Interstate Material Corp.

362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Interstate Material Corporation and Local 786, Building Material, Lumber, Box Shaving, Roof- ing and Insulating, Chauffeurs, Teamsters, Warehousemen and Helpers, and Related Indus- try Employees, Watchmen and Security Guards Union, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO' and Allied Workers Union Local 101, Party to the Con- tract. Case 13-CA-25946 July 29, 1988 ' DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On May 28, 1987, Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief,2 and the General Counsel filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions and to adopt the recommended Order. ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties a The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January I , 1987, shall be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amend- ment to 26 U.S.C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). We agree with the judge's finding that the Respondent violated Sec. 8(a)(3) by failing and refusing to recall certain employees from layoff. In so doing we find that the General Counsel established a prima facie case and the Respondent failed to demonstrate that its refusal to recall would have occurred absent its desire to rid itself of Local 786 and perfect its relationship with Local 101 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 ( 1st Cir. 1981), cert denied 455 U S. 989 (1982) (approved in NLRB v. Transportation Management Corp. 462 U.S 393 (1983)). However, in so finding, we do not rely on comments made by Rufus Cook, the Respondent's chief executive officer and counsel , during his cross-examination of one of the Respondent 's employee/drivers. Also, although we agree with the judge that the Respondent violated Sec. 8(a)(2) of the Act, we do not rely on the judge's discussion and ra- tionale concerning the dues authorization cards . It is well established that the Act is violated where an employer recognizes and contracts with one union as its employees' exclusive bargaining representative at a time when the employer and another union are bound by a current contract that recognizes that union as the exclusive bargaining representative of the same employees and thereafter fails and refuses to recognize the latter union and to honor its contract Ana Colon, Inc, 266 NLRB 611 (1983). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Interstate Material Corporation, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Here, the Respondent recognized and contracted with Allied Workers Union Local 101, although bound to a current contract with Local 786 concerning the Respondent's same group of employees. We find, there- fore, that by these acts the Respondent violated Sec 8(a)(2). Sheryl A. Sternberg and Steven L. Sokolow, Esqs., for the General Counsel. Rufus Cook and Barbara J. Revak, Esqs ., for the Re- spondent. Leonard Samuels Sr., president, and Alvester Samuels, sec- retary-treasurer, for Allied Workers Union Local 101. DECISION CLAUDE R. WOLFE, Administrative Law Judge. This proceeding was litigated before me at Chicago, Illinois, on 26, 27, 28, and 29 January 1987 pursuant to charges filed by Local 786, Building Material, Lumber, Box, Shaving, Roofing and Insulating, Chauffeurs, Teamsters, Warehousemen and Helpers and Related Industry Em- ployees, Watchmen and Security Guards Union, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 786) and complaint and amended complaint issued on 26 June and 30 July 1986, respectively . It is alleged that Interstate Material Corporation (Respondent) violat- ed Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act (the Act). Respondent denies the commis- sion of unfair labor practices. On the entire record,' and the comparative testimonial demeanor of the witnesses testifying before me, and after considering the arguments of the parties during trial and in their posttrial briefs, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION The complaint as amended alleges, Respondent admits, and I find that at all times material to this proceeding, Respondent, a coporation with offices and places of busi- ness at 1432 West 32d Street and 9050 South Green Street, Chicago, Illinois, until in or around January 1986, and thereafter at 4000 South Cicero Street and 2604 West Fulton Street , Chicago, Illinois, has been engaged in the business of supplying construction materials, in- cluding ready-mix concrete, to contractors, and during the past calendar and/or fiscal year, a representative i On April 27, 1987, my Order to Show Cause why the record should not be corrected in numerous respects issued The General Counsel filed a motion to correct the transcript on 21 April 1987 No response to my Order has been received , nor has any objection to the General Counsel's motion been received Accordingly, the official record is corrected in the particulars set forth in the Order and motion 290 NLRB No. 47 INTERSTATE MATERIAL CORP. period, in the course and conduct of these business oper- ations, purchased and received at its Chicago, Illinois fa- cilities products, goods, and materials valued in excess of $50,000 from other enterprises located within the State of Illinois, each of which other enterprises had received the products, goods, and materials directly from points outside the State of Illinois and sold goods and services valued in excess of $50,000 to enterprises located in Illi- nois, which enterprises were themselves engaged in com- merce and satisfied the Board 's standards for assertion of jurisdiction other than the indirect inflow and indirect outflow standards . On these facts, I conclude and find, as Respondent admits, that Respondent is now , and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Local 786 and Allied Workers Union, Local 101 (Local 101) are now, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. III. SUPERVISORS AND AGENTS Rufus Cook and Renee Bradford, Respondent's presi- dent and vice president, are conceded by Respondent to be its agents. Respondent further agrees that Andre Duncan was its director of operations and a statutory su- pervisor from 29 July 1985 until 20 February 1986, and that Walter Mays was a statutory supervisor until 24 May 1986. Respondent denies responsibility for any state- ments made by Duncan or Mays relevant to the matters before me. The statements and conduct of an employer's supervisors are attributable to the employer,2 and there is no evidence Respondent advised its employees that it was disavowing any statements or conduct of Duncan or Mays. The statements and conduct of Duncan and Mays referred to in this decision are therefore attributable to Respondent. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Complaint Allegations 1. Respondent violated Section 8(a)(3) and (1) of the Act by laying off or discharging employees represented by Local 786 at its 32d Street and Green Street facilities; by ceasing operations at these facilities and transferring work performed by these employees to its Cicero Street and Fulton Street facilities; and by failing and refusing to recall or reinstate the employees, all because the employ- ees engaged in statutorily protected activities and in order to discourage such activities. 2. Respondent violated Section 8(a)(5) and (1) of the Act by denying Local 786 requests to bargain and with- drawing recognition from Local 786 since on or about 12 February 1986; and, by Andre Duncan, bypassing Local 786 and, on or about 8 April 1986, bargaining directly 2 See, e.g., NLRB v. Elliott- Williams Co, 345 F 2d 460 (7th Cir 1965), enfg 143 NLRB 811 (1963). 363 with employees concerning recall, transfers, wages, and other terms and conditions of employment. 3. Respondent violated Section 8(a)(2) and (1) by rec- ognizing and entering into a contract with Local 101 as the bargaining representative of Respondent's employees at a time when Local 101 did not represent a majority of the employees. B. Preliminary Findings Respondent is a minority business enterprise engaged in supplying ready-mix concrete to various projects con- ducted by agencies of the State of Illinois or the city of Chicago. Commencing in 1983, Respondent operated its business from leased premises at 1432 West 32d Street and 9050 South Green Street, Chicago, Illinois. The State of Illinois and the city of Chicago questioned Re- spondent's minority status because Respondent was leas- ing its trucks and equipment, as well as the above prem- ises, from Prairie Material Sales, Inc. (Prairie) and also obtained its rock, sand, and cement from Prairie. In the opinion of the governmental authorities concerned, this demonstrated Respondent's lack of independence. To meet these concerns, Respondent commenced a search for different premises on which to conduct its business and contracted in August 1985 to purchase 11 trucks from Prairie. These trucks were subsequently delivered to Respondent in late September or early October 1985. Respondent then secured new premises at 2604 West Fulton Street, effective 1 January 1986, and at 4000 South Cicero, effective 1 February 1986, by leasing both locations from Cook Development Company, another business headed by Rufus Cook with corporate offices at 1331 South Michigan Avenue, Chicago. Cook Develop- ment leased the Fulton Street realty and purchased the ready-mix and related equipment there located from Co- lonial Brick Co. on 20 December 1985, and has purchase agreements with third parties on both locations. The move to a new quarters was not inspired by antiunion considerations, but resulted from lawful economic con- siderations unrelated to questions of union representation, and did not violate the Act as the complaint alleges. On 26 November 1985, Local 786 filed a petitions with the Board's Region 13 requesting a representation election in a unit of Respondent's ready-mix truckdrivers. A hearing thereon opened on 12 December 1985. The representatives of Respondent and Local 786 present stipulated, subject to the agreement of Rufus Cook, Re- spondent's chief executive officer who was not present, that a representation election in a unit of all full-time and regular part-time ready-mix truckdrivers employed by Respondent at 1432 West 32d Street and 950 South Green Street, Chicago, Illinois, would be held on 10 Jan- uary 1986. The hearing was recessed to 18 December 1985 for the purpose of either obtaining the signature of Rufus Cook to a written election agreement or continu- ing with the hearing in the event no signature was forth- coming. Cook met with Board agent Daniel Murphy and Local 786 Business Agent Salvatore Badami at the Board's Chi- ' Case 13-RC-16800. 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cago Offices on 18 December 1985. There Cook and Badami signed a Stipulation for Certification Upon Con- sent Election that was recommended by Murphy and ap- proved by the Regional Director. The appropriate col- lective-bargaining unit set forth in the stipulation reads as follows: Included: All full-time and regular part-time redi- mix truckdrivers employed by the Employer at its facilities located at 1432 W. 32nd Street and 9050 S. Green, Chicago, 11. Excluded: All office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. Cook credibly testified that he was assured by Board agent Murphy that the bargaining unit description in the stipulation meant what it said. Salvatore Badami testified that the bargaining unit for the election was whatever was in the stipulation . Cook signed the stipulation. On the advice of Murphy and Badami that there would be no need for an election if Respondent entered into a col- lective-bargaining agreement with Local 786, Cook told Badami he would enter into such an agreement. Cook and Badami then proceeded , in different cars, to the of- fices of Local 786 where Badami introduced Cook to Walter Hoff, the president of Local 786. Cook gives the following account of what then transpired: We started talking . Mr. Hoff pulled out an agree- ment which was a pre-printed version of what is here as 1-2 and handed it to me and said , "This is the agreement, I understand that you are ready to sign it." And I said, "That's right, but let me look at it." And then I looked at it. It took me a few minutes to go over it. I asked him what happens, because I no- ticed that first paragraph there that says that the Northern Illinois Ready-Mix and Materials Associa- tion's Agreement. I asked him what happens if we are not a member of the association and we don't join, and thus as the time we sign it we are an inde- pendent. As he said, "Refer to the back of the agreement." [this referred to] Pages 10 and 11 with the provi- sions that are there under "Agreement for Adoption for Non-Association Employers." I had a copy of the stipulation with me, and I then looked at the stipulation and asked him what is the bargaining unit under this agreement... . Mr. Hoff said , "The bargaining unit is the plants that-and a non-association employer has at the time the agreement is signed ." I said, "Well, that's different from the bargaining unit if it's the associa- tion because it seems to be the entire association if you are a member of the association." He said, "Yes, that's right." I then told him that we were interested in the training program for bringing minorities into the in- dustry and so forth, and asked him about that and he said they were presently willing to do what was required to sign an agreement to enable us to get that. Q. Was there any other communications between the two of you? A. Not that I can recall, no. Q. At that point, you then signed the agreement? A. Yes. Q. After signing the agreement, did you leave the offices of Local 786? A. I did. I returned to my own office. Hoff denies any knowledge of the stipulation when he met with Cook on 18 December 1985. He does not di- rectly dispute Cook's version of their conversation, but states there was no discussion of what the bargaining unit at Interstate would be . Both men are credible. Hoffs narrow testimony that there was no discussion of what the bargaining unit at Interstate would be does not con- tradict Cook's broad testimony that Hoff told him the bargaining unit for a nonassociation employer was the plants the employer had at the time the agreement was signed . Here we have a question of perspective , and I am persuaded both men were testifyng to that which they honestly recalled. What probably happened is that Cook concluded , quite naturally I believe, that Hoff's com- ments on the bargaining unit were designed to convey this was Respondent's bargaining unit , but Hoff, also quite naturally, denies a specific reference to an "Inter- state" bargaining unit but not a general reference to bar- gaining units. There is no evidence Cook advised Hoff of Respondent's intention to move its operations to other locations, and I conclude he did not. The contract signed by Cook and Hoff on December was an agreement for adoption for nonassociation em- ployers of Local 786's 1 May 1983 through 30 April 1986 agreement with Northern Illinois Ready Mix and Materials Association with special grievance procedure and delinquent payments provisions for nonassociation employers. Although I am persuaded the parties under- stood their agreement covered Respondent's ready-mix drivers, which were the only employees it then had, the agreement lists ready-mix truck chauffeur; quarry or pit chauffeur; other truck chauffeur; laborer or other em- ployee operating fork lift or front end loader; chauffeur or laborer employed in yards, warehouse , or team track handling block, brick, and building materials; transit mix or hopper operator; and transit mix or hopper employer operating gasoline cranes loading or unloading materials as the classifications covered thereunder. That Respond- ent did not then employ some of these classifications does not alter the fact that the signed agreement is appli- cable to any employee working in those classifications.' • I refused to permit Respondent to question Hoff regarding the mean- ing of certain articles in the collective-bargaining agreement On reflec- tion, I conclude I made a good ruling but gave a bad reason The articles speak for themselves and Hons conjectures regarding their meaning would have no probative weight . I therefore conclude my ruling was correct INTERSTATE MATERIAL CORP. When the contract was signed , Respondent was en- gaged in supplying ready-mix concrete to A. N. Ebony Co., which has the same corporate address and regis- tered agent as Respondent and was then a subcontractor on a paving project at Chicago's O'Hare Airport. Re- spondent employed from 11 to 15 drivers , owned the same number of trucks, and utilized these trucks and drivers to pick up ready-mix from a supplier in Des Plaines, Illinois, and deliver it 'to A . N. Ebony at O'Hare. This work was suspended in late December 1985 when Andre Duncan,5 Respondent's director of op- erations and the direct supervisor of the drivers , called them all together and told them the work was being stopped because it was too cold to pour concrete. He further told them they would be called back and the work would resume in the spring when the weather warmed up. As previously noted, Respondent moved its operations to 2604 West Fulton and 4000 South Cicero effective 1 January and 1 February 1986, respectively. These newly obtained facilities required reconstruction for Respond- ent's purposes. To that end, Duncan offered Willie Hatter, Itiel Ammi (whose name was Donald Bolding at the time), Dennis Alford, and other drivers employment at lesser wages doing labor work readying the Cicero fa- cility for use. Ammi and Alford accepted the offer. Ammi worked until 24 January 1986 at $4.50 per hour. Alford worked until 7 March 1986 , apparently at the same wage. Throughout the winter , until Duncan left the position of director of operations in February and after he became the materials engineer , Duncan had several conversations with Ammi, Hatter , David Morgan, and David Canada where they inquired when the job would start up again and they would be recalled . He responded to these inquires with the assurance that they would be called back as soon as Renee Bradford, Respondent's vice president, authorized it. That Respondent consid- ered the laid-off drivers to be its laid-off employees and contemplated recalling them as late as 11 March 1986 is shown by the minutes of a staff meeting held by Repson- dent on that date and Duncan's credible explanatory tes- timony relating to that meeting . The minutes reflect that in discussing the status of Respondent 's drivers, the par- ticipants noted, "We have a roster of ten experienced drivers that have not been called in yet." Duncan, who was present at the meeting, explains that the "ten experi- enced drivers" referred to the drivers Respondent planned on returning to work from layoff, including Ammi, Hatter, David Morgan , David Canada, and Steve Canada. Moreover, Walter Mays told David Canada on several occasions in March 1986 that Canada would be recalled back to work as soon as the reconstruction of the Cicero plant was completed . Mays obviously consid- ered Canada to be a laid-off employee to be recalled. None of the drivers working for Respondent in 1985 were recalled to work as drivers in 1986 . The statements to employees by supervisors and management's discus- sion of their status on 11 March 1986 is sufficient to show the drivers were not permanently laid off in De- cember 1985, and did have a reasonable expectation of 4 Duncan was a believable witness whom I credit 365 recall when work resumed in 1986. Respondent proffers no persuasive reason for its failure to recall its "ten expe- rienced drivers" referred to in the March 1986 meeting. The statements of Cook6 during his cross-examination of David Canada, I of the experienced 10 illustrate that Re- spondent most likely had no legitimate reason not to recall the men. That Cook, Respondent's chief executive officer as well as its attorney , was totally unaware of the reason Canada was not recalled and therefore sought at hearing to develop Canada's prior employment history for the purpose of ascertaining the reason Respondent did not recall Canada strikes me as highly improbable, and indicates, in my opinion, an effort to construct a co- lorable reason where none exists . The failure to proffer a valid reason for not calling the laid -off drivers, combined with what appears to be an effort to construct a pretex- tual reason, warrants an inference that Respondent had no legitimate reason, and I draw that inference. Shortly after Respondent's acquisition of the new fa- cilities, Local 786, by letter of 11 February 1986, advised Respondent the existing agreement was terminated effec- tive 1 May 1986, and requested negotiation of a new The statements were- By Mr. [Cook] Q. Mr. Canada , you say that you worked for the Material Service before you went to work for interstate? A Yes Q. How long were you at Material Service? THE WITNESS: Approximatley six to seven years By Mr. [Cook] Q. And you left when, sir? A. 1983 Q. For what reason did you leave? A. I got fired By Mr. [Cook] Q. What were you fired for? SHERYL STERNBERG Objection. JUDGE WOLFE: Sustained. RUFUS CooK • It is certainly possibly. Judge. that the reason that the man was not rehired was not a union affiliation. but had something to do with his prior record I have no way of determining that without being able to question him. JUDGE Wot FE. Now, are you telling me that from finding out from him, whether or not he was ever fired, I can conclude from that that the company did not call him back for that reason? RUFUS COOK : I am not saying that- JUDGE WOLFE . I have to have some affirmative evidence in the company that that is the reason I don't understand here . All I am saying, I don't know from this, why he wasn't called back [at] this juncture. I don't know what reason the company will put forth but it seems to me that the reason that he was fired someplace else doesn't make any difference unless the company is prepared to show that he was, in fact, not called back because of that previous discharge. He could say, "Yes, I was fired." But the mere fact that he says he was doesn't mean that is the reason that he wasn't called back. I don't want to imply any recall rights I mean that he wasn't hired. Let me put it this way. RUFUS Coon : My point is this. I don't know this gentleman, I have never met him and I know nothing about his situation . However, if in fact, upon investigation, it is determined that the reason for which he was fired originally from Material Service, was also something that effected him at interstate and we would have a problem of proof es. tablishing why he was fired from Materials Service in the first place. In other words, we would have to call him back as our witness to simply establish why he was fired from Materials Service. [Emphasis added.] 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement to be effective 1 May 1986. The letter also asked Respondent to advise when negotiation meetings could be had. Cook testified that Respondent did not reply to the letter because when he read it he noted it was signed by Richard Lein, the secretary-treasurer of Local 786, who was not familiar with the facts of the stipulation or the agreement between the parties. Cook continues that he assumed Lein would learn from Hoff what the provisions of the agreement were and that the letter was inappropriate. Respondent recognized and entered into a collective- bargaining agreement with Local 101 on 2 April 1986 that covers "all individuals other than supervisory , cleri- cal and management employees" of Respondent, and contains union-security and checkoff provisions . Accord- ing to Cook, in late March he received a phone call from Local 101 officials requesting a meeting to discuss orga- nizing and representation. He agreed to meet with them. They then met on 2 April 1986. Cook requested evi- dence of their majority status . The union representatives said they had such evidence, but not with them, and asked for a recess to produce the evidence. Cook agreed. Later that day they met and, says Cook , presented him with authorizations signed that very day by a majority of Respondent's employees and designating Local 101 as their representative, whereupon Cook, on behalf of Re- spondent, entered into a collective-bargaining agreement with Local 101. Leonard Samuels, the president of Local 101, was one of those meeting with Respondent on 2 April 1986. He testified the cards were secured by his business agent, and he did not personally solicit them. Neither the business agent nor the employees alleged to have signed the authorizations testified . No other proof that the cards were signed by those whose names appear on them was adduced. The authorizations have therefore not been properly authenticated and are not probative evidence of representative status. Stop-N-Go Foods, 279 NLRB 777 (1986). During the hearing on 27 January 1987, Respondent, by its counsel Rufus Cook, offered the stipulation that the employees Respondent considered in the bargaining unit on 2 April 1986 were Mark Agic, John Weaver Jr., Robert Weaver, David Hole, John Ciciora, and Kenneth Rayon and explained that Stephen McIntire and Edward Cantrell were temporary employees brought to Chicago by John Weaver Sr., supervising consultant for Inter- state, and returned to their place of origin as soon as the work they were hired for was done . The General Coun- sel agreed with the stipulation and it was received. Re- spondent had previously tendered photocopies of six signed cards authorizing Local 101 to represent the signer. The cards dated 2 April 1986 bore the names of Cantrell, Rayon, McIntire, John P. Weaver II, and Wil- liam Thomas. The sixth card was dated 7 April 1986 and purportedly signed by Donald Brandy. Record summa- ries prepared by Respondent show that Brandy was not employed until 14 May 1986 and Thomas was first em- ployed on 5 May 1986. Thus neither was an employee on the dates they purportedly signed cards. Respondent does not contend they were in the bargaining unit on 2 April 1986, and they obviously were not. Excluding the cards of Brandy and Thomas, as well as those of McIn- tire and Cantrell, who were represented by Respondent to be temporary employees, the cards of Rayon and John P. Weaver II are all that remain as valid designations by unit employees. Two is clearly not a majority in a unit of six. On 28 January, Cook represented that his stipulation of the prior day was incorrect because McIntire, Can- trell, and Henry Little were also in the bargaining unit, thus expanding the unit to nine employees . In addition, Cook proffered a card purportedly signed by John Ci- ciora on 2 April 1986, and represented that it had just been furnished to Respondent by Local 101. Leonard Samuels, Local 101 's president, testified that he had, on the first day of the hearing, 26 January, delivered copies of authorization cards bearing the signatures of Cantrell, Rayon, McIntire, and John P. Weaver II to the General Counsel in response to a subpoena duces tecum requiring delivery of originals or copies of authorization cards or other evidence of majority support obtained by Local 101 from Respondent's employees. Samuels further testi- fied that when he arrived at the hearing he noted there was a card missing, but went ahead and gave the four to the General Counsel because that was all he had, but then, after the second day of trial, procured a copy of a card signed by Ciciora. The General Counsel objected to Respondent's withdrawal from its earlier stipulation re- garding unit composition and to any consideration of the card of Ciciora. Regarding unit composition, Cook's original position that Cantrell and McIntire were temporary was accom- panied by a convincing recitation of the reasons for their hire and the duration thereof. The United States Court of Appeals for the Seventh Circuit long ago held: [T]he rule, in our judgment, is this : In a real and le- gitimate controversy, a party should be left within the knot of his averments in pleadings and admis- sions in testimony, unless the Court can find an ab- solute demonstration from other evidence in the case, or from facts within judicial notice, like the laws of physics, etc., that under no circumstances could the averments and admissions be true.? The Board has also dealt with this problem, noting in Kroger Co., 211 NLRB 363, 364 (1974), "[I]t is generally accepted that a stipulation is conclusive on the party making it and prohibits any further dispute of the stipu- lated fact by that party or use of any evidence to dis- prove or contradict it." Cook's poststipulation effort to include Cantrell and McIntire in the unit for no reason other than asserted mistake , in the absence of any evi- dence that would convincingly demonstrate the stipula- tion is not or could not be true, is not persuasive. Ac- cordingly, I find and conclude the unit was as stipulated by Cook on 27 January. It necessarily follows that even if the cards of Rayon, John Weaver II, and Ciciora be 7 L P. Larson Jr. Ca Y. W. Wrigley Jr. Co., 253 F 2d 914, 918 (7th Cir 1918), cert. denied 248 U.S. 580 (1918); and see John McSain. Inc. v. United States, 375 F 2d 829, 831 (Ct Cl. 1967). where it states, "A stipu- lation is a judicial admission binding on the parties making it absent spe- cial considerations." No such "special considerations" are present in the instant case INTERSTATE MATERIAL CORP. counted, these are not a majority in a unit of six employ- ees. Parenthetically, I note that Respondent's possession of authorization assignments purportedly signed by Brandy and Thomas before they were employed does not inspire confidence in the validity of any of the au- thorizations. Moreover, I have concluded and find that the drivers laid off in December 1985 had been promised recall, were considered by Respondent to be its employ- ees on layoff as late as its managerial meeting in March 1986, had a reasonable expectancy of employment when the work recommenced in the spring of 1986, and were and are employees of Respondent awaiting recall on and after 2 April 1986. None of these laid-off employees au- thorized Local 101 to represent them so far as the record shows. Respondent's assertion in its 3 June 1986 letter to the Board, and in an attachment to its answer to the complaint, to the effect that Local 101 was a union whose orientation was predominantly black and was therefore the choice of the Cicero plant employees who were predominantly black, is not supported by Respond- ent's records and Respondent's testimony showing that although all of its drivers, with the possible exception of David Morgan, in December 1986 were black, of those employees contended by Respondent to constitute the bargaining unit on 2 April 1986, seven were white (Agic, John Weaver Jr., Robert Weaver, Hole, Ciciora, McIn- tire, and Cantrell), and only two were black (Rayon and Little). Respondent's misrepresentation of the racial makeup of the 2 April 1986 employee complement in order to support its recognition of Local 101 further erodes confidence in Respondent's bona fides. For all the reasons set forth above, I conclude Local 101 did not enjoy majority status on 2 April 1986. The first time that concrete was mixed and deposited into trucks at the Cicero plant for delivery was 4 April 1986. None of Respondent's employees who thereafter performed work covered by either labor agreement had been employees in 1985 . Respondent's reasons for prefer- ring the new employees and the new union over the old may be found in the statements of John P. Weaver Sr., a supervising consultant to Respondent who was clearly a supervisor and agent of Respondent when he made the statements. As related by Andre Duncan, during a staff meeting in early spring 1986 it was mentioned that an- other union was on the scene, and John P. Weaver com- mented that the people in this union could drive, do labor work, or do whatever else required and were not paid Teamsters wages . Weaver agrees that he spoke to Interstate personnel, including Duncan, about "the Allied Union" in mid-April after the Local 101 contract was signed, and expressed the view that connection with that union gave Respondent the flexibility of using employees for more than one task and benefited Respondent in other ways so as to give it a competitive edge. Both wit- nesses are credited, including those items mentioned by one but not the other. By telegram of 5 May 1986, Local 786, by President Hoff, sent Respondent a telegram reading as follows: Local Union 786 hereby demands that you immedi- ately recall all employees covered by our collective 367 bargaining agreement and schedule negotiations re- garding the successor agreement. By certified letters of 6 and 7 May 1986, Local 786, by Salvatore Badami, requested Respondent to schedule a labor management committee hearing on the grievances of Ammi and Hatter that asked for their recall to work and to make them whole for losses. On 12 May 1986, Respondent, by Vice President Renee Bradford , deliv- ered the following letter to Walter Hoff: It is the position of Interstate Material Corpora- tion that, pursuant to the collective-bargaining agreement between Interstate Material Corporation and Local #786 of the International Brotherhood of Teamsters, Interstate is under no obligation to bar- gain with Local #786 regarding facility locations other than those bargaining units covered by the agreement. In December of 1985, as an offshoot of a pro- posed consent election, both parties to this agree- ment stipulated that the bargaining units covered were Interstate's 1400 West 32nd Street and 9050 South Green Street locations. Unfortunately, as the result of long and complex litigation, Interstate has terminated all leases for the Green Street and 32nd Street locations. Due to the limitation on location which comprise the bargain- ing unit covered by the agreement with Local #786, the contract provisions from this agreement did not survive Interstate's relocation. Therefore, the seniority and lay-off provisions, as well as the agreement itself have no applicability to the new lo- cations. In reliance on the stipulation and agreement be- tween the parties, Interstate has, at the request of its employees, entered into a labor agreement with an- other union regarding the facilities at 4000 South Cicero and 2604 West Fulton , under that union's authority as exclusive bargaining representative for the employees within this separate and distinct bar- gaining unit. As you are aware, Interstate is a black- owned and operated minority enterprise, and its em- ployees have chosen to be represented by a union whose membership, leadership and orientation are predominantly black. Being mindful of the require- ments of the City of Chicago that the work-force of minority companies be at least 51% black, the deci- sion made by our employees to affiliate with a black union has positive implications in terms of aiding Interstate's efforts to comply with the City require- ments. In any case, the choice of a union was solely up to our employees, and they made their choice. We appreciate the fine working relationship we have had with Local #786. Since we and a number of other minority businessmen are interested in ex- panding possible sources of financing for minority businesses, we would appreciate the opportunity to talk with the leadership of your union regarding possible pension fund loans. The lack of such loans, and the failure of predominantly white unions to ad- dress minority problems of this type, is one of the 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reasons why black unions with black orientation are considered desirable by employees such as ours. Again, we would welcome the opportunity to dis- cuss this aspect of the matter with you. Respondent then, on 20 May 1986, dispatched the fol- lowing letter to Salvatore Badami regarding the griev- ances: Pursuant to your written notice to Interstate, dated February 11, 1986, Local 786 terminated its collective bargaining agreement with Interstate, ef- fective May 1, 1986. As I explained in my May 12, 1986 letter to your president, Mr. Hoff, the plant locations covered by this agreement are no longer operated by Interstate. The bargaining unit covered by this agreement was, as stipulated, location-specific. Therefore the agree- ment, which was terminated at your request, is not subject to re-negotiation , and its provisions, includ- ing grievance procedures, are no longer in effect. Although these two men may have been covered by the expired contract, at no time did either of them approach their former supervisors or any other agent of Interstate prior to the April 30, 1986 contract termination date . The first occasion Inter- state had to become aware of the grievances was upon receipt of the written grievance reports, almost two weeks after expiration of the contract. As such, their grievances of May 6 and 7 are im- proper both in substance and procedure since there was no contract in effect at the time these were first brought to Interstate's attention. In sum, Mr. Badami, for the above-cited reasons it is our position that the Labor Management Com- mittee has no authority or jurisdiction to issue any decision binding on Interstate in this matter. Further, as you are well aware, the same issue re- garding the appropriate bargaining unit has been raised by yourself with the NLRB . It would seem reasonable on both of our parts to suspend action regarding a Committee hearing pending the deter- minaton by the NLRB. Hoff wrote to Respondent on 1 August 1986 as fol- lows: Enclosed you will find the current "Ready Mix Material" contract, in duplicate. On Page 11- Agreement of Adoption for Non-Association Em- ployer, please fill in the exact name of your compa- ny and the addrees , date and sign both contracts, in- dicating the title of the person signing. Please return the two signed contracts to us for my signature and I will sign them and return one for your files. The record contains no evidence of any further com- munications between Local 786 and Respondent. C. Concluding Findings The collective-bargaining agreement signed by Cook and Hoff on 18 December 1985 did not expire on its terms until 30 April 1986. During that period Local 786 enjoyed an irrebuttable presumption of majority status in the unit of employees covered by that agreement,8 and a rebuttable presumption thereafter. 9 The presumption continues unrebutted by the evidence before me. Cook, an attorney, examined the agreement before he signed it. As he notes, "It took me a few minutes to go over it." How minutely he examined the document is a matter of speculation, but he raised no question regarding the job classifications covered . This is perhaps understandable because it appears that the only employees Respondent had at the time were drivers inasmuch as it purchased its cement from other employees who delivered it directly to the ready-mix trucks owned by Respondent and from here it was dispensed to A. N. Ebony employees. There is, however, no indication that Hoff made any effort to mislead Cook regarding the type of employees to be cov- ered by the agreement, or that Cook had any objection to the job classification so covered. Respondent's conten- tion is quite different . Simply put, Respondent asserts the unit set forth in the Stipulation for Certification Upon Consent Election was confined to the 32d Street and South Green Street locations, and therefore limited the application of the signed collective-bargaining agreement to those locations. Respondent's contention is based on an erroneous con- clusion that the stipulation and the collective-bargaining agreement with Local 786 are an integrated agreement. Contrary to Repsondent's posttrial brief, neither the exe- cution of nor Regional Director's approval of the stipula- tion means that "Local 786 is certified by NLRB as the collective bargaining agent for `all full time and regular part-time red[i]-mix truck drivers employed by employer at its facilities located at 1432 West 32nd Street and 9050 South Green, Chicago, Illinois." The stipulation on its face is simply a stipulated agreement by the parties there- to to proceed to a secret -ballot election among Respond- ent's employees in an agreed-on unit at an agreed-on time and place for the purpose of determining whether a majority of those employees wanted to be represented by Local 786 for purposes of collective bargaining. The Board issues no certification of representation unless the union party to such a stipulation receives a majority of the valid votes cast by the unit employees in the election provided for in the stipulation . In short, without a union election victory there is no union certification by the Board. The Board agent truthfully advised Cook of an option available to him , and Cook, on behalf of Respond- ent, elected to recognize Local 786 rather than to utilize the Board's election processes . When he did so, no ques- tion concerning representation remained to be resolved by the election, which was the purpose of the stipulation. The stipulation was therefore rendered a nullity with no legal force or effect. The correct advice given to Cook by Board Agent Murphy, with which Badami agreed, that the bargaining unit in the stipulation meant what it said cannot be construed as either an agreement by the parties or Board assurance that the unit stipulated for purposes of a Board-conducted election would control 8 See, e g , BASF- Wyandotte Corp., 276 NLRB 498, 504 (1985) 9 Burger Pits. Inc, 273 NLRB 1001 (1984) INTERSTATE MATERIAL CORP. the composition of an employee unit in a collective-bar- gaining agreement voluntarily entered into in lieu of uti- lizing the Board's election processes . Moreover, neither the comments about the stipulation unit by Murphy and Badami, nor the discussion between Hoff and Cook re- garding the coverage of the collective-bargaining agree- ment are sufficient to vary or contradict the content of the written and signed contract between Respondent and Local 786. There is no persuasive evidence that agree- ment is not complete and accurate on its face, and exami- nation of the document reveals no ambiguities or other basis to warrant the use of oral testimony to explain its clear terms. The well-established rule that all prior oral understandings on the agreement are presumed to be merged in the final written agreement of the parties1' is clearly applicable to the instant case . I therefore find that the collective-bargaining agreement Respondent execut- ed with Local 786 on 18 December 1985 accurately and completely sets forth the agreements of the parties re- garding all items, including the job classifications of em- ployees covered, contained therein . I further specifically find there was no agreement to limit the coverage of the contract, which contains no limitation of the bargaining unit to specific locations, to Respondent's employees lo- cated at 1432 West 32d Street and 9050 South Green Street. t' The absence of geographical limitation does not com- pletely answer the question of the contract's applicablity to new locations, specifically the Cicero facility where Respondent's ready-mix operation is now in progress.' a The applicable rule in relocation cases has been succinct- ly expressed in Westwood Import Co.,13 as follows: [A]n existing and effective collective-bargaining agreement remains in effect following a relocation, provided operations and equipment remain substan- tially the same at the new location , and a substantial percentage of the employees at the old plant trans- fer to the new location. The only real change in operations as a result of the re- location to the Cicero facility is that Respondent's em- ployees, rather than those of a supplier, now prepare and load the ready-mix into the trucks for delivery. There is no substantial change in either operations or equipment. The preparation and loading of cement at the abandoned facilities would not have changed the bargaining unit, and the performance of this work with the accompany- ing operation of the necessary equipment at the Cicero plant has no impact on the bargaining relationship. 14 Ready-mix trucks remain ready-mix trucks doing the same type work, and there simply is no showing of any substantial change in equipment. A substantial percentage 10 Petersen & Lytle, 60 NLRB 1070, 1071 In. 1 (1945). 11 The designation of these locations in the stipulation would not, even if relevant, confine recognition to those locations. Molded Acoustical Prod- ucts, 280 NLRB 1394 (1986 ). and cases cited is There is no indication in the record that any relevant operations are being conducted at the Fulton Street facility is 251 NLRB 1213, 1214 (1980), enfd. 681 F.2d 664 (9th Cir 1982). i4 Drukker Communications, 258 NLRB 734, 747 (1981); Paper Mfrs. Co., 274 NLRB 491 (198$), International Paper Co., 150 NLRB 1252, 1259 (1965) 369 of employees at the old facility obviously were not re- called to the Cicero facility. They did, however, remain employees of Respondent with a reasonable expectancy of recall, and have never, as far as the record shows, been told by Respondent they are no longer its employ- ees. They continue to be employees on layoff and the re- fusal to recall them is alleged to be an unfair labor prac- tice. Direct evidence of unlawful motivation is not to be found in this case. This is not surprising because such evidence is rarely available to the finder of fact who must therefore often rely on circumstantial evidence and legitimate inference from the record as a whole.15 The record does, I believe, reveal sufficient evidence to war- rant a finding the failure to recall was unlawfully moti- vated. As late as 11 March 1986 Respondent treated the laid- off drivers as employees awaiting recall. This is consist- ent with the repeated assurances by Duncan and Mays that recall would coincide with the resumption of con- crete delivery in the spring. Concrete delivery resumed on 4 April 1986. None of the laid-off drivers were re- called, instead Respondent initially utilized individuals as drivers who were hired to rehabilitate the facility, and then hired two new employees in April, 13 in May, 5 in June, 6 in July, 5 in August, 1 in September, and 2 in October 1986, but not one of its "ten experienced driv- ers" on layoff. Respondent does not begin to convincing- ly explain why this was so, nor what type of work those it did hire performed . Cook's comments during his exam- ination of Canada show a conscious effort by Respond- ent to find a pretextual reason for failure to recall him, and, as I have found, provide reason to infer the true reason was unlawful . The failure to proffer reasons for the failure to recall others also warrants an inference Re- spondent had no valid reason to so do. Some of these new hires were surely drivers, given the fact Respondent had 11 to 15 trucks and by its own count 9 employees, including batchman Agic, at most, and the further fact that the sale and delivery of ready-mix concrete was what the business was all about. Accordingly, I conclude there was work available for the laid-off men. Why then were they not recalled? Consideration of all the evidence in the light of logical probability and common sense leads me to the following conclusions. Cook well knew when he contracted with Local 786 that the Respondent was about to transfer its operations to other locations. He did not tell Hoff this because he erroneously believed a mere change of location would relieve Respondent of its bargaining obligation. When Local 786, by Lein, its secretary treasurer, requested negotiations in a letter of 11 February 1986, Respondent simply ignored it. I do not credit Cook's testimony that he did not reply because he assumed Hoff would tell Lein that the letter was inap- propriate. This explanation was not convincing when I heard it, and I think it more likely Cook had already de- cided, even though the drivers were still Respondent's employees, not to bargain further with Local 786. When Respondent elected to ignore the 11 February 1986 re- 'S See, e.g., Irwin County Electric Membership Cooperative, 247 NLRB 1357, 1363 ( 1980); Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Or 1966). 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quest to bargain, it refused to bargain in good faith as re- quired by the Act and therefore violated Section 8(a)(5) and (1) of the Act.16 What happened between 11 March 1986 and Respondent's recommencement of ready-mix delivery to cause "ten experienced drivers" on layoff not to be recalled or claimed as employees? The answer, I conclude is that Respondent, on being made aware of Local 10l's organizing efforts in March 1986 , as Cook testifies it did, and looking toward restarting its ready- mix operation in April , decided, for the reasons Weaver Sr. explained later in April , that Local 101 should be cul- tivated. To that end, Respondent invited Local 101 to meet and show their degree of employee support. When the Local 101 representatives showed up on 2 April, they had no evidence of support with them . After re- questing and receiving a recess, they apparently returned with authorization cards purporting to bear employee signatures. Strangely, the cards on which Respondent seeks to rely as a basis for recognition are dated that very day, which suggests Local 101 had no proof of em- ployee support prior to 2 April and gives rise to a suspi- cion that the completed cards came into being during the recess. Not one card has been shown to be signed by the person whose name it bears, and they are therefore in- valid as unauthenticated. Moreover, the purported execu- tion of authorization cards by Brandy and Thomas before they were employed is a further reason to suspect all the cards presented were invalid . The evidence dic- tates a conclusion that Respondent recognized and en- tered into a contract with Local 101, which included union-security and checkoff provisions, at a time Local 101 did not represent a majority of Respondent's em- ployees in a unit appropriate for collective bargaining, and at a time when Respondent had a collective -bargain- ing agreement with Local 786 covering those employees, and by so doing assisted Local 101 in violation of Sec- tion 8(a)(2) and (1) of the Act. Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961 ); Carbonex Coal Co., 262 NLRB 1306 (1982). Turning to the issue of failure to recall , it must first be noted that the absence of specific evidence of intent to discourage union membership does not mean no violation of Section 8(a)(3) of the Act can be found . As expressed by the Supreme Court of the United States in Radio Of- cers v. NLRB, 347 U.S, 17, 45 (1954): [A]n employer's protestation that did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such en- couragement or discouragement. Concluding that encouragement or discouragement will result, it is presumed that he intended such consequence. The Court further stated (at 51): Encouragement and discouragement are "subtle things" requiring "a high degree of introspective perception." Cf. NLRB v. Donnelly Garment Co., 330 U.S. 219, 231. Respondent, by assisting and thereby encouraging mem- bership in Local 101, discouraged membership in Local 786. This conduct, together with what I perceive to be an attempt to perfect its relationship with Local 101 and assure the absence of employment for Local 786 by hiring new employees and refusing to recall the laid-off Local 786 employees was, I conclude, designed to dis- courage membership in Local 786, a predictable result, as well as encourage membership in Local 101 . The refusal to recall therefore violated Section 8(a)(3) and (1) of the Act. The laid-off drivers remain Respondent's employees who should have been recalled to the Cicero plant. The Westwood Import requirement that a substantial percent- age of old plant employees transfer to the new plant would therefore have been met in the absence of Re- spondent's unfair labor practices. Accordingly, Local 786's collective-bargaining agreement was applicable to the Cicero facility, and Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act when it refused, by letters of 12 and 20 May 1986 as well as by its refusal to respond to Local 786's 11 February 1986 letter, to negotiate with Local 786. As the General Counsel concedes, there is no evidence Andre Duncan bargained directly with employees on or about 8 April 1986 as the complaint alleges. The error on the date is not significant if, as the General Counsel con- tends, Duncan bargained directly with employees in De- cember 1986 and February and March 1986.17 Duncan's responses to employee inquiries regarding the possible day they would be recalled were innocent, and so far as the record shows, truthful estimations bereft of any bar- gaining element . He neither did nor said anything with regard to transfers or "other terms and conditions of em- ployment" other than to advise them there was labor work available at less than the contract rate , but by so advising them, and by employing two at less than con- tract rates Duncan did , as Respondent's agent, engage in direct bargaining with the employees in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. Local 786 and Local 101 are labor organizations within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act: All full time and regular part time employees em- ployed by Respondent in the following work classi- fications: Ready Mix Truck Chauffeur; Quarry or Pit Chauffeur; Other Truck Chauffeur; Laborer or other employee operating Fork Lift or Front End Loader; Chauffeur or Laborer employed in yards, warehouse or team truck handling Block, Brick and Building materials; Transit Mix or Hopper Opera- 16 Hassell Maintenance Corp, 260 NLRB 1211, 1217 (1982). 1 7 See, e g, Om,co Plastics, 184 NLRB 767, 770 ( 1970). INTERSTATE MATERIAL CORP. tor; and Transit Mix or Hopper Employee operat- ing gasoline cranes loading or unloading materials. 4. Local 786 is the exclusive representative of the em- ployees in the unit described in paragraph 3, above, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing to bargain with and withdrawing recog- nition from Local 786, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By bypassing Local 786 and bargaining directly with employees regarding wages, Respondent violated Section 8(a)(5) and (1) of the Act. 7. By recognizing, bargaining with, and executing a collective-bargaining agreement covering the unit of em- ployees above described and containing a union-security clause with Local 101 notwithstanding the fact that Local 101 did not represent a majority of the employees and the employees were covered by a collective-bargain- ing agreement between Respondent and Local 786, Re- spondent assisted and supported Local 101 in violation of Section 8(a)(2) and (1) of the Act, thereby encouraging membership in Local 101 and discouraging membership in Local 786. 8. By failing and refusing to recall its laid-off drivers for the purpose of discouraging membership in Local 786, Respondent violated Section 8(a)(3) and (1) of the Act. 9. Respondent's layoff of drivers in December 1985 has not been shown by a preponderance of the credible evidence to be violative of the Act, nor has its transfer of unit work to different locations. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In addition to the usual cease-and-desist and notice- posting requirements, Respondent will be required to withdraw and withhold recognition of Local 101 as the collective-bargaining representative of its employees, and reimburse all former and present employees for dues, as- sessments, and other moneys, if any, paid by or withheld from them pursuant to the union-security and dues- checkoff provisions of the aforementioned collective-bar- gaining agreement, together with interest thereon. Verni- tron Electrical Components, 221 NLRB 464 (1975), enfd. 548 I=.2d 24 (1st Cit. 1977). Respondent shall be further ordered to meet and bar- gain with Local 786 on request, reducing any agreements reached to a signed document, and to reinstate and make those ready-mix drivers laid off in December 1985 whole for any loss of earnings suffered as a result of Respond- ent's unlawful failure and refusal to recall them, the backpay interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).18 18 See generally his Plumbing Co., 138 NLRB 716 (1962). 371 The visitatorial clause requested by the General Coun- sel appears unnecessary in the circumstances of this case. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed1e ORDER The Respondent, Interstate Material Corporation, Chi- cago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in Local 786, or any other labor organization, by failing and refusing to recall employees from layoff. (b) Assisting or contributing support to Local 101 by recognizing or bargaining with such labor organization as the exclusive representative of its employees for the purposes of collective bargaining unless and until Local 101 is certified by the Board as the collective-bargaining representative of the employees pursuant to Section 9(c) of the Act. (c) Maintaining or giving any force or effect to the collective-bargaining agreement between the Respondent and Local 101 effective 2 April 1986, or any extention or modification thereof; provided, however, that nothing in this Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits , terms, and conditions of employment that may have been estab- lished pursuant to the performance of that contract. (d) Withholding from the pay of any of its employees union dues or other union fees or assessments that have been deducted on account of any obligation of member- ship in Local 101, and paying to Local 101 any dues, fees, or assessments that have been deducted from the pay of its employees. (e) Refusing to bargain in good faith with Local 786 as the representative of its employees in the appropriate unit described above for the purpose of dealing with Re- spondent concering grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. (f) Bypassing Local 786 and bargaining directly with employee members of the unit represented by Local 786 regarding wages or other working conditions. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from Local 101 as the representative of its employees for the purpose of collective bargaining unless and until Local 101 is cer- tified by the Board as the collective-bargaining repre- sentative of the employees pursuant to Section 9(c) of the Act. 19 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Reimburse all former and present employees for all initiation fees, dues, assessments, and other moneys, if any, paid by or withheld from them on account of any obligation of membership in Local 101 in the manner provided in the remedy section of this decision. (c) On request, bargain with Local 786 as the exclusive representative of all employees in the unit described below with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a written, signed agreement: All full time and regular part time employees em- ployed by Respondent in the following work classi- fications: Ready Mix Truck Chauffeur; Quarry or Pit Chauffeur; Other Truck Chauffeur; Laborer or other employees operating Fork Lift or Front End Loader; Chauffeur or Laborer employed in yards, warehouse or team track handling Block , Brick and Building materials; Transit Mix or Hopper Opera- tor; and Transit Mix or Hopper Employee operat- ing gasoline cranes loading or unloading materials. (d) Offer in writing immediate employment , without prejudice to any seniority or other rights and privileges, to each of the ready-mix drivers of Respondent who were laid off in December 1985 and whom it could have employed but declined to employ on or about 4 April 1986 and thereafter, if necessary replacing employees who had not been employed by Respondent on 18 De- cember 1985 but who were hired by the Respondent after that date, such employment to be offered for the classifications, at the rates, and under the conditions pre- viously enjoyed by the laid -off drivers, and make the truckdrivers whole for any loss of pay they may have suffered by reason of Respondent's unlawful failure to recall them when ready-mix delivery resumed in April 1986. The backpay and interest thereon shall be comput- ed in the manner set forth in the remedy section of this decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of moneys due under the terms of this Order. (f) Post at is corporate offices at 1331 South Michigan Street, Chicago, Illinois, and its facilities at 4000 South Cicero Street and 2604 West Fulton Street, Chicago, Illi- nois, copies of the attached notice marked "Appen- dix."20 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted . Reasonable steps shall be taken by the 20 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relation-, Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local 786, Building Material, Lumber, Box Shaving, Roofing and Insulating, Chauffeurs, Teamsters, Warehousemen and Helpers, and Related Industry Employees, Watchmen and Security Guards Union, affiliated with the Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehou- semen and Helpers of America, AFL-CIO or any other labor organization by failing and refusing to recall em- ployees from layoff. WE WILL NOT assist or contribute support to Allied Workers Union Local 101 by recognizing or bargaining with that labor organization as the exclusive representa- tive of its employees for the purposes of collective bar- gaining unless and until Allied Workers Union Local 101 is certified by the Board as the collective-bargaining rep- resentative of the employees pursuant to Section 9(c) of the Act. WE WILL NOT give effect to our 2 April 1986 contract with Allied Workers Union Local 101 or to any renewal, extension, modification, or supplement thereof, but we are not authorized or required to withdraw or eliminate any wage rates or other benefits, terms, and conditions of employment that we have given to our employees under the contract. WE WILL NOT withhold from the pay of any of our employees union dues or other union fees or assessments that have been deducted on account of any obligation of membership in Allied Workers Union Local 101 and we will not pay to the Union, any dues, fees, or assessments that have been deducted from the pay of our employees. WE WILL NOT refuse to bargain in good faith with Local 786, Building Material, Lumber, Box Shaving, Roofing and Insulating, Chauffeurs, Teamsters, Ware- housemen and Helpers, and Related Industry Employees, Watchmen and Security Guards Union , affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the representative of our employees in an appropriate unit for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay , hours of em- ployment, or other conditions of work. WE WILL NOT bargain directly with employees in the unit represented by Local 786, Building Material, Lumber, Box Shaving, Roofing and Insulating, Chauf- feurs, Teamsters, Warehousemen and Helpers, and Relat- ed Industry Employees Watchmen and Security Guards Union, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of INTERSTATE MATERIAL CORP. America, AFL-CIO regarding wages or other working conditions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold all recognition from Allied Workers Union Local 101 as the representative of our employees for purposes of collective bargaining unless and until the Union is certified by the Board as the collective-bargaining representative of the employees pursuant to Section 9 (c) of the Act. WE WILL reimburse all our employees, former and present, for dues and other moneys unlawfully exacted from them under our contract with Allied Workers Union Local 101. WE WILL on request, bargain collectively with Local 786, Building Material, Lumber, Box Shaving, Roofing and Insulating, Chauffeurs, Teamsters, Warehousemen and Helpers, and Related Industry Employees, Watch- men and Security Guards Union, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representative of all the employ- ees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment , and, if an understanding is 373 reached, embody that understanding in a written, signed agreement. The bargaining unit is: All full time and regular part time employees em- ployed by us in the following work classifications: Ready Mix Truck Chauffeur; Quarry or Pit Chauf- feur; Other Truck Chauffeur; Laborer or other em- ployee operating Fork Lift or Front End Loader; Chauffeur or Laborer employed in yards, ware- house or team track handling Block, Brick and Building materials; Transit Mix or Hopper Opera- tor; and Transit Mix or Hopper Employee operating gasoline cranes loading or unloading materials. WE WILL offer reinstatement to our ready-mix driver employees who were laid off in December 1985, and whom we could have employed but declined to employ, if necessary replacing employees who had not been em- ployed by us on 18 December 1985, but who were hired by us after that date, such employment to be offered for the classifications, at the rates, and under the conditions pertaining to these ready-mix drivers on 18 December 1985, and WE WILL make them whole for wages lost as a result of our unlawful failure to recall them , with interest computed thereon. INTERSTATE MATERIAL CORPORATION