Mountain State Construction Co., Inc.

MOUNTAIN STATE CONSTRUCTION CO. 139 Mountain State Construction Company, Inc. and International Union of Operating Engineers, Local Union 132, AFL-CIO and Local Union No. 175, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers, of America and Iron Workers- Union local 301, an affiliate of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Con- struction and General Laborers Union Local 1353, Laborers International Union of North America, AFL-CIO and Kenneth R. Johnson, Chester Eugene, Starcher, Darrell J. Starcher, and Donald L. Starcher and International Union of District 50, Allied and Technical Workers of the United States and Canada, Party to the Contract. Cases 9-CA-6603-1-2, 9-CA-6626, 9-CA-6648, 9-CA-6657-1, and 9-CA-6657-2-3-4-5 November 9, 1973, SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 30, 1973, Administrative Law Judge Thomas F. Maher issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed 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 Supplemental Decision in light 'of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative 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 Respondent, Mountain State Construction Co., Inc., Charleston, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd.188 F.2d 362 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings SUPPLEMENTAL DECISION AND RECOMMENDED ORDER THOMAS F. MAIIER, Administrative Law Judge: On February 15, 1973, a Decision and recommended Order was issued by me. Certain findings and conclusions were made -and a recommendation that the proceeding be deferred to arbitration as requested by Mountain State Construction Company, Inc.,' Respondent herein, in, its brief to me. Upon review of my Decision and recommend- ed Order and upon the record made herein, the National Labor Relations Board, referred to herein as the Board, on June 1, 1973, issued its Decision and Order' in which it affirmed certain of the findings and conclusions made in my decision but concluded that under the circumstances of the case deferral to arbitration was not warranted. The case was accordingly remanded to me for the purpose of making appropriate findings and conclusions and the issuing of a supplemental decision. The findings of fact and conclusions of law,, including the chronology of relevant events, previously made by me, are hereby incorporated by reference for all purposes herein. Upon the entire record in this case, including the Board's Decision and Order and the findings and conclusions contained therein, my previous decision, the evidence adduced at the hearing before me, and the briefs originally filed with me by the parties, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. UNFAIR LABOR PRACTICES ALREADY FOUND ON THE RECORD To this point in the proceeding certain findings and conclusions have been established and need only to be summarized. Thus, based upon facts found in my decision, the Board has concluded and found that the 1970-72 Heavy and Highway Agreement with the Operating Engineers, Teamsters and Laborers, and the agreement with the Iron Workers to each of which Respondent was a party, were binding upon the Respondent at all times relevant to this proceeding. It has also been found by the Board, based upon my earlier findings and conclusions, that Respondent signed an agreement with the Internation- al Union of District 50, Allied and Technical Workers of the United States and Canada, herein referred to as District 50, at a time when the terms and conditions of its agreements with the Operating Engineers, Teamsters, Laborers and Iron' Workers were in full force and effect. The Board accordingly concluded that' Respondent's actions in this respect were a complete rejection of the principles of collective bargaining and the self-organiza- tional rights of the employees. By such conduct as has been found "[t]here would seem to be no question that merely by recognizing a minority 1 203 NLRB No. 167. 207 NLRB No. 4 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union and negotiating a labor agreement" Respondent has violated Section 8(a)(2) and (1) of the Act,2 and I so conclude and find. Moreover, because the Board has actually found Respondent's actions to be a rejection of the principles of collective bargaining and the self-organizational rights of the employees, it follows by simple application of the language of the statute that it has thereby violated Section 8(a)(5) and (1) of the Act, and I so conclude and find. II. ADDITIONAL UNFAIR LABOR PRACTICES In addition to the foregoing conduct of Respondent in its contractual relationships with the several unions represent- ing its employees, numerous instances occurred throughout this period giving particular substance to its intent to eliminate these unions, their contracts, and their member- employees and to entrench in their respective places District 50, thus further manifesting its refusal to bargain, its unlawful assistance to District 50, and likewise its discrimination of employees because of their union membership, and its interference, restraint, and coercion of them in their rights of self-organization. A. Additional Facts As previously noted Respondent was engaged in a considerable amount of highway construction and other projects during the period involved herein. The jobs are identified in the record as the Route 77 job, the Pennsylvania-Boulevard project, the Kanawha City job, the Chelyan Salt job, and others. It should be noted that these projects are referred to only by way of identifying the locations of the incident described and bear no significance otherwise unless expressly noted. The fact is that the Heavy and Highway Agreements covered all of the projects involved herein, and the individuals employed on them, members of the respected unions signatory to the agreements, were admittedly covered by the agreement. These agreements, it will be recalled, were in full force and effect at all times pertinent . During this same period there was also in existence a Building Trades Agreement, admittedly still in effect, covering jobs also being per- formed by Respondent and usually referred to in the record as work "in the shop." Respondent also engaged in a certain amount of equipment rental and in such situations the operator was included with the machine being rented. In some instances rental operators worked under the Building and Trades Agreement and others under the Heavy and Highway Agreement. In presenting and thereafter in briefing its case to me effort was made by Respondent to differentiate between these two categories as they applied to jobs and to employees who were allegedly discriminated against by the imposition of the District 50 agreement. The Board has already concluded in this matter that it considers Respondent's action with respect to the signing of the District 50 contract to be a complete rejection of the employees' self-organizational 2 N.L.R.B. v. Maryland News Company, 321 F.2d 692,696 (C.A. 4, 1963). 3 N.L.R.B. V. Mastro Plastics Corp., 354 F.2d 170 (C.A. 2, 1965) cert. denied 384 U.S. 972 ( 1966). 4 Sexton's credited, undenied testimony. rights. A consideration of the facts, to be detailed hereafter, manifests specific rejection at the individual level so as to permeate the entire operation. If, then, it happens that under a contract not superseded by the District 50 contract there should arise a question of whether a given employee has been terminated, or instead has engaged in a strike, it must be emphasized that the strike has been described throughout the record, even by Respondent's own witnesses, as a protest of the District 50 agreement. In such a posture those who claim they were striking or those whom Respondent claimed were striking, and not termi- nated, are entitled as unfair labor practice strikers, to the same relief granted to discriminatees.3 This distinction in categories, therefore, becomes academic for all practical purposes. On November 3, 1971, Dean Lewis, on behalf of Respondent, adopted an agreement between District 50 and the West Virginia Contractors Bargaining Association which Respondent had joined on the same day. Immedi- ately prior to this Respondent had commenced its campaign to persuade the employees to switch their union membership. As early as October 1, 1971, Vice President Ringstaff inquired of employee Richard Sexton, a member of the Teamsters, how he felt about District 50. When Sexton expressed no feelings on the matter Ringstaff suggested he think it over and inquire around among the men and then talk to him later. Two weeks later Ringstaff followed up his earlier conversation and asked Sexton if he had been solicited for District 50 membership. Sexton told him that he had. Later in the day Ringstaff returned to Sexton and gave him a supply of District 50 application cards which he asked Sexton to distribute among the employees and have signed. He informed Sexton that these could be solicited on his own working time. Ringstaff came to him several times thereafter for progress reports and on one of these occasions told Sexton that if he told anyone that he, Ringstaff, was involved he would deny it and call Sexton "a lying s.o.b." 4 On or about November 1 employee William Newman, a member of the Teamsters, met with President Lewis who told him they were "going Heavy and Highway, District 50" and that he would like Newman "to go over with him. " 5 On the same day Lawrence E. Burgess , business agent for the Iron Workers, learned that Respondent was going District 50 and went to Vice President Ringstaff for confirmation. He was referred to I. V. Cunningham, Respondent's board chairman, who informed him that the Company would hire whom it pleased and that it would hire members of the Iron Workers willing to do the work for $6.20 an hour, a rate less than the Iron Workers' contract scale. Two weeks later Burgess returned to the project and noted that the work previously being per- formed by members of the Iron Workers was being done by individuals who were not members.6 On November 4, Vice President Ringstaff had a conversation with employee Theodore Young, a member 5 Newman's credited testimony . I do not credit Lewis' explanation to the effect that he was offering Newman a job under the Building and Trade Agreement that continued to remain in force. 6 The uncontradicted testimony of Burgess. MOUNTAIN STATE CONSTRUCTION CO. 141 of the Operating Engineers. Ringstaff told him that they were going to "go District 50" and asked if he would get a withdrawal card from his own Union and "stay with them." Young told him that he would think about it .7 During the same period Ringstaff had a hand in the layoff of the employees on the Pennsylvania Avenue project. He instructed Job Superintendent Rice to lay the men off; which he did, with the exception of employee Donald Harrison. Rice instructed Harrison to report to work at the shop on the following morning. When Harrison reported to work Ringstaff engaged him in a conversation, telling him that they were going to "go District 50." He then said to Harrison, "We'd like for you to stay if you would." Harrison stayed on, Foreman Hill telling him they were going to "go District 50" but were still trying to work the Iron Workers, but not the Operating Engineers or Laborers. On November 22, the Pennsylvania Avenue job was being picketed and Harrison observed that the tying of bars on the job, work he usually performed, was being done by individuals not members of the Iron Workers s On November 3 Ringstaff also had a significant conversation with employee Millard Scott, a member of the Operating Engineers working on the Pennsylvania Avenue job when it was shut down. Ringstaff telephoned Scott and asked if he had heard the rumor of the Company "going District 50." When Scott said that he had Ringstaff asked him if he was going with him. Scott told him that he was not and Ringstaff assured him that if he did he would have a job for him. Still another conversation was credibly attributed to Ringstaff on the same day, November 3. Thus employee Herman Price, a member of the Operating Engineers working on the Pennsylvania Avenue project, was paid off by the timekeeper. That evening Ringstaff called him on the telephone and said that the Company was thinking of changing unions. He then said, "Do you think you would change over?" Price was noncommittal. Ringstaff called him again on November 10 and asked him if he was ready to go to work. Price told him it depended on whether the Company was District 50 or not. Ringstaff said that they had signed with District 50 and that as a requirement for Price to go to work he should join District 50. On the same day, November 4, employee Warren Vance, a member of the Operating Engineers, had a conversation with Foreman Slim Caldwell who stated that he was inquiring of Vance, at Ringstaff's request, if he would get a withdrawal card from his Union and "go District 50." Vance told him that he would take a layoff before he would switch. Whereupon Caldwell left and reported the conversation to Ringstaff. He then returned and 'informed Vance that he was laid off 9 On November 5 Job -Superintendent Ted Shultz told employee Dowell Norris, in the presence of employee 7 The uncontradicted testimony of Young. s The uncontradicted testimony-of Harrison. 9 The credited testimony of Vance. 10 The credited, corroborating testimony of employees Norris and Grass. Shultz does not dispute what occurred but claims the men involved, Norris, Grass, and also employees Wheeler and McClanahan were offered work but refused because "they didn't have any contract." This statement by Shultz does not negate testimony that the employees were refused jobs Donald Grass, that the Respondent was "going District 50" and that those employees who did not join District 50 "will go down the road." Thereafter, on November 10, Shultz sought out the same two employees and told them that they should get their withdrawal cards from their union and sign up with District 50, stating that "he had to have their answer." In his efforts at persuasion Shultz obtained a District 50 contract and proceeded to enumer- ate the various benefits under it. The men went as directed to get withdrawal cards and returned to the job with the Operating Engineers' business agent , Russell Barnette. Barnette told Shultz and Ringstaff who appeared at this meeting of the men, that the men were available to go to work on the job under the existing contract. To which Shultz replied, "I can't do that. I got a District 50 contract." 10 Employee Darrell Starcher had a similar experience with Job Superintendent Rice on November 12. After the Pennsylvania Avenue job was shut down Starcher and his brother Donald, both members of the Laborers, ap- proached Rice at the jobsite and asked for a job, to which Rice replied that they could have jobs if they joined District 50.11 ' On November 9 Foreman Slim Caldwell spoke with employee Clarence Jones, telling him the "Company had gone District 50" and asked him if he "was planning on going District 50 with the Company." 12 And on November 23, Caldwell had a similar conversation with employee Wilbert Badgett, a member of the Teamsters. Thus he told Badgett the Company was going District 50" and asked him if he would like to continue working for the Company as a District 50 member.13 Later in the month of November Ringstaff had addition- al similar conversations with employees. On the 17th he told Arthur Jackson, a member of the Operating Engi- neers, he could go to work that afternoon if he would get a withdrawal card from his union and join District 50. On the 22nd he told Donald Foster, a member of the Teamsters, that if he wanted to work he could, but that "He wasn't going to be working AFL men any more." 14 The sum total of the facts supplied, by the credible testimony of Respondent's employees, as detailed in significant part above, discloses an intent on Respondent's part not only to scrap its existing contracts with the unions involved but also to fulfill its new obligation to District 50 by employing only those, who forsook their respective unions and joined District 50. An intent, incidentally, dictated by the existence of a union-security provision in the District 50 contract which required membership in the Union for employment by Respondent. This pattern of intent is manifest in the testimony of every-employee who testified. Over and above this intent the consequence was manifest by the shutting down of jobs and commencing anew under District 50 auspices. This too is attested by the unless they forsook the Operating Engineers for District 50, and I so conclude and find. 11 The credited testimony of Darrell Starcher. I do not credit Race's contrary testimony. 12 The credited, undenied testimony of Employee Jones. 13 The credited, undenied testimony of Badgett. 14 The credited testimony of Foster and Johnson. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees involved who credibly testified before me. Thus, upon their own credited account, the employment of individual members of the Operating Engineers were terminated because of their continued membership in that organization and their refusal to join District 50 at Respondent's request. The following are the employees, together with dates of their final date of employment: James St. Clair November 6, 1971 Herman Price November 10, 1971 Millard Scott November 18, 1971 Jerry Waddell November 19, 1971 Dowell Norris November 20, 1971 Frank McClanaham November 20, 1971 Arthur D. Wheeler November 20, 1971 Donald Grass November 20, 1971 Similarly, upon their own credited testimony, the employment of members of the Teamsters was terminated because of their continued, membership in that labor organization and their refusal to join District 50 at Respondent's, request. The following are the names of those members together with the last date of their employment: Garland Hannah October 15, 1971 Bernard Bennett October 21, 1971 Clarence Mick October 16, 1971 Roney Baker October 29, 1971 William Newman October 17, 1971 C. Lucas November 16, 197115 Charles Webb November 20, 1971 W. E. Badgett November 21, 1971 Richard J. Sexton November 21, 1971 C. H. Rastle November 22, 1971 Donald E. Foster November 22, 1971 And upon the credited testimony of members of the Laborers their employment was terminated because they refused to withdraw from that union and join District 50 at the Respondent's request. Their names and the final dates of their employment follow:' Kenneth R. Johnson November 3, 1971 Darrell Starcher November' 12, 1971 Donald Starcher November 12, 197116 Chester Starcher November 18, 1971 During the same period the employment of four other employees ceased , for the reason that the jobs on which they were working were completed . Each was told that he would be recalled but none of them have been recalled as of the date of the trial . These and the dates of their layoff, as credibly testified to by them, together with the dates of their layoff follow: Holly Bailey ' - October 29, 1971 15 For reasons beyond his control employee Lucas was not available to testify I have accepted in lieu of his testimony an offer of proof submitted by General Counsel, finding that it conforms substantially with the testimony of employees similarly situated 16 For reasons beyond his control Donald Starcher was not available to testify. I have accepted testimony of his brothers Chester and Darrell as Warren Vance November 4, 1971 Delmar Phillips November 5, 1971 William Jarrel November 16, 19711T Vance, it will be recalled, was one of those to whom Ringstaff relayed a message, through Foreman Caldwell, to join District 50. All four were members of the Operating Engineers. R. Analysis and Conclusions The focal determinate in this matter has already been established by findings and conclusions of the Board. Thus Respondent, by executing and giving force and effect to a contract with District 50 during the terms of the contracts with the unions herein, has been found to have completely rejected the principles of collective bargaining and the self- organizational rights of 'the employees. What remains, therefore, is a delineation of the specifics and an assess- ment of the defenses presented by Respondent for its conduct. I have briefly summarized a substantial number of incidents involving employee-members of the respective unions. Incidents which individually and in total illustrate the extent and the manner by which Respondent, through its agents and supervisors, implemented its liaison with District 50. Practically each incident contained the essential ingredients of unlawful assistance to a labor organization and of unlawful interference, restraint, and coercion of the individuals concerned. Thus, practically each witness who testified was urged to abandon his chosen bargaining representative and join the one of Respondent's choice, and any employee who would listen heard paeans of-praise for the union that had newly arrived on the scene. Further explication or citation of authority are hardly necessary to identify this course of conduct as the unlawful variety proscribed by Section 8(a)(2) of the Act, and I so conclude and find. So also does this same conduct most obviously manifest itself as the grossest of interference, restraint, and coercion of the employees. This I conclude and find to violate Section 8(a)(1) of the Act. Detailed throughout the record and summarized herein are case after case of individuals who were told they could continue to work only if they joined District 50; and refusing to do so they did not work. Moreover, by the union-security clause contained in its contract with District 50 Respondent obligated itself to hire or to retain in its employ only those 'who joined District 50. Again by reference to the foregoing summary and to the record herein it has been established by credible evidence that by Respondent's implementation of this clause together with the refusal of the aggrieved employee-members of the unions herein to forsake their union and join District 50 they were denied further employment with Respondent. Each of the employees so victimized has credibly testified to his termination by Respondent or its refusal of adequately supporting the allegations of the complaint with respect to him. 17 For reasons beyond his control employee Jarrel was not available to testify. I have accepted in lieu of his testimony an offer of proof submitted by General Counsel, finding that it conforms substantially with the testimony of employees similarly situated. MOUNTAIN STATE CONSTRUCTION CO. employment to him and I have set forth above the names and dates of their last, employment (supra). These,upon all the evidence before me, I conclude and find to have been deprived of their employment by their failure to acquire membership in District 50 and by their continuing membership in their, chosen union, as disclosed by the evidence which I have credited. Respondent's actions with respect to these employees, I conclude and find, constitute violations of Section 8(a)(3) and (1) of the Act. In certain of these instances I have found that the employees-were terminated on the conclusion of a job but never recalled, as was Respondent's past practice. I refer to employees Vance, Bailey, Phillips, and Jarrel. It is reasonable to infer that these individuals, known by Respondent to be members of the Operating Engineers, were not recalled because they had not joined District 50. Indeed, because Respondent's choice of the new union, District 50, precluded it from hiring those who were not members of it the discrimination of these four, simply by failure to recall, was not only foreseeable but automatic. In the face of all the foregoing Respondent has interposed a number of defenses. These have surface appeal when viewed without reference to Respondent's admitted, and frequently undenied conduct. Thus Respon- dent invites my attention to the fact that many of the projects had been shut down or held up for operational reasons contemporaneous with the terminations found herein, (2) that many of the employees claiming to be aggrieved by the imposition of the District 50 contract were either then working under the Building Trades contract still in force, or could have been transferred to jobs in that area, (3) that actually the employees, or a considerable number of them, engaged in a strike pursuant to the call"of their respective unions on or about November 21, when work was actually available to them; thus they were not in fact terminated. Quite apart from the mutual contradictions inherent in Respondent's defenses I am not disposed to consider them responsive to the obvious facts. In its brief to me Respondent states that it "may have acted in a somewhat unorthodox manner in signing an agreement with District 50." This most certainly understates a conclusion reached by `the Board, but in harsher terms. Respondent cannot expect at 'this late date 'that those who assess its conduct must now' sort out the good from the "not so good" and indulge in senseless conjecture and nit picking. On the contrary! Everything that has occurred herein stems from the unlawful alliance with District 50. And if ever equity would dictate that a party "stew in its own juice" this situation provides a prime example. In the face of this the continuing viability of the Building and Trade Agreement is of little 'concern if the only reliance-being placed upon it 'is' that it served as a protective refuge to explain away why some employees could have worked if they wanted. Nor is it significant that the employee-members of the unions involved went on strike. Whether they did or did not strike is not significant. What is significant is that under the District 50 contract these individuals, be they strikers or not, could not work for Respondent without 18 N. L. R. B. v Mastro Plastics Corp., supra. 19 Arnoldware Inc., 129 NLRB 228 143 joining that union. And if indeed the strike is to be viewed as significant it must then be noted that as a strike in protest of Respondent's unlawful conduct it partakes of all of the ingredients of an unfair labor practice strike, and the strikers are entitled to the same relief as the other discriminatees.18 As to the cessation of work for operational reasons, again I am not disposed to inject a non sequetur into this analysis simply because it has been presented to me as a defense. To repeat the dominant theme of this case: It was Respondent's refusal to employ non-District 50 people that is the vice-not that the job was shut down for one reason or another. For be the job going full steam , held up for legitimate operational reasons, or entirely completed, the first and only consideration for hire or continued employ- ment on that job or any of the others was the withdrawal of the individual from the Operating Engineers, Teamsters, Laborers, or Iron Workers, as the case may have been, and the joining of District 50. Accordingly, at the expense of appearing to "paint with a broad brush," I reject Respondent's defenses to its conduct, particularly its termination of employment and its refusals to recall, as being totally irrelevant to its action and motives already found by the Board to be unlawful . Rather, to support these findings of the Board I am persuaded that I need only rely upon the many examples of Respondent's unlawful motives described herein. Finally it is to be noted that it is of no consequence that in certain instances herein employees were not informed of the reasons for their termination or refusal of further employment, or indeed that at the time or thereafter they did not learn the reason. As Respondent's objective in effecting their termination or in closing down of their projects was illegal, it is immaterial that in carrying out these objectives its reasons were not communicated. Thus to paraphrase the Board's holdings in this area , discrimina- tion in regard to tenure or hire or employment of,a group of employees, including those not known to be union members, were not actually told the purpose-of the , action, tends to discourage union membership and activities no less than against nonunion members alone. All victims of discrimination in such cases are entitled to the same relief under the Act.19 Accordingly, in summary, with respect to the employees involved herein I conclude and find that by the incidents described Respondent has rendered unlawful assistance to District 50 and has interfered with, restrained, and coerced its employees in' violation of Section 8(a)(2) and (1), respectively. And by depriving the employees of continued employment in its organization because of their failure to achieve membership in District 50, ^ it has discriminated against them in violation of Section'8(a)(3) of the Act as well as interfering with, restraining, and coercing them in violation of Section 8(axl). Moreover, with respect to those unnamed individuals , members of the respective unions herein, who engaged in a strike beginning on November 21 in protest of Respondent's unlawful conduct I further conclude and find that as unfair labor practice strikers they are entitled to full reinstatement to any jobs 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available in Respondent's organization when they were available to accept them.20 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth herein having been found to have occurred in connection with Respon- dent's operation as described in my original Decision have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY I have found that Respondent has rendered unlawful aid and assistance to District 50 by executing a contract with it, by including therein a union-security provision requiring the membership in District 50 of Respondent's employees, and by engaging in a course and conduct among its employees which not only constituted the rendition of assistance to District 50 but discriminated against them and unlawfully interfered with, restrained, and coerced them. I have also found that Respondent, by the foregoing, and independently, has refused to bargain with the Operating Engineers, Teamsters, Laborers, and Iron Workers. I shall recommend that Respondent cease and desist from such conduct, including the giving effect of any contract or arrangement, or to any extension, or modifica- tion, or renewal thereof, which it has executed or has honored with District 50, and from in any other manner interfering with, restraining, or coercing its employees in the exercise of their statutory rights. Affirmatively I shall recommend that Respondent withdraw and withhold all recognition from District 50 and any of its constituent locals unless and until it or any of its constituent locals have been certified as a majority representative of Respondent's employees in the appropri- ate bargaining unit as a consequence of a Board-conducted election.21 I shall also affirmatively recommend that Respondent reimburse its employees for any dues, initia- tion fees, or any assessments or any other moneys withheld from their wages pursuant to the contract with District 50, or in accordance with any other arrangement existing between the parties,22 together with interest at 6 percent per annum from the date of the first withholding and deduction. I shall also recommend that Respondent offer reinstatement and continued employment to the employees whom it has discriminatorily terminated to such jobs as are presently being performed or anticipated, replacing if necessary employees hired under the unlawful provisions of the contract with District 50, together with backpay to 20 N.L.R.B v. Mastro Plastics Corp., supra. 21 Pepsi Cola Bottling Co. of Sacramento, 147 NLRB 410. 22 Double A Products Company, 134 NLRB 222, Lunardi-Central Distributing Co., 161 NLRB 1443. In this respect I am aware of the Board's recent decision in Burgreen Contracting Co, 145 NLRB 1067, wherein the Board affirmed the Administrative Law Judge's determination to require reimbursement only from the unlawfully assisted union. It is to he noted that in that case the determination to so reimburse was based upon factors of employer resistance to the advances of the assisted union. No such reluctance ever the employees terminated for such employment of which they were deprived, and with 6 percent per annum interest from the date of Respondent's discrimination against them.23 Upon the foregoing findings of fact, and conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 Mountain State Construction Company Inc., Respondent herein, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening its employees with loss of employment for joining or remaining members of International Union of Operating Engineers, Local Union 132, AFL-CIO, Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Iron Workers Union Local 301, an affiliate of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, and Construction and General Laborers Union, Local 1353, Laborers Interna- tional Union of North America, AFL-CIO, respectively, or any other labor organization. (b) Threatening its employees with loss of employment if they failed or refused to join International Union of District 50, Allied and Technical Workers of the United States and Canada. (c) Aiding or assisting or contributing support to District 50, the aforesaid, or any of its constituent locals, or to any other labor organization of its employees, by any means, including the solicitation of memberships, and/or the encouragement of employees to engage in such solicitation in behalf of District 50 or any other labor organization. (d) Giving affect to the collective-bargaining agreement with District 50, the aforesaid, executed on November 3, 147 1, or any modification, renewal, or extension thereof, or any collective-bargaining agreement with said labor organ- ization which may now be enforced, unless or until said labor organization shall hereafter be certified by the National Labor Relations Board as the exclusive represent- ative of its employees in an appropriate bargaining unit. (e) Recognizing District 50, the aforesaid, or any of its constituent locals, as the exclusive representative of its employees for the purpose of collective bargaining unless or until said labor organization has hereafter been certified by the National Labor Relations Board as the exclusive representative of such employees in an appropriate bargaining unit- (f) Encouraging membership in District 50, the aforesaid, or any of its constituent locals by entering into the aforesaid collective-bargaining agreement with said labor organization and thereafter maintaining, enforcing, and existed here 23 Isis Plumbing & Heating Co., 138 NLRB 716, Glendora Plumbing„ 165 NLRB 101. 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order and all objections thereto shall be deemed waived for all purposes. MOUNTAIN STATE CONSTRUCTION CO. 145 giving effect to the provisions thereof which require its employees, as a condition of employment to join or assist such labor organization, except as permitted by Section 8(a)(3) of the Act. (g) Withholding or deducting from the wages of any of its employees dues, -initiation fees, or any other assessments or moneys to be remitted to District 50, the aforesaid, or to any of its constituent locals or to any other labor organization unless such withholding or deduction is made pursuant to a duly signed authorization by the employee involved. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which it has found will effectuate the policies of the Act: (a) Withdraw and withhold any recognition it has granted to District 50, the aforesaid, or any of its constituent locals unless or until it has been certified in the manner aforesaid by the National Labor Relations Board. (b) Reimburse its employees for the amounts it has withheld and deducted from their wages as dues, initiation fees, or assessments, or any other moneys, to be remitted to District 50, the aforesaid, or to any of its constituent locals, together with interest at 6 percent per annum. (c) Reinstate to their former or to substantially equiva- lent jobs the employees whose names appear below who have been found to have been discriminated against in violation of the Act, discharging, if necessary, any employee hired subsequent to the beginning of the period of discrimination herein. In the event that jobs are not available, establish a hiring list from which said employees will be selected for such future employment as may become available, such list to be all times available for public inspection. James St. Clair Herman Price Millard Scott Jerry Waddell Dowell Norris Frank McClanaham Arthur D. Wheeler Donald Grass Garland Hannah Bernard Bennett Clarence Mick Roney Baker William Newman C. Lucas Charles Webb W. E. Badgett Richard J. Sexton C. H. Rastle Donald E. Foster Kenneth R. Johnson Darrell Starcher Donald Starcher Chester Starcher Polly Bailey Warren Vance Delmar Phillips William Jarrel (d) Make whole the foregoing employees in the manner set forth in the section of this Decision entitled, "The Remedy." (e) Upon request, bargain collectively with International Union of Operating Engineers, Local Union 132, AFL-CIO; Local Union 175, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America; Iron Workers Union Local 301, an affiliate of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO; and Construction and General Laborers International Union of North America, AFL-CIO, as the exclusive bargaining representatives of its employees in the respective bargaining units previously established as appropriate for bargaining purposes, as required by its existing collective agreements with the aforesaid labor organizations and by applicable law. (f) Honor, maintain, and enforce the aforementioned contracts. (g) Post at each of its jobsites , shops, and facilities, and wherever employees may congregate and at all places where notices to employees are customarily posted, and mail to each employee listed in this Order above and to all other individuals in its employ at the date of this Order, copies of the attached notice marked "Appendix."25 Furnish a copy of said notice to the aforementioned labor organizations at their respective Charleston, West Virginia, headquarters for posting if they so choose . Copies of notice on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent, shall be posted immediately upon receipt thereof, as indicated above, and maintained for a period of 60 consecutive days. Reasonable steps shall be taken that said notices are not altered, defaced, or covered by any other material. (h) Notify said Regional Director in,writing, within 20 days from the receipt of the Administrative Law Judge's Decision what steps it has taken to comply herewith. 25 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you, our employees, with loss of employment for joining or remaining members of International Union of Operating Engineers, Local Union 132, AFL-CIO; Local Union No. 175, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America; Iron Workers Union Local 301, an affiliate of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; Construction and General Labor- ers Union, Local 1353, Laborers' International Union of North America, AFL-CIO; or any other labor organization. WE WILL NOT threaten you with loss of employment if you fail or refuse to join International Union of District 50, Allied and Technical Workers of the United States and Canada, or any of its constituent locals. WE WILL NOT aid or assist or contribute support to District 50, aforesaid, or any of its constituent locals or to any other labor organization of our employees, by any means, including the solicitation of memberships, and/or encouragement of you to engage in such solicitation in behalf of District 50 or any other labor organization. WE WILL NOT give effect to the collective-bargaining 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement with District 50 which we executed on November 3, 1971, nor any modification, renewal, or extension of it, nor any collective-bargaining agreement with this labor organization which may now be in force, unless or until the labor organization shall be certified by the National Labor Relations Board as your exclusive bargaining representative in an appro- priate bargaining unit. WE WILL NOT recognize District 50 or any of its constituent locals as your exclusive bargaining repre- sentative unless or until it has been certified by the National Labor Relations Board as set forth above. WE WILL NOT encourage membership in District 50 or any of its constituent locals by entering into or maintaining a collective-bargaining agreement with it by requiring that you, as a condition of your employ- ment, be required to join or assist District 50 except as permitted by law. WE WILL NOT withhold or deduct from your wages any dues, initiation fees, or any other assessments or moneys to be remitted District 50 or any of its constituent locals or to any other labor organization unless you have signed an authorization for us to do so. James St. Clair Herman Price Mill Millard Scott Jerry Waddell Dowell Norris Frank McClanahan Arthur D. Wheeler Donald Grass Garland Hannah Bernard Bennett Clarence Mick Roney Baker William Newman C. Lucas Charles Webb W. E. Badgett Richard J. Sexton William Jarrel C. H. Rastle Donald E. Foster Kenneth R. Johnson Darrell Starcher Donald Starcher Chester Starcher Holly Bailey Warren Vance Delmar Phillips WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act. WE, WILL withdraw or withhold any recognition we have granted to District 50 or any of its constituent locals unless and until it has been certified in the manner set forth above. WE WILL reimburse you for the amounts we have withheld and deducted from your wages as dues, initiation fees, assessments or any other moneys to be remitted to District 50 or any of its constituent locals, together with 6-percent interest. WE w1 L reinstate to their former or substantially equivalent jobs the employees listed below who have been found to have been discriminated against by us. We will discharge, if necessary, any employee hired since we began our discrimination of these employees. In the event that jobs are not available to those listed below a hiring list will be established from which all future employment will be made , and this list will be available at all times for your inspection. WE WILL reimburse the employees listed above for the loss of pay incurred as a result of our discrimina- tion against them. WE wu.L upon request bargain collectively with International Union of Operating Engineers Local Union 132, AFL-CIO, Local Union 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Iron Workers Union Local 301, an affiliate of International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Construction and General Laborers Union, Local 1353, Laborers Union of North America, AFL-CIO, as your exclusive bargaining representative in the respec- tive union of which you are members. WE WILL honor, maintain, and enforce any contract which we will make with these unions. All of you, our employees, are free to remain, withdraw from membership in or become or refrain from becoming members of the several respective unions listed above, or any other labor organization. Dated By MOUNTAIN STATE CONSTRUCTION CO., INC. (Employer) (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.