Patterson-Stevens, Inc.

PATTERSON-STEVENS, INC. 373 Patterson-Stevens, Inc, and International Union of Operating Engineers, Local Union No, 17, AFL-CIO, Case 3-CA-17908 March 31, 1997 SUPPLEMENTAL DECISION AND ORDER agents, successors, and assigns, shall make whole the employees named below by paying them the amounts set forth opposite their names, plus interest as pre- scribed in New Horizons for the Retarded, 283 NLRB II73 (1987), accrued to the date of payment, minus tax withholding required by Federal and state laws: 3 The record does not include a first name for employee Little. Doren Goldstone, Esq.; for the General Counsel, Albert D'Aquino and Thomas Gill, Esqs. (Saperston & Day, p.e), of Buffalo, New York, for the Respondent. Richard Furlong and Adrianne Stella, Esqs, (Furlong & Delmonte, P.c.), of Williamsville, New York, for the Union. $7,678.00 7,601.00 6,935.00 15,449.00 58,454.00 35,242.00 32.28 24,952,57 3,539.37 $1,327.30 23,890.76 33,977.90 14,865.34 10,724.29 $113,277.53 owed by the Respondent is: Mike Bower Francesco Conidi Vincent Conidi Lanny Limburg Michael Muscarella Merle Schreckengost Mr. Little' TOTAL: $131,391.28 The Respondent shall pay the following amounts to the named funds, plus any additional amounts that ac- crue on those amounts to the date of payment as com- puted in accordance with Merryweather Optical Co., 240 l\'LRB I2I3 (1979): EJWF Supplemental Fund including delinquency Pension Fund including delinquency Welfare Fund including delinquency S.U.B. including delinquency Training Fund including delinquency Central Pension Fund including delinquency EJWFIPAP including delinquency TOTAL: The Grand Total $244,668.81. ORDER By CHAIRMAN GOULD AND MEMBERS Fox AND HIGGINS On September 27, 1996, Administrative Law Judge Steven Davis issued the attached supplemental deci- sion. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs, The General Counsel and the Charging Party filed cross-exceptions and supporting briefs. The Respondent filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rul- ings, findings,1 and conclusions and to adopt the rec- ommended Order as modified. The judge failed to include "half time payments" for employee Little in his backpay order. After learn- ing at the hearing that employees Little and Mighells had replaced the discriminatees on the Nf-TA job after the discriminatees had been unlawful1y discharged, the General Counsel amended the compliance specification to include them. The compliance specification alleges, inter alia, that the "half time portion of the contribu- tions to the funds" was owed directly to employees covered by the specification. The judge, however, in- cluded in his backpay order "half time payments" for those employees originally named in the specification, but failed to list the $32.28 of "half time payments" owed Little as set forth in the amended compliance specification.? The judge in his order did include the funds contributions owed on behalf of Little and Mighells. There is no dispute over the calculations as to the amount of the backpay set forth in the specifica- tion for employee Little. Therefore, we modify the judge's recommended backpay order to include the $32.28 owed Little. The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Patter- son-Stevens, Inc., Tonawanda, New York, its officers, 1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admin- istrative law judge's credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect.Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 E2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. aThere is no contention that Mighells was due any "half time payments. " SUPPLEMENTALDECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. On May 16, 1994, the Board issued its Decision and Order in Case 3- CA-17908, published at 313 NLRB 1229, in which the Board directed Respondent to, inter alia: (a) Offer reinstatement to Michael Muscarella and Merle Schrechergest to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions ... and make them whole for any loss of earn- ings and other benefits. 323 NLRB No. 54 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Abide by all terms and conditions of the collec- tive-bargaining agreement with the Union. (c) Make whole unit employees for any losses in wages or benefits they may have suffered because of the Respondent's refusal, since May 31, 1993, to abide by the terms of the collective-bargaining agreement, with interest. On January 17, 1995, the Second Circuit Court of Appeals entered its judgment enforcing in full the Decision and Order of the Board. A controversy having arisen over the amount of payments due under the Board's Order, on November 29, 1995, Region 3 of the Board issued a compliance specification and notice of hearing, which was amended on May 10, 1996, and again at the hearing. Respondent filed an answer and an amended answer to the specification. A hearing was held before me on June 17 and 18, 1996, in Buffalo, New York. Briefs were filed by all parties. This supplemental decision is based on the entire record including the briefs and my observation of the demeanor of the witnesses. I. BACKGROUND A. Attempts at Obtaining Compliance In the underlying Board decision in this case, the Board found that Respondent was a contractor in the construction industry, and was bound by the prehire collective-bargaining agreement entered into between the Associated General Con- tractors and the Union. That agreement was effective from April 1990 to March 31, 1994, and is known as the Heavy and Highway contract. The Board also found that the appropriate collective-bar- gaining unit consisted of all employees described in article III of the contract. That provision states that the Union is the exclusive bargaining representative of "all employees in the classifications for work covered by this Agreement ... namely Engineers, Apprentice Engineers ... and all other skills and crafts when within the jurisdiction of the Union and all persons performing the classes of work covered by this Agreement." Article XXVII lists the classifications of work essentially by type of equipment operated. Certain issues arose concerning the compliance investiga- tion and the preparation of the specification. On May 19, 1994, 3 days after the issuance of the Board's Order, Re- gional Compliance Supervisor Richard Friend sent a letter to Respondent and its attorney, asking that they "assemble the necessary records" in order to comply with the Board's "make-whole" remedy. On November 1, a Board agent wrote to Respondent's at- torney asking him for "the number of hours ... that work has been performed by the Employer within the jurisdiction of [the Union], for the period May 28, 1993 to the present, utilizing equipment which usually is operated by operating engineers." The letter also requested the hours of work of employees who operated certain equipment usually operated by operating engineers, and the names, addresses, and tele- phone numbers of employees who performed that work. Following the enforcement of the Board's Order, Friend wrote to Respondent's attorney on January 24, 1995, request- ing that he "assemble the necessary records" concerning the make whole remedy for the two discriminatees, and as to the unit employees, that he also assemble the necessary records so that he may compute the losses "in wages or benefits they may have suffered because of [Respondent's] refusal. since May 31, 1993, to abide by the terms of the collective- bargaining agreement." On June 20, Friend went to Respondent's premises Where he reviewed certain payroll records which showed the hours worked and wage rates of certain employees. Friend testified that although the records covered the time period involved in the backpay period, the records did not identify the nature of the work performed, When Friend inquired of Respond- ent's representative at the premises, that person said that he had no knowledge of such matters and was not there to pro- vide any information concerning those things. Friend testified that those records did not enable him to determine what work was performed by the employees. After that visit, a Board agent requested of Respondent's attorney that an employer representative be present to explain the data to the Board agents. The attorney replied that a written rc- quest be addressed to him, seeking the information, and that he would respond by letter. Friend decided that a written question and answer ap- proach would be insufficient to deal with the voluminous records involved, and that he needed an agent of the em- ployer to go over the material with him. Thereafter, Friend again visited Respondent's premises, and recorded the information for all employees except those who he knew were supervisors. Such infonnation consisted of the names of the workers, their hours worked, wage rates. and vacation hours. In compiling such records, Friend did not know what work was being performed by the employees set forth in the records. The Region's efforts to refine its data, and perhaps amend the specification based upon further information from Re- spondent was not helped by Respondent's answers to the specification. Thus, as set forth above, on November 29, 1995, the Rc gion issued its compliance specification. On December 14. Respondent filed an answer, generally denying the material allegations in the specification. On May 10, 1996, the Region amended the specification to add an additional item of back- pay, specifically that set forth in article XVII, section 2 01 the collective-bargaining agreement. On May 30, Respondent answered the amendment generally denying the new allega- tion. On June 5, counsel for the General Counsel wrote to Rc spondent's attorney, advising him that Respondent's answers did not meet the requirements of Section 102.56 of the Board's Rules and Regulations requiring Respondent to stale the premise for disputing the calculations set forth in the specification, and provide alternative calculations. In response, Respondent filed an amended answer on June 10. That answer raised general theories concerning Respond ent's lack of liability for the amounts alleged, but failed tp provide alternative computations or a detailed description 01 its theories. At the hearing, the General Counsel and the Charging Party moved to preclude Respondent from introducing cvi dence as to the matters which were not properly pleaded. I heard argument on this issue and decided that Respondent'< June 10 answer was sufficient to defeat the motions to pre PATIERSON-STEVENS, INC. 375 elude, and I permitted Respondent to adduce: evidence at the hearing. B. The Representation Case While the compliance matter was being investigated, a representation proceeding was being processed. On February 8, 1994, the Union flied a petition in Case 3-RC-l0095, in which it sought to represent "all employees described in Article III . . . of the collective-bargaining agreement between Patterson-Stevens, Inc. and the Union." The petition stated that the Union was recognized by Re- spondent pursuant to the collective-bargaining agreement at issue in the instant hearing, and sought to be certified. Following a hearing, the Acting Regional Director, on March 30, 1994, issued a Decision and Direction of Election, finding that the appropriate bargaining unit was the same as that set forth in the collective-bargaining contract. Respond- ent filed a request for review, arguing that the unit consisted of only one person, and that therefore the petition should be dismissed. On July 5, 1994, the Board denied the request for review on the ground that it raised no substantial issues war- ranting review. On April 6, 1994, Respondent sent the Regional Office an Excelsior election eligibility list "containing the names and addresses of Patterson-Stevens, Inc. employees that constitute eligible voters in accordance with the Decision and Direction of Election." That list contained five names: Mike Bower, Frank Conidi, Vince Conidi, Lanny Limburg, and Robert Proefrock, known throughout this proceeding as the "group of five." Patterson testified that these workers were his "core employees,' who were skilled in specific areas of the Company's work, such as concrete, commercial swimming pool, or railroad work. He identified the type of work they do: start compressors, operate equipment, chipping, shoveling dirt, trowel flooring, apply membrane roofmg, install sheet viIWI pool lining, and performing work on gutters and filtration. They work at building sites, buildings, and industrial railroad sidings for industry. II. MUSCARElLA }I.ND SCHRECKENGOST As set forth above, the Board found that on May 28, 1993, Respondent unlawfully laid off Michael Muscarella and Merle Schrechergest. and ordered that. they be offered rein- statement. On June 11, 1993, Respondent sent the following letter to each employee: We plan on re-starting the project at the Niagara Fron- tier Transportation Authority (Nf'TA) soon, We would like to know if you would like to resume work with us when we do. Please contact cur office as soon as pes- sible if you are available for work. Respondent's answers do not contend that those letters constitute valid offers of reinstatement, but at the hearing re- quested that they be considered as such. ~ Compliance Supervisor Friend determined that L.'10se letters did not constitute a valid offer of reinstatement since thev constituted only an inquiry as to whether the employees \ve;e interested in employment, and not an actual offer of rein- statement. I agree. "An offer of employment must be spe- cific, unequivocal, and unconditional in order to toll backpay and satisfy a respondent's remedial obligation." Holo-Krome Co.• 302 NLRB 452, 454 (1991). A virtually identical offer has been found to be insufficient. L'Ermitage Hotel, 293 NLRB 924, 927 (1989). Proper offers of reinstatement were sent on June 21, 1995, notifying the two employees that they had 10 days to re- spond to the offer. They did not reply, and their backpay was tolled on July I, 1995. Muscarella and Schreckengost were employed by Re- spondent, and worked on the NITA project. They were un- lawfully laid off on May 28, 1993. On June 21, 1993, Re- spondent was prohibited by the general contractor from per- forming any further work on that project. A. The Main Arguments Respondent's main argument with respect to its backpay liability concerning Muscarella and Schreckengost is that it performed only one job, the NfTA project. pursuant to the collective-bargaining agreement, and employed only two em- ployees, the discriminatees, on that project to perform work under that contract. Respondent claims that following its being prohibited from performing any further work on the NFfA project on June 21, 1993, no other operating engi- neer's work was available for the two employees. Apart from the issue of the offers of reinstatement, Re- spondent thus contends that its maximum liability for back- pay is for 3 to 4 weeks, from May 28, 1993, the date of their layoff, until June 21. when Respondent's work on the project was terminated. The General Counsel argues that notwithstanding that Re- spondent's work on the NFfA jobsite ended in late June, nevertheless the two employees could have continued to per- form work on other projects which Respondent was perform- ing. Evidence was adduced at 41.e hearing concerning Re- spondent's other jobs following its cessation of work on the NITA jobsite. Gross backpay was computed by averaging the hours worked by the group of five Respondent's employees who were employed during the backpay period. Those were the workers named on the voter eligibility list submitted by Re- spondent, as set forth above, who according to the General Counsel, are bargaining unit employees. Those five were chosen by the General Counsel inasmuch as (a) Respondent's payroll records did not specify what type of work was being performed by Respondent's employees; and (b) those five were identified by Respondent, by virtue of their being placed on the Excelsior list, as employees in the same collective-bargaining unit as set forth in the collec- tive-bargaining agreement pursuant to which the two discriminatees were employed. Having received the names of employees in the unit, Com- pliance Supervisor Friend was then able to determine which jobs were worked on by the group of five, in order to deter- mine whether bargaining unit work was performed on those jobs. He then concluded (hat the five employees which Re- spenders; named as being within the bargaining unit set forth in the collective-bargaining agreement were performing bar- gaining unit work during the backpay period. The records concerning that group of five employees were usee'. for two purposes: (a) to determine the hours that 376 DECISIONS OF TIlE NATIONAL LABOR RELATIONS BOARD Muscarella and Schrechergost would have worked following their unlJlwfullayoff; and (b) as a remedy for Respondent's repudiation of the contract, to make the five employees whole for the difference between the amounts they were enti- tled to onder the terms of the collective-bargaining agree- ment.end the.amounts they were paid.' Respondent counters by arguing that the only work it per- formed pursuant to the collective-bargaining agreement was the NFfA project, and that Respondent's work performed thereafter was not bargaining unit work as set forth in the contract, Th~<>perative provision of the contract, article V, "Defini- tionandJurisdiction," is as follows: This agreement shall apply to Heavy and Highway con- struction and buildiog site work but shall not apply to tae-actual building; foundations, structural .portion and interiors of buildings that are normally covered by Buildiog agreements in the geographical area of this agreement, Respondent argues that it supplied the Excelsior list pursu- ant to article ill, and not article V of the contract. The Deci- sion and-Direction of Election identified as the appropriate bargaining unit the following: All employees in the classifications covered by Article ill . . . of the collective bargaining agreement between [Respondent and the Union] •.. namely Engineers, APl'~J1tic~En~eers,. Assistant Engineers,.Maintenance Engineers [Mechanics] Firemen, Mechanics' Helpers, Maintenance Welders, Maintenance Welders' Helpers, MaiIltenaIlCe.: Burners, .: Master ...Mechanics, Assistant Master Mechanics, and all other skills and crafts when within the jurisdiction of the Union and all persons per- forming the classes of work covered by this Agreement no matterwhere.such work is performed within theter- ritprialJurisdiction ofthe Union. R~PoriCIentconteridsthB.t .its submission of the •Excelsior list was I1()t>aI1 ..admission that itw?S doingunit work. Rather, the five employees were identifiecias. workers' who operated certain types of equipment, and by so listing them, it did not concede that they were actually performing such work under the contract. It is well settled that the finding of an unfair labor prac- tice is presumptive proof that some backpay is owed, and that in a backpay proceeding the sole burden on the General Counsel is to show the gross amounts of back- pay 'due-the amount the employees would have re- ceived but for the employer's illegal conduct. ... Once that is established, "the burden is upon the em- ployer to establisb facts that would mitigate that liabil- ity." . .. Apy formula which approximates what discriminatees would have earned' had they not been discriminated against is acceptable if itis not unreason- able or arbitrary in the circumstances. The formula should be representative ,of the discrirninatee's employ- ll1enthistory and take into account intermittency of em- "One of the five, Prokreacb, earned more than the contract rate. Accordingly, backpay wasnotrequested for him. ployment. • . . Wbare awards may be only close ap- proximations, the Board may adopt formulas reasonably desigued to produce such approximations. . . . "the backpay claimant should receive the benefit of any doubt rather. than the Respondent, the wrongdoer re- sponsible for the existence of any uncertainty and against whom any uncertainty must be resolved." [La Favorita, Inc., 313 NLRB 902, ~903 (1994) (cita- tions omitted).] Based upon the above.I fmd that the General Counsel's formula for determining theamounts due thediscriminatees and the group of five is appropriate. Thus, the General Counselaveraged the number of hours worked by the group of five-=workers who he determined were-performing: bargaining unit work during the backpay period, andcompured the amount ofbackpay that they and the two discriminatees were entitled to. Respondent did not dispute the accuracy ofthose computations. The evidence, as set forth below, SUpports the specifica- tion's conclusion that the employees performed bargaining unit work within the collective-bargaining agreement. ',', It should also be noted that anicle V thereof. set forth above, broadly,'includes, employees .within' the" unit who .possess "other skills and crafts" and those who perform the types of work covered by the contract. Clearly, as will be seen below, the group of five met these eriteria, performing the type of work oI'dinarilyperformed by employees covered by the collective-bargaining agreement; Thus, the method used in the specification for detennining who was 'mcltided:mtheurrit,and','the ,'amount owed,were completely reasonable andfair,:'especially>considering the Respondent's limited,cooperation. and.UIilited,answers,to the specification. At the hearing. it was reveal~ that two others, Little and Mighells, bad replaced the two discriminatees during their work on the NFfA project. The General Counsel amended the specification to include them in its-computatlons.s Respondent first argues that the contract it signed with the Union was limited tothe,NFI'A jobv However, the contract itself contains no limitation on the projects it was applicable to. Respondent's president, Patterson, testified that while he was working on the NFfA project, he bad two meetings with the Union. At the first, an "introductory" meeting.vhe was asked by the Union to sigu a collective-bargaining agree- ment. Patterson conceded that he did not request, at that time, that the contract be limited only to the NFfA project. Patterson testified that at the second meeting, a couple of months later, which took place while Respondent continued to perform work at the NFl'A site, Union representatives in- cluding Thomas Hopkins, Robert Pritchard, or Gerald Thompson agreed that the Heavy and Highway contract that Respondent signed would apply only to the NFfA project, 2I reject Respondent's arguments that they are not properly in- eluded in the unit because they had not become members of the Union, and not obligated to become such members until they worked 8-full days. 1 find. as testified by Friendand Union Official Hopkins, that the terms of the union contract applied to them upon their first day of employment. Their union membership is irrelevant to the Is- suesunder consideration here. PATTERSON-STEVENS, INC. 377 and would not apply to Respondent's other work.' However, Patterson further testified that the union agents told him that by signing the contract, "building work" would be excluded. That last statement is, of course, consistent with what the Heavy and Highway contract, quoted above, says, that it shali "not apply to the actual building, foundations, struc- tural portion, and interiors of buildings that are normally covered by Building agreements in the geographical area of this agreement." The three union agents all testified, denying that they agreed to limit the application of the signed agreement to the NFl'A project. They further stated that they would not have agreed to such a limitation, and that it is the Union's policy not to Emit the application of its contracts. I cannot credit Patterson's testimony. I find that the union representatives did not agree to limit the application of the contract to the Nf'TA project. The contract itself bears no such limitation, 111 addition, Patterson offered somewhat in- consistent testimony in stating that the union agents told him that "building work" would be excluded from the contract. By its terms, the contract excludes work that is normally covered by building agreements. Thus, the union agents did not limit the applicability of the contract any more than it did by its terms. The question then becomes whether the work performed by the g-roup of five was, in fact, work unit work, performed within the Heavy and Highway contract, or whether it was building work, which was excluded from the coverage of the contract. B. The Work Performed by Respondent Patterson testified that Respondent's work during the back- pay period consisted of the renovation and repair of commer- cial swimming pools, installation of chemically resistant and waterproof floors, concrete repair, grouting and epoxy injec- tion of buildings and foundations, and railroad construction and renovation, which included maintenance and repair of railroad sidings and plant buildings. NFfA (Niagara Frontier Transportation Authority), a sys- tern for public transportation, required the installation of new roadways or the repair of roadways at three intersections in Buffalo. The pavement was adjacent to, and in between the railroad tracks. Respondent also worked on the rails, by changing bolts and gauge rods between the rails. Patterson concedes that his work on the Nf"I'A project was covered by the Heavy and Highway contract he signed with the Union. Respondent performed work on other projects during the backpay period, as to which it was stipulated that during zhc period May 31 to July 1, 1995, such work customarily in- volved the operation of some or all of the following equip- ment: backhoe, skid steer, bobcat, loader, busters (hammer), compressor, spiking machines, tampers, pumps, motorized buggy, power trowels, elevators, and gunite machine. As to such equipment, Heavy and Highway Contractor George Panepinto testified that all such equipment was typi- cally used in the operation of his construction business. He stated specifically that the backhoe, skid steer, bobcat, load- .3The General Counsel and the Charging Party objected to this parol evidence. Even assuming the evidence was properly received, I do not find that Patterson's testimony is credible, er, and compressor were all operated by operating engineers. The concrete ouster, if pneumatic and attached to a machine, is also operated by all operating engineer. However, a hand held buster is operated by a laborer. Spiking machines and riding tampers, if they are self-propelled, and if the spiking machine requires no manual lifting are operated by an oper- ating engineer. If they are smaller machines, and a "walk- behind, " they are laborers' work. Pumps larger than 3 inches are operating engineers' work; smaller pumps are laborers' work. If a motorized buggy can be ridden, it is operated by an operating engineer, but it is usually assigned to laborers. Large power trowels are operated by operating engineers. Small ones are operated by cement finishers. If elevators are used for hoisting equipment, operating engineers are used. If passengers are being carried, a negotiation process takes place with the contractor. Large gunite machines with pumps and pressure groutings are operated by an operating engineer; smaller ones are operated by laborers. Boom trucks are usu- any operated by a teamster. However, if the boom truck is used to carry materials for hoisting, an operating engineer is assigned to the truck. Nevertheless, Respondent claimed that certain jobs it per- formed during the backpay period were not covered by the Heavy and Highway agreement Those jobs are as follows: 1. The construction of a commercial wading pool, using gunite. Employee Lanny Limburg, a foreman for Respondent, also testified concerning that job. Respondent's employees used heavy equipment to excavate the pooL Employees dug drains and drain boxes and removed a fence using a backhoe and a skid steer. A subcontractor used a dozer. Patterson testified that the Department of Labor reviewed that project and gave its opinion that all the wages on that project should be based upon the building contract, and not the Heavy and Highway contract. Union president and busi- ness manager, Hopkins, testified that the Union and its con- tracting employers resolve issues concerning the application of the contract-not the Department of Labor. 2. Georgia Pacific-Respondent had a maintenance agree- ment, requiring that it maintain the rails in good condition. Such rails enter the company's warehouse facility. Respond- ent claims that such work comes within the Union's building agreement, and not the Heavy and Highway agreement, be- cause the rails enter a building and constitute a railroad sid- ing. Respondent notes that in contrast, NFfA, did not in- valve any work in buildings, but just constituted work on pavement and rails unrelated to any structure. Limburg testified that during his work on this job, the crew numbered two to five employees. During such work, Respondent's employees used such heavy equipment as a boom truck and backhoe and skid steer. The work involved replacing railroad ties. 3. Nabisco-i-Respondent's work consisted of removing a wood floor in a factory, chipping up the existing grout, mov- ing it to a dumpster, and installing reinforcing and a new concrete floor. Patterson testified that such work was not Heavy and Highway work because it was performed in a building, and because the compressed air for the chipping hammers was supplied by the plant, and not by compressors brought in by Respondent. Limburg testified that his work at Nabisco involved con- crete work, and railroad siding repairs within the plant. He 378 DECISIONS OF THE NATIONAL LAljOR RELATIONS BOARD stated that Respondent rebuilt an unloading facility inside the plant. 4. FMC-Respondent removed existing concrete floors in a chemical factory. and installed new concrete floors as well as chemically resistant flooring systems. In addition, Lim- burg stated that Respondent excavated water lines outside the facility using a backhoe, and poured new concrete. Patterson testified that Respondent. has a maintenance contract in order to maintain the railroad sidings at FMC. 5. Rich Stadium-Respondent installed new membrane waterproofing inside a tunnel leading to the playing field. 6. Mentholatum Co.-Respondent repaired a window reo taining wall in the basement of a factory, which wall kept earth. from entering the basement window wells..Respondent poured concrete for the new. retaining wall. Respondent claims that since .this was building work, specifically work within a building, such work was not within the Heavy and Highway agreement. 7...Niagara.Mohawk-Respondenthad a contract to main- tain the railroad sidings at this company. Limburg stated that Respondent repaired derailments. and repaired a retaining wall. 8.. Buffalo News and OM plant-work was done on rail- road sidings in the factories. C. Testimony Concerning the Above Type afWork George Panepinto,..the president of. a company which is. a contractor perfonning Heavy and Highway work pursuant to the1Jnion's>contract. testifiedthat such.contract was. applied to the following work his company has performed: (a) reo filovalanclP0llring of cementfor concretefl0()fS and railroad sidings ~side .industrial plants.su~h work involving the use of harnrn(ITS atld other heavyequiprnent to break the. concrete out ofarailroad bed and PrePareitfornew concrete. Such work inv?lved the installation of drains (b) removal of corn- lll~rciaI pools involving the use of heavy. equipment to.break concrete and excavate for. the.ne\\i pool. Drainage systems are worked on in connection with such jobs (c) the removal of existing wood floors and preparing them for new concrete floors at Nabisco. Panepinto always applies the Heavy and Highway agree- ment to such work as replacing a floor in a factory, because the~oorsupports moving equipment that sen-ices the plant, and is in reality a roadbed. Panepinto stated that his company works within a plant where plant air is provided for his company's use, at which times he has an operating engineer stationed at the air hose and its valve, as a safety measure. In such cases where the engineer manned the valve, the Heavy and Highway contract has been applied to such work. Panepinto also testified that work on retaining walls usu- ally involves the employment of an operating engineer, and he would apply the Heavy and Highway contract to such work. Contractor Jerry Hill testified that his company is a signa- tory to the Heavy and Highway contract. He was not certain whether his company signed a building contract. Hill stated that, in his opinion, excavations. repair of floors, or other work done within a building are performed pursuant to the building agreement, and not the Heavy and Highway agree- menr. His company as not performed work on railroad siding which enters a building. Union Official Hopkins testified that if a contractor per- forms work on a railroad siding which leads into the entrance of a warehouse or facility, and the contractor works on the rall line inside the facility, the Heavy and Highway contract applies to that work. He also stated that demolition and con- struction of commercial pools is work within that contract. That contract would also apply to such concrete restoration work as the rebuilding of rallroad beds inside a building. Hopkins reasoned that the floor is not the structural founda- tion of the .building-e-it. is the railroad line-which is re- placed routinely, and not considered as a part of the building such as the structural walls or interior walls of the building. He also stated that although factory floors are located in the interior of buildings; nevertheless . Heavy and Highway con- tracts have .been .applied .for •years. to such floors. Hopkins further stated that the chipping away of a floor inside a facil- ity .and restoring that floor is done under the Heavy and Highway contract. Hopkins ncted.ihowever, that the building contract covers excavations of the foundationsor basements of building- steel and application ofnew products to build new buildings. In addition, the building contract would cover the situation where a new building is. being built. and. a new foundation is being poured. However, if foundation walls or floors had to be replaced, such work is Heavy and Highway work. Based upon the above, it is clear that Respondent's em- ployees performed bargaining unit work during the backpay period.. Thus, in the construction of the commercial wading pool involving gunite, employees performed unit work such as using heavy equipment to excavate the pool, using a back- hoe. and skid steer, and digging drains. It should also be noted that .one of the job. classifications set forth in article xxvn of the Heavy and Highway contract is the operator of a gunite machiner With respect to the Georgia Pacific job, the operation of a boom truck is also included within the contract. I accept Panepinto's testimony that he has applied the Heavy and Highway agreement to work performed by his company . which was similar to the work performed by Re- spondent during the backpay period. I cannot accept Hill's testimony concerning such work since his experience is more limited than Panepinto's, and he was not familiar with the building agreement. D. The Amounts Allegedly Owing to the Union's General Fund After the issuance of the compliance specification, 5-1/2 months, and about 1 month before the hearing here, the Gen- eral Counsel amended the specification to include amounts allegedly additionally owing to the Union's General Fund pursuant to "Article XVII, Jurisdictional Disputes" of the contract. That article sets forth in whole: 1. The parties hereto mutually agree that in the event of a jurisdictional dispute with any other Union or Unions, the dispute shall be submitted to the Inter- national Unions for settlement. Neither party shall order or permit any lockout, strike or other work stoppage or slowdown. Further, the Union will not aid, support, or permit unauthorized strikes, slowdowns, or work stop- pages by its members with respect to a jurisdictional dispute. PATIERSON·STEVENS, INC. 379 ORDER Total Including Delinquency $1,327.30 23,890.76 33,977.90 14,865.34 10,724.29 24,952.57 3,539.37 $113,277.54 EJWF Supplemental Fund Pension Fund Welfare Fund S.U.B. Fund Training Fund Central Pension Fund EJWF/PAP Grand Total including delinquency Mike Bower $7,678 Francesco Conidi 7,601 Vincent Conldl 6,935 Lanny Lhnburg 15,449 Michael Muscarella 58,454 Merle Schreckengost 35,242 Respondent shall make the following payments to the funds as set forth below, as more fully set forth in General Counsel's Exhibit 12(e), as an appendix to the compliance specification, as augmented by the payment of interest. Merryweather Optical Co., 240 NLRB 1213 (1979): The Respondent, Patterson-Stevens. Inc., Tonawanda, New York, its officers, agents, successors, and assigns, shall make whole the employees named below by paying them the amounts set forth opposite their names, plus interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), accrued to the date of payment, minus tax withhold- ing required by Federal and state laws: For the above reasons, article XVII is not applicable here. Accordingly, since any sums due the Union's General Fund are owing as a result of article XVII, I find that no sums are due the General Fund. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended- SIf no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 4G.C. Exh. 12. 2. The Employer shall assign work in accordance with the trade jurisdiction of the LU.O.E. decisions of record and international Union Agreements. In the event that work assignments are made contrary to the aforementioned principles and a contractor operates equipment covered by this Agreement without an engi- neer and/or apprentice engineer, then two (2) days' pay for each man that should have been required on the equipment shall be paid to the Engineers Local No. 17 General Fund every day said machine was operated. Under the formula set forth in paragraph 2, the General Counsel doubled the total amount allegedly owing to the Union's General Fund." I do not believe that article XVII is applicable to this proceeding. It is clear that article XVII applies only to jurisdictional disputes between the Union and one or more other labor or- ganizations. Its title labels it as relating to jurisdictional dis- putes. Paragraph 1 provides that in the event of such a dis- pute, the unions are to submit the issue to the International Unions for resolution. If paragraphs 1 and 2 are read to- gether, it may be interpreted as meaning that, following a settlement of an assignment of work by the unions, if the employer thereafter makes assignments contrary to the unions' resolution and the contractor operates equipment without an engineer present, then the 2·day penalty is ap- plied. Here, there is no jurisdictional dispute, and no award of work pursuant to such a dispute. The provision calling for the 2-day penalty would only be applicable if there has been an assignment of work pursuant to a jurisdictional dispute settlement and, if the contractor, regardless of such a settle- ment, assigns the work to another craft. If paragraph 2 is read separately to cover only the Em- ployer's assignments which should be made in accordance with the jurisdiction of the International Union, the article is similarly inapplicable to this proceeding. It is the General Counsel's argument that the employees at issue here are unit employees, operating engineers, under the Heavy and High- way agreement. Accordingly, by assigning work to them, Re- spondent assigned work to an engineer pursuant to article XVII.