Site-Con Industries, Inc.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Site-Con Industries, Inc. and Local No. 106, Interna- tional Union of Operating Engineers, AFL-CIO and Local No. 545-D, International Union of Operating Engineers, AFL-CIO. Cases 3-CA-4433 and 3-CA-4445 November 7, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 21, 1972, Administrative Law Judge I James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Charging Parties and General Counsel filed exceptions and supporting briefs, and Respondent filed a brief in answer to the exceptions and cross-exceptions and a supporting brief. 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 attached 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. 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 Administrative Law Judge and hereby orders that the Respondent, Site-Con Indus- tries, Inc., its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Trial Examiner: These consoli- dated cases, tried before me on August 24 through 27, 1971, at Albany, New York, are proceedings under Section 10(b) of the National Labor Relations Act, as amended (the Act), arising out of charges filed April 16 and amended June 16, 1971, in Case 3-CA-4433 by Local No. 106, International Union of Operating Engineers, AFL-CIO (herein called Local 106), and April 23, 1971, in Case 3-CA--445 by Local 545-D, International Union of Operating Engineers, AFL-CIO (herein called Local 545-D). The matters were consolidated and a complaint based on the charges issued on June 30, 1971, against Site- Con Industries, Inc. (herein called Site-Con or Respon- dent), alleging violations by it of Section 8(a)(3), (5), and (1) of the Act. Respondent filed an answer admitting some allegations of the complaint, denying others, and denying that it had engaged in unfair labor practices. The 8(a)(3) issues are: (a) Whether four operating engineers (Stephen Kaufman, William F. Shelley, Robert A. Slade, and Eugene Perry), all members of Local 106, who admittedly were separated on March 31, 1971, were terminated for cause or because they were members of Local 106; and (b) whether two surveyors (Edward Koziol and Stephen Spring), laid off April 1, 1971, were not thereafter recalled because they were members of Local 545-D. I conclude hereinafter that Respondent violated Section 8(a)(3) as to the four operating engineers, but not as to the two surveyors. The general 8(a)(5) issues are whether Respondent, by virtue of membership in two multiemployer bargaining groups which recognized and bargained with the respective Unions, was obligated to continue to recognize and bargain with each of the Charging Unions. Threshold questions are whether Respondent ever belonged to either multiemployer group. Assuming its membership in either group, further questions are whether Respondent effective- ly withdrew from either. Additional refusal-to-bargain issues are whether Respondent unlawfully bargained directly with an individual surveyor and unilaterally changed his wages and other conditions of employment, and assigned surveyor work to nonsurveyor employees. I conclude hereinafter that Respondent was obligated to, but thereafter got out of, multiemployer bargaining, and that as an individual employer it violated its bargaining duty to Local 545-D by making unilateral changes. Upon the entire record, my observation of the witnesses, and consideration of the briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE EMPLOYER INVOLVED Site-Con, a New York corporation with its principal office and place of business at Greenwich, Connecticut, is engaged as a general contractor in public utility construc- tion at various jobsites, including jobsites in upstate New York. It annually purchases goods and materials valued in excess of $50,000 which are transported to these New York Jobsites directly from outside the State of New York. It is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. At the time of the events detailed here, it was actively engaged in construction of a sewer at Amsterdam, New York, in which project it at first employed surveyors belonging to Local 545-D and equipment operators belonging to Local 106. It had earlier performed a similar job at Gloverville-Johnstown, New York, on which it also employed members of Local 106. It subsequently began two projects near Utica, New York, where it employed equipment operators, some of whom belonged to a sister Local of Local 106. It has also employed other construc- tion crafts, including laborers, truckdrivers, and at times, carpenters. 200 NLRB No. 9 SITE-CON INDUSTRIES , INC. 47 II. THE LABOR ORGANIZATIONS INVOLVED Local 106 and Local 545-D are both labor organizations within the meaning of Section 2(5) of the Act which admit to membership employees in construction work in the State of New York, including employees of Site-Con. At times material herein each Union has represented employees of Site-Con referred to it by such Union. Local 106 (located in Albany) represents equipment operators. It bargains jointly with sister locals of the International Union of Operating Engineers representing equipment operators in upstate New York, including Local 410 at Binghamton, Local 545 at Syracuse, Utica, and Massena, and Local 832 at Rochester and Elmira. The territorial jurisdiction of Local 106 roughly includes that part of upstate New York on both sides of the Hudson River north of Poughkeepsie and east of Little Falls (a point about 20 miles east of Utica). Local 545-D represents surveyors. It is also a sister local in the same International as Local 106 , but is not to be confused with Local 545 which bargains jointly with Local 106 and like it represents equipment operators. The territorial jurisdiction of Local 545-D is larger than Local 106, including all of the territory within the jurisdiction of Local 106 plus the balance of upstate and western New York. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Refusal To Bargain in Group Bargaining 1. Theory of the complaint The theory of the complaint is that Site-Con, by virtue of membership in multiemployer bargaining groups from which it failed to make timely or effective withdrawal, is obligated to honor the terms of agreements negotiated by those groups with the Charging Unions, and that Site-Con in bad faith has refused to do so. 2. Associated General Contractors, New York - State Chapter Associated General Contractors of America, New York State Chapter, Inc. (herein called AGC), is an incorporated trade association made up of contractors in the construc- tion industry in New York State and including contractors performing heavy and highway construction. It provides members with various services including labor relations services and, as described hereinafter, provides some members with facilities for group bargaining with various unions. Thus, since at least 1950, group bargaining through AGC has been had with unions (including Local 106) representing equipment operators . Local 545-D represent- ing surveyors has had similar group bargaining for the period covered by two preceding contracts. The precise nature of these bargaining groups is discussed later herein. As a result of such group bargaining Local 545-D on May 15, 1967, entered into a collective-bargaining agree- ment with members of the Labor Relations Division of AGC which remained in effect until December 31, 1970. The Labor Relations Division was composed of those AGC members participating in such multiemployer bar- gaining. Similarly, Local 106, together with its sister Locals 410, 545, and 832, on October 1, 1967, entered into a collective- bargaining agreement with the Labor Relations Division of AGC acting for and on behalf of its then members and future members. This contract expired March 31, 1971. 3. Respondent's participation in AGC and its relations with the Charging Unions a. Site-Con adopts Local 106 contract At the time the above-described 1967 labor agreements were negotiated Site-Con was not a member of AGC. It applied for such membership in early September 1969 and was accepted for membership October 9, 1969. In the meantime, however, on September 17, 1969 , prior to its admission, it adopted the terms of the AGC contract with Local 106 by signing the inside back cover of a copy thereby agreeing to adhere to and to be bound by all of its terms. b. Designation of A GC The following March 17, 1970, Site-Con, in writing, authorized AGC to be its bargaining agent. It thereby designated and appointed "Associated General Contrac- tors, New York State, Inc.," its sole and exclusive representative in the negotiation of collective -bargaining agreements and bound itself by the acts of the AGC "labor committee and/or their appointed representative" in regard to all matters relating to such collective-bargaining agreements for so long as Site-Con remained a member of the Association and a collective-bargaining agreement negotiated by such representative remained in existence. It also agreed to be bound by all lawful acts taken by AGC. This clearly indicated Respondent's intent to be bound by group rather than individual bargaining. The following June 22, 1970, AGC's labor counsel transmitted to Local 545-D a list of AGC members who had designated it as bargaining agent. Site-Con was included in this list although it had not yet adopted the Local 545-D contract. c. Site-Con adopts Local 545-D contract In late October 1970 Local 545-D notified the Labor Relations Division of AGC that the agreement between AGC and Local 545-D would expire on December 31, 1970, and requested a meeting with respect thereto. A week later, at the end of October, Site-Con's vice president, Billie Harding, on its behalf signed the inside back cover of a copy of the AGC agreement with Local 545-D, thereby accepting the provisions of that contract. d. The bargaining groups There is much dispute between the parties over whether Site-Con ever belonged to the Labor Relations Division of AGC. Respondent Vice President Billie Harding testified that, when he signed the Local 545-D contract on October 30, he did not intend thereby to join the Labor Relations 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Division. On the other hand, Administrative Vice President Frederick Collins testified that, during the time the contracts with Local 545-D and Local 106 were in effect, Respondent was a member of the Labor Relations Division. I so find, although in my view the point is not material. (1) The surveyor group The more essential questions are whether there was an identifiable group of employers engaged in multiemployer bargaining with Local 545-D (Site-Con contends there was not), and if so, whether Site-Con ever joined it (Site-Con contends it never did). With regard to the first point I find there was an identifiable group bargaining with Local 545-D. Although this record does not show clearly who they were, it is beyond question that at the time the 1967 agreement was negotiated AGC was acting on behalf of some contractors who as a result of the negotiations became bound as a group to that agreement and remained bound at least until its expiration date. No one contends that such a core of contractors did not exist during the life of that agreement. Whether membership in that group was synonymous with membership in the Labor Relations Division of AGC or not seems to me to be of no importance even though the agreement by its terms purported to be between the Union and members of the Labor Relations Division . In the contract that term was merely a label referring to those employers obligated under the contract. The record here does not establish that membership in the Labor Relations Division was the same for all union contracts or for all purposes. The principal significance of that division seems to have related to the internal structure and management of AGC. There being an identifiable group bargaining with Local 545-D, whatever it might accurately be labeled, the next question is whether Site-Con ever joined the group. I find that it did by designating AGC as its bargaining represent- ative and thereafter binding itself to the then extant group contract with Local 545-D. Membership in the then existing multiemployer bargaining group was the natural and foreseeable consequence of these two acts. (2) The operators group Similarly, I find that a sufficiently identifiable group of contractors through the agency of AGC engaged in multiernployer bargaining with Local 106, the product of which was the 1967 collective-bargaining agreement between Local 106 and that group. In September 1969, after Site-Con had applied for AGC membership but had not yet been formally invested, it adopted that contract, Company President Pitassi on that occasion telling the business representative of Local 106 that Site-Con was a member of the Labor Relations Division. When Site-Con thereafter in March 1970 designated AGC to be its bargaining representative for this very kind of negotiation, it clearly joined ranks with the other members of that bargaining group. 4. Efforts to escape multiemployer bargaining As a member of both multiemployer bargaining groups, Site-Con continued to be bound by the agents acting on behalf of each group so long as it remained a member. It argues that, even if it became a member of either group, it nevertheless effectively removed itself from both. a. The surveyor group The group of employers which bargained with Local 545-D was variously referred to as the "Plossl group," the "Kohnke group," or the "Surveyor group." All employers in the group were , or during the most recent negotiations commencing in late 1970 became, members of the Labor Relations Division of AGC. In those 1970 negotiations the group was represented by a committee of five AGC members selected at a meeting of the AGC labor committee. The negotiating committee members were Roger Plossl, B. Wetmore, J. Kohnke, H. Maggione, and H. DeCarr. Plossl and Kohnke were also members of the AGC board of directors; Kohnke was a member of the AGC labor committee, and he and Wetmore were members of the AGC specifications committee. By letter of November 16, 1970, Allan Fluke, director of labor relations for AGC, confirmed to Jess Webb acting for Local 545-D that on November 11 Webb and Plossl had "agreed that the multiemployer group of heavy and highway contractors who bargain with Local 545-D, and who are also members of the Associated General Contrac- tors, will meet with your negotiating committee on November 24, 1970." The employers' committee was further described as, "the negotiation committee represent- ing those AGC members who are part of the multi- employer group who have bargained with Local 545-D in the past and who have not withdrawn from such bargain- ing arrangement." It apparently was not clear at that point just what employers belonged to the group for the purposes of negotiating future contracts because Fluke went on to say that, "the negotiations committee representing those heavy and highway contractors who will bargain with Local 545-D during the oncoming negotiations will provide you with a list of those contractors they represent at the commencement of their negotiations." As agreed the negotiating committee for the surveyor group and representatives of Local 545-D met on November 24. This was a preliminary meeting, actual negotiations not commencing until December 3. But the exact makeup of the employer group remained unsettled for a month or two after negotiations began. At the November 24 meeting Local 545-D listed contractors who had contracts with the Union . Respondent was not included. The next day Fluke, on AGC letterhead, wrote to each of the contract members so listed to inquire if they were interested in having the employer negotiating com- mittee represent them . Those who indicated in the affirmative were sent forms by which the interested contractors designated the negotiation committee to represent them . AGC staff members, including Fluke, also circularized all AGC members they thought might be interested in being represented , including names suggested by Local 545-D representatives and including some contractors not members of AGC. Thus over a period of a month or so while early negotiations were in progress the negotiators, with the joint intelligence of the Union and SITE-CON INDUSTRIES, INC. 49 AGC and the services of the AGC labor relations staff, endeavored to develop a definitive list of contractors included in the bargaining group. At no time did the Union or anyone on the employers' side suggest that Site-Con was or should be a member of the group. It was not even asked if it wished representation. Sometime after the second meeting on December 3 the AGC staff sent new designa- tion forms to each contractor who had indicated a desire to be represented. According to Fluke all members of the so- called "surveyor group" signed this new designation of authority. Site-Con did not sign it nor was it asked to do so. On December 10, Plossl, on AGC letterhead, wrote to all of the contractors who had previously been contacted by the AGC staff. He stated in part, "For your information, although the agreement we are negotiating with Local 545-D is not in itself an AGC Agreement, the AGC is providing counsel and service to our committee in its negotiations." To those contractors from whom the AGC staff had received no response he wrote further, "To date we have received no response to our inquiry. Therefore we are making one last attempt to contact you and to give you the opportunity to be represented by our committee." To those who had advised the staff they did not wish to be represented he wrote, "AGC headquarters informs us that you indicated to them you do not want to be represented by our committee in the 545-D negotiations. However, before notifying the Union of that fact we wish to give you one more opportunity to be represented by our commit- tee." To both of these categories of contractors he also wrote, "We have been put on notice by Local 545-D that we must inform them which of the contractors on the list they provided are contractors we represent at the negotia- tion session on December 16, 1970. They have also indicated that those firms on their list which are not represented by our committee will be contacted by them individually for the purpose of negotiating a separate collective-bargaining agreement for Technical Engineers (Surveyors)." Site-Con was not among those to whom Plossl wrote. In the meantime by letter of December 7 Site-Con, following AGC instructions for withdrawal, notified Fluke as director of labor relations for AGC of its intent to be an "open shop" contractor operation "effective as of the termination of the existing labor agreements between the members constituting the New York State Chapter's multiemployer group and any union with whom such multiemployer bargaining group bargains with on behalf of such members." The letter, signed by Site-Con's vice president, Collins, further stated: I also hereby notify you of my company's withdrawal from the multi-employer bargaining group comprised of certain members of the New York State Chapter of the Associated General Contractors and declare my company's intent not to sign or be bound by any Designation of Bargaining Agent authorization form for any future negotiations. Also effective as of the date of the termination of the existing labor agreements referred to above, my company hereby revokes any authority given under any Designation of Bargaining Agent authorization form previously signed by my firm designating the New York State Chapter's multi-em- ployer bargaining group as my bargaining agent or representative. Accordingly, in labor relations matters my company does not want to be represented or bound by or be a member of or participant in any multi- employer bargaining group representing and bargain- ing for any group of members of the New York State Chapter of the Associated General Contractors of America. In short, at the first meeting on November 24, the makeup of the surveyor group, beyond the core who were actually present at the meeting, was unknown and both the union negotiating committee and the employer negotiating committee joined in efforts at that meeting and thereafter to develop a firm list on those represented. Such a list was gradually developed and eventually finalized and the employer negotiating committee obtained new written authorizations from all represented contractors. Implicit in the attitude and conduct of the negotiators on both sides was the assumption that the surveyor group negotiation committee represented only those contractors listed. The Union was to separately approach any contractors not on the list with whom it wished to bargain. Since Site-Con was never included on any list of those contractors represented by the negotiating committee in these negotiations, it is clear neither side considered it part of the group bargained for. Considering that Local 545-D had an outstanding collective-bargaining agreement with Site-Con, this course of conduct amounted to acquiescence in a separate bargaining relationship between the Union and Site-Con. On December 7 Site-Con, by communicating with AGC, made an unequivocal effort to withdraw from all multiem- ployer bargaining connected with its membership in AGC. This effort was timely with respect to the expiration date of the then current Local 545-D contract due to end on December 31. But it came after the Union's October 23 request to reopen the contract, after Plossl's November 11 agreement for the surveyor group on behalf of "contractors who bargained with Local Union 545-D and who are also members of the Associated General Contractors" to meet with the union committee, after the first preliminary meeting of the two groups on November 24 at which the makeup of the employer group was considered but no actual bargaining occurred, and after the second meeting on December 3 which dealt further with the makeup on the employer group and at which some bargaining (not disclosed in this record) occurred. In these circumstances there is a question whether Site-Con's effort to withdraw was timely. Retail Associates, Inc., 120 NLRB 388. I deem it unnecessary to resolve that question. It may also be argued that Site-Con never gave the necessary notification of its withdrawal to Local 545-D. See Walker Electric Company, 142 NLRB 1214, 1219-21. In effect, however, the Union was notified by the process of creating the list of contractors represented which excluded Site-Con. The Union thereby inferentially acquiesced in the exclusion. Robert Becker d/b/a Lenox Grill, 170 NLRB 1027. Given the above facts, I conclude that even though Site- Con was initially obligated to group bargaining with Local 545-D and assuming (without finding) that its efforts to withdraw were untimely and not specifically called to the 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attention of the Union, in acquiescing to its exclusion from the group, Local 545-D relieved it from its group bargaining obligations . N.L.R.B. v. Spun-Jee Corporation, 385 F.2d 379 (C.A. 2, 1967), on remand 171 NLRB No. 64; Metke Ford Motors, Inc., 137 NLRB 950; Publicity Engravers, Inc., 161 NLRB 221. b. The operators group Bargaining with Local 106 respecting equipment opera- tors was carried on by the Labor Relations Division of AGC on behalf of the contractors belonging to the operators group. There was no confusion as to the makeup of that group comparable to the confusion surrounding membership in the surveyor group. Moreover, there is no dispute that Site-Con's withdrawal letter of December 7 was applicable to the operators group. There is also no question that this communication to AGC was timely inasmuch as the existing contract with Local 106 was not due to expire until March 31, 1971, and the first bargaining session looking toward a new contract did not occur until February 22. Thus Site-Con made a timely application to withdraw from multiemployer bargaining with Local 106. The parties are in disagreement as to whether timely notice was given to Local 106 of this withdrawal. Respondent offered in evidence a file copy of a company letter dated December 7, 1970, addressed to Local 106, attention Lester Jones, its business agent, notifying the Union of the withdrawal, and offered supporting testimony that instructions had been given that the original of the letter be mailed at that time to Local 106. On the other hand, Jones testified that neither he nor anyone else on behalf of Local 106 received the letter and they had no other notice of Site-Con's withdrawal. The General Counsel urges that this (file copy) was created at a later time and was an afterthought. There is, however, no evidentiary basis for questioning the authenticity of the copy, and the fact that the original was not received is not proof that it was not sent. I conclude that Site-Con took reasonable steps to notify Local 106 of its withdrawal from multiemployer bargaining. In connection with this finding I adhere to my ruling made at the hearing rejecting the General Counsel's offer of an April 19, 1971, letter of Respondent on letterhead similar to that on the copy of the December 7, 1970, letter to Local 106. The April letter only proves that that type letterhead was in use then. It does not tend to prove it was not in use on December 7. Accordingly, I deny the General Counsel's posthearing motion to reverse my ruling. In addition, Local 106 had some informal intelligence of Site-Con's intention at the end of the then current contract to adopt "open shop" status with AGC, a status which it could not achieve while remaining a member of the multiemployer bargaining group dealing with Local 106. Thus, starting in October 1970 Francis Doyle, the Local 106 job steward on Site-Con's Amsterdam job, heard by way of rumor and also by statements of Site-Con's supervisors that it would become "open shop." And the Local 106 business agent, Jones, admitted that he had similar information a month or two before March 2, 1971. All of this occurred prior to the first meeting for multiemployer bargaining with Local 106 on February 22. A finding that Local 106 received timely notice of Site- Con's withdrawal is supported by evidence in the record that the Labor Relations Division as a matter of practice advised unions engaged in multiemployer bargaining prior to commencement of negotiations as to the identity of the contractors being represented . In accordance with this practice the AGC director of labor relations, Fluke, on December 31 transmitted to Jess Webb, one of the union negotiators for equipment operators (including Local 106), a list of contracting firms represented in the multiemployer bargaining as of December 28, 1970. Site-Con was not included on this or any later list of those represented. This evidence of who was represented was by inference also evidence of who was not represented and the exclusion of Site-Con from the list of those represented was in a negative sense some further notice to Local 106 of Site- Con's removal from the group. See Robert Becker d/b/a Lenox Grill, supra. In any case, Local 106 made no objection to the omission of Site-Con until well after the commencement of negotiations on the basis of the list which did not include it. Based on the peculiar facts of this record to which significance should be given, I conclude that Respondent made an effective and timely withdrawal from group bargaining with Local 106. See International Brotherhood of Electrical Workers, Local 68 v. N.L.R.B., 448 F.2d 1127 (C.A.D.C., 1971). Respondent also argues that even if it did not effectively escape group bargaining with Local 106 prior to the commencement thereof, it nevertheless was thereafter relieved of group bargaining obligations when impasses occurred in the bargaining. In view of the above findings I deem it unnecessary to reach this question. 5. The obligation to bargain separately As an alternative theory the General Counsel contends in both the Local 545-D case and the Local 106 case that even if Site-Con's withdrawal from group bargaining was effective and timely, it continued as a separate employer to be obligated to bargain in good faith with each Union and that it failed in this regard with respect to both. I agree that if Site-Con escaped group bargaining it was still obligated to bargain on an individual basis with both Unions. The question is whether it has failed to do so. In support of his theory the General Counsel relies on evidence that the Respondent endeavored to make itself an "open shop" operation, a status which he and the Charging Parties equate with being nonunion, supplemented by evidence of Respondent's desire to operate without union contracts. Sometime in the late months of 1970 AGC altered its membership rules to require that any member having contractual relations with any union engaged in group bargaining with AGC belong to the Labor Relations Division which conducted such bargaining. Member contractors not in that category belonged to the Open Shop Division of AGC. On this basis a contractor bargaining separately with these unions could not remain a member of AGC and still comply with its rules. These requirements were publicized among member contractors SITE-CON INDUSTRIES, INC. 51 and also among the unions, who were asked to cooperate with AGC in policing them. Evidence in the record suggests that the rules were not in all instances strictly complied with. On December 7, 1970, when Site-Con withdrew its authorization for group bargaining, it also certified to AGC that it was an "open shop" contractor. It thereafter remained a member of AGC and continued as a member at the time of the hearing herein. This "open shop" status was for many months a matter of conversation among Site- Con employees and supervisors. The General Counsel urges that this "certification" amounted to a declaration to AGC of its intention to operate nonunion. He reasons further that such an intention was inconsistent with good- faith bargaining and that therefore Site-Con should be held to have violated Section 8(a)(5) of the Act. I do not agree. Neither Union has ever asked Site-Con to bargain on an individual basis, consequently the question of what it would do if such a demand were made has never been presented. Its "open shop" status is not necessarily the last word since it is still open to it to bargain separately with unions by leaving the AGC. Therefore, a demand from a union to bargain separately would not necessarily be a futile act. At least until the history of this relationship more definitely demonstrates such futility, it should not be inferred. Both Unions have proceeded here on the assumption that their rights depend on group bargaining obligations, apparently not contemplating that Respondent might equally be obligated as a separate enterprise. Even if Site- Con, hoping for the open range of nonunion employee relations, had no intention of bargaining separately, until the Unions by demand for separate bargaining have put it to the test, no refusal has occurred. It is not yet established that Respondent has not bargained or will not bargain upon demand with either Union. Thus, the essential corpus delecti of a refusal to bargain is missing. Other evidence in the record indicates the possibility Respondent might bargain if asked . Both its president, Pitassi, and its vice president, Harding, declared under oath a willingness at all times to bargain . Its vice president, Collins, testified that its December 7 declaration of "open shop" status and withdrawal from group bargaining was for the purpose of bargaining in the future on an individual basis. Of course on April 14, 1971, according to Local 545-D business representative, Harvey Scott (whom I credit), Harding stated he was not going to sign any more labor contracts and was through taking hosings from unions. Yet in March, long after the Local 545-D group contract expired, Harding asked Scott to refer a survey crew, and on April 1, after the Local 106 contract expired, Pitassi and Local 106 Business Agent Jones arranged for layoff slips for the equipment operators who had refused to work that day. And Respondent has since met with Local 545 (a sister local of Local 106) and negotiated regarding terms of employment of equipment operators in the Utica area (outside the territorial jurisdiction of Local 106). It has also agreed to meet with Local 545-D regarding employment of surveyors in the Utica area. In this latter regard, Harding testified that if a contract is negotiated Respondent will sign it. In the circumstances I find that a preponderance of the evidence fails to establish that Respondent has failed to bargain on demand with either Union. B. The Alleged Discriminations 1. Separation of operators The complaint alleges that on March 31 Respondent unlawfully laid off Stephen Kaufman and William Shelley (both pump and compressor operators) and Robert Slade and Eugene Perry (both oilers). The answer, as amended at the hearing, admits they were separated but denies such was unlawful. On the Amsterdam job Site-Con also employed four equipment operators (operating two front-end loaders and two backhoes) plus a master mechanic in charge of the equipment. These were in addition to the four above- named alleged discriminatees. All nine of the crew were members of Local 106. The duties of the oilers were to assist in starting the backhoes at the beginning of the workday, check oil levels and grease the machines , and at the end of the day shut them off and lock up. The duties of the compressor and pump operators were to start those machines at the beginning of the day, check oil levels , and at the end of the day shut them off. The above-described duties took less than an hour per day for each man to perform. They received pay for 8 hours . Although nothing specific in the record so indicates , I infer from the circumstances of the job that part of the functions of the oilers and compressor and pump operators were of a standby nature, to be available in the event of breakdowns. They spent a substantial amount of time sitting in their own automobiles or trucks or working on their own vehicles. Billie Harding, Site-Con's vice president of operations and the person in charge of the Amsterdam job, com- plained that they did not even perform the work to which they were assigned ; that the backhoe operators started and shut down their own machines without help from the oilers; and that laborers turned on and shut off the pumps. He contended they were late in reporting to work, spent too much time in their own vehicles , performed personal work on their vehicles on company time , failed to assist the equipment operators , and on occasion parked their own vehicles so they interfered with the use of the equipment. In sum, according to him , they were unproductive personnel . The situation was of long standing. Harding had complained as frequently as once a week to the master mechanic and to the Local 106 job steward. In late February or early March 1971 he asked Francis Doyle (the steward) to arrange a meeting with Local 106 representatives to discuss various problems, including these. The meeting so arranged was attended by Billie Harding, Frank Pitassi, Site-Con's president, Doyle, LeRoy Boyer, the master mechanic, and Lester Jones, business agent for Local 106. Doyle voiced complaints about men being assigned to pumps too far away from their other assignments. One of the prime complaints of Harding was respecting an operator referred by the Union who did not wish to work in rock with which the job was then involved. Boyer credibly testified that company 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaints about the work of the oilers and the compressor and pump men were also brought up. Harding credibly testified that he complained to the Union that they were not performing and were nonproductive personnel. Jones at first denied and then later admitted that Pitassi voiced complaints regarding the oilers and compressor and pump men. It is thus clear from a preponderance of the evidence, and I find, that Respondent had longstanding grievances regarding the performance of the oilers and the compressor and pump men, that it frequently voiced its complaints to the master mechanic and the job steward, and, finally, that it brought the matter up at a meeting with the Union's business agent prior to the expiration of the Local 106 contract. I also find that these complaints constituted a valid business reason to terminate Kaufman, Shelley, and Perry. In fact on at least one prior occasion Harding had shut down a piece of equipment and laid off the operator and the oiler (Perry) in the hope that a later referral would provide a more competent oiler. Nothing in the records suggest that Site-Con had any complaints regarding the equipment operators. Billie Harding testified that at the above-described meeting Jones responded to company complaints about nonproductive personnel by noting that Site-Con was not on the list of employers for whom AGC was conducting group bargaining but was on an open status list and that the employees were also aware of this and lacked a desire to work productively because after April 1 Local 106 would not allow them on the job. Master mechanic Boyer and job steward Doyle testified they did not recall such remarks but they did not specifically deny they were made. Their testimony, therefore, is of little help on that particular point. On the other hand, Business Agent Jones specifically denied saying that after April 1 operating engineers would not be allowed to work on Site-Con's job. But his further testimony indicated it would not have been necessary for him to say anything in that regard to the men, the inference being that they understood this without being told. I do not credit Jones in this denial because his testimony was less explicit than the other witnesses', his later testimony corrected in some regards generalizations earlier made, and in general his recollection of events seemed more imperfect than the other witnesses'. Jones did not specifically deny stating at the meeting that Site-Con was not on the list for AGC group bargaining but was on an open status list and that the employees were aware of this and lacked a desire to produce. As I have already found, Local 106 was at that time already knowledgeable regarding the AGC group bargaining list which omitted Site-Con's name. Inasmuch as Harding's testimony that Jones made the statements which he attributed to him was credible and, except for that portion to the effect that the Union would not allow the employees on the job after April 1, was uncontradicted, I find that Jones made the statements attributed to him by Harding. Site-Con Presi- dent Pitassi who was also present at that meeting also testified but he was not questioned by anyone regarding the meeting. Considering that everyone else present did testify, I draw no inference from the fact that he did not give testimony on that subject. The meeting presented an opportunity to both the Company and the Union to begin or arrange for collective bargaining for a new contract separate from the group bargaining . No one availed himself of the opportunity. Following the meeting just described Harding, on the assumption that union labor might not be available, took measures to assure a supply of manpower for the Amsterdam job, and other jobs which Site-Con had obtained or had in prospect. Beginning March 27 he advertised in various newspapers for new employees without indicating the crafts involved. Although applica- tions were received in answer to the ads, no new personnel were in fact hired or even interviewed for the Amsterdam job during the balance of March. Harding admitted that in placing these ads he was at least partially motivated by his anticipation of a work stoppage at the end of the month. a. Events of March 31 On March 31, Billie Harding decided to terminate the two oilers and two compressor and pump operators. His testimony admits of the possibility, not to say probability, that he contemplated the matter at an earlier date. Oiler Robert Slade, an employee of Site-Con for a year and a half and a member of Local 106 for 5 years, was transferred to the Amsterdam job in October 1970. On March 31, prior to his termination, he was approached by Billie Harding who informed him they were going to go "open shop" and that he (Harding) wanted Slade to come to work for him if Slade thought it feasible . But Slade declined saying he had made his living through Local 106 for quite a while. From this it is clear that dissatisfaction with Slade's work was not the reason he was terminated. Later that same day, a regular payday, Slade, Perry (also an oiler), and Kaufman and Shelley (pump and compressor operators) were all terminated . Job Superintendent Robert Harding gave final checks for all of them to master mechanic LeRoy Boyer for distribution to the men, stating that Site-Con was going to go "open shop" the next day and no longer needed oilers or pumpmen . Boyer passed this on to the men when he gave them their checks. b. Events of April 1 As noted earlier the crew operating the equipment on the Amsterdam job included five operators in addition to the four men terminated March 31. These five were master mechanic Boyer, two operators of front-end loaders (one of whom was Francis Doyle, the union steward), and two backhoe operators. On the morning of April 1, these five reported for work. Those on the front-end loaders started their machines. Those on the backhoes did not because their established work rules, as they construed them, required an oiler on those machines. Job Superintendent Robert Harding then instructed a foreman and a laborer to start a pump, work which members of Local 106 consider to be within their work jurisdiction. The five operators refused to work under these conditions and after some negotiation back and forth they were finally laid off. It is not alleged that these five terminations were a violation of Section 8(a)(3) of the Act. The General Counsel does contend that they ceased work on April 1 to SITE-CON INDUSTRIES, INC. protest the four terminations on March 31 , and seeks a finding that they were engaged in an unfair labor practice strike. I disagree. While it is true that if the March 31 terminations had not occurred there probably would have been no work stoppage on April 1, the evidence does not show that the operators' conduct on April 1 was in protest of the events on March 31 . All five men reported for work on April 1 and in fact the front-end loaders began work. The only reason the backhoe operators did not begin was because no oilers were assigned to assist them . They were not insisting that Slade and Perry, the two oilers terminated the day before, be assigned to their machines . They were protesting the absence of any oilers. Presumably if other qualified oilers had been assigned to their machines , they would have proceeded to work . A further ground of protest was the April 1 violation of the claimed work jurisdiction of operating engineers by directing other personnel to start a pump . Both of these reasons for protest occurred on April I . The General Counsel further contends that Site-Con created these conditions as part of a plan to achieve nonunion status with respect to the crew operating its equipment, the first step being to lay off the oilers and compressor and pump operators March 31 with the expectation that the equipment operators would then walk off the job leaving no Local 106 members employed. In the overall that is what happened. His analysis is supported by uncontradicted evidence that a couple of days prior to March 31 Job Superintendent Robert Harding (who did not testify) stated that Respondent was going to lay off the oilers and the compressor men which would cause the other operators to walk off the job and in this way Site-Con could go nonunion. Also, on April 1 after leaving the job, Doyle, the Local 106 steward, had a conversation with Site -Con President Pitassi in which he asked Pitassi what had happened and Pitassi replied that he felt the Company would benefit by going "open shop," and that he was going to shut down the job and reorganize the Company. It does not appear, however, that the job was shut down, and if the Company was reorganized, such does not appear in this record. And 2 weeks later, on April 14, in a telephone conversation with Local 545-D Business Agent Scott (whose version of the conversation I credit), Vice President Billie Harding stated that Respondent was going "open shop," was not going to sign any more labor agreements with anybody, and that it was through taking a "hosing" from unions. c. Conclusions regarding separation of operators First, with respect to the terminations of March 31, it is clear from the fact that Harding wanted to retain Slade that he was not laid off because of poor work . While the evidence shows that Respondent had reason to terminate Kaufman, Shelley, and Perry, the statements of Respon- dent's officials bearing on motive raises a strong inference, and I find, that the protection afforded these employees by their unionism was the substantial , if not the exclusive, reason for their layoff. Accordingly, I find Respondent committed an unfair labor practice in violation of Section 8(a)(3) and (1) of the Act in laying off all four. 53 Regarding the events of April 1, the complaint does not allege, nor does the General Counsel contend , that the so- called layoff that day violated Section 8(a)(3), or that the failure to have oilers and compressor and pump men on hand or the assignment of pump work to other than operating engineers were unilateral changes in working conditions amounting to a refusal to bargain under Section 8(a)(5). Accordingly, I make no findings in that regard. 2. Separation of surveyors and recall of McIntyre but not of Koziol and Spring On March 31 Site-Con also had employed on the Amsterdam project a surveyor crew, made up of Donald McIntyre, crew chief, Edward Koziol, rodman, and Stephen Spring, instrumentman, all members of Local 545-D. They were all laid off that day because the surveying work was substantially caught up . It is not alleged that the layoffs were discriminatory. A few weeks later, in mid-April, Vice President Billie Harding contacted McIntyre and offered him a job at a higher rate of pay than he previously had received and with expanded duties. The complaint alleges that Site-Con's failure at that time to also rehire Koziol and Spring was discriminatonly motivated and therefore violated Section 8(a)(3) and (1) and that the reemployment of McIntyre under altered working conditions constituted a unilateral change in working conditions in violation of Section 8(a)(5) and (1). When Harding rehired McIntyre he informed him Respondent would not pay any union benefits . Instead McIntyre would receive $2.25 more per hour in pay. It was his understanding that the new job would not necessarily be related to the job he had had earlier as Amsterdam survey party chief and that he was to perform other duties as well as those of party chief. McIntyre returned to work on the Amsterdamjob April 19 and was still working at the time of the hearing. When he had need for an instrument- man or a rodman on that job he did not employ regular surveyors but instead used employees already on the job in other capacities, usually laborers, and not members of Local 545-D. He was also in charge of all surveying for Respondent in the upstate area onjobs within 100 miles of each other, and his duties were expanded to include junior engineering responsibilities such as grade control for an entire project. He was employed on a permanent basis, 12 months a year. Among other things he interviewed applicants for surveying work and could effectively recommend whether they should be hired . He also had authority to discharge . According to McIntyre he was induced to come back to work in a nonunion capacity by the increased benefits offered . Yet at the time of the hearing he was still a member of Local 545-D. Conclusions Regarding Recall of McIntyre and Failure To Recall Koziol and Spring The General Counsel argues that Site-Con's failure to rehire Koziol and Spring at the same time as McIntyre was unlawful discrimination against them . He bases this argument on the thesis that the Company had a continuing bargaining obligation with respect to Local 545-D and that if the Company had honored this obligation it would also 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have asked Local 545-D to refer survey crewmembers, and that its failure to do so establishes that its motive was to rid itself of Local 545-D surveyors. This argument does not hold water. Nothing in this record shows that if Site-Con had asked for referrals from the Union Koziol and Spring would have been the persons referred. The history of an earlier crew headed by McIntyre suggests the contrary. While I agree that Site-Con had a continuing obligation to bargain with Local 545-D, at the time McIntyre was reemployed in April there was no collective-bargaining agreement in existence limiting the employment or use of survey personnel. There is no evidence that Koziol or Spring reapplied for employment or that the Union offered their services. In fact the Company never employed any replacement crewmembers as such. Instead it cut across jurisdictional lines by using the services of existing employees, laborers or sometimes machine operators, on those occasions when services of rodmen and instrument- men were needed. In sum, it does not appear that Site-Con had an obligation to reemploy Koziol or Spring as individuals. Accordingly, the Company's use of other sources for services ordinarily performed by surveying crewmen is not substantial evidence of discrimination with respect to those two men. This is especially so where, as here, there is no contention that their separation on April 1 violated the Act and no independent violations of Section 8(a)(1) are shown. I find a preponderance of the evidence fails to establish that they were not rehired because they were members of Local 545-D. I note that McIntyre who was reemployed remained a member of the Union at the time of the hearing, albeit under nonunion conditions. The fact that Koziol and Spring were members of Local 545-D plus the fact that they were not recalled is no evidence at all that their union membership was the reason they were not recalled. More than that is required to support inferences that Site-Con did not hire them because they were union members. N.L.R.B. v. Citizen-News Company, 134 F.2d 970, 974 (C.A. 9, 1943). The theory of the complaint puts Respondent in a nice dilemma. On the one hand, it is supposed to have violated Section 8(a)(3) by not recalling Koziol and Spring and, on the other, Section 8(a)(5) by recalling McIntyre. There is no question but that McIntyre was induced to return by the offer of benefits different from those he had earlier enjoyed and that these changes in his terms and conditions of employment were unilaterally arrived at without benefit of consultation by Respondent with Local 545-D. Without more, these facts would establish a violation of Section 8(a)(5) of the Act so long as Respondent had a continuing obligation to recognize and bargain with the Union. Site- Con contends there is more to the question because McIntyre's job duties were enlarged, that he was reem- ployed as a supervisor, and that these differences are enough to save it from an 8(a)(5) violation. During the life of the Local 545-D collective-bargaining agreement, to which Site-Con was obligated and which provided for union security and required the Company to give the Union equal opportunity with all other sources to refer suitable job applicants, the only Site-Con employees performing surveying work were McIntyre and two crewmembers (not Koziol or Spring). All were members of, and represented by, Local 545-D. They were all laid off in early December. The collective-bargaining agreement expired December 31. Respondent employed no additional surveyors until McIntyre, Koziol, and Spring were hired through Local 545-D in mid-March. They continued working through April 1. At that point all of Respondent's surveying employees were members of, and represented by, Local 545-D. On April 19 McIntyre, still a union member, was rehired. No one else had in the meantime been hired for survey work. These facts indicate, and I find, that as of April 19 Local 545-D continued as the majority represent- ative of Site-Con surveying employees. See David F. Irvin and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company, 194 NLRB No. 8. Under the expired collective-bargaining agreement Local 545-D was the recognized representative in a unit consisting of all field survey employees, including party chiefs, rodmen, and instrumentmen employed by members of AGC in heavy and highway construction within the geographical jurisdiction of Local 545-D, excluding all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act. I find that a unit so described but limited to employees of Site-Con is also appropriate for purposes of collective bargaining. After his April 19 recall McIntyre continued to perform unit work as well as additional duties. He had some new, if limited, supervisory functions. I find that because of the broader scope of his new job, together with its supervisory aspects, he was employed in a different capacity than earlier, but that much of his work nevertheless continued to be of the same type earlier performed by members of the bargaining unit and within Local 545-D territorial jurisdic- tion. I deem his supervisory duties too infrequent and limited to qualify him as a supervisor under Section 2(11) of the Act. But, in any event, whether he was a supervisor or not is immaterial because when Billie Harding offered him the new position, the offer was conditioned on his acceptance of nonunion terms of employment. Therefore, whatever business reasons the Company may have had, such as the reorganization of its operations , it was not motivated solely by those considerations in dealing with McIntyre but was motivated in substantial part by a desire to erode the Union's status as his representative. See Cooke & Jones, Inc., 146 NLRB 1664, 1675-79, enfd. 339 F.2d 580 (C.A. 1, 1964); Imperial Outdoor Advertising 192 NLRB No. 183. In so dealing unilaterally with McIntyre Respon- dent committed and continues to commit an unfair labor practice contrary to Section 8(a)(5) and (1) of the Act. Similarly, the assigning after April 19 of the same type of work previously done by rodmen and instrumentmen within the bargaining unit to employees outside the bargaining unit, such as laborers and machine operators, without discussing such loss of unit work with the Union, was a unilateral change regarding working conditions about which Respondent had a continuing obligation to consult with Local 545-D. Its failure to do so was a refusal to bargain contrary to the mandate of Section 8(a)(5) and (1) of the Act and was and is an unfair labor practice. David F. Irvin and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company, supra. SITE-CON INDUSTRIES, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Site-Con set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and those found to be unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend that it offer Stephen Kaufman, William F. Shelley, Robert A. Slade, and Eugene Perry immediate, full, and unconditional reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, and make each of them whole for any loss of earnings suffered by reason of discrimination against them by paying each a sum of money equal to the amount he would have earned from the date of the discrimination on March 31, 1971, to the date Respondent offers him reinstatement, less his net earnings during that period in accordance with the Board's formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716, and that it make records available to the Board agents in connection with compliance therewith. I also recommend that Respondent cease and desist from unilaterally changing the terms and conditions of employ- ment, or the assignment of work, of surveyors without prior consultation with Local 545-D, and that upon request it bargain collectively with Local 545-D respecting the terms and conditions of employment and work assignment of surveyors and, if any understanding is reached, embody such understanding in a signed agree- ment. Nothing in the recommended Order attached hereto shall be construed as requiring Respondent to revoke employee benefits put into effect on or after April 19, 1971, unless Local 545-D so desires. See Great Western Broad- casting Corporation, d/b/a KXTV, 139 NLRB 93. I further recommend that Respondent post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i 1 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 ORDER 55 Respondent, Site-Con Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local No. 106, Interna- tional Union of Operating Engineers, AFL-CIO, or any other labor organization, by discriminatorily terminating any employee or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Making unilateral changes in terms and conditions of employment or work assignments of surveyor employees in the appropriate unit without consulting and negotiating with Local 545-D, International Union of Operating Engineers, AFL-CIO. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to the employees named below 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, privileges, or working conditions, and make each of them whole for any loss of earnings he may have suffered as a result of discrimination against him in the manner set forth in the section hereto entitled "The Remedy." The employees are: Stephen Kaufman William F. Shelley Robert A. Slade Eugene Perry (b) Notify immediately the above-named individuals, 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Upon request bargain collectively with Local 545-D, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of all field survey employees, including party chiefs, rodmen, and instrumentmen em- ployed by Respondent on heavy and highway construction projects within the geographical jurisdiction of Local 545-D, excluding all office clerical employees, all profes- sional employees and all guards and supervisors as defined in the Act, concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. 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. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its premises in upstate New York copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by it 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. (f) Notify the Regional Director for Region 3, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .3 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by 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 " 3 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found , after a trial, that we violated Federal law by terminating the employees named below in order to discourage member- ship in Local 106, International Union of Operating Engineers, AFL-CIO, and by unilaterally dealing with a surveyor regarding terms and conditions of employment and by assigning surveyor work to nonsurveyor employees without prior consultation with Local 545-D, International Union of Operating Engineers , AFL-CIO: WE WILL offer the employees named below full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and pay them for earnings lost as a result of their termination, plus 6-percent interest. The employees are: Stephen Kaufman William F. Shelley Robert A. Slade Eugene Perry WE WILL NOT discnminate against employees in order to discourage membership in a union. WE WILL NOT deal with surveyor employees regard- ing terms and conditions of employment, or assign surveyor work to nonsurveyor employees, unilaterally without prior consultation with Local 545-D, Interna- tional Union of Operating Engineers, AFL-CIO. WE WILL, upon request, bargain collectively with Local 545-D, International Union of Operating Engi- neers, AFL-CIO, as the exclusive representative of all employees in the unit described below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All field survey employees, including party chiefs, rodmen, and instrumentmen employed by Site-Con Industries, Inc., on heavy and highway construction projects within the geographical jurisdiction of Local 545-D, International Union of Operating Engineers, AFL-CIO, excluding all office clerical employees, all professional employ- ees, and guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist the above-named or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Dated By SITE-CON INDUSTRIES, INC. (Employer) (Representative) (Title) We will notify immediately the above-named individuals, 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 compliance with its provisions may be directed to the Board's Office, Ninth Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.