United Contractors Inc.

UNITED CONTRACTORS INCORPORATED United Contractors Incorporated and JMCO Truck- ing Incorporated, Joint Employers and Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-2885 September 19, 1975 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On May 30, 1975, Administrative Law Judge John F. Corbley issued the attached Decision in this pro- ceeding. Thereafter, the Respondents filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, United Contractors In- corporated and JMCO Trucking Incorporated, Joint Employers, Milwaukee, Wisconsin, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondents have 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 credibili- ty 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 (1950), enfd. 188 F.2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his finding. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on February 4 and 5, 1975, at Milwau- kee, Wisconsin, pursuant to a charge filed by Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, 463 Chauffeurs, Warehousemen and Helpers of America, here- inafter referred to as the Union or Local 200, against Unit- ed -Contractors Incorporated and JMCO Trucking Incor- porated, sometimes hereinafter referred to as United, JMCO, or collectively as Respondent, on October 11, 1974, and served by registered mail on Respondent, on the same date, and upon a complaint and notice of hearing issued by the Regional Director of Region 30 of the National Labor Relations Board on December 30, 1974, which was also thereafter duly served upon United and JMCO. The com- plaint alleges that United and JMCO are a single employer within the meaning of the Act; that the Union has been the exclusive collective-bargaining representative, at all times material hereto, of the truckdriver employees involved herein ; and that United and JMCO, individually and col- lectively, have violated Section 8(a)(1), (3), and (5) of the Act by: dealing directly in May or June 1974 with their employees, instead of the Union, in respect to their terms of employment ; threatening employees with layoff or dis- charge if they persisted in their union activities or contin- ued to insist upon contractually provided wages or bene- fits; discriminatorily laying off its truckdriver employees, Mix, Bourdo, and Williams in reprisal for their union or concerted activities and insistence on contractual benefits, thereafter refusing to reinstate them and instead replacing said employees with new employees hired at less than con- tractual rates; and refusing to bargain in good faith with the Union by failing to apply the terms of United's labor agreement to their trucking operations and employees. In their answer, which was also duly filed, United and JMCO deny that they are a single employer within the meaning of the Act and deny that they have, individually or collec- tively, engaged in any unfair labor practices. For reasons which appear hereafter I find and conclude that United and JMCO are a single employer within the meaning of the Act and that they have violated the Act essentially as alleged in the complaint. At the hearing the General Counsel and Respondent were represented by counsel. The parties were given full opportunity to examine and cross-examine witnesses, to in- troduce evidence and to file briefs. The General Counsel and Respondent waived the right to make closing argu- ments. Briefs have subsequently been received from the General Counsel and Respondent and have been consid- ered. Upon the entire record in this case, including the briefs and from my observation of the witnesses, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF UNITED AND JMCO United, a Wisconsin corporation, with its principal of- fice located in Menomonee Falls, Wisconsin, is engaged primarily in the business of road construction at various sites located in the Milwaukee County, Wisconsin, area. During the past calendar year, a representative period, United derived revenues in excess of $50,000 for services it performed for the city of Milwaukee within the State of Wisconsin, said city in turn having purchased goods and 220 NLRB No. 88 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services valued in excess of $50,000 from points located directly outside the State of Wisconsin. JMCO is a Wisconsin corporation with its principal of- fice located in Menomonee Falls and, as will be detailed more fully hereinafter, it is engaged in providing trucking services, substantially for United, at various sites located in the Milwaukee area. Since I will conclude, infra, that United and JMCO con- stitute a single employer for the purposes of collective bar- gaining within the meaning of the Act, I find, on the basis of United's services to the city of Milwaukee, that said single employer is an employer engaged in commerce, or in operations affecting commerce, within the meaning of Sec- tion 2(2), (6), and (7) of the Act. I 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. BACKGROUND AND SEQUENCE OF EVENTS A. The Single Employer Issue A proper understanding of the question whether JMCO and United are a single employer within the meaning of the Act necessarily requires a recitation of the corporate history of these two companies and the part played by Jim Mews, who is president of both, in managing the affairs and labor relations of each. United was organized in January 1965 and is engaged in such general contracting activities as road building, exca- vation, and demolition. Until 1970, United operated its own dump trucks which were driven by employees of Unit- ed.2 JMCO was incorporated in December 1969 and com- menced operations as a trucking service in 1970 under a contract motor carrier license issued by the Public Service Commission of the State of Wisconsin. In 1970 United's dump trucks were sold and its drivers were transferred by Mews to the JMCO payroll. Also in 1970 new dump trucks were purchased or leased by JMCO from Mack Financial Corporation in Chicago and the for- mer United drivers were assigned by Mews to drive them. Since 1970 United has continued in the road paving, ex- cavation, and demolition business but, with the exception of a short time in 1974, as will appear, it has not operated dump trucks with its own drivers. It has, however, utilized the services of JMCO's dump trucks and drivers. Indeed, 80 percent to 100 percent of the dollar volume of JMCO's work has been performed for United in each year since 1970. While United also contracts for the services of other trucking companies besides JMCO, 61 percent of United's trucking costs in 1974 involved reimbursements to JMCO. i Stemons Mailing Service, 122 NLRB 81 (1958); Carroll-Naslund Disposal, Inc., 152 NLRB 961 (1965 ), enfd. 359 F.2d 779 (C.A 9, 1966). 2 In October 1968, these employees were transferred by Mews to drive trucks for another company, Jim Mews Construction Company, during a strike by Local 200. If United's costs attributable to the hiring of readi-mix (concrete) trucks were excluded, United's reimbursements to JMCO amounted to about 88 percent of United's truck- ing costs in 1974. Jim Mews is the president of both JMCO and United. Mews' wife, Marlene, is vice president and secretary of both companies. Mews signs the paychecks for employees of both companies. Mews is the sole corporate stockholder of JMCO. He owns 90 percent of the corporate stock in United, the remaining 10 percent being owned by La Verne Schlei, United's paving foreman. Jim Mews directs and controls the employees of both United and JMCO and he hired all the employees of both corporations. Schlei, United's paving foreman, also gives directions to JMCO's drivers. Jim Mews is in charge of the labor relations of both companies and actively directs the operations of each. More particularly, he prepares his own estimates and makes bids on behalf of United for public road construction jobs. When a bid is accepted he sched- ules the job and makes arrangements for the equipment, including the trucks, to do the job. Based on dollar volume as described above, his choice of a trucking contractor has usually been JMCO. JMCO and United are both located at N59 W14508 Bo- bolink Avenue, Menomonee Falls, Wisconsin. Dorothy Ol- son is the office secretary for both JMCO and United and she prepares the payroll for both companies. United and JMCO both have the same accountant, Harold Wernecke, and both companies were represented by the same law firm in this proceeding. While JMCO has employed only truckdrivers and Unit- ed, since about 1970 (with the exception of September 1974), employs operating engineers, laborers, and cement finishers, United's laborers and operating engineers have driven JMCO trucks and the JMCO drivers have done la- borers' work for United. For a time in September 1974 Jim Mews put all of JMCO's truckdrivers on United's payroll. Their duties remained the same, however, as they had been with JMCO and their supervision, which emanated from Schlei or Mews, also remained the same before and after their transfer to United in September 1974. Although JMCO and United have separate books and records, maintain separate bank accounts, do not make loans to each other and bill one another for services ren- dered,3 it is clear from the foregoing that the operations of JMCO are substantially integrated with those of United; that employees of the two companies are interchanged, that both corporations are managed, controlled, and large- ly owned by Jim Mews and that he also controls their labor relations including the hiring, transfer and, as will appear, discharge of employees. In these circumstances, and based upon all the facts recounted above and the record as a whole, I conclude that United and JMCO are a single em- ployer within the meaning of the Act .4 They will occasion- JMCO bills United for trucking services United bills JMCO for repair work on JMCO's trucks and for secretarial services. ° E.g., Macke Laundry Service Company of D.C. and Wash-O-Matic Serv- ices Co, 190 NLRB 1 (1971), Manitowoc Shipbuilding, Inc. and The Manito- woc Company, Inc., 191 NLRB 786 (1971). The genesis of JMCO's work force as a part of United's, the subsequent return of JMCO's employees to the United payroll, the substantial integration of JMCO's operations with those of United, employee interchange, and Mews' control of the operations UNITED CONTRACTORS INCORPORATED 465 ally be referred to hereinafter, collectively, as Respondent. B. Respondent's Hierarchy The complaint alleges, the answer admits and I find, that Jim Mews and LaVerne Schlei at all times material herein have been, and are now, agents of JMCO and United, act- ing in their behalf, and their supervisors within the mean- ing of Section 2(11) of the Act. C. Chronology of Events During the period 1966 to 1970 when United operated its own dump trucks using drivers on the United payroll, United made payments for its drivers into Teamsters pen- sion and welfare funds, just like employers who had collec- tive-bargaining agreements with Local 200 even though, according to Mews, United had no collective-bargaining agreement with Local 200 at that time. In 1970, after JMCO had been formed and the former United truckdrivers had gone on the JMCO payroll, JMCO made the instant pension and welfare fund pay- ments. In 1971 JMCO entered into a collective-bargaining agreement with Local 200 and thereafter continued these payments and also paid its drivers the wage rates as speci- fied in this contract. These practices obtained throughout the life of this contract which expired on May 31, 1974. All payments into the Teamsters pension and welfare fund from 1966 to 1974, whether made in the name of JMCO or United, were made on the basis of checks signed by Jim Mews. In the fall of 1973 Jim Mews began to discuss with his JMCO drivers-outside of the presence of Local 200- Mews' plans for the future remuneration of the drivers. The place was a jobsite and the drivers included Milan Mix, Guy Bourdo, Blaine Struve, and an employee named Don (apparently Gloede). Mews told his employees that in lieu of an hourly wage plus health and welfare fund pay- ments he wanted to pay them on the basis of 25 or 30 percent of JMCO's charges to the user of its truck services. Mews advised his drivers that under this arrangement the drivers would make their own health and welfare pay- ments. After explaining the operation of this proposal to the drivers Mews asked them if they would accept it. They told Mews they were against it.5 of both companies and their labor relations are all facts which distinguish this case from Milo Express, Inc., 212 NLRB 313 (1974), which is relied upon by Respondent. 6 These findings are based on the credible testimony of Bourdo in this regard as essentially corroborated by Mix. To the extent that the testimony of Mews disagrees with these findings, I discredit it. I found Mews to be an argumentative, hence evasive, witness (his own counsel had to correct him in this regard at one point, as the record shows) and I was not satisfiied that he testified in a straightforward manner when he testified as to matters in dispute . One aspect of this argumentativeness was his reference to himself as United or JMCO when one or the other denomination suited his position in the case. Finally, his testimony was at odds with the probability of events and other evidence, as I will point out from time to time later in this Deci- sion. Bourdo and Mix on the other hand impressed me as forthright witness- es who testified generally to the best of their knowledge and belief More- over, in discrediting Mews' version of this incident which was that he merely told the employees that he intended to negotiate the change to a percentage rate with the Union-I note that he never did so and, as will appear, im- On December 31, 1973, Jim Mews sent a letter to Local 200 on JMCO stationery advising the Union that JMCO wished to discontinue its collective-bargaining agreement and was providing 60 days' notice. Local 200 did not re- spond to this letter but, instead, on March 19, 1974, sent its own letter to JMCO stating that Local 200 proposed to terminate the then current contract on May 31, 1974. In this letter the Union also offered to meet and confer with JMCO for the purpose of negotiating a new contract. On March 22, 1974, Mews replied to Local 200's letter of March 19 noting merely that JMCO had already notified Local 200 of JMCO's intention to terminate the contract. By the end of April 1974 Local 200 had finalized a new contract with the Southeastern Wisconsin Construction Materials Association covering, inter alia, various truck- driving operations of its employer-members. Actual copies of the contracts were not printed up until late July or Au- gust 1974, although the new wage rates set forth in the contract went into effect on July 1, 1974. Mews was not a member of the Association but, as will appear, he was pre- sented with a contract for his signature in August 1974.6 In late May 1974 Jim Mews called driver Mix into Mews' office and again discussed with Mix the matter of going on a percentage rather than an hourly rate. Mews told Mix that the drivers would have the opportunity to make more money on a percentage basis. Mix responded that he did not think this proposal was a good idea.7 On or about June 7, 1974, Mews had another conversa- tion with Mix in Mews' office in which Mews repeated his desire to pay his drivers on a percentage basis. Mews ad- vised Mix that Mews was "out of" or had "quit" the Union. Mews again tried to persuade Mix that the drivers would make more money on a percentage basis but that they would have to pay their own benefits and would get no paid vacation (contrary to the employer paid benefits and vacation arrangements of the just expired contract with Local 200). Mix agreed to try this arrangement to see what would happen. In June 1974 (after the expiration on May 31, 1974, of his contract with Local 200) Mews instituted the percent- age system which he had been discussing with his drivers since the fall of the previous year. Under the system the employees received a flat $7.50 an hour (as contrasted with their prior contract rate of about $6.65 per-hour). Howev- er, they received no paid vacations, benefits or holiday pay.9 The additional 85 cents per-hour was intended to cover the amounts needed for the employees to make their own contributions to the Teamsters welfare and pension funds-an arrangement which Mews had explained to the posed this remuneration system in June 1974 without even offering Local 200 the opportunity to bargain over this change in working conditions. 6 These findings are based on the credible and undisputed testimony of Local 200 representative, Hammer, in this regard. r The findings as to this meeting are based on the credible testimony of Mix in this regard, which was not denied by Mews. 8 These findings are based on the credible and undisputed testimony of Mix in this regard 9 The finding that they received no holiday pay is based on the credible testimony of Mix in this regard who stated that he received no pay for July 4th or Labor Day. Mews testified that he did not know if the employees were paid for Labor Day and only "believe(d)" they were paid for July 4th. I credit Mix here for the reason, among others , that holiday pay was not mentioned and is indeed inconsistent with Mews' percentage program 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees and which they understood. This change in the employees' wage and benefit structure was established uni- laterally by Mews without negotiating with Local 200. The change, when implemented, did not sit well with Mews' drivers. As a result Mews telephoned Bourdo and told Bourdo that Mews had heard the drivers were disgust- ed with the new rate. Bourdo admitted that this was true, pointing out that as far as he personally was concerned he could not afford to pay his own benefits. Bourdo thereafter spoke with Mix and the two agreed that they were losing too much money under the new ar- rangements. They further decided to file a grievance and contacted Local 200 to obtain its assistance. Several days after the Mews-Bourdo telephone call Lo- cal 200 representative Jerry Sprague delivered the griev- ance form to Bourdo and Mix. Mews saw Sprague at the jobsite and asked Bourdo what the problem was. Bourdo explained that the drivers were not going for the new per- centage pay. Mews argued with Bourdo that the drivers would make more money under the new system but Bour- do insisted that they would lose money. Mews then told Bourdo that Mews desired no trouble with the Union and that Mews would return to the old payment system. Bourdo and Mix had dined together that evening, dis- cussed the matter of the grievance and agreed to delay filing it in order to give Mews the opportunity to carry out his promise to Bourdo. When Bourdo and Mix received their next paychecks they observed that Mews was continuing to pay them on a percentage basis. On June 28, 1974, Mix and Bourdo joint- ly filed a grievance with Local 200 complaining that since the expiration of the last contract Mews had put them on a percentage remuneration, had taken away their vacation and holiday pay, had required them to pay their own bene- fits, and had taken away their driving time to a jobsite. This grievance was given to Local 200 and eventually came into the hands of its business representative, Ham- mer. On July 9, 1974, Hammer wrote a letter to Mews enclosing the June 28 grievance and informing Mews that Mews was in violation of "the Labor Agreement." The let- ter continued that, if Mews did not correct the situation covered by the grievance immediately, Local 200 would take all necessary economic action to correct the situation. Mews did not reply to this letter and took no action. As will appear, Mews' failure to act was based on his position that without a collective-bargaining agreement with Local 200 he had no responsibility to act on its grievance.10 As previously found, Local 200 completed its negotia- tions with the Southeastern Wisconsin Construction Mate- rials Association covering, inter alia, the truck operations of the employer-members of that Association. Copies of the contracts were returned from the printer in July or Au- gust 1974. On or about August 8 or 9, 1974, Local 200 representa- 10 The findings as to the change to the percentage rate , the sequence of events involving Bourdo and Mews, and the filing of the June 28 grievance based on the credible testimony of Bourdo in this regard as corroborated in part by Mix and corroborated or not disputed by Mews . Mews did not execute a new contract with Local 200 at any time during the period May 31, 1974, until August 20, 1974. tive Duane Kraemer took several copies of the new con- tract and visited the office of JMCO and United at Meno- monee Falls, Wisconsin. Mews was not present at the time so Kraemer spoke to the office secretary, Dorothy Olson. Kraemer told Olson that Kraemer was from Local 200 and that he had the new contracts. Olson told Kraemer that Mews was not going to sign them. Kraemer left the con- tracts anyway and departed." On or about August 20, 1974, Kraemer in the company of another Local 200 representative, Jerry Sprague, visited a jobsite at which Mews was working and spoke to Mews. Kraemer asked Mews if he would sign the new contract. Mews responded that he had the contracts in his office and that he would sign them and mail them in. Kraemer turned down this offer pointing out that he, Kraemer, had brought other copies of the new contract with him. Mews then ad- vised Kraemer that he, Mews, did not intend to sign a contract for JMCO because it was too much paper work for three or four people. Mews said he would instead put the drivers back under United. Kraemer, being recently appointed as a business repre- sentative, was uncertain whether such an arrangement would be proper. Kraemer and Sprague then left the prem- ises and Kraemer telephoned Hammer and inquired if Mews' proposal was acceptable. Hammer replied that it was. Kraemer and Sprague then returned to the jobsite on the same day where both Mews and Kraemer signed a copy of the contract and its addendum. Mews signed as president of United Contractors Inc. This contract is effective from June 1, 1974, to May 31, 1977. Kraemer then asked Mews about the grievance which had been filed (by Bourdo and Mix) protesting the non- payment of their fringe benefits. Mews responded that, in- sofar as he was concerned, there was no contract 12 so there was no grievance. Kraemer responded that if this was Mews' position, Mews should put it in writing and send it to him. 3 11 These findings are based on the credible testimony of Kraemer in this regard. I do not credit Olson's testimony to the extent it is contrary to that of Kraemer's. Olson's testimony was characterized by an element of uncer- tainty which I did not find, generally, in that of Kraemer's. Moreover, I find in Olson's testimony no precise denial that Kraemer left contracts in the office. In its brief, Respondent contends that Olson should be credited as a disinterested witness. I reject this contention Olson is a paid employee of United who works for both United and JMCO and who also works directly for Mews as his office secretary. 12 Apparently speaking of the time when the grievance was filed on June 28, 1974. 13 These findings are based on the credible testimony of Kraemer in this regard, as corroborated by Sprague and also corroborated in part by Mews. To the extent that the testimony of Mews is contrary to that of Kraemer, I do not credit Mews nor do I credit the testimony of Mews, denied by Kraemer. that Kraemer told Mews that if Mews did not sign the contract right at that time the job would be picketed or shut down. I have already commented on the credibility of Mews and Kraemer, respectively. In discrediting Mews here I also note the following. Among other things denied by Mews was that he told Kraemer that JMCO was so small that it was not worthwhile from an administrative standpoint for JMCO to contin- ue in business Mix credibly testified on cross-examination that Mews told him, Mix (after Mix began working in September 1974 on the United pay- roll), that the reason why Mix was no longer working for JMCO was that it would involve too much bookwork or paperwork to continue JMCO as the employer of two or three drivers. UNITED CONTRACTORS INCORPORATED In late August 1974 another driver, Percy Williams, was hired by Mews. For a time after the August 20 collective-bargaining agreement with United covering the drivers was signed, these three drivers, i.e., Mix, Bourdo, and Williams (who, according to paychecks submitted in evidence, were the only drivers employed at the time), 14 continued to be paid on JMCO checks and on the percentage basis which had been in effect since June 1974. In September all the em- ployees were paid with checks drawn on United and Bour- do began receiving the contract wage rate . Williams and Mix continued to receive the percentage rate , however, and neither Mix nor Bourdo received holiday pay for July 4th and Labor Day. Williams likewise received no pay for La- bor Day. Mix conferred with Bourdo about these matters and they agreed that Mix would prepare a grievance ("complaint form") to be filed with Local 200. This was done by Mix on September 17, 1974, but the grievance named both Mix and Bourdo (misspelled on the form) as the grievants. The grievance stated that "Wages and Holliday (sic) pay have not been straightened out from now to June 1, 1974." On September 26, Local 200 representative Kraemer for- warded this grievance to Mews enclosed with a letter in which Kraemer requested Mews to advise Local 200, in writing, of the grievance's disposition. On or about September 27, 1974, Kraemer visited Mews at the latter's office . Kraemer sought to discuss with Mews the latter's failure to pay fringe benefits to the drivers. Mews admitted that he had not paid these benefits but took the position that he, Mews, had no contract and that there could therefore be no grievance. Kraemer responded that Mews should put his position in writing. On October 1, 1974, Mews sent Local 200 a letter stating that Mews' response to Local 200's letter of September 26 was that JMCO had terminated its contract with the Union.15 On or about September 30, 1974, Mix reported for work and found a note on his (Mix's) truck, signed by Mews, telling Mix not to start work until Mews spoke to him. Mews was away from the shop at the time so Mix waited for him. A little while later on the same morning, Mews arrived. Mews asked Mix what "Mix was trying to pull." When Mix inquired what Mews meant, Mews showed Mix the grievances he had filed and the letter from the Union, all of which Mews had attached to a clipboard. Mews then asked Mix how they could work like this "with three par- ties involved" (the parties apparently being the employer, Mews, and the Union). Mews then asked Mix why he had filed the grievance. Mix responded that Kraemer and Hammer from Local 200 had advised him that Mews could not operate by paying a percentage rate to the drivers. Mix also told Mews that Hammer had told Mix that Mews was supposed to be making the health and welfare payments 14 Another JMCO employee, Richard Benson , was not paid after August 23, 1974, hence must have terminated by that date. 15 The findings as to the meeting on or about September 21, 1974, are based on the credible testimony of Kraemer in this regard, which was not denied by Mews. Mews testified only that no union representative met with him for contract negotiations during this period . Olson, Mews' secretary, testified that she saw Kraemer talking to Mews at Mews' office on one occasion. 467 for the drivers. Mix added that he, Mix, was particularly anxious to straighten out the health insurance payments because Mix's son needed an expensive medical brace. Af- ter some further discussion of the medical payments Mews told Mix that Mix had better turn in his truck keys until the matter was straightened out. Mews told Mix that Mix should contact the Union to accomplish this. Mix then put his keys on the table and asked Mews if Mews was firing him. Mews told Mix that Mix was laid off and that Mews had no further work for him. Mix then left.16 On or about October 4, 1974, Bourdo met Mews at the shop and Mews gave Bourdo his paycheck. Mews then asked Bourdo if Bourdo had any company keys. When Bourdo admitted that he did, Mews told Bourdo to turn in these keys and that there would be no work for Bourdo until he got his labor or union problems straightened out. Mews also told Bourdo that he, Mews, had spoken to Kraemer and Mews then asked Bourdo why "you guys" had waited 6 months to turn in a grievance. Bourdo denied that they had waited 6 months, pointing out that they had turned in their first grievance in June 1974. Bourdo then said that there was no point in arguing about the matter since it was in the Union's hands.' Also on or about October 4, Percy Williams reported to Mews at a jobsite with a truck. Mews gave Williams his check and told Williams to take the truck back to the shop and leave the keys in it. Williams did as he was directed. No mention was made to Williams at this time that he was being laid off nor was he criticized at the time for any prior deficiencies in his driving.18 Williams has not subsequently been reemployed by JMCO or United. On or about October 6, an advertisement appeared in a local newspaper for five axle semidrivers with Jim Mews' home phone number. Bourdo had been driving this type of truck when last employed by Mews in September. On or about October 8, 1974, Bourdo went to a jobsite where he observed JMCO trucks (his and Mix's) in opera- tion. He spoke to at least one of the drivers who said he was not a union member. On this same occasion Bourdo observed Mews in conversation with a representative of the Operating Engineers and telling this individual about Mews' dispute with the Teamsters. On or about the same date Mix also observed his and Bourdo's trucks being driv- 16 The findings as to this incident are based on the credible testimony of Mix in this regard, as not directly denied by Mews In Mews' version of the incident, Mews stated that he sought to have Mix contact the Union so that Mews and the Union could bargain for a contract covering JMCO. Mews also testified that he merely laid off Mix from United and offered Mix a job with JMCO, which Mix refused, because JMCO did not have a union con- tract. To the extent that Mews' version differs from that of Mix, I do not credit Mews. More will be said in my "Concluding Findings" in respect to Mews' claimed efforts to negotiate a contract for JMCO and in regard to my reasons for discrediting Mews' version of Mix's discharge (and also Mews' version of Bourdo's discharge). 17 These findings are based on the credible testimony of Bourdo in this regard. I do not credit the contrary version of Mews which was the same as that already discredited in respect to Mix. 18 These findings are based on the credible testimony of Williams in this regard. Williams impressed me as a forthright witness who testified in a straightfoward manner . His candor is well demonstrated by his ready ad- missions in respect to criticisms made by Mews and Schlei in August 1974 about deficiencies in his driving. These matters will be discussed in my "Concluding Findings." I do not credit Mews' contrary version of Williams' separation. I have already commented on Mews' credibility. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD en by other drivers. On or about October 13, 1974, Williams called Schlei to inquire why Williams wasn't working. Schlei replied that only a small job was in progress at the time and that Mews was away. Schlei said other work would be coming up and he would let Williams know. Williams has not subsequent- ly been contacted.19 On or about October 14, 1974, Williams also observed Mix's and Bourdo's trucks being driven by other drivers.20 By letter dated January 24, 1975, JMCO, through its at- torneys, offered Bourdo and Mix reemployment to begin on January 27, 1975, with wages and hours as provided in the latest contract between Local 200 and Southeastern Construction Materials Association (the same as the con- tract between United and Local 200, executed on August 20, 1974), although the letter denied that JMCO was bound by that contract. Both Mix and Bourdo had agreed to re- turn to work at the time of the hearing on February 4, 1975. Concluding Findings; Respondent's Defenses A. The Appropriate Unit; Local 200's Majority; Unilateral Changes in the Drivers' Terms and Conditions of Employment A unit of truckdrivers is appropriate for collective bar- 21 gaining within the meaning of Section 9(b) of the Act. Here it is clear that Mews has always considered his truck- drivers as a separate group and there is a history of bar- gaining in which they have been represented in their own unit. Thus, when they were employed by United prior to 1970, he paid welfare and pension benefits on their behalf into the Teamsters fund. From at least 1971 to May 31, 1974, Mews, as JMCO, was a party to a collective-bargain- ing agreement with Local 200 covering their terms and conditions of employment. Inasmuch as Mews admitted that JMCO was and is only involved in truckdriving opera- tions, and in the absence of any showing that JMCO ever had employees in any other classification on its payroll, I conclude that Mews' truckdrivers were the only employees covered by the instant agreement. Further, in August 1974 when Mews, as United, entered into the 1974-77 collective- bargaining agreement with Local 200, such agreement was applied to Mews' truckdrivers at least for a time in Septem- ber 1974 after Mews transferred them all from the JMCO payroll to that of United. It does not appear that any other United employees were covered by this agreement. Indeed, Mews admitted at the hearing that United has collective- bargaining agreements with the Laborers Union, Cement Finishers, and Operating Engineers covering other United employees. In these circumstances and in view of my finding that United and JMCO are a single employer within the mean- ing of the Act, I conclude that a unit of truckdrivers em- 19 Mews testified that no work was available for Williams during October, November, and December 1974 20 Mews admitted that two of his trucks were in operation during Octo- ber, November, and December 1974. 21 Ballentine Packing Company, Inc., 132 NLRB 923 (1961). ployed by United and/or JMCO is an appropriate unit within the meaning of Section 9(b) of the Act. In its answer to the complaint Respondent admits that Local 200 is, and was at all times material herein, the duly designated majority representative of JMCO's truckdrivers, but denies that United has any truckdrivers on its payroll. In view of this admission, and also in consideration of my finding that United and JMCO are a single employer with- in the meaning of the Act, coupled with the fact that Mews, as United, entered into a collective-bargaining agreement covering the truckdrivers with Local 200 on Au- gust 20, 1974, without raising any question of Local 200's majority status, I further conclude that Local 200 is, and has been at all times material herein, the exclusive majority representative of the appropriate unit of Respondent's (United and/or JMCO) truckdrivers within the meaning of Section 9(a) of the Act. Further supporting this conclusion are: the presumption of majority that attaches to Respondent's continuous dealings with Local 200 as the truckdrivers' exclusive representative;22 the fact that when the 1971-74 contract expired on May 31, 1974, the only employees who received paychecks from JMCO at that time were Mix, Bourdo, and Duquaine, at least two of whom (Mix and Bourdo) were members of Local 200, and the further fact that at about the time the 1974-77 contract was executed by Mews (as United) in August 1974, the only truckdrivers were Mix, Bourdo, and Williams, all of whom were members of Local 200. Inasmuch as Local 200 is, and has been, the exclusive majority representative of Respondent's truckdrivers at all times material herein, it follows that at such times Respon- dent was obligated to deal directly with Local 200-and not with its employees-in respect to the wages, hours, and other terms and conditions of employment of the truckdri- vers. I, accordingly, conclude that by Mews' efforts to ne- gotiate a percentage wage system with his employees in May and June 1974 and by Mews' implementation of that system in June 1974 and thereafter (including not only the change in wages but also the elimination of vacation and holiday pay and the elimination of payments to the Team- sters health and welfare fund) without negotiations with Local 200, Respondent has violated, and is violating, Sec- tion 8(a)(1) and (5) of the Act 23 22 Manor Research, Inc., 165 NLRB 909 (1967). 23 N L.R.B v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U.S. 736 ( 1962); Tulsa Sheet Metal Works, Inc., 149 NLRB 1487, 1503, enfd. 367 F.2d 55 (C.A. 10, 1966). The General Counsel further urges that Respondent's refusal to process the June 28 grievance was in violation of Sec. 8(a)(5) and ( I). Since the complaint does not allege this omission to be an unfair labor practice I shall make no unfair labor practice findings in respect to it. In any event, the subject matter of the grievance was Respondent's unilateral change in working conditions which I have found to be a violation , supra, and for which I shall recommend a remedy Respondent's sole defense, which I reject, in respect to this matter is as follows. Respondent says that Mews raised the pay of his drivers to a figure (based on a percentage of the trucks' use charge) which translated for their purposes into $7 50 an hour The 85 cent excess of this amount over union scale was intended , Respondent says, to provide funds to the employees to make their own welfare and pension fund contributions because Mews be- lieved that the fund would not accept such payments from Mews without a contract. Mews' belief in this regard purportedly developed from his deal- ings with other unions which had such a "no contract-no fund payment" policy I reject this defense because it is irrelevant to the issue. What arrange- UNITED CONTRACTORS INCORPORATED 469 I shall treat with Respondent's subsequent refusal to honor its contract of August 20, 1974, later in this Deci- sion, after disposing of the allegations of the complaint in respect to the discharges of all three of the Union's drivers in early October 1974. B. The Discharges Based on my findings , supra, it is manifest that Mix (on or about September 30, 1974) and Bourdo (on or about October 3, 1974) were discharged because they had filed the grievance with Local 200 over Respondent's failure to provide them with the wages and holiday pay due them under the contract executed by Mews on August 20, 1974 (which was effective from June 1, 1974). Respondent's defense in respect to these discharges is based on the testimony of Mews that he merely laid off Mix and Bourdo from United and then offered them work with JMCO, which they refused. More specifically, Mews testified that after he had signed the contract of August 20, 1974, in the name of United, he transferred his drivers to the United payroll but United continued to rent trucks from JMCO. Mews said he then learned that this proce- dure might cause him to lose his motor carrier license from the State of Wisconsin pursuant to which JMCO was re- quired to provide both trucks and drivers to contractors requesting JMCO's services. To avoid this penalty, Mews claimed, he then simply laid off Bourdo and Mix from United but offered them work with JMCO. He testified that both Bourdo and Mix refused to work for JMCO un- der nonunion conditions despite Mews' claimed requests to them at that time to persuade Local 200 to meet with him and negotiate a contract with JMCO-requests which, ac- cording to Mews, were in addition to attempts he and his secretary had made to get an appointment with Local 200 representatives to enable Mews and the Union to bargain for JMCO employees. Respondent takes the position that Mix and Bourdo continued to refuse work with JMCO until their reemploy- ment under union conditions in 1975 , which has been de- scribed. It also points out a letter from Mews to the NLRB Regional Office dated October 21, 1974, in which Mews advised the Region that Mix, Bourdo , and Williams were offered work with JMCO on October 8, 1974, but refused it and further advised the Region that work had been avail- able to them since that time. I have already rejected, on the basis of my credibility findings, Mews' version of the separation of Mix and Bour- do as well as that of Williams of which more will be said hereinafter. It follows that Respondent's defense-that ments Mews may, or may not, have thought were proper have no bearing on his obligation to bargain with the exclusive representative of his employees in relation to their wages, hours, or other terms and conditions of employ- ment. Any substantial change in those conditions of employment, as here, made by an employer unilaterally is in derogation of that duty and is in violation of the Act . N.L.R.B v Katz, et a!, supra In addition to the foregoing I am constrained to observe , since it relates to Mews' credibility, that his claimed mistaken belief that the Teamsters fund would not accept his health and welfare payment without a contract is directly contradicted by his earlier claim that he made such payments to that fund during the period 1966 to 1970 at a time , he said, when he had no contract with Local 200. Bourdo and Mix were not discharged in October 1974 but instead refused employment with JMCO at that time- must fail. I will explain my credibility findings in this regard in more detail at this point, because these findings relate so intimately to Respondent's defense. I have rejected Mews' claimed revelation about the possible loss of his motor car- rier license because his testimony in this regard is substan- tially inconsistent with his own earlier testimony that the reason he carved out United's trucking operation in 1970 and used it as a base to establish JMCO was to enable him to obtain a license as an exclusive contract carrier. If he knew the requirements for such an exclusive license in 1970, he obviously knew them in 1974. His claim that he could not get Local 200 to send a representative to bargain with him in September 1974 is at odds with the fact that Kraemer came out to see Mews personally on or about September 27, 1974,-at the very time these events were taking place-to discuss with him Mix and Bourdo's grievance of September 17, 1974, which dealt with contract matters.24 There is no indication that Mews made any effort at this meeting to negotiate a con- tract in the name of JMCO although he must have known-from Kraemer's signing of the August 20, 1974, contract in the name of United-that Kraemer had author- ity to negotiate a contract. Mews' letter of October 21, 1974, to the Board' s Region- al Office likewise belies his testimony. That letter recites the following, in pertinent part: On August 30, 1974, Milan Mix, Guy Bourdo and Percy Williams left our employment and went to work for another firm. These former employees were of- fered work on October 8, 1974 under the same terms of their employment since the expiration of our con- tract with Local #200 May 31st, 1974. They declined to work. Work has been available for them. This cor- poration does not have a contract with Local #200.25 Since Mix, Bourdo, and Williams are all named in the first sentence of this paragraph, the obvious intention of the phrase "These former employees," appearing in the second sentence, is the inclusion of Mix, Bourdo, and Wil- liams. The pronouns "they" and "them" appearing in later sentences (in the absence of any statement to the contrary) also must be presumed to include Mix, Bourdo, and Wil- liams. While the letter states that work has been available for "them" (i.e. all three) Mews testified at the hearing that only two of his trucks were in operation from October 1 to December 31, 1974, and that there was no work for Wil- liams during this period even if Williams had wanted to come to work. A further reason for my discrediting Mews' version of the separation of Mix and Bourdo is that he admittedly did not contact unemployment authorities to inform them of his claim that Mix and Bourdo were refusing to work even 24 While I will find such claimed efforts to be irrelevant to the Sec. 8(a)(5) allegations of the complaint, such claims nonetheless bear on the credibility of Mews testimony in connection with the Sec. 8(a)(3) allegations. 25 Even this letter is evasive. On or about August 30, 1974, Mix, Bourdo, and Williams hadn't "left employment"-they were transferred by Mews. The other "firm" they "went to work" for was United' 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though, he said, he was aware that both were drawing un- employment compensation. Mews also claimed that Mix and Bourdo were on strike during this period but the rec- ord is barren of any suggestion that Local 200 picketed at Mews' office or any of Mews' projects. Finally, unlike many of Mews' other actions in this case, he did not then make any written offer of reemployment by JMCO to Mix or Bourdo. In view of the foregoing I am satisfied that Mix and Bourdo were discharged by Respondent on or about Sep- tember 30 and October 4, respectively, for the reason that they, in concert, filed grievances against Respondent over working conditions and that Respondent thereby violated Section 8(a)(1) and (3) of the Act 26 Since Mews criticized both Mix and Bourdo in their dis- charge interviews about their filing of a grievance and fur- ther told them that there would be no work for them until they got their union problems straightened out, I find that Respondent also thereby threatened both Mix and Bourdo with reprisal for the exercise of their Section 7 right to engage in union activities and that Respondent thus violat- ed Section 8(a)(1) of the Act 27 This brings us to the discharge of Williams. Williams has been a member of Local 200 since 1958. I conclude that Mews was aware of Williams' union affiliation because when Mews hired Williams in August 1974, Mews made a point of telling Williams that he, Mews, did not then have a contract with Local 200-a comment which would have been unnecessary unless Mews knew or suspected that Wil- liams was a Local 200 member. It should also be noted that Williams, as an employee in the truckdrivers unit, would have been a beneficiary of the successful prosecution of the Mix-Bourdo grievance of September 17, 1974, even though he did not sign it or participate in the filing of it. In its brief Respondent argues that Williams was laid off because of lack of work and because of Mews' dissatisfac- tion with Williams' performance as a truckdriver. I con- clude, however, that neither of these reasons was the cause of Williams' separation. To begin with, no mention was made of either matter when Mews asked Williams for the keys to Williams' truck, which was the last time prior to the hearing when Mews spoke to Williams 28 Further, Williams' testimony stands unrebutted that the driving incidents 29 (which occasioned 26 E.g., Chatfield Paper Corporation, A Division of The Mead Corporation, 172 NLRB 307 (1968). Even if I were to accept Mews' explanation, which I have not, that Mix and Bourdo refused to work under nonunion conditions, I would nonetheless conclude that Respondent, by offering them work only under nonunion conditions , constructively discharged them in violation of Sec. 8(a)(l) and (3) of the Act. Barwise Sheet Metal, Co., Inc., a Division of Airtron, Inc; American Air Conditioning Co, Inc, Fahnestock, Inc., a Divi- sion of Airiran, Inc, as Joint and Successor Employers, 199 NLRB 372 (1972). My reasons for so concluding would be that (as will be more fully discussed hereinafter) the United contract of August 20, 1974, was also binding on JMCO (since the two corporations are a single employer within the meaning of the Act) and therefore, these employees were entitled to work under the conditions set forth in that contract. 27 See Trailmobile Division, Pullman Incorporated v. N L.R B, 407 F.2d 1006, 1008 (C.A. 5, 1969) 28 1 have already discredited Mews' testimony that he told Williams at that time that Williams was being laid off due to lack of work and poor performance 29 In one incident Mews criticized Williams for dumping at a time when the criticisms by Mews and Schlei of Williams' driving per- formance) both occurred in August. This means that Mews must have been satisfied with Williams' overall perfor- mance because Mews continued to employ Williams for a month after the incidents occurred. And there is no indica- tion that the poor performance was repeated during that month. Finally, while I have given no weight to Mews' letter to the Board, dated October 21, 1974, as support for Mews' claim that he offered Mix and Bourdo employment on October 8, 1974, this letter nonetheless stands as an admission that Mews was sufficently satisfied with Wil- liams' performance to reemploy him. For this letter, which has been discussed and analyzed, supra, makes no mention that Williams was discharged nor that he had been a sub- standard employee 30 It rather avers that, as of October 21, 1974, Mews had work available for Mix, Bourdo, and Wil- liams. I therefore conclude that Williams was discharged be- cause he was a member of Local 200 and stood to benefit from the Mix-Bourdo grievance-the very grievance which had caused the discharges of Mix and Bourdo. With the discharge of Williams, Mews had rid himself of his last union truckdriver and set the stage, at least in Mews' mind, for him to hire nonunion drivers to replace his union drivers. I accordingly conclude that by discharg- ing Williams Respondent violated Section 8(a)(1) and (3) of the Act 31 C. The Ultimate Refusal to Bargain The complaint alleges that Respondent has, since Sep- tember 1974, refused to bargain collectively with Local 200 by failing to apply "United's" agreement with Local 200 to Respondent's trucking operations and employees . In its an- swer to the complaint Respondent admits that JMCO has not applied the "United" contract to its trucking opera- tions and employees by reason, Respondent says, of the separate identity of these companies. It also appears that, in view of Mews' testimony that United is no longer en- gaged in trucking operations, there are no "United" opera- tions to which the "United" contract with Local 200 can be applied. In sum it is clear that Respondent-either as Unit- ed or JMCO-did not apply the "United" contract to Respondent's trucking operations or employees at least from the beginning of October 1974 until it rehired Mix and Bourdo just prior to the hearing-and even then with- out agreeing that it was bound to do so. Respondent offers essentially two defenses to its failure to live up to its contract with Local 200. First it says that, since United and JMCO are separate employers, there is no obligation for JMCO to honor United's contract with Local 200. Secondly, it argues that, even if United and JMCO are a single employer, the United contract is a nulli- his dump truck was not level. In another incident Schlei criticized Williams for rolling off (apparently moving his truck after a dump ) before lowering the dump box into place. 30 Mews, in any event, waffled on cross-examination as to his reasons for discharging Williams . He ultimately testified that he did not terminate Wil- liams because of his poor performance but rather for lack of work. 31 1 deem of no significance Williams' testimony that, as far as he knew, his separation had nothing to do with the Union . For Williams could not necessarily be expected to know what motivated Mews in discharging him. UNITED CONTRACTORS INCORPORATED 471 ty because it was entered into by Mews under threats of strikes and picketing by Kraemer. I reject Respondent's first defense for the reason that, as I have found, United and JMCO are a single employer within the meaning of the Act.32 Respondent's second de- fense must also fail because, on the basis of my credibility findings, I have concluded that no such threats were made by Kraemer to Mews at the time the contract was execut- ed.33 I further conclude that Mews' insistence that the con- tract be entered into in the name of United was just anoth- er aspect of his lack of good faith and evasiveness in dealing with Local 200. Consistently, after entering into the contract, Mews delayed putting its terms into effect. Even- tually he discontinued the short lived United trucking op- erations and discharged all of his union drivers after a grievance was filed in respect to his performance under that contract. Indeed, his entire course of conduct strongly suggests, and I find, that he never had any intention of living up to the United contract of August 20, 1974. In view of all the foregoing, I conclude that by failing to apply the terms of "United's " contract with Local 200 to Respondent's trucking operations and employees at all times since early October 1974, Respondent has refused to bargain in good faith with Local 200 in violation of Section 8(a)(5) and (1) of the Act 34 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate and sub- stantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Milan Mix and Guy Bourdo with re- prisal for engaging in union or other concerted activities Respondent has violated Section 8(a)(1) of the Act. 4. By discharging Milan Mix, Guy Bourdo, and Percy Williams, Respondent has violated Section 8(a)(1) and (3) of the Act. 5. The following employees constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All truckdrivers employed by United or JMCO excluding all other employees, guards and supervisors within the meaning of the Act. 6. At all times on and since June 1, 1974, the Union has been the exclusive collective-bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act in respect to their wages, hours, and other terms and conditions of employment. 7. By dealing directly with its employees in respect to the terms and conditions of employment of its employees in the appropriate unit found above and by changing such terms and conditions of employemnt on and after June 1, 1974, without bargaining with the employees' exclusive col- lective-bargaining representatives Respondent has violat- ed, and is violating, Section 8(a)(5) and (1) of the Act. 8. By failing to abide by the terms of its contract excut- ed on August 20, 1974, with the Union, Respondent has violated, and is violating, Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY CONCLUSIONS OF LAW 1. United and JMCO are a single employer engaged in 32 This renders irrelevant Mews' claimed efforts to negotiate a contract with Local 200 on behalf of JMCO in September 1974. There was no need for Local 200 to negotiate a contract. It already had one. But if Mews was truly interested in negotiating a contract for JMCO in September 1974, as he claimed, he offered no explanation of his failure to bring this matter up with Kraemer when, as has been mentioned , Mews and Kraemer met on September 27, 1974. 3 Even if I were to find, which I have not, that Kraemer had made such a threat, I would nonetheless conclude that the contract was validly execut- ed. For economic pressure of this type is not in and of itself inconsistent with a labor organization's duty to bargain in good faith with an employer. N. L. R. B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.) 361 U.S. 477, 490-491 (1960). It is only when such pressure is coupled with evidence, significantly lacking here, of a union 's intention not to afford an employer the opportunity to bargain collectively and such union's fur- ther intention not to bargain in good faith, that such pressure becomes unlawful and would negate the effect of any resulting collective-bargaining agreement. Compare Operative Plasterers' & Cement Masons' International Association Local #2, AFL-CIO [Arnold M Hansen], 149 NLRB 1264 (1964). 34 See Barwise Sheet Metal Co., Inc., supra. While it is true that Respon- dent rehired Mix and Bourdo under the conditions set forth in that contract, its letter of reinstatement to Mix and Bourdo makes clear that Respondent takes the position that no valid agreement exists between it and Local 200. The recommended Order will contain the conventional provisions for cases involving findings of interference, re- straint, coercion, unlawful discharge, and unlawful refusal to bargain in violation of Section 8(a)(1), (3), and (5) of the Act. This will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respon- dent will be required to take to remedy these discharges and its refusal to bargain with the Union. Thus, Respondent will be required to offer Mix, Bourdo, and Williams reinstatement to their former or substantially equivalent positions,35 without prejudice to their seniority or other rights and privileges. Each will be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of the offer of reinstatement, less his net earnings, if any, during such period to be computed in the manner 35 In so recommending I am not unmindful that Mix and Bourdo have already been reinstated . But since Respondent questions their right to reem- ployment under the conditions of the August 20, 1974, contract with the Union. this order of reinstatement will insure their employment without question under the provisions of that agreement, viz, substantially equiva- lent employment in this context means, inter aha, employment under work- ing conditions provided by the instant union contract. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6 percent interest thereon as required by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to honor or abide by its agreement with the Union, I shall also recommend that it be required to honor and abide by that agreement for its term.36 This will require that Respondent provide all the employees who were in the collective-bargaining unit on or after June 1, 1974, any wages, paid holidays, paid vaca- tions, or other benefits which have not already been paid under the provisions of the agreement which is effective from June 1, 1974, to May 31, 1977. To further insure that Respondent will live up to its bargaining obligation I shall also recommend that Respondent be directed to bargain upon request with the Union and, if any further under- standing is reached , that such understanding be embodied in a written agreement. Finally, it will be recommended, because of the nature of the unfair labor practices in which Respondent has en- gaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4) ), that Respondent be ordered to cease and desist from infringing in any manner upon the rights guar- anteed employees by Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER37 Respondent, United Contractors Incorporated and JMCO Trucking Incorporated, the officers, agents, succes- sors, and assigns of both these corporations, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Local 200, Chauffeurs, Teamsters and Helpers "Gener- al" Local Union No. 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discriminating in regard to the hire or tenure of employ- ment, or in any other manner in regard to any term or condition of employment, of any of Respondent's employ- ees in order to discourage union membership or union or other concerted activities. (b) Threatening its employees with reprisal for filing grievances with the above-named Union or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 36 Eklund's Sweden House Inn, Inc, 203 NLRB 413 (1973). 77 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. (c) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with the above-named Union as the exclusive bargaining representative of its employees in the following unit found to be appropriate for the purposes of collective bargaining: All truckdrivers employed by United or JMCO excluding all other employees, guards and supervisors within the meaning of the Act. (d) Dealing directly with its employees concerning their wages, hours, or other terms and conditions of employment and unilaterally changing or cancelling employees' wages, hours, holidays, vacations or other terms and conditions of employment without first bargaining over said matters with their exclusive collective-bargaining representative. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Milan Mix, Guy Bourdo, and Percy Wil- liams immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of earnings he may have suffered as the result of his discriminatory discharge in the manner set forth in "The Remedy" section of this Decision. (b) Honor and enforce the terms of the collective-bar- gaining agreement with the above-named Union effective from June 1, 1974, to May 31, 1977. (c) Bargain collectively, upon request, with the above- named Union with respect to the rates of pay, wages, hours, and other terms and conditions of employment of the employees in the above-mentioned appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. (d) Provide to all employees in the collective-bargaining unit all unpaid wages, holidays and vacation pay, and other benefits established under the aforesaid collective- bargaining agreement and in effect since June 1, 1974. (e) Preserve and, upon request, make available for ex- amination 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. (f) Post at its Menomonee Falls, Wisconsin, place of business copies of the attached notice marked "Appen- dix." 38 Copies of said notice on forms provided by the Regional Director for Region 30, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 30, in writ- ing, within 20 days of the date of this Order, what steps the Respondent has taken to comply herewith. 38 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." UNITED CONTRACTORS INCORPORATED 473 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to give evidence, it has been decided that we, United Contractors Incorporated and JMCO Trucking Incorporated, have vio- lated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights including the rights: To self-organization To form, join and help unions To bargain collectively through a representative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. Accordingly, we give you these assurances: WE WILL NOT threaten to take away your jobs be- cause you file grievances or otherwise join or support a union or engage in any other concerted activities and WE WILL NOT interfere with the exercise of any of your rights set forth above. WE WILL NOT discharge you or take any other reprisal against you because you file grievances with a union or because you join, support, or engage in union or other concerted activities. WE WILL NOT change or eliminate your wages , hours, holidays, vacations or other terms and conditions of employment established by collective-bargaining agreement with Chauffeurs , Teamsters and Helpers "General" Local Union No. 200, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, without the approval of that union, which is your exclusive bar- gaining representative. WE WILL NOT bargain with you concerning your wag- es, hours, or other terms and conditions of employ- ment outside of the presence of your exclusive collec- tive-bargaining representative. WE WILL continue to recognize that Union as the exclusive bargaining representative of our employees in the following appropriate collective bargaining unit: All truckdrivers employed by United or JMCO, excluding all other employees, guards and supervisors within the meaning of the Act. WE WILL, upon request, bargain collectively with that Union with respect to your rates of pay, wages, hours and other terms and conditions of employment and, if an understanding is reached, WE WILL embody such understanding in a signed agreement. Meanwhile, WE WILL honor and enforce the provi- sions of our contract with that Union effective from June 1, 1974, to May 31, 1977, and WE WILL provide our employees in the above-mentioned collective-bar- gaining unit all benefits including wages, paid holi- days, and vacations and other benefits which we have not yet paid pursuant to that agreement. WE WILL offer to reinstate Milan Mix, Guy Bourdo and Percy Williams to their former or substantially equivalent positions with full seniority and all other rights and privileges, as the Board has found that they were discharged because of their union or other con- certed activities. WE WILL make up all pay lost by Milan Mix, Guy Bourdo and Percy Williams because of their dis- charges with 6-percent interest. UNITED CONTRACTORS INCORPORATED, JMCO TRUCKING INCORPORATED, JOINT EMPLOYERS