Fenix & Scisson, Inc.

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fenix & Scisson, Inc. and Congress of Independent Unions Local 318, International Union of Operating Engi- neers, AFL-CIO and Laborers International Un- ion of North America, Southern Illinois District Council, AFL-CIO and Congress of Independent Unions. Cases 14-CA-7196, 14-CB-2563, and 14-CB-2588 December 10, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 24, 1973, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, Respondent Unions filed joint exceptions and a joint 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below. paid with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716." 2. Substitute the following for paragraph II 2(a): "(a) Jointly and severally with Respondent Compa- ny reimburse Respondent Company's employees who have been engaged on the Tetco Cavern project, who were not already members of Respondent Union, for all initiation fees, dues, and other moneys which they were required to pay as a result of the existence, maintenance, or enforcement of the union- security clause contained in the agreement between Respondent Engineers and Respondent Company covering said employees." 3. Substitute the following for paragraph III 2(a): "(a) Jointly and severally with Respondent Compa- ny reimburse Respondent Company's employees who have been engaged on the Tetco Cavern project, who were not already members of Respondent Union, for all initiation fees, dues, and other moneys which they were required to pay as a result of the existence, maintenance, or enforcement of the union- security clause contained in the agreement between Respondent Laborers and Respondent Company covering said employees." 4. Substitute the attached notices for Appendixes B and C of the Administrative Law Judge. 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, as modified below, and hereby orders that Fenix & Scisson, Inc., Lick Creek, Illinois; Local 318, International Union of Operating Engineers, AFL-CIO, Harrisburg, Illinois; and Laborers Inter- national Union of North America, Southern Illinois District Council, AFL-CIO, West Frankfort, Illinois, shall take the action set forth in the said recommend- ed Order, as so modified. We agree with Respondent Unions that there was no basis for the Administrative Law Judge to order each separate Respondent Union to be jointly and severally liable for the obligations of the other. We will amend his Order accordingly. We will also order that "The Remedy" of the Administrative Law Judge be modified as set forth below. 1. Insert the following sentence after the words "enforcement of the union-security clauses in these agreements." in the third paragraph of the section entitled "The Remedy": "The reimbursement for such dues and fees will be APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give effect to, maintain, or enforce our agreement with Fenix & Scisson, Inc., entered into in January 1973, covering the Company's Tetco Cavern project. WE WILL rcimburse employees who have been engaged in working on the Tetco Cavern project under an agreement between the Company and Local 318, International Union of Operating Engineers, AFL-CIO, who were not already members of the Union, for all initiation fees, dues, and other moneys which they were required to pay as a result of the union-security provision of that agreement. WE WILL NOT restrain or coerce the employees of Fenix & Scisson, Inc., in the exercise of rights guaranteed under Section 7 of the National Labor Relations Act. 207 NLRB No. 104 FENIX & SCISSON , INC. 753 LOCAL 318, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO (Labor Organization) Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give effect to, maintain, or enforce our agreement with Fenix & Scisson, Inc., entered into in January 1973, covering the company's Tetco Cavern project. WE WILL reimburse employees who have been engaged in working on the Tetco Cavern project under an agreement between the Company and Laborers International Union of North America, Southern Illinois District Council, AFL-CIO, who were not already members of the union, for all initiation fees, dues, and other moneys which they were required to pay as a result of the union- security provision of that agreement. WE WILL NOT restrain or coerce the employees of Fenix & Scisson , Inc., in the exercise of rights guaranteed under Section 7 of the National Labor Relations Act. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, SOUTHERN ILLINOIS DISTRICT COUNCIL, AFL-CIO (Labor Organization) Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Marion, Illinois, on May I and 2, 1973, upon an order consolidating cases and complaint and notice of hearing issued on March 23, 1973.1 The complaint alleges (a) that Fenix & Scisson, Inc. (herein "the Company," or "Respondent Company"), on or about October 2, 1972, entered into a prehire collective-bargain- ing agreement, pursuant to Section 8(f) of the Act, with Congress of Independent Unions (herein "the CIU") covering employees in an appropriate unit at the Compa- ny's project referred to as the TETCO cavern project, (b) that shortly thereafter, on or about December 26, 1972, while the project was uncompleted, and at a time that a majority of the Company's employees on the project had designated CIU as their bargaining representative, Respon- dent Company withdrew recognition from the CIU and ceased giving effect to the CIU agreement, and (c) that on or about January 2, 1973, the Company recognized Local 138, International Union of Operating Engineers, AFL-CIO (herein "Respondent Engineers") for some of the employees in the appropriate unit, and Laborers International Union of North America, Southern Illinois District Council, AFL-CIO (herein "Respondent Labor- ers") for other employees in the unit (both unions herein together referred to as "the Respondent Unions"), and entered into collective-bargaining agreements with each of the Respondent Unions requiring the Company's employ- ees to obtain and maintain membership in such union, and that since that time the Company and the Respondent Unions have maintained and enforced these bargaining agreements. The complaint alleges that the Company thereby violated Sections 8(a)(1), (2), (3), and (5) of the Act, and that the Respondent Unions thereby violated Sections 8(b)(1)(A) and (2) of the Act. The answers of the Respondent Company and the Respondent Unions deny the commission of any of the alleged unfair labor practices. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after due considera- tion of the briefs filed by the General Counsel, Respondent Company, the Respondent Unions, and the CIU, I make the following: I Charges were filed in Case 14-CA-7196 on January 8 and March 8, 1973, in Case 14-CB-2563 on January 8 and March 8, 1973, and in Case 14-CB-2588 on March 8, 1973. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. SUMMARY OF THE ISSUES This proceeding presents some knotty problems concern- ing the interpretation and application of Section 8(f) of the Act, which permits "an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employ- ment will be engaged)" in that industry with a labor organization (not established, maintained, or assisted in violation of the Act) "of which building and construction employees are members," notwithstanding that "the majority status of such labor organization has not been established [under the provisions of the Act] prior to the making of such agreement." 1. Respondent Unions contend that the record does not show that the Respondent Company is "engaged primarily in the building and construction industry," but that it indicates that the Company is engaged in mining opera- tions, and further assert that there is no proof that the CIU has building and construction employee members, or that the employees covered by the CIU contract were engaged in that industry. 2. Respondent Unions further contend that even if it be found that the operations involved come within the purview of Section 8(f), the CIU contract was not a legal bargaining agreement and did not bar the Company from thereafter signing agreements with Respondent Unions covering the same operations and appropriate unit, for the following asserted reasons: (a) The CIU agreement was not signed prior to the start of the Company's operations at the Tetco project, or was not, in fact, agreed before Respondent Union's contracts covering the same operations were agreed (suggesting that an oral agreement may satisfy the requirements of 8(f)). (b) The CIU contract covers an inappropriate unit, differing from that alleged in the complaint, which all parties agree is an appropriate unit. (c) The CIU was never selected or designated by a majority of the employees engaged on the Tetco project, the cards signed by employees on the project on December 4, 1972, being, it is argued, "tainted" by statements of the CIU representative at the time they were signed, further, that that there is no proof of majority status of CIU at the time Respondent Unions' agreements were executed. (d) In any event, at the time the CIU cards were signed, no representative complement of employees was employed on the Tetco project, in accordance with principles established by the Board in respect to other industries. (e) There is no proof of illegality of the Respondent Unions' agreements, since, assertedly, there was no coercion of Respondent Employer to sign the agreements, and, it is claimed, there is no proof that Respondent Unions were not the designated or selected representatives of a majority of the employees in the appropriate unit when their agreements were signed. 2 Respondent Unions' answer as amended at the hearing appears somewhat garbled in the transcript. According to my notes, Respondent Unions' counsel stated (at p. 10, 1 6) "We further admit the allegations in 3. Respondent Unions contend that this matter should be determined by arbitration under the CIU agreement. 4. Respondent Company admits that its contract with CIU was made pursuant to Section 8(f) of the Act, as alleged in the complaint, but asserts that its agreements with Respondent Unions were also made pursuant to Section 8(f), thus raising an issue as to whether bargaining agreements made after the start of a project, and after the engagement of employees on that project come within Section 8(f) of the Act, and, if so, whether there must be a representative complement at the time the contract is made, as Respondent Unions claim. 5. Respondent Company asserts that it was led to cease recognizing CIU, and to sign agreements with Respondent Unions under coercive circumstances, and did so in good faith to protect its property and the persons working on the Tetco project. II. BUSINESS OF THE COMPANY The Company, an Oklahoma corporation with its principal offices in Tulsa, Oklahoma, is and has been engaged in various states of the United States in the creation and development of subterranean caverns for the storage of petroleum products. In addition to the facts in the instant matter, I have taken notice of the Board's Decision in International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1445 (Fenix & Scisson, Inc.), 126 NLRB 226 (1960), which finds that Respondent Employer was engaged in such operations in nine states at that time. During times material to the complaint in this matter, the Company has been engaged near Lick Creek, Illinois, South of Marion, Illinois, in the creation of such an underground reservoir for the storage of propane gas. The complaint alleges, and the answers admit, that the Company is "engaged in business as a general contracting and engineering firm," which in a recent annual period caused to be delivered from outside the State of Oklahoma to its place of business at Tulsa, Oklahoma, building materials valued in excess of $50,000, and which in the same annual period performed services valued in excess of $50,000 for enterprises located outside the State of Oklahoma.2 Respondent Unions, pointing to the fact that the complaint describes Respondent Employer merely as "a general contracting and engineering firm," and also to the fact that the Company refers to its operations at the Tetco project generally as "mining," assert, as has been noted, that there is no proof that the Company is primarily engaged in the building and construction industry within the meaning of Section 8(f) of the Act. However, the terms "general contractor" and "engineer- ing" are common terms in the building and construction industry, and it has long been accepted that underground construction, such as the creation of tunnels, subways, and- resevoirs, are heavy construction within the building and construction industry. See Standard Industrial Classification Manual 1972 (Office of Management and Budget, GPO), Paragraphs 2(a) through (e);' and the transcript is ordered to be corrected to so state. FENIX & SCISSON, INC. 755 pp. 49-51. The basic distinction between construction and mining appears to rest upon whether the purpose in removing the underground material is to realize the value of the material removed, or whether the material is removed for the purpose of creating an underground structure of some sort. Cf. Standard Classification Manual, supra, pp. 31-38.3 In this case the purpose of the project involved was to create or construct an underground reservoir. The tools and equipment referred to in the record as used in the project are those used by operating engineers in the building and construction industry. It is further clear that all of the parties involved have customarily treated the Company as engaged in the building and construction industry and did so at the Tetco project. Thus, the Company has customarily employed classifications and trades in that industry as the record in this case and the Board's decision in the prior case show. The Company has customarily dealt with' building and construction trades unions and been subjected tojurisdic- tional disputes among them. The Company's contracts at the Tetco project entered into with Respondent Unions were standard heavy construction agreements, as, it appears from the Board's prior decision, has been the case with other building trades unions at similar projects elsewhere. It is not without significance that before the Tetco project got fairly underway, the Company's local project manager was visited by the president of the local building trades council and agents of some affiliated trades, as well as the Teamsters, seeking contracts from the Company. It is also clear that the Company and CIU considered that their agreement was within the building and construction industry, not only by the terms of the union-security clause contained therein, but by the fact that they discussed the necessity of securing the approval of the Construction Wage Stabilization Committee for the wage rates agreed to. Finally, it is noted that in the Board's prior decision, it was found that the Company "is engaged as a contractor in the building and construction industry primarily in the construction of underground storage facilities." 126 NLRB at 234. Based upon the above and the entire record in this matter, it is found that the Company is an employer engaged primarily in the building and construction industry whose operations affect commerce within the meaning of the Act. III. THE LABOR ORGANIZATIONS The complaint alleges, the answers of Respondent Unions' and the Company admit, and I find that Respon- dent Engineers, Respondent Laborers, and the CIU are each labor organizations within the meaning of the Act. It is further found on the basis of the record as a whole, and on the basis of other decisions of the Board, of which I take judicial notice, that each of these unions are organizations of which building and construction employees are mem- bers within the meaning of Section 8(f) of the Act. For another instance in which sister locals of these unions were 3 This seems to be recognized in Resp. Unions' br. (p. 3) which speculates that if the rock removed were sold at a profit, the operation should be classified as mining, and argues that General Counsel had the involved in a dispute before the Board in the construction industry see Harrawood's, Inc., 193 NLRB 1136. IV. THE FACTS A. The Negotiation of the CIU Agreement The CIU and the Company had previously been parties to a collective-bargaining agreement covering employees at a project performed by the Company in Missouri. This had proved satisfactory to the Company because of the flexibility permitted by that agreement, the absence of concern over jurisdictional disputes, and, because it afforded (the Company felt) better insurance and pension protection for the Company's employees, and, therefore, sometime in September 1972, Fred Scharf, a vice president of the Company, got in touch with Truman Davis, president of CIU concerning the impending Tetco project. The two discussed terms for an agreement over the telephone, and Davis drew up a written agreement and mailed it to Scharf in Tulsa. Scharf had some disagreement with the terms submitted, and discussed these with Davis over the phone. The two agreed on terms. Scharf retyped the agreement, and on October 2, 1972, returned it unsigned to Davis. Davis thereafter signed the agreement as submitted and returned it to Scharf who likewise executed it and returned fully signed copies to Davis. Both Davis and Scharf testified that the contract was fully executed before December 4, 1972, the first day that the Company employed rank-and-file employees on the project. However, the testimony of both of these men as to dates and the time of execution of the agreement leaves something to be desired in terms of firmness and consistency of recollection, and Respondent Unions suggest, as I have noted, that the evidence is quite consistent with the CIU contract having been agreed or executed even after Respondent Unions' contracts were agreed or executed I have considered the record very carefully and have concluded that the testimony of, Davis and Scharf on this point, which is uncontradicted, should be credited. I am convinced that the two witnesses, despite their vagueness as to times and dates, were attempting to testify truthfully in asserting that the agreement was executed prior to December 4, and this seems most consistent with the record as a whole. Thus, all of the terms of the CIU agreement were agreed to over the phone by October 2, 1972, and the completed document was mailed to Davis on that date. No subsequent changes were discussed or made. It is unlikely that the exchange of signed documents would have taken more than 2 months. Further, when Davis appeared at the project on December 4 to sign up the employees, die states he had a copy of the agreement with him, This was confirmed by the,Compa- ny's resident project manager, Walter Wickstrom. The two employees who testified also affirm that a, document purporting to be the contract was circulated among them by, Davis at the meeting on that date. It also appears that shortly after December 1 Respondent Engineers was advised that the Company had signed an agreement with burden of negativing this fact. I do not agree that this one fact would be controlling or that the General Counsel in this case had the burden of proving this negative. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIU, and an agent of Respondent Engineers, Ralph Oswald, called Scharf to remonstrate with him concerning this.4 Finally, considering the Company's experience in the industry and its demonstrated concern with securing a prehire agreement prior to starting the project, I believe it unlikely that the Company would have let the matter slide for 2 months or that it would have started work with its own employees on this project without such an agreement, absent unusual circumstances not shown here. The CIU agreement, which by its terms was to "be in full force and effect only for the duration of the TETCO cavern project," and was to terminate when the project was completed, recognized the CIU as the sole and exclusive representative, for the duration of the agreement, of "all [the Company's] employees, excluding clerical and selling employees, guards, professionals and supervisors as de- fined in the act . . . This recognition extends only for the term of the contract . . . and only to employees who devote all of their working time to the TETCO cavern project located at Lick Creek, Illinois." 5 The agreement also provides that employees covered by the agreement hired on or after its execution shall become and remain members of CIU after 8 days from the time they are employed. B. The CIU Sign-Up of Employees Prior to December 4, 1972, the Company had only supervisory personnel at the Tetco project, directing the work of subcontractors who were sinking shafts in the ground preparatory to the Company's operations. The Company first brought its own employees on the project on December 4. These numbered a maximum of eight, including a field clerk. In accordance with the Company's usual practice, these were employees with previous experi- ence in the Company's operations in other states. At least one had been employed by the Company at a project in Missouri under a previous agreement with CIU. On the morning of December 4, CIU President Davis arrived at the site and informed Walter Wickstrom, the Company's project manager that the CIU had a bargaining agreement covering the project, which was exhibited to Wickstrom (it appears that Wickstrom had been previously informed of the agreement) and requested that he be permitted on the site to talk to the employees. Wickstrom permitted Davis the use of space in the Company's field office where Davis met with seven employees (it would appear that the field clerk did not attend). According to Davis, he advised the employees that the CIU held a prehire contract covering the Company's operations on the project, that he was there to sign them up if they were 4 As noted hereinafter, Wickstrom, the Company's local project manager, had met with Respondent Engineers on December 1, at which time he discussed the terms under which the Engineers would permit the project to be performed. The terms were not satisfactory to the Company. The Respondent Unions argue that the Company would not have met with the Engineers on December I if the Company had already agreed or signed with the CIU. I disagree. Whether the Company would have signed with Respondent Engineers at that point if satisfactory terms had been offered, and repudiated its agreement with the CIU before starting work on the project is now a moot point. It was the Company's rejection of the Engineers' offer of which Oswald complained to Scharf in early December. 5 The parties agree, and I find, that the following unit alleged in the complaint is an appropriate unit within the meaning of Section 9(b) of the ready to sign, "and they had a choice which they wanted to do." Davis states that he never explained what the choice was to which he referred, but he agrees that he intended that the employees would have to join the CIU in order to work under the CIU agreement. As previously noted, a copy of the agreement was circulated among the employees present. One of the employees present, Lloyd Lang, who stated that he could not recall Davis' specific words at the meeting, testified that Davis said "we had to sign [the card] or you wouldn't be able to work." At the time Lang was a member of a sister local of Respondent Engineers. The only other employee member of the group to testify, Robert A. Skelton, testified that Davis "passed out these cards, and he said that he was going to represent this job, and that we had eight days to join, and that our dues would be $7 per month and $50 initiation fees. He didn't care how we paid the initiation fees just so we paid it." Skelton had previously worked for Respondent Company under a CIU agreement. Of the three accounts of the events of this meeting I was most impressed with the testimony of Skelton, which seemed to me to be the most reliable, and it is credited. I do not consider the testimony of Davis and Lang as necessarily inconsistent with Skelton's testimony, but to the extent that they vary from that of Skelton, I do not credit their version. At the meeting, each of the seven employees present signed applications for membership in the CIU and apparently also a checkoff card in favor of that union .6 C. The Company's Dealings with Respondent Unions In the fall of 1972 (September or early October), Respondent Engineers placed a picket at the Tetco project jobsite against one of the two subcontractors then employed on the project. The Company was informed that the Respondent Engineers wished to meet with the two subcontractors and the Company. At the meeting Respon- dent Engineers stated that it wanted contracts with the Company and the two subcontractors (it was stated that the contract held by one of the subcontractors was not valid in that area). The Company took the position that it had no work at the project at the time and had attended only at the request of the union, that it was not prepared at that time to enter into an agreement, and desired that the Union clear up its problems with the subcontractors who were on the job. Respondent Engineers requested that the Company get in touch with the Union before the Company commenced operations. It was the understanding of the Company's vice president Scharf that the subcontractors Act: "All employees of the [Respondent Company] at its Tetco cavern project at Lick Creek, Illinois, excluding clerical employees, selling employees, guards, professional employees, and supervisors as defined in the Act." Respondent Unions argue (Br. pp. 4-6) that the CIU contract unit allegedly excludes part-time employees from the unit. The issue was not raised at the hearing and there is no evidence supporting this contention except as may be derived from the terms of the agreement as discussed hereinafter. 6 There is some evidence that during this meeting a supervisor passed through the office, but none to indicate that any supervisor was present when the cards were signed or that the execution of the cards was in any way influenced by supervisory personnel. FENIX & SCISSON, INC. signed with Respondent Operating Engineers. The picket line was removed. Later in the month of October, as has been noted, the project was visited by the president of the local building trades council and representatives of several affiliated craft unions, including Respondents Engineers and Laborers, as well as the Teamsters, inquiring whether the Company would sign agreements with the various crafts. Wickstrom advised that the Company had no employees on the project and referred them to the Company's main office in Tulsa. On December 1, Wickstrom met with agents of Respon- dent Engineers, in response to the request of the Engineers made at their earlier meeting. Wickstrom again informed the Engineers that he was not authorized to negotiate a bargaining agreement , but was prepared to discuss items in the Engineers' standard agreement which the Company felt would not fit their operations at the Tetco project. Apparently, the Engineers indicated that they might make certain concessions on a verbal basis, but were unwilling to make written variations from their standard agreement. Thus, Wardell Riggs, the Engineers representative said he would talk to Scharf about the contract, but he would not "tear up" the Engineers' agreement. Scharf was advised of the positions taken by the Engineers in this meeting, but considered that they did not meet the Company's needs. Very shortly thereafter, Respondent Engineers learned of the CIU agreement, and Engineers International Repre- sentative Oswald called Scharf to complain that "after Mr. Riggs had bent over backwards to make [the Company] come to an agreement with them," the Company had nevertheless signed with the CIU. Scharf replied that the Engineers would not negotiate an agreement from scratch, and the changes offered were not enough. Contrary to Respondent Unions' contention, I find that the Engineers and the Company did not arrive at an agreement on this occasion. On the morning of December 12, an icy, cold morning, when Amos Coggin, the Company's general foreman on the Tetco project had sent the employees home because conditions were unsuitable for work, an estimated 100 or more men descended upon the project and began to start up and move the equipment, in spite of Coggins' request that they desist. The record makes clear that these men were well acquainted with the operation of the complex machinery involved. Coggins asked to speak with their business agent ("B.A."), and was informed, "We don't have any here." Coggins was advised that he should "get out of here," and some of the men accompanied Coggins back to the Company's field office. Up to this point Coggins was unable to identify any of the men. Later some of these men came into the field office, and with them were two men whom Coggins recognized as having previously worked for one of the Company's subcontractors on the project and who wore Engineer buttons. One of the group in the office roughly accused Coggins of using an intercom, which Coggins denied. (The invaders had cut the telephone wires). The spokesman of the group asked Coggins for Wickstrom, and when informed that Wickstrom was not there, stated to Coggins, "Well, I'm telling you this. We can't find Mr. Wickstrom and I'm telling you . . . Don't start this job until you get right . . . We have killed men 757 for the same thing and we will do it again ." About this time one of the men who Coggins recognized as having worked for the Company's subcontractor on the project informed the spokesman that Coggins was one of the Company's foremen. As the men started milling out of the office, the spokesman again warned Coggins not to "start this job until you get right." When Coggins said that was not his decision, but would be handled in Tulsa, the spokesman informed him, "We've talked to Tulsa, ... I'm just telling you." The mob of men then departed the jobsite, leaving a large amount of damaged equipment behind. The Compa- ny was unable to resume operations until mid-January 1973. According to the record in this case, neither the local nor the federal authorities have been able to find anyone who was responsible for these acts of vandalism and coercion. At the hearing the Respondent Unions appeared to be laying a foundation for the argument (not followed up in their brief) that these were the actions of local citizens (not connected with Respondent Unions) who were outraged at the Company bringing in out-of-state workers on the project. On the basis of this entire record I find that position implausible (inter alia, all of these out-of-state workers returned to the project, without incident, after the Company signed agreements with Respondent Unions). However, neither the complaint nor the issues in this case make it necessary that responsibility for this incident be considered, and I make no finding on that point. After this incident, Project Manager Wickstrom was instructed by the Company to set up a meeting with Respondent Unions. At this meeting, on January 3, 1973, the Company came to agreement with Respondent Unions, and on that date or a few days thereafter signed bargaining agreements, containing hiring hall provisions and union- security clauses as permitted by Section 8(f) of the Act, with each of Respondent Unions covering the same operations and employee classifications as the CIU contract. It would appear that the terms of the Engineers' agreement were substantially the same as those discussed on December I. Neither of Respondent Unions offered the Company any proof that it represented any of the employees who had been employed on the project previously, and no proof was offered at the hearing that either of the Respondent Unions (or the two together) at that time represented a majority of those employees. After these agreements were signed, Project Manager Wickstrom got in touch with the eight employees who had been employed on the project prior to December 12, and requested that they return to work. He further notified these employees that Respondent Unions desired that they clear through the unions' hiring halls, and it appears that the employees did so, signed up with the Respondent Unions, and were cleared for work on the project. They have since been employed on the project. At the time of the hearing, 34 employees (18 engineers and 16 laborers) were employed on the project, and it was estimated that at the peak of employment, during the 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD summer, a total of 45 employees will be engaged on the site.? The Company, has since January 3, 1973, refused to recognize CIU as the representative of the employees in the bargaining unit covered by the CIU agreement, and since that date has refused to honor and has ceased giving effect to the CIU agreement. Since entering into agreements with the Respondent Unions in early January 1973, covering employees engaged on the Tetco project, the Company has maintained and enforced those agreements with respect to the terms and conditions of employees engaged on the Tetco project. V. OTHER PROCEEDINGS BEFORE THE BOARD At the hearing in this matter, Respondent Unions offered certain papers in evidence showing that on or about April 23, 1973, Respondent Engineers and Respon- dent Laborers had each filed a petition for certification as representatives of employees engaged by Respondent Employer on the Tetco project. Accompanying these papers were lists of signatures purporting to indicate that certain named individuals had designated Respondent Unions as their bargaining representative. These names and signatures were not authenticated. After counsel for Respondent Unions asserted that he would argue the relevance of these documents in his brief, and upon the basis that it would be appropriate to take judicial notice of these documents, as official Board records, in any event, these documents were received in the record as a matter of convenience. There is no reference to these documents in Respondent Unions' brief that I can determine. However, General Counsel and Respondent Unions, in accordance with the discussion at the hearing, have submitted documents showing that on May 2, 1973, the Regional Director dismissed the petitions, and on May 18, 1973, the Board dismissed Respondent Unions' appeal from the Regional Director's actions, on the ground that no question concerning representation could be raised during the pendency of the complaint in this matter, which alleges that the Respondent Employer assisted Respondent Unions in violation of the Act, and refused to bargain with CIU in violation of the Act. The Board further advised that Respondent Unions' "contention that a Section 8(a)(5) violation cannot be founded upon a collective-bargaining agreement entered into pursuant to Section 8(f) of the Act can only be considered in the above mentioned unfair labor practice proceeding." For the purpose of those who may have occasion to review this matter, the letter from Regional Director Joseph H. Sohen to Mr. Harold Gruenberg, counsel to Respondent Laborers in Case 14-RC-7333, dated May 2, 1973, is hereby received in evidence as Respondent Unions' Exhibit 5, the letter from the Regional Director to Mr. J. F. Souders, counsel to Respondent Engineers in T Respondent Unions also adduced testimony that the Company had previously hired a crane from a crane rental company pursuant to a rental arrangement under which the rental company provided an operator and oiler to operate the crane while engaged on the Company's project (a fairly common practice in the rental of equipment in the construction industry). The record as a whole makes it clear that the rental company is an independent contractor and the crane operator and oiler are employees of Case 14-RC-7334, dated May 2, 1973, is hereby received in evidence as Respondent Unions' Exhibit 6, and the Board's Ruling on Administrative Appeal in those two cases, dated May 18, 1973, is hereby received in evidence as Respondent Unions' Exhibit 7. VI. ANALYSIS AND CONCLUSIONS A. Validity of the CIU Agreement As has been found, the CIU agreement, agreed and executed prior to the employment of Respondent Compa- ny's employees upon the Tetco project on December 4, 1972, was between an employer (Respondent Company) engaged primarily in the building and construction industry and a labor organization (CIU) of which building and construction employees are members, covering em- ployees engaged, or to be engaged, in that industry. There is no evidence that the CIU was established, maintained, or assisted by Respondent Company within the meaning of Section 8(f) of the Act. Thus, notwithstanding a lack of proof that the CIU had been designated as their represent- ative by a majority of Respondent Company's employees at the time the agreement was agreed or executed, this agreement was initially a valid agreement under Section 8(f) of the Act.8 In coming to this conclusion I have given full consideration to Respondent Unions' contention that the CIU agreement covers an inappropriate unit because it allegedly does not cover part-time employees. There is no evidence that part-time employees have been, or were expected to be, employed on this project. There is further no evidence that the parties intended to exclude part-time employees from coverage under the agreement. The first part of the recognition clause in the CIU agreement covers all the employees engaged on the_ project. The following language, to which the Respondent Unions refer, is manifestly an attempt in somewhat inartistic language to make clear that the agreement was a project agreement only, covering only employees engaged on this project (and not on other company projects) and only for the term of the project. It is thus unnecessary to consider whether the exclusion of part-time employees from an agreed unit would in fact make the unit inappropriate. Although the CIU agreement was thus valid when executed, the Board in a number of cases has had occasion to hold that the mere existence of a contract valid because entered into pursuant to Section 8(f) raises no presumption that the contract is thereafter supported by a majority of the employees covered thereunder, or prevents proper attack upon the continuing validity of the agreement or upon the representative status of the contracting union. See, e.g.,' R. J. Smith' Construction' Co., I Inc.,, 191 NLRB 693; Komatz Construction, Inc., 191 NLRB 846; cf. The Irvin-McKelvy Company, 194 NLRB 52. Obviously, when parties are permitted by law to enter into a bargaining agreement without regard to whether the contracting union the rental company and not of Respondent Company. The point is not mentioned in Respondent Unions' bnef. 8 I find it unnecessary to consider , as Respondent Unions suggest, whether an oral agreement will satisfy the requirements of Section 8(f). In any case, the CIU contract was agreed and signed before the Company ever came agreement with Respondent Unions or either of them for a contract covering the Tetco project. FENIX & SCISSON, INC. 759 is the representative of the employees concerned, more than the existence of that agreement is required to show that the Union is in fact the valid choice of the employees employed under that agreement. In the present case, the CIU, on the first day that Respondent Company brought its own rank-and-file employees on the Tetco project, came upon the project, spoke to the employees, and secured from all, or substan- tially all of them signed applications for membership and checkoff authorizations (which later were turned over to Respondent Company). These cards were obtained under circumstances which the Board, considering similar facts, has held not violative of the Act. See Loney Davenport, Contractor, 173 NLRB 232. I find that on December 4, 1972, CIU was property designated as the bargaining representative of the employees in the appropriate unit set forth in the agreement. Contrary to Respondent Unions' contention, it is further found that this initial core of employees continued to be employed through the time Respondent Company signed bargaining agreements with Respondent Unions on or about January 3, 1973, covering the same operations. Thus, Project Manager Wickstrom testified that Respondent Company had eight construction workers on the project between December 4 and December 12, when the project was shut down by vandals, that after the agreements with Respondent Unions were signed, he notified the men who had previously worked on the project and called the Respondent Unions' referral system, "and we brought in men that were on the job, on December 4," and stated that all eight men returned to the site and were working there at the time of the hearing in this matter. Lastly, Respondent Unions argue that the designation of the CIU should be disregarded because, allegedly, at that time the Company did not employ a representative complement of employees on that project. Thus, at the time of the hearing, the Respondent Company employed 34 employees, and estimated that sometime prior to the completion of the project in December 1973, it would employ a peak number of 45 construction employees on the project. It is of course well established in cases involving industries with stable employment patterns that, in order that an employer and a favored union may not foist a bargaining agreement and a bargaining representative upon the majority of the employees without an opportunity for free choice, an employer may not recognize a union as bargaining representative, or contract with it, unless the Union has been selected by a majority of the appropriate employee unit at a time a representative complement of employees has been engaged. To hold otherwise would permit an initial minority group to designate the bargain- ing representative in derogation of the rights and interest of the stable majority group which will be employed. See, e.g., Scottex Corporation, 200 NLRB No. 75. Such doctrine is hardly appropriate to the usual construction project which frequently operates with a transient work force normally 9 It is frequently stated that the principal reasons for the enactment of Section 8(f) were to permit employers to determine their costs prior to entering into a project, and to permit the employer to obtain help through the Union by the execution of such agreements. See, e.g., Zidell Explorations, Inc. 175 NLRB 887. Of course, such agreements also serve other purposes, e.g., to settle jurisdictional problems, determine manning, building up to a peak employment as the construction progresses and then decreasing thereafter, and it is certainly inapplicable under Section 8(f) which contem- plates agreements in this industry even though no employees at all have been employed. Thus, as has been previously noted, Respondent Unions' contention seems to raise the issue as to whether agree- ments in the building and construction industry agreed or executed after the project has started and employees have been employed are encompassed under Section 8(f) of the Act at all, for agreements under that Section can clearly be signed without consideration of the representative comple- ment of employees to be engaged. It is noted that while such agreements under Section 8(f) are commonly called "pre-hire" contracts, this terminology does not appear in the statute, which speaks of "employees engaged (or upon their employment will be engaged) in the building and construction industry." I have discovered nothing in the legislative history of the Section which would exclude agreements made after the start of a project in this industry from the purview of Section 8(f), and my impression from scanning the legislative history is to the contrary, although such agreements do not fully coincide with the stated purposes for the enactment of this provision of the law .9 I have further noted that in Loney Davenport, Contractor, supra, Section 8(f) was held applicable to an agreement executed after the employer had begun work on the project involved with a substantial crew of workers. But cf. Komatz Construction, Inc. v. N.L.R.B., 458 F.2d 317, 323 (C.A. 8, 1972), footnote 4. Obviously, if Section 8(f) is applicable, as I believe, to agreements entered into in this industry after the start of the project involved, the absence of a representative complement of employees when the agree- ment is agreed or executed is of no significance.10 In addition, since the CIU held a valid agreement which required those employees hired thereafter to become and remain members of that union and since the evidence shows an intent on the part of the CIU to administer and enforce the agreement, it was to be anticipated that the CIU would have continued to be the duly designated representative of the employees under that agreement on the Tetco project, if that project had been permitted to run its normal course. For the reasons stated it is found that the validity of the agreement and the representative status of the CIU under that agreement was not affected by the fact that Respondent Company anticipated a substantial increase in its employment complement before the comple- tion of the project. B. The Agreements with Respondent Unions Eight days after Respondent Company began work on the Tetco project with its own employees, a horde of men descended upon the project in the morning, destroyed Respondent Company's equipment on the project, cut the telephone wires, and threatened Respondent Company's define disputed working conditions, and the like. ro Indeed, if the principle urged by Respondent Unions were applied, it would also cast doubt upon the validity of Respondent Unions' agreements which were likewise executed at a time when only eight employees were employed by Respondent on the project. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervision against "start[ing] this job until you get right ... We have killed men for the same thing and we will do it again." Responsibility for these acts has not been established, but Respondent Company, interpreting these actions in light of Respondent Unions' prior efforts to secure contracts on the Tetco project, determined that its interests and that of its employees would best be served in the circumstances by withdrawing recognition from and repudiating its agreement with CIU and by entering into agreements with Respondent Unions and recognizing them as representatives of the employees in the same operations. At the time these agreements were entered into, Respon- dent Unions offered no evidence that they, or either of them, represented a majority of the employees then employed. The record indicates that only one of the eight employees was at that time a member of a sister local of Respondent Engineers. Under the circumstances in which these agreements were reached no presumption of majority status or validity is permissible from the agreements. Respondent Unions' suggestion that it was incumbent upon General Counsel to further negative Respondent Unions' representative status is rejected. C. Conclusions Respondent Company suggests that its action in recog- nizing and contracting with Respondent Unions and withdrawing recognition from CIU was reasonable and in good faith and should not be considered a violation of the Statute. However, it has long been settled that "The act prohibits unfair labor practices in all cases. It permits no immunity because the employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by the employer." See Star Publishing Co., 97 F.2d 465, 470. Since CIU was at all material times herein a party to a valid collective-bargaining contract and was the designated representative of the construction employees of Respon- dent Company on the Tetco project, as the Board has stated in analogous circumstances, "Respondent [Compa- ny] was thus obliged to negotiate with [CIU ] over the employees on [that project]. It was not free at [that project] to take any unilateral action with respect to wages, hours, or conditions of employment or to withdraw recognition and confer it on another union." Irvin-McKelvy Company, supra. Therefore, on the basis of the record as a whole, and the above analysis, Respondent Company, by its actions on January 3, 1973, and thereafter, in withdrawing recognition of CIU, and refusing to honor, maintain, and give effect to its contract with CIU at the Tetco project, and in recognizing and contracting with Respondent Unions as representatives of the construction employees engaged on that project, violated Section 8(a)(1), (2), and (5) of the Act. Further, it was in violation of Section 8(a)(1) and (3) of the Act because of its conduct in contracting with Respondent Unions to require employees on that project to thereafter join one of Respondent Unions as a condition of employment. Respondent Unions, and each of them, by accepting recognition and assistance from Respondent Company, and entering into and maintaining a collective-bargaining contract with Respondent Company covering an appropri- ate unit of employees of the Company at the Tetco project, at a time that CIU was the exclusive bargaining representa- tive of the employees in such appropriate unit and held a valid collective-bargaining contract covering such bargain- ing unit which was being maintained and enforced, violated Section 8(b)(1)(A) and (2) of the Act. See Harrawood's Inc., supra. D. Deferral to Arbitration As has been noted, Respondent Unions argue that the validity of the CIU agreement under Section 8(f) of the Act should be deferred to arbitration under the terms of the CIU agreement, which agreement Respondent Company has repudiated, and which Respondent Unions attack in this proceeding as invalid. No other party joins in this contention. I cannot conceive that such a proceeding-in which Respondent Unions would clearly have no standing, and in which the arbitrator presumably would be requested to declare invalid the very document from which he derives his authority to act-could possibly carry out the purposes of the Act, or effectuate the rights guaranteed in the Statute. Inasmuch as the issue to be decided is not whether some provisions of the agreement have been violated, but whether the agreement itself is valid and enforceable under the law, this is a responsibility which the Board must exercise, to assure uniformity and consistency in the interpretation and administration of the Act. For these reasons, I have determined that the request to defer this issue to arbitration must be denied. Cf. Communications Workers of America, AFL-CIO (Western Electric Compa- ny), 204 NLRB No. 94. CONCLUSIONS OF LAW 1. The Respondent Company is an employer engaged primarily in the building and construction industry whose operations are in and affect commerce within the meaning of Sections 2(6), and (7) and 8(f) of the Act. 2. Respondent Engineers, Respondent Laborers, and CIU are labor organizations of which building and construction employees are members within the meaning of Sections 2(5) and 8(f) of the Act. 3. By recognizing and entering into collective-bargain- ing contracts with Respondent Engineers and Respondent Laborers covering the appropriate unit set forth below at a time when CIU held a valid collective-bargaining agree- ment covering Respondent Company's employees in said appropriate unit, Respondent Company has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and has contributed support and assistance to Respondent Engi- neers and Respondent Laborers, thus engaging in unfair labor practices in violation of Sections 8(a)(1) and (2) of the Act. 4. By entering into, maintaining, and enforcing bar- gaining agreements with Respondent Engineers and Respondent Laborers since on or about January 3, and January 5, 1973, requiring membership in those organiza- tions as a condition of employment, the Respondent FENIX & SCISSON, INC. Company has discriminated in regard to hire or tenure of employment to encourage membership in Respondent Engineers and Respondent Laborers and to discourage membership in CIU, thus engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 5. Respondent Engineers and Respondent Laborers, and each of them, by entering' into, maintaining, and enforcing the collective-bargaining agreements, and each of them, referred to in paragraph numbered 4 above, causing Respondent Company to discriminate with respect to the hire or tenure of employees in violation of Section 8(a)(3) of the Act, thereby engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act. 6. All employees of the Respondent Company at its Tetco Cavern project, at Lick Creek, Illinois, excluding clerical employees, selling employees, guards, professional employees, and supervisors as defined in the Act constitute an appropriate unit for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 7. At all times material, CIU has been the exclusive representative for the purpose of collective bargaining within the meaning of Section 9(a) of the Act of the employees in the appropriate unit set forth above. 8. By terminating its agreement with CIU on or about January 3, 1973, and refusing to recognize and bargain with that labor organization thereafter as the representative of employees in the appropriate unit set forth, Respondent Company has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMELY It having been found that Respondent Company and Respondent Unions, and each of them, have engaged in and are engaging in certain unfair labor practices, it will be recommended that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent Company and Respondent Unions, each of them, violated the Act by entering into, maintaining, and enforcing contracts cover- ing employees engaged by Respondent Company on the Tetco project, whereby Respondent Company recognized Respondent Unions as the bargaining representatives for those employees, it will be recommended that Respondent Company withdraw recognition from Respondent Unions, and each of them, as representatives of those employees, and cease giving effect to the contracts with Respondent Unions, and each of them, or any supplement, extension, or renewal thereof, covering those employees. Nothing contained herein, however, should be taken to require the Respondent Company to vary wages, hours, or other substantive conditions of work established under those agreements, or either of them, to the benefit of the employees. 11 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in 761 It having been found that Respondent Company and Respondent Unions, and each of them, unlawfully execut- ed, maintained, and enforced agreements covering employ- ees engaged at the Tetco project, under which those employees were required to join and maintain membership in such unions, or one of them, it will be recommended that the Respondent Unions and the Respondent Compa- ny jointly and severally be required to reimburse the employees for the dues and fees thus exacted from them as a result of the existence, maintenance, or enforcement of the union-security clauses in these agreements. Employees who were already members of Respondent Unions, or either of them, when employed by Respondent Company on the Tetco project shall not be entitled to reimburse- ment. Identification of such employees may be made in compliance proceedings, if necessary. See The Irvin-McKel- vy Company, supra. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 11 I. Respondent Fenix & Scisson, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting or giving support to Respondent Engineers or Respondent Laborers by recognizing or entering into bargaining agreements with such Union when another labor organization has been validly recognized as the bargaining representative of employees involved or holds a valid bargaining agreement covering such employees, or by otherwise recognizing or contracting with Respondent Engineers or Respondent Laborers when such unions are not lawfully entitled to recognition under the Act. (b) Giving effect to the agreements with Respondent Engineers or Respondent Laborers, or either of them, executed by Respondent Company on or about January 3 or 5, 1973, or any extension, modification, renewal, or supplement thereof. (c) Requiring membership in Respondent Engineers or Respondent Laborers as a condition of employment on Respondent Company's Tetco Cavern project. (d) Refusing to recognize and bargain with CIU as the exclusive representative of Respondent Company's em- ployees in the appropriate unit found hereinabove in footnote 5 of the Decision. (e) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold recognition from Respon- dent Engineers and Respondent Laborers, and each of them, as the collective-bargaining representative of em- ployees included in the appropriate unit found hereinabove in footnote 5 of the Decision. (b) Jointly and severally with Respondent Engineers and Respondent Laborers, reimburse its employees who have Section 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. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been engaged on the Telco Cavern project, who were not already members of Respondent Engineers or Respondent Laborers, for all initiation fees, dues, and other moneys which they were required to pay as a result of the existence, maintenance, or enforcement of the union-security clauses contained in the agreements between the said Unions and Respondent Company. (c) Upon request, bargain with CIU in good faith with respect to the wages, hours, and working conditions of the employees in the appropriate unit found hereinabove, and abide by its contract with CIU covering such employees. (d) Post at its premises at Lick Creek, Illinois, copies of the attached notice marked "Appendix A." 12 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent Company's representative, shall be posted by Respondent Company 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 Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. II. Respondent Local 318, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives shall: 1. Cease and desist from: (a) Giving effect to, maintaining, or enforcing the agreement with Respondent Company executed on or about January 3, 1973, covering the appropriate unit found hereinabove in footnote 5 of the Decision, or any extension, modification, renewal , or supplement thereof. (b) Restraining or coercing the employees of Respondent Company in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Laborers and Respondent Company reimburse Respondent Company's employees who have been engaged on the Tetco Cavern project, who were not already members of Respondent Unions, for all initiation fees, dues and other moneys which they were required to pay as a result of the existence, maintenance, or enforcement of the union-security clauses contained in the agreements between Respondent Engi- neers and Respondent Laborers and Respondent Compa- ny covering said employees. (b) Post at its business office copies of the notice attached hereto and marked "Appendix B."13 Copies of said notice, to be furnished by the Regional Director for Region 14, shall after being duly signed by an official representative of Respondent Engineers, be posted imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 14 signed copies of the notice marked Appendix B attached hereto for posting at the Telco Cavern project, Respondent Company willing. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. III. Respondent Laborers International Union of North America, Southern Illinois District Council, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Giving effect to, maintaining, or enforcing the agreement with the Respondent Company executed by the Company on or about January 5, 1973, covering the appropriate unit found hereinabove in footnote 5 of the Decision, or any extension, modification, renewal, or supplement thereof. (b) Restraining or coercing the employees of Respondent Company in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Engineers and Respondent Company reimburse Respondent Company's employees who have been engaged on the Tetco Cavern project, who were not already members of Respondent Unions, for all initiation fees, dues and other moneys which they were required to pay as a result of the existence, maintenance, or enforcement of the union-security clauses contained in the agreements between Respondent Engi- neers and Respondent Laborers and Respondent Compa- ny covering said employees. (b) Post at its business office copies of the notice attached hereto and marked "Appendix C." 14 Copies of said notice, to be furnished by the Regional Director for Region 14, shall, after being duly signed by an official representative of Respondent Laborers, be posted immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places were notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 14 signed copies of the notice marked Appendix C attached hereto for posting at the Tetco Cavern project, the Respondent Company willing. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 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." 13 Subject to the amendment set forth in fn. 12 above. 14 Subject to the amendment set forth in fn. 12 above. FENIX & SCISSON, INC. 763 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE wiLL withdraw and withhold recognition from Local 318, International Union of Operating Engineers, AFL-CIO, and from Laborers International Union of North America, Southern Illinois District Council, AFL-CIO, on the Tetco Cavern Project, and cease giving effect to the contracts executed with those organizations in January 1973, covering the Tetco Cavern Project, or to any renewal, extension, modifica- tion or supplement thereof. WE wmL, together with the Operating Engineers and the Laborers Unions, reimburse our employees who have been engaged in working on the Tetco Cavern Project under the contracts with the Operating Engi- neers and the Laborers Unions, who were not already members of those Unions, for all initiation fees, dues, and other moneys which they were required to pay as a result of the union-security provisions of those agree- ments. WE WILL NOT refuse to recognize and bargain with Congress of Independent Unions as the representative of the employees engaged on the Tetco Cavern Project in the unit set forth in our agreement with that Union, and WE WILL reinstate and give effect to our contract with Congress of Independent Unions covering the Tetco Cavern Project until its termination or any extension thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. Dated By FENix & SCIssoN, 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 concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.