R. J. Smith Construction Co., Inc.

R. J. SMITH CONSTR. CO. R. J. Smith Construction Co., Inc. and Local No. 150, International Union of Operating Engineers, AFL-CIO. Case 25-CA-3390 January 22, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On June 28, 1971, the National Labor Relations Board issued its Decision and Order in this proceed- ing, finding that Respondent did not violate Section 8(a)(5) and (1) of the Act when it unilaterally changed existing wage rates at a time that it had a prehire contract with the Union, because at all material times the Union failed to enjoy majority support.' Thereafter, on June 20, 1973, the United States Court of Appeals for the District of Columbia Circuit denied enforcement of the Board's Order and remanded the case for an order granting appropriate relief on the ground that an employer who has entered into a validly executed 8(f) prehire agree- ment should be held to the same standard of conduct in regard to unfair labor practices as an employer who has entered into a collective-bargaining agree- ment with a union that has proved its majority status.2 The Board, for reasons it deems sufficient, has not filed a petition for certiorari to review the court's decision and will here apply the court's view, respectfully reserving for future cases its position that an employer may not be found guilty of a refusal to bargain with respect to a union with which it has executed a valid 8(f) prehire contract but which has failed to achieve majority status.3 Accordingly, the Board will, for the purposes of this decision only and in accordance with the court's decision, find that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally altering the terms of the collec- tive-bargaining agreement and refusing to bargain collectively with the Union. As the Administrative Law Judge (then Trial Examiner) and the Board dismissed the complaint on the aforementioned grounds, a unit determination was never made. Therefore. before we can enter an appropriate 8(a)(5) bargaining order, we must deter- mine the appropriate unit. The complaint alleges, and the General Counsel and Charging Party maintain. that all hourly paid and salaried operators of new equipment used by the Respondent in certain Indiana counties, including 1 191 NLRB 693,Meniber. Fanning and Brown dissenting 2 480 F 2d 1186 (C.A D C) 3 Member Fanning agrees with the court's decision. Chairman Miller 615 mechanics, but excluding hand laborers and supervi- sors, constitute an appropriate bargaining unit. The Respondent agrees with the exclusion of the hand laborers from the unit but would limit the unit to hourly paid operators, thereby excluding mechanics and salaried equipment operators. The equipment operators operate heavy equipment such as cranes, front-end loaders, back hoes, earth movers, scrapers, and bulldozers on the projects on which the Respondent is employed. One mechanic, Van Klavern, repairs the equipment which the operators use. He works primarily in the shop but in some instances goes into the field to repair a machine in particularly bad condition or to bring a malfunc- tioning machine into the shop. On occasion he will operate a machine in the field to test his repair or as a change of pace from his mechanical work. The equipment operators also do some servicing of the equipment inside and outside the shop. A second individual, Burns, who performs as a crane and dozer operator, does Klavern's mechanical job in his absence. There is evidence that the salaried equip- ment operators' functions are no different than those of the hourly paid operators. One of the salaried operators testified that he requested this method of compensation to even out his earnings over the year. One of the salaried equipment operators testified that he had worked at one time as a mechanic for Respondent. It also appears that the mechanics and operators work under the common supervision of Daniel Logan, the Respondent's superintendent. In view of the interchangeability, overlapping of functions, and contact among equipment operators and mechanics and their common supervision, and the lack of any evidence differentiating the functions of salaried equipment operators from those of hourly paid operators, we find that there is a sufficient community of interest among all these employees to render a combined unit appropriate. Accordingly, we find that the following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All operators of heavy equipment and mechanics employed by the Employer in the Indiana counties of Elkhart, Fulton, Jasper, Kosciusko, Lagrange, Marshall, Newton, Noble, Pulaski, Starke, Lake, Porter, LaPorte, and St. Joseph, excluding all hand laborers, office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. reserves opinion as to the underlying legal issues , but of course joins in accepting the court's view of the law as the law of this case 208 NLRB No. 90 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found for the purposes of this decision only and in accordance with the court's decision that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, R. J. Smith Construction Co., Inc., Elkhart, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local No. 150, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All operators of heavy equipment and mechanics employed by the Employer in the Indiana counties of Elkhart, Fulton, Jasper, Kosciusko, Lagrange, Marshall, Newton, Noble, Pulaski, Starke, Lake, Porter, LaPorte, and St. Joseph, excluding all hand laborers, office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. (b) Making unilateral changes in wages, rates of pay, or other terms and conditions of employment of its employees • in the above-described appropriate unit during the term of the contract without first reaching agreement with the above-named Union concerning such changes. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Recognize the above-named Union as the exclusive bargaining representative of its employees and honor the memorandum agreement whereby it adopted the collective-bargaining agreement between the above-named Union and the General Building Contractors Association of South Bend and Misha- waka, Indiana, and agreed to be bound by the terms and conditions of such agreement, as long as such agreement is still in effect. (b) Make whole each affected unit employee for any loss of pay he may have suffered by Respon- dent's illegal unilateral changes by reimbursing him the difference between what he has been paid since October 23, 1968, and what he would have been paid in accordance with the wage rates set forth in the aforesaid collective-bargaining agreement with inter- est at the rate of 6 percent per annum to be added to the backpay in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its premises in Elkhart, Indiana, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to honor the memorandum of agreement executed by us with Local 150, International Union of Operating Engineers, AFL-CIO, on October 8, 1968 , as long as it is in effect. WE WILL NOT refuse to bargain collectively with the aforesaid Union as the exclusive repre- sentative of all the employees in the appropriate R. J. SMITH CONSTR. CO. 617 unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. WE WILL NOT unilaterally change the rates of pay of the employees in the appropriate unit described below. The bargaining unit is: All operators of heavy equipment and mechanics employed by the Employer in the Indiana counties of Elkhart, Fulton, Jasper, Kosciusko, Lagrange, Marshall, Newton, Noble, Pulaski, Starke, Lake, Porter, La- Porte, and St. Joseph, excluding all hand laborers, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. WE WILL make whole any employees in the aforesaid appropriate unit for any loss of pay they suffered by reason of our illegal unilateral changes in their rate of pay since October 23, 1968, with interest at the rate of 6 percent per annum. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the exercise of their right to self- organization, to form, join, or assist the above- named or any other labor organization, to bargain collectively through representatives of their choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. R. J. SMITH CONSTRUCTION CO., INC. Employer 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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.