent and took a job with another employer. Approximate- ly 3 weeks before the hearing, Rozema returned to work for the Respondent without giving up his union membership. 7. Robert G. Sherwood On April 6, Foreman Workman talked with Robert G. Sherwood about his machine being idle and told Sherwood that he could return to work if he dropped his union membership. Sherwood refused to resign from the Union, quit his job with Respondent, and took another job elsewhere soon thereafter. 8. Frank Simons On March 11, General Manager Bordewyk asked Frank Simons, who was on layoff at the time, whether he was ready to give up his union member- ship and return to work. Simons indicated he was not ready to give up his union membership. Later, prior to the strike, Simons did return to work without giving up his union membership. Simons struck with the other employees on March 30 and then took a job with another employer during April. 3 This conclusion cannot be gainsaid in view of the conduct that occurred after an impasse in the bargaining was reached on January 22, 1971 More specifically, as shown by the facts set forth supra, the main 9. James Vanderlaan 209 On April 1 and 9, Foreman Workman told James Vanderlaan that he would have to give up his union membership before he could return to his job with the Respondent. Vanderlaan refused to resign from the Union and quit his job with the Respondent. Respondent points out that at the end of the conversation on April 9, Workman told Vanderlaan that there was a job waiting for him and that Workman did not qualify the offer. Be that as it may, the record is clear that Workman stated the condi- tion for continued employment a number of times and never specifically rescinded the qualification. 10. Charles C. Zagumny On April 2, Bordewyk and on April 5, Foreman Hoover, respectively, told Charles C. Zagumny, a member of a Laborers local, that he could return to work if he gave up his union membership. Zagumny refused to resign from his union and quit his job with the Respondent. B. Discussion and Conclusions With Regard To Alleged 8(a)(3) Violations Respondent's intention and efforts to dissipate the Union's majority status and become a nonunion contractor are clear and unequivocal.3 Toward this end, the Trial Examiner concluded that the Respon- dent advised and assisted its employees to withdraw from the Union; advised its employees that their continued employment was conditioned on their withdrawing membership and support from the Union; and advised its employees that it had no intention of executing a contract with the Union. Further, Respondent proposed that the employees accept certain benefits in return for their resignation from the Union and offered resignation forms already printed for that purpose. Against this background, the employees were in no uncertain terms given to understand that the Respondent did not want them to work unless they gave up their union membership. The Union struck the Respondent on March 30. It appears from the record that picketing continued for a few days after which a substantial number of Respondent's employees crossed the picket line and returned to work after resigning from the Union. Respondent has continued its business as a nonunion contractor since that time. Some of the employees, in the face of Respondent's position on union member- ship, decided to quit their jobs and seek employment thrust of Respondent's antiunion activity occurred from the middle of March through April 1971 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elsewhere. These employees, as shown above, had been individually informed by the Respondent regarding its position on union membership. Conse- quently, we find that by conditioning continued employment or reinstatement on giving up union membership, Respondent's conduct constituted a constructive discharge of the employees who quit. American Enterprises, Inc., 191 NLRB No. 118.4 Accordingly, based on the facts set forth above and the entire record, we find that the Respondent constructively discharged Larry Boss, David J. Brown, Carl De Ruiter, Oliver Kemme, Lester Mollette, Robert G. Sherwood, James Vanderlaan, and Charles Zagumny. Further, we find that the record evidence does not establish that Jewel Olison5 and Frank Simons6 were constructively discharged by the Respondent. Finally, it is unnecessary to pass on the alleged discharge of Jack Rozema because the record establishes that Rozema has returned to work for Respondent. Since the employees were on strike at the time of the discharge, we shall not order reinstatement and backpay. Instead, we shall require that the Respon- dent make an unconditional offer of reinstatement to the discharged employees.7 Accordingly, we shall amend the Conclusions of Law and modify the Trial Examiner's recommended Order herein. AMENDED CONCLUSIONS OF LAW The Conclusions of Law are amended by adding the following paragraph 5 and renumbering para- graphs 5 and 6 as paragraphs 6 and 7: 5. By discriminatorily constructively discharging Larry Boss, David J. Brown, Carl De Ruiter, Oliver Kemme, Lester Mollette, Robert G. Sherwood, James Vanderlaan, and Charles Zagumny, as found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Kamminga & Roodvoets, Inc., Grand Rapids, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order, as herein modified: 1. Add the following as paragraph 1(d) and reletter paragraphs 1(d) and 1(e) of the recommend- ed Order accordingly. "(d) Constructively discharging any employee because of his exercise of the right to join or assist the above-named or any other labor organization or engage in any other protected activity." 2. Add the following as paragraph 2(a) and reletter paragraphs 2(a) and (b) accordingly. "(a) Offer Larry Boss, David J. Brown, Carl De Ruiter, Oliver Kemme, Lester Mollette, Robert G. Sherwood, James Vanderlaan, and Charles Zagumny immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. Where it can be shown that Respondent has already made a valid offer of reinstatement to any of the above-named employees, such offer shall satisfy the requirements of this Order for the employees to whom such offer was made." 3. Substitute the attached notice for the Trial Examiner's notice. 4 In reversing the Trial Examiner, we agree that evidence was not adduced to show that the strike was an unfair labor practice strike However, we disagree with the intimation of the Trial Examiner that the employees, because they were on strike, had some obligation to give the Respondent an opportunity to enforce or withdraw its stated condition for continued employment or reinstatement prior to the time that the employees quit and became dischargees. 5 The record evidence fails to show that Olison's continued employment was conditioned on his giving up his union membership 6 Simons was recalled from layoff poor to the strike without being required to give up his union membership There is no evidence that the Respondent conditioned Simons' return on his giving up his union membership 7 Whether Respondent has in the interim made valid offers of reinstatement to any of the employees is a matter we leave to the compliance stage of this proceeding APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. KAMMINGA & ROODVOETS 211 WE WILL NOT advise or assist our employees in withdrawing from the Union. WE WILL offer to Larry Boss, David J . Brown, Carl De Ruiter, Oliver Kemme, Lester Molette, Robert G . Sherwood, James Vanderlaan, and Charles Zagumny immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed , because of our discrimination against them. WE WILL NOT advise our employees that they must relinquish their membership in the Union as a condition of employment with us. WE WILL NOT in any manner attempt to destroy the representative status of the Union as bargain- ing representative of the employees in the unit found appropriate for purposes of collective bargaining. discrimination against its employees to discourage mem- bership in the Charging Party. On August 17, 1971, the said Regional Director, on behalf of the General Counsel of the Board, issued a complaint and notice of heanng, alleging violations of Section 8(a)(1), (3), and (5) of the Act by various conduct, including the refusal by the Respondent to sign an employer association contract to which the General Counsel alleges it is bound and the refusal thereafter to bargain in good faith with the Union by individually bargaining with its employees concerning wages and benefits and by conditioning the grant of such benefits on the rejection of the Union, by the employees, by soliciting employees to sign resignation forms from the Union, by informing employees that Respondent had no intention of executing a contract with the Union, and finally by locking out and terminating its employees because they refused to withdraw from the Union or relinquish their union membership. By its duly filed answer, Respondent admitted and denied various facts but denied any authorization on behalf of the association to bargain for it and denied that it had refused to bargain with the Union. On the issues thus joined, the matter came KAMMINGA & on for hearing before me on October 19, 1971. All parties ROODVOETS, INC. were present and represented at the hearing. All parties (Employer) had an opportunity to call witnesses, to adduce relevant Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On April 8, 1971, Local 324, International Union of Operating Engineers, AFL-CIO, hereinafter called the Union, filed a charge with the Regional Director of Region 7 of the National Labor Relations Board, hereinafter called the Board, alleging that Kamminga and Roodvoets, Inc., hereinafter called Respondent, violated Section 8(a)(1) and (5) of the Act by refusing to bargain with it and by restraint and coercion of employees. Thereafter, on April 9, 1971, the Union filed an amended charge against the Respondent alleging, in addition, a violation of Section 8(a)(3) by and material evidence, to argue on the record, and to submit briefs. Briefs have been received from the General Counsel and the Respondent. On the entire record and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation, is engaged in and around Grand Rapids, Michigan, in the business of highway and related construction. In the year 1970 Respondent derived gross revenues in excess of $300,000 from construction and resurfacing of airports within the State of Michigan. During the same year it purchased materials and supplies valued at approximately $270,000 shipped to its installations directly from points outside the State of Michigan. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Union and Local 1165, Laborers International Union of North America, AFL-CIO, hereinafter called Local 1165, are, each of them, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is one of a number of western Michigan contractors who hire employees within the jurisdiction of the Union. Prior to June 24, 1970, Respondent was a member of the Michigan Roadbuilders Association, hereinafter called MRB, and bound by its contract with the 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Respondent, together with other employers in western Michigan, was dissatisfied with the contractual status because, among other reasons , it had to pay a different scale for "underground work" under the MRB contract than other employers paid under other contracts. In July 1970, the Respondent hosted, in its office, a meeting of a number of contractors with a representative of the Association , of Underground Contractors, hereinaf- ter called AUC, apparently a competing association to MRB. The ferment among the western contractors resulted in a meeting on or about August 14, 1970, between a number of those contractors and the Union , at which Respondent was present. The main intention of the meeting on the part of the contractors was to explore the possibility of having their own contracts with the Union covering the western Michigan area in which they did most of their work. The meeting was to some extent unruly. The meeting terminat- ed with the union agents promising to explore the possibility of separate contracts with their principals and an agreement to meet again when this had been accom- plished . The MRB contract expired September 1. On August 28, Respondent met with its employees in an attempt to ascertain whether the Union was going to strike when the contract expired since no steps had been taken to negotiate new contracts. The Union's representative, Pushies, heard of the meeting and met with Respondent's agent, Bordewyk, on the following day. Pushies com- plained about Respondent's meeting with the union members in the absence of a union spokesman and warned Bordewyk not to do this again. According to Bordewyk's testimony, Pushies asked him during this meeting what Respondent's position was with regard to the new contract, and Bordewyk informed Pushies that the Respondent intended to negotiate separately as it had indicated in a notification letter sent to the Union on June 24. Pushies indicated that a group of contractors in western Michigan was talking about negotiating together and asked if Respondent were part of that group . Bordewyk answered that it was not and had no intention of becoming part of that group . At that time Pushies stated in effect that Respondent could not expect anything other than a short- form agreement or a master agreement at such time as master agreements were settled.' On his direct examina- tion, Pushies denied any recollection of a meeting such as that testified to by Bordewyk; however, the following day in rebuttal he not only recalled that there had been a meeting but recalled at considerable length what had taken place. However, he denied that any mention was made of association bargaining or that any mention was made by Bordewyk that Respondent would not engage therein. I do not credit Pushies in this regard, and I credit Bordewyk's testimony. Although Bordewyk had announced at the close of the August 14 meeting with the other western contractors that Respondent was not interested in bargaining as part of a group, Bordewyk received a call from another contractor suggesting that he come to a meeting which the contractors were having on September 25 because matters of interest to I Short-form agreements are agreements pursuant to which employers who are not members of any association agree to be bound by the Respondent were to be discussed . Accordingly, Bordewyk attended the meeting. Union representatives were present at the meeting. The meeting commenced in some confusion and the union agents absented themselves while the contractors present agreed to nominate three spokesmen . At this point Respondent stated that it declined to be bound by any action taken by the group or by spokesmen for the group. It was already apparent that the group was in the process of forming into an association and Respondent's represent- ative, Bordewyk, left the meeting. The association was duly formed, three individuals were nominated to represent it and they went into contract negotiations . Pushies, on behalf of the Union at various times during the negotiations, asked the association for a list of its members. On December I I one of the representa- tives of the association sent a list to the Union containing the names of various contractors and the members of the Union employed by them. The Respondent was not on the list. According to the testimony of one of the association negotiators, at almost every negotiating meeting the negotiating committee asked the Union what it was doing with regard to Respondent, and the Union rejoined by asking the association if Respondent had joined it yet. Early in January Pushies asked for a roster of the employers represented by the association and found that Respondent was not on the roster . Pushies communicated with Bordewyk and told him he was sending around a contract. Thereafter he had delivered to Bordewyk a copy of the contract between the newly formed Michigan Underground Contractors Association, hereinafter called MUCA, and, for comparison purposes, one that the MRB had signed with the Union. About January 22 Pushies met with Bordewyk at Respondent's offices. Bordewyk had the copy of the MUCA contract and proposed that they use it for negotiating purposes. He tendered a copy to Pushies, who found that various provisions in it were changed. He questioned this, and Bordewyk explained some of the changes to him. According to Bordewyk, he thought that he was negotiating ; according to Pushies, Bordewyk was merely explaining why he had crossed out various portions of the association contract . After this continued for a while, Pushies informed Bordewyk that he was not authorized to give Respondent any lesser agreement than the association had and said that Respondent would have to sign the association agreement or a short-form agree- ment. Bordewyk said that under those circumstances there was no point in talking further, that he thought they had been negotiating for the preceding 4 hours, and he expressed his disappointment . At this time, according to the testimony of Pushies, the Union assumed that Respondent was part of MUCA. Pushies also testified that it was not in his power to give Respondent anything that was different from the association contract. According to the testimony of Pushies, between January 22 and March 29 he attempted to call Bordewyk on the telephone on various occasions . On each occasion Bor- dewyk was not in the office, and Pushies left word for Bordewyk to return the call but Bordewyk never did. association contracts KAMMINGA & ROODVOETS According to Bordewyk, he never received any message to call Pushies during this period. On February 12, 1971, the Union by another business agent, Barlow, notified Respon- dent that three of its employees had been designated as the Union's bargaining team. Sometime later Bordewyk met one of the named employees on a jobsite and asked when they were going to meet for negotiations. The employee expressed surprise that he had been nominated to the bargaining team because he had not been so informed. On March 30 the Union struck Respondent; it appears that picketing continued for a few days after which a substantial number of employees crossed the picket line after resigning from the Union. Respondent has continued its business as a nonunion contractor since that time. On August 9 the Union addressed a letter to Respondent stating in effect that it wished to get together with Respondent and bargain. On August 23 Union Represent- ative Barlow met with Bordewyk at the Company's office. Bordewyk again suggested that they start negotiating on the basis of the MUCA agreement. Barlow, however, told him that he was not empowered to negotiate anything but the standard agreement and asked Bordewyk to sign the master agreement; Bordewyk declined to do so, and Barlow left. B. Discussion and Conclusions With Regard to the Alleged Refusal To Bargain The General Counsel contends that Respondent was bound by the multiemployer bargaining of MUCA. The facts as I have found them do not support this contention. Respondent never joined MUCA nor did it at any time provide MUCA with authority to bargain on its behalf. It deliberately absented itself from the organizational meet- ing of MUCA, stating at the time it would not be bound by MUCA's negotiating. The Union at no time had any factual basis for believing that Respondent had agreed to be bound by MUCA's negotiating. Commencing with the letter of June 24 by which Respondent resigned from MRB, no evidence was adduced that Respondent at any time informed the Union that it would be prepared to go along with any other association. I have credited Bor- dewyk's testimony that during the meeting of August 29 he directly informed Pushies that Respondent was not going along with any organization of a multiemployer association and that Respondent desired to bargain separately as it had stated in its June 24 letter. At vanous times during the negotiation the Union asked the negotiating committee whether Respondent had joined the association, and the association asked the Union what they were doing about Respondent; nothing in this could suggest to the Union that Respondent had agreed to be bound by the negotia- tions of the association. When the association furnished the list of employers and union members working for them on December 11, Respondent's name was not placed thereon and in January when an employer roster was furnished by the association to the Union the Respondent's name was not placed thereon. By its letter of February 12 nominating employees as part of the negotiating team, the Union admitted that Respondent was not part of the 213 association. By its letter of August 9, 1971, the Union suggested bargaining to Respondent, a suggestion inconsis- tent with its claim that Respondent was already bound by a contract. Further, at the meeting of August 23, 1971, Barlow's offer of a standard contract with a statement that he was not empowered to negotiate anything else is again inconsistent with its position. I recommend that the complaint be dismissed insofar as it is alleged that Respondent is part of MUCA and bound to sign the association contract. The General Counsel contends alternatively that, wheth- er or not it was bound by the association contract, Respondent refused to bargain by vanous acts and conduct, including Bordewyk's failure to respond to the telephone calls allegedly made by Pushies between January 22 and March 29. 1 view the meeting of January 22 as dispositive of this contention. This meeting broke up when Pushies on behalf of the Union informed Respondent that the Union could not give any lesser agreement to Respondent than to the association. The Union made its position ultimately clear to Respondent at this time that Respondent must sign the association contract, "take it or leave it." Although Bordewyk, on behalf of Respondent, attempted to negotiate varying terms and conditions of the contract, Pushies was neither empowered nor prepared to negotiate with him. As Pushie said, ". . . as far as I was concerned I didn't care whether it was the Association's name on the contract or whether it was K & R; but I could not give any lesser conditions or better conditions to K & R than I could to the Association... . Pushies' account of the completion of the January 22 meeting is graphic. "When you sit there and talk-we talked one position and they talked another position-and nobody was moving off their position-what are words worth at that point? There is no sense of going on." I conclude that at the end of the January 22 meeting, if it were found that the Union was bargaining in good faith, an impasse was reached; Pushies' description above quoted illuminates that conclusion. Thereafter, Respondent was under no duty to meet and bargain with the Union unless and until it had reason to believe that continuing negotiations would result from a change of position of either the Union or Respondent. Respondent had no reason to believe that any position had changed; its position had not. This was, of course, corroborated by the action of the Union at the negotiating session of August 23, 1971, when the Union revealed that its position still had not changed; Respondent could accept the Association contract or nothing. The Act does not require that Respondent give in to the Union under these circum- stances. It is as violative for a union as it is for an employer to adamantly insist, to the exclusion of collective bargain- ing, on its proposal and none other-the situation we have here.2 In the face of the Union's intransigence, Respondent was under no duty to go forward and seek additional negotiations which could be no more than an exercise in futility. I recommend, insofar as the complaint alleges that Respondent refused to bargain by its failure to return telephone calls which I have not found were made and by 2 Roadhome Construction Corp, 170 NLRB 668 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its actions in the negotiation sessions of January 22 and August 23, that the complaint be dismissed. C. The Direct Bargaining With Respondent's Employees The strike started on March 30, 1971. That there had been some communication with regard to Respondent's position appears clear, although the record does not disclose what it was. At any rate, Respondent was aware of the fact that the Union was contemplating a strike. Respondent in its turn had reached the conclusion that it would proceed without a union in the face of the strike threat. Various incidents occurred prior to the strike. On March 11, Frank Simons, the union steward, a 5-year employee who was on layoff at the time, came to Respondent's office to file a grievance. He met Bordewyk, who said in essence, "Why don't you drop the Operating Engineers and come back to work?" About March 22 another employee, Brown, had a conversation with Bordewyk in which Bordewyk suggested that, if Brown dropped out of the Union, he would have the same benefits as the employees in the shop who were not organized and who had Blue Cross and profit sharing. On March 24 Oliver Kemme, who had been an employee for 3 years, was accosted by his foreman, Workman, who said in effect, "If we go nonunion, are you leaving?" Kemme answered affirmatively. On March 27 all the employees were called to a meeting by their supervisors at which, as they entered, they were furnished papers which they could sign to repudiate or resign from the Union. Bordewyk conducted the meeting and said, in essence, that the Company could not live with the union contract and he wanted to know whether, if the Company went nonunion, the employees would sign the repudiations and go to work. Some of the employees asked under what conditions they would work and in partial answer Vice President Roger Roodvoet told them that he would like to see them get the same profit sharing and Blue Cross benefits that the shop employees had. The strike started on March 30 and, as I stated above, picketing continued for several days after which a large number of employees crossed the picket line and went to work. The day the strike started Foreman Workman called employee Vanderlaan, who had been a bulldozer operator with the Company for 4 years, and suggested that he come into the office and discuss what the Company had to offer; Workman suggested then that he come back to work, but told him he would have to drop his union card to do it. The next day employee Rozema, who had been employed for 7 years, talked to Workman. Workman said that the Company could not sign the contract and suggested that Rozema return to work. Rozema said that he could not leave the Union and declined to do so. Later, shortly before the hearing herein, Rozema returned to Respon- dent's employ. He testified that he now has Blue Cross and is eligible for profit sharing. Also on April 2, Charles Zagumny, who was a laborer and a member of Local 1165 and was respecting the picket line, was asked by Workman if he would drop his card and work nonunion. Workman discussed with him the profit sharing and the Blue Cross plan by which he would then be covered. On April 5, Foreman Hoover called Zagumny and told him that he always had a job with Respondent if he would turn in his card. Similar statements were made by Workman to Vanderlaan on April 9 and to employee Mollette on April 7, by Foreman Hoover to employee Boss on April 6, and by Foreman Spaans to Boss on April 12. The General Counsel contends that each of the above • incidents is violative and I agree. The Respondent, in each case, addressed to all of its employees, individually or collectively, two propositions. One, that they could have Blue Cross, profit sharing and the other conditions that its shop employees had, rather than the conditions offered by the Union under its contract. This is certainly an attempt to negotiate with employees behind the Union and is violative of the Act, sounding both in Section 8(a)(5) and (1). In addition, Respondent in each case presented as part of the package to the employees the proposition that they would have to resign from the Union and offered resignation forms already printed for this purpose.3 The Board has long held that it is violative for an employer to restrain employees to foresake their union or to assist them in any more than ministerial fashion in so doing. I am not blind to the industrial realities of the situation. An employer in the construction industry must almost surely be aware that normally union employees do not work behind picket lines or for nonunion employers without the blessing of their union, and Respondent must have been well aware that it would not receive the blessing of the Union herein. But to place the proposition before the employees as Respondent did bore overtones far in excess of a recognition of industrial reality, for here the employees were in no uncertain terms given to understand that Respondent did not want them to work unless they gave up their union membership. The alternative, in other words, was not left to the employees to decide but was decided for them by Respondent. This Respondent has no right to do, and it is interference, restraint and coercion of employees in the exercise of their protected rights for Respondent to do it. I find that this is a violation of Section 8(a)(1) of the Act. Furthermore, were Respondent's suggestions fol- lowed, as apparently they were, the necessary effect would be that the Union's representative status would be destroyed. There is no question that the Union enjoyed this representative status prior to the strike; Respondent has made no attempt to show the contrary. Respondent's employees, or at least all that appeared to testify, had been employed for periods from a few months to many years, and all were union members. Accordingly, I find that the actions which I found above to constitute violations of Section 8(a)(1) are also violative of Section 8(a)(5) of the Act. The General Counsel contends that by the conversations with individual employees discussed above Respondent "locked out and terminated the employment" of the employees because they refused to accede to its demands 3 There is hearsay in the record that another group of employees of commenced, which resulted in the cessation of picketing, did the same Respondent had accepted this offer and rejected the union, and it is thing probable that those employees who crossed the picket line a few days after it KAMMINGA & ROODVOETS that they withdraw from the Union and relinquish their union membership as a condition of continued employ- ment. However, the record reveals that the Union called a strike on March 30, and the employees went out on strike. The strike, according to the rather sparse evidence in the record, resulted only from the fact that the Union had no contract with Respondent. I found above that Respondent had no duty to negotiate at that time. It had the general duty to bargain at such time as the Union was prepared to bargain in good faith, inasmuch as the Union still represented a majority of the employees in the unit. There is no evidence in the record that the Union's strike was ever called off or that the employees have ever offered to return, and there is no evidence in the record that any of the employees addressed would have gone back to work but for the interposition. by Respondent of the require- ment that employees withdraw from the Union and relinquish their union membership. While it may fairly be suggested that the statements of Respondent converted the strike to an unfair labor practice strike, no evidence to that effect was adduced, and the negotiations that took place after the commencement of the strike throw no light on the subject. Accordingly, I am unable to conclude that the strikers are unfair labor practice strikers although the issue is not before me, and I cannot find that they were converted from strikers to discriminatees by Respondent's action. Accordingly, I shall recommend that the complaint, insofar as it alleges a violation of Section 8(a)(3), be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. All full-time and regular part-time operators of Respondent, including asphalt plant operators, crane operators, dragline operators, shovel operators, locomotive operators, paver operators, elevating grader operators, pile driver operators, roller operators (asphalt), blade grader operators, trenching machine operators, auto-graders, shpform pavers, self-propelled or tractor-drawn scraper operators, conveyor loader operators (Euclid type), end- loader operators, bulldozer operators, hoist operators, tractor operators, finishing operators (asphalt), mechanics, pump operators, shouldering or gravel distributing opera- tors (self-propelled), backhoe operators, side boom tractor operators, tubefinishers, trenching machine (wheel type) operators, wellpoints and freeze pipe systems mechanics, concrete spreader operators, sweeper operators, gradall 4 Respondent admits that the unit is appropriate, although it does not, at this time, have employees in all categories set forth therein 5 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, 215 operators, asphalt paver (self-propelled) operators, asphalt planer (self-propelled) operators, batchplant (concrete) operators, and slurry machine (asphalt) operators; but excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.4 2. The Union is the designated majority representative for the purposes of collective bargaining of the employees in the unit described above and, by virtue of Section 9(a) of the Act, the exclusive representative of the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 3. By advising and assisting its employees to withdraw from the Union, Respondent has interfered with, re- strained, and coerced its employees in the exercise of their Section 7 rights and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By advising its employees that Respondent had no intention of executing a contract with the Union and by advising its employees that their continued employment is conditioned on their withdrawing membership and support from the Union, Respondent attempted to dissipate the Union's majority status in the unit set forth above and thereby violated Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated Section 8(a)(1), (3) and (5) of the Act in other regards as set forth above. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and conclusions of law and on the entire record in this case, and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: ORDERS Respondent, Kamminga & Roodvoets, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Advising and assisting its employees in withdrawing their membership from the Union. (b) Stating to its employees that it would not sign a contract with the Union. (c) Advising its employees that their future employment is conditioned on their withdrawal from the Union. (d) In any other manner attempting to destroy the representative status of the Union as bargaining represent- ative of the employees in the unit found above to be appropriate for purposes of collective bargaining. 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 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights of self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its plant at Grand Rapids, Michigan, and at all its construction sites, copies of the attached notice marked "Appendix .6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.? IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 6 In the event that the Board's Order is enforced by a Judgment of a 7 In the event that this recommended Order is adopted by the Board United States Court of Appeals , the words in the notice reading "Posted by after exceptions have been filed , this provision shall be modified to read. Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 7, in writing, within 20 days from "Posted pursuant to a Judgment of the United States Court of Appeals the date of this Order, what steps the Respondent has taken to comply enforcing an Order of the National Labor Relations Board " herewith "