Buffalo Bituminous, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1976

227 N.L.R.B. 99 (N.L.R.B. 1976)

BUFFALO BITUMINOUS, INC. 99
Buffalo Bituminous , Inc. and Local Union No. 49,
International Union of Operating Engineers, AFL-
CIO. Case 18-CA-4694 -
December 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER -
On March 31, 1976, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to- the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light, of the exceptions and brief
and has decided to affirm the rulings, fmdings,1 and
conclusions 2 of the Administrative Law Judge, as
modified herein, and to adopt his recommended
Order, as so modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Buffalo Bituminous, Inc., Buffalo, Minnesota,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
Substitute the following for paragraph 1(b): -
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act except
to the extent such rights may- be affected by lawful
agreements in accord with Section 8(a)(3) of the Act."
MEMBER WALTHER, dissenting:
I disagree with my colleagues' finding that Respon-
dent agreed to sign the collective-bargaining agree-
ment. In my -view this finding is contrary to the
evidence. Furthermore, I do not accept my col-
leagues' finding that Respondent bargained directly
1 The Respondent has excepted to certain credibility findings made by
the Admimstrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for modifying or reversing his
findings.
Contrary to our dissenting colleague , we are not persuaded that the
Administrative Law Judge 's credibility resolutions are inconsistent with "the
227 NLRB No. 20
with its employees in violation of Section 8(a)(5) of
the Act.
The record establishes that Respondent is not a
member of, nor represented by, the Associated
General Contractors of Minnesota (herein AGC), but
in recent years Respondent has separately adopted
and executed the, Highway, Railroad- and' Heavy
Construction agreement effective between Local 49
and AGC. On June 30, 1975, however, Respondent's
president, Hicks, notified Local 49 that Respondent
would conduct separate negotiations for a new
contract. Somewhat later, on July 17, Local 49 and
AGC completed negotiations for a new contract to
replace their previous contract.
Pursuant to Respondent's request, a luncheon
negotiation meeting was arranged for August 13,
1975, by Local 49's business - representative, Egan.
Hicks testified that at this meeting Respondent
insisted that it would have to be afforded a lower
wage scale in certain rural areas where Federal or
state wage determinations were lacking. Hicks further
testified that he insisted that Respondent would
accept Local 49's proffered 3-year contract, `viz the
Local 49-AGC 1975 agreement, only if such conces-
sions were made, since they were essential to Respon-
dent's economic survival. Hicks also testified that
Egan stated that Local 49 had -no objection to
Respondent's discussing contract proposals with its
employees in order to keep them abreast of develop-
ments in the negotiations.
Business Representative Egan on the other hand
testified that the Union adamantly refused to grant
the requested modification because a "most favored
nation" clause in the AGC agreement precluded such
a concession. In addition, Egan testified that at the
conclusion of the meeting Hicks agreed to sign an
agreement binding Respondent to the terms of the
Local 49-AGC contract. Further, Egan denied grant-
ing permission to Respondent to discuss contract
proposals with the employees.
The Administrative Law Judge credited Egan's
testimony and discredited Hicks' testimony merely
on the basis that he perceived Egan to be more
truthful. He did not, however, attempt to evaluate or
analyze the respective testimony in terms of the
rational probabilities. The exchange and interaction
between the parties to these negotiations as delin-
eated by the Administrative Law Judge's findings are
clear preponderance of all the relevant evidence " In these circumstances, no
valid basis exists for reversing his findings. -
2 We do not agree with the Administrative Law Judge's conclusion that
the character of the unfair labor practices found in this proceeding requires a
broad remedial order to fully effectuate the purposes of the Act. According-
ly, we have narrowed the scope of the recommended Order to provide that
the Respondent cease and desist from in any like or related manner
interfering with, restraining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extremely unrealistic and atypical of an ongoing
collective-bargaining relationship. Contrary to my
colleagues, therefore, I find the Administrative Law
Judge's findings and credibility resolutions to be
implausible.
I would dismiss the 8(a)(5) allegation herein on the
basis that the Administrative Law Judge failed to
consider and adequately analyze all the relevant
surrounding circumstances in making his credibility
determinations. Specifically, I find that the parties
never had a meeting of the minds on a contract.
There is no issue that for ' the first time in years
Respondent insisted upon separate negotiations in
order to obtain contract concessions deemed vital to
its continued existence. The Administrative Law
Judge and my colleagues, however, find and would
have us believe that after only a 2-1/2-hour casual
luncheon meeting, during which Local 49 refused to
agree to Respondent's requested contract modifica-
tions, Respondent immediately abandoned its posi-
tion that it must be afforded somewhat lower wage
rates in specified rural areas in order to be able to
continue to function at all.3 Such a prompt accep-
tance of the Local 49-AGC contract is clearly
inconsistent with the aims that Respondent sought to
achieve through separate negotiations. In light of its
allegedly precarious economic situation, it is highly
improbable that Respondent would so quickly forgo
its demands for special wage rate consideration in
rural areas. Moreover, that Respondent would at an
initial meeting accept the very contract terms it was
seeking to alter in the first separate negotiations it
had procured with Local 49 in several years goes
beyond the pale of belief.4
The Administrative Law Judge credited testimony
of Egan that Hicks, in a "side conversation," agreed
to sign the _ 1975 area contract which the Associated
General Contractors had consummated with Local
49. Egan acknowledged that a third individual, Junior
Kreps, was also present during the discussion and
should have heard the entire conversation. Rather
than supporting Egan's version of the discussion,
however, Kreps testified that "[w]e were at an
impasse getting no, place, and . . . I finally asked
Frank [Pendzimas, chief, spokesman for the Charging
Party], `Now what happens? We've fooled around all
this while and we haven't gotten to first base, so
where do we go from here? . . . Is there going to be a
strike?' " According to Kreps,5 Pendzimas replied,
"Strike is a dirty word. We just don't like to throw out
threats like that." Thus, Kreps' undenied testimony
seriously undermines Egan's assertion that Respon-
dent agreed to contract terms at this meeting.
Moreover, even accepting Egan's testimony as
truthful, Hicks' invitation, issued to Egan at the
luncheon meeting, to "stop by the office and we'll get
it done" indicates no more than a hope to reach
agreement. There is absolutely no clear testimony
that Hicks in fact unqualifiedly accepted all terms of
the AGC contract s
Thus, I would conclude that the preponderance of
the record evidence does not support a finding that
Respondent and Local 49 ever reached a meeting of
the minds concerning Respondent's acceptance or
execution of the Local 49-AGC 1975 area contract.
Accordingly, I would not find an 8(a)(5) violation
based on Respondent's failure to execute such alleged
agreement.
Further, I would find that Respondent's so-called
direct negotiations with its employees were nothing
more than a permissible information-giving session
with its employees designed to keep them informed
on negotiation progress. That Local 49 representa-
tives were present at such sessions undermines any
argument that Respondent sought to underhandedly
bargain with its employees directly. Therefore, I
would not find such conduct to be violative of Section
8(a)(5).
Accordingly, I would dismiss the complaint in its
entirety.
3 Respondent states that it found itself unable to compete in such areas
where no predetermined wage rates had been made applicable to its highway
projects by governmental agencies.
4 Egan, business representative of Local 49, arranged this initial meeting
at the request of Hicks , Respondent 's president. The latter wanted to meet
with representatives of the Operating Engineers , Teamsters , and Laborers.
This circumstance in my view suggests that Hicks viewed the initial meeting
(with all three unions) as exploratory
5 Pendzimas did not testify in this proceeding.
6 While it is the Board's policy, as enunciated in Standard Dry Wall
Products, Inc., 91 NLRB 544, to attach great weight to an Adnumstrative
Law Judge 's credibility findings insofar as such findings are based on
demeanor, to the extent that such findings are based on and conflict with
evidence and circumstances other than demeanor, as in the present case, a
reversal of the Administrative Law Judge 's findings is both legally proper
and in my view required. Canteen Corporation, 202 NLRB 767 (1973); Local
18 Bricklayers, Masons and Plasterers ' International Union ofAmerica, AFL-
CIO (Union County Building Contractors Association and The Johansen
Company) 159 NLRB 303, 306-309 (1966), Que Enterprises, Inc., 140 NLRB
1001 (1963) An additional factor detracting from Egan 's credibility, in my
view, is that Egan appears to have been unclear on the exact extent of his
own authority in dealing with Hicks . Thus, on cross-examination, he stated
first that his job was to get an acceptance agreement signed by Hicks
whereby the latter would agree to abide by the terms and conditions of the
1975 Local 49-AGC contract. Next, pressed to more carefully delineate his
authority he stated that he did have authority to negotiate a contract
"different from" the standard area contract. He conceded that he had never
exercised such authority other than in a "sickle and dime situation" that
might help bookkeeping . Ultimately, pressed as to whether it was not fair to
say that he could not negotiate a contract (essentially) different from the
standard Local 49-AGC contract without approval of Pendzimas, that
Union's financial secretary, Egan replied , "Yes, I think that would be fair to
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor
BUFFALO BITUMINOUS, INC.
Relations Act, as amended, was heard pursuant to due
notice on January 14, 1976, at Minneapolis, Minnesota.
The original charge was filed on August 26, 1975. The
amended charge was thereafter filed on August 28, 1975.
The complaint in this matter, was issued on October 29,
1975. The issues concern whether (1) Respondent has
engaged in threats violative of Section 8(a)(1) of the Act
and (2) Respondent has engaged in conduct violative of
Section 8(a)(5) and (1) of the Act by refusing to sign a
collective-bargaining agreement and by bargaining directly
and individually with employees.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel, Charging Party, and Respondent and have been
considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and admis-
sions therein.
The Respondent, Buffalo Bituminous, Inc., is, and has
been at all times material herein, a corporation duly
organized under, and existing by virtue of the laws of the
State of Minnesota . At all times material herein , Respon-
dent has maintained its principal office and place of
business in Buffalo , Minnesota . Respondent is, and has
been at all times material herein, engaged in the manufac-
ture, sale, and distribution of asphalt blacktop paving and
related products . The Respondent's Buffalo, Minnesota,
place of business is the only facility involved in this
proceeding.
During the year ending December 31, 1974, which period
is representative of its operations during all times material
hereto, Respondent, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered at its Buffalo, Minnesota, place of
business bituminous materials and other goods and materi-
als valued in excess of $50,000, of which, goods and
materials valued in excess of $50 ,000 were transported and
delivered to its place of business in Buffalo, Minnesota,
directly from points located outside the State of Minnesota.
As conceded by Respondent and based on the foregoing,
it is concluded and found that Respondent is, and has been
at all times material herein, an employer engaged in
commerce-within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 49, International Union of Operating
Engineers , AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
1 The facts are based on the pleadings and admissions therein unless
otherwise noted
2 The facts are based on a composite of the credited aspects of the
testimony of Jumor Kreps, Curtis Dmnick, and Willis Duuuck
101
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Facts t
1. Agency status
At all times material herein Darrell A. Hicks was
president of Respondent and has been and is now a
supervisor of Respondent within the meaning of Section
2(11) of the Act, and its agent.
Duinick Bros . & Gilchrist owns a half interest in
Respondent corporation.2 It appears that Curtis, Norm,
and Willis Duinick are brothers and have some ownership
and, managing interest in Duinick Bros. & Gilchrist. Willis
Duinick also serves as treasurer and Norm Duinick serves
as vice president of Respondent. The Duinick brothers and
Junior Kreps, general superintendent of Duinick Bros. &
Gilchrist, aid and assist Respondent, when needed in its
management and planning.
Duinick Bros. & Gilchrist appears to be engaged in the
same type or reasonably related type of work as Respon-
dent . Duinick Bros . & Gilchrist has a collective -bargaining
relationship with a union called The Christian Labor
Association. Such union appears to be a rival to the
International Operating Engineers Union.
2. Appropriate bargaining unit
All employees employed by Respondent who perform
operating engineer work as set forth and defined in the
agreement between Associated General Contractors of
Minnesota, Highway, Railroad and Heavy Construction
with International Union of Operating Engineers Local No.
49 for 1972, 1973, and 1974, excluding all other employees,
office clerical employees, professional employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
3. Collective-bargaining representative
At all times material herein, and continuing to date,
Local Union No. 49, International Union of Operating
Engineers, AFL-CIO, the Umon, has been and is now the
representative of the employees in the unit described above
for purposes of collective bargaining and, by virtue of
Section 9(a) of the Act, has been and'is now the exclusive
representative of all of the employees in said unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
4. Collective-bargaining history3
Respondent and Local 49 of the Operating Engineers
have had a collective-bargaining relationship going back
for at least 8 or 9 years preceding January 1976. The
practices with respect to collective bargaining and the
arrival at collective-bargaining agreements governing em-
ployer-union-employee relations may be summarized as
3 The facts are not disputed and are based on the credited aspects of the
testimony of Hicks and the exhibits in the record
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
follows. The Union and the AGC initially negotiated a
collective-bargaining agreement. Thereafter, the Respon-
dent executed a document entitled "Acceptance of Agree-
ment" wherein the Respondent agreed to abide by the
terms and conditions of such agreement.
The latest acceptance of agreement executed by the
Respondent was an agreement executed on February 26,
1973, and was as follows: 4
ACCEPTANCE OF AGREEMENT
DATE 2-26-73
The undersigned employer hereby agrees to abide by
the terms and conditions of the 1972-1973-1974 High-
way, Railroad and Heavy Construction Agreement
between the Highway and Heavy Construction Indus-
try of Minnesota and the International Union of
Operating Engineers, Local No. 49, on all work covered
by said agreement.
Receipt of a copy of the standard printed agreement is
hereby acknowledged.
COMPANY Buffalo Bituminous Inc.
BY Darrell E. Hicks
ADDRESS Box 126
CITY & STATE & ZIP Buffalo Min 55313
PHONE NO. 682-1271
In May 1975, representatives of Respondent and the
Union met and discussed the question of contract negotia-
tions. Hicks, Respondent's president, expressed dissatisfac-
tion with the results of past negotiations by the AGC, and
expressed a desire to have negotiations by a "Black Toppers
Association" with the Union. Egan, Local 49's representa-
tive, indicated that if there were a way to do this the Union
would be agreeable. Hicks stated that he would set up a
meeting for the "Black Toppers Association." Such a
meeting was set up and held in June 1975. At such meeting
it was decided that the "Black Toppers" would await the
outcome of the AGC and Local 49's negotiations.
On June 30, 1975, the Respondent sent a letter to the
following effect to the Local 49 of the Union: 6
Buffalo Bituminous Inc.
Buffalo, Minnesota
June 30, 1975
International Operating Engineermgs
2580 University Ave.
St. Paul , Minnesota 55114
Attn: Mr. Frank Pendzimas
Dear Sir:
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL NO.49.
/s/Frank Pendzimas
Business Manager
/s/Arthur Abbott
President
/s/Charles E. Swenson
Recording-Corresponding-Sec
/s/John Schoweller
Area Business Representative
RETURN TO: Int'l Union of Oper. Engineers, Local
No. 49, 2580 University Ave., St . Paul, Minnesota
55114
The referred-to collective-bargaining agreement was to
remain in effect until April 30, 1975, and was to be
automatically renewed unless proper notice of termination
or amendment was given 60 days prior to such expiration
date.
In February 1975, the Union, Local 49, notified Respon-
dent of its desire to open such contract for the negotiation
of new terms.5
4 Although the terminology of the agreement does not refer to the Union
as a party, places for signatures by representatives of the Union were
provided on the document. It is clear that the effect of the agreement was to
make the Union and Respondent parties to the AGC-Union contract
referred to therein.
5 The General Counsel alleges, Respondent admits in the pleadings, and I
conclude and find that commencing on or sometime prior to August 19,
1975, and continuing to date, the Union has requested and is requesting
We wish to notify you as of the above date that since
our company is not a member of any contractor
association bargaining with your organization, that this
constitutes formal notice to you that we will be
bargaining on our own behalf. We would invite you to
respond as to when the first meetings between Buffalo
Bituminous Inc. and Local 49 should be held.
Sincerely,
/s/ Darrell E. Hicks
Darrel E. Hicks, President
Buffalo Bituminous, Inc.
On July 17, 1975, Local 49 and the AGC completed
negotiations for a new contract. Later in July 1975, Egan,
business representative for Local 49, went to see Respon-
dent's president , Hicks. Hicks told Egan that he would like
a meeting with the union heads (representatives of the
Operating Engineers, Teamsters, and Laborers). Egan
agreed to set up such a meeting.? Thereafter, Egan arranged
for the requested meeting to be held on August 13, 1975. As
indicated later, a critical issue is whether Respondent, by
Hicks, agreed with Egan to accept the terms of the
previously negotiated AGC-Local 49 contract.
Respondent to bargain collectively with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment as the
exclusive collective-bargammg representative of all the employees of Re-
spondent in the unit described above.
6 Local 49 received such communication on July 3, 1975.
9 It appears that the Respondent desired to negotiate some terms that
were different from the current AGC/respective union contracts.
BUFFALO BITUMINOUS, INC. 103
B. The Refusal To Bargain
The General Counsel alleges and Respondent denies that
"Since on or about August 19,1975, and continuing to date,
the Respondent has refused and continues to refuse to sign
a written agreement with an April30, 1978, expiration date,
embodying rates of pay, wages, hours of employment and
other conditions of employment agreed upon between the
Respondent and the Union."
The critical issue as to whether the Respondent has
violated Section 8(a)(5) and (1) of the Act, as alleged, by
refusal to sign an agreement previously agreed to, depends
on the resolution of testimonial conflict between the
witnesses' testimony as to whether Respondent's president,
Hicks, agreed with Local 49's representative, Egan, on
August 13, 1975, to accept the terms of the aforesaid AGC-
Local 49 contract and to execute a document of acceptance
with respect to such contract.
The parties presented much testimonial detail as to what
occurred on August 13, 1975, at a luncheon meeting
scheduled for contractual discussions between Respondent,
Teamsters Union, and Local 49. This meeting was held at a
restaurant in Buffalo, Minnesota, known as Highway 55-
East. Those 'present for Respondent at such meeting were
President Hicks, Junior Kreps, and Curtis Duinick. Present
at such meeting for the Teamsters Union were Representa-
tives or Agents Van Lith and Esterly. Present for Local 49
of the Operating Engineers were Business Financial Secre-
tary Frank Pendzimas and Business Representative Egan.8
It is undisputed that the participants were present at the
restaurant for between 2 and 3-1/2 hours, that some of the
talk was normal socializing type talk, and that the major
and relevant talk concerning contractual discussions oc-
curred at the dining table. It is sufficient to say that the
dining table was round and of a size to normally accommo-
date six persons , and that, the table was located near a wall.
On this occasion seven persons were seated around the
table.
As to the discussion that occurred, it is clear that the
principal spokesman for the Respondent was Hicks. Pend-
zimas was the principal spokesman for Local 49.
The essence of Hicks' remarks and position as expressed
to the Unions was that Respondent was willing to go along
with the AGC-Local 49 -contract, recently negotiated,
except for the wage rates for a rural area, apparently Wright
County, where Respondent faced competition from con-
tractors who were not unionized. It appears that Hicks also
revealed that in such areas his concern for special rates
applied to jobs which did not have predetermined wage
rates.
Local 49's position as reflected by remarks by Pendzimas
may be summarized as being to the effect that the Union
could not deviate from its AGC-type contract because such
contract had a "most favored nation" clause. Pendzimas in
8 Although the facts reveal that Respondent was attempting to secure
from the Teamsters and from Local 49 in their respective collective-
bargaining contracts differences from AGC-type contracts, and, although
union representatives from the Teamsters and from Local 49 were present on
August 13 and on later dates when crucial events occurred, the issues as to
violative conduct are limited to Respondent's conduct as directed toward
Local 49 and employees represented by Local 49.
9 Although counsel made statements at the hearing that Pendzimas was
effect told Hicks that concessions to Respondent would not
really benefit Respondent because similar concessions
would have to be made to other AGC contractors and thus
Respondent would receive no competitive edge. Others,
including Kreps, made remarks from time to time. Kreps
indicated to Pendzimas - that the -"most favored nation"
clause was Local 49's problem. Pendzimas replied in effect
that such problem was now Respondent's problem. Pendzi-
mas also indicated that the problem of the nonunion
contractors' competition would be attacked by attempts to
organize such contractors. Pendzimas also indicated that
Respondent and the Union should work together through
the state legislature to get predetermined wages established
in the area.
Teamsters Representatives Van Lith and Esterly made
some remarks to the effect that-they were familiar with or
had some contracts that provided for special consideration.
The end result of Pendzimas' remarks, however, was to the
effect that Local 49 would not deviate from the AGC-Local
49 contract which had recently been negotiated.
Egan testified to the effect that at the end of the luncheon
meeting Hicks agreed to abide by the terms of the recently
negotiated AGC-Local 49 contract and told him (Egan) to
bring the acceptance document to him later for signing.
Hicks testified in denial that such separate conversation
occurred.
Van Lith and Esterly testified to the effect that they
observed Egan and Hicks engaged in separate conversation
but did not hear what was said. Kreps testified that
"separate conversations" did not take place and that he did
not hear Egan and Hicks engage in a conversation wherein
Hicks agreed to sign the AGC-Local 49 contract.,-Kreps'
testimony as a whole .reveals in effect that,there were some
"separate" conversations which took place during the
luncheon. Curtis Duinick testified tp the effect that there
were no separate conversations that took place and that he
did not hear Hicks tell Egan that he would sign the AGC-
Local 49 agreement. Pendzimas did not appear as a
witness.9
Much of the testimony of the witnesses was directed to
whether or not witnesses heard the conversation which
Egan testified occurred between him and Hicks at the end
of the luncheon meeting; whether there were separate
conversations; whether the individuals could break up_into
separate groups,,-the size of the dining table; whether Hicks
or Egan made later consistent or inconsistent statements as
to whether an agreement had been made; whether Hick's
drawing of a diagram for evidentiary use unconsciously
revealed that there were "separate" groupings; and whether
the meeting broke up on a happy or unhappy note.
Hicks and Egan also testified in some detail as to other
meetings that occurred between them on August 19 and
through August 22 and thereafter.
engaged in activities elsewhere , such statements are not evidence and do not
negate the consideration of Pendzimas ' absence as a witness . It is clear that
he is affiliated with a party of interest and in any event could have been
subpenaed. I have considered the failure of the General Counsel or the
Charging Party to present Pendzimas as a witness , but am persuaded from
the overall facts and testimonial demeanor of witnesses as of the crediting of
witnesses as indicated in this Decision.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have considered all of the evidence and all of the
testimony and demeanor appearances of the witnesses. I
find no value in and attribute no weight to the evidence
relating to a diagram by Hicks of the dining table and
seating order of participants as revealing a psychological
type of admission to the effect that the individuals were
seated or withdrew into smaller groups. The credited
testimony of Kreps convinces,me that there were, however,-
separate conversations that occurred between the various
individuals. I find no value and attribute no weight to the
testimony of Egan or other witnesses relating to statements
made by Egan after the luncheon meeting of August .13,
1975, to the effect that Hicks had agreed to accept the terms
of the AGC-Local 49 contract. I also find no value and
attribute no weight to the testimony of Hicks and other
witnesses relating to statements made by Hicks after the
luncheon meeting of August 13, 1975, to the effect that
Hicks and Egan had not agreed to a contract. Such
evidence is of a hearsay nature, is self-serving, and is
unreliable as proof of whether Hicks agreed or did not
agree to accept the terms of the AGC-Local 49 contract on
August 13, 1975. Such evidence, however, is properly
considered with respect to, and rebuts the evidentiary
contention that the initial unfair labor practice charge
reveals an inconsistency.10
Considering all of the foregoing, I find persuasive as to
the credibility of Hicks and Egan only a consideration of
the totality of Hicks' and _ Egan's testimony and their
demeanor while testifying. I am persuaded from such
consideration that Egan clearly appeared a more 'frank,
forthright, and truthful witness than Hicks in the testimony
relating to whether Egan, on August 19, 1975, agreed or did
not agree to allow Hicks to present his proposals to the
employees. I credit Egan's denial of such agreement. Hicks'
testimony also as to whether he negotiated directly with
employees on August 20 and 22 was particularly unimpres-
sive. I discredit Hicks' testimony to the effect that Egan
agreed that Hicks could talk to or negotiate with the
employees directly. I also discredit Hicks' testimony to the
effect that he did not negotiate directly with employees on
August 20 and 22, 1975.
Curtis Duinick also testified to the effect that Egan, on
August 20, 1975, before Respondent' s meeting with em-
ployees, told him that he was free to talk to "these men," to
go ahead and say anything he- wished. Egan testified in
denial that he had made such remarks to Duinick. Consid-
ering the demeanor of the witnesses and all the testimony, I
am persuaded that Egan appeared the more objective,
frank, and forthright witness on such point and credit his
testimony over that of Curtis Duinick.
1. The agreement
Considering all the above, I conclude and find that Egan
appeared as a more frank, forthright, and truthful witness
than did Hicks. Accordingly, I credit Egan's testimony to
10 Cf. Moran Oil Producing & Drilling Corp., 204 NLRB 773 (1973), a case
cited by the Charging Party in support of a contention that "consistent"
after-the-event statements constitute relevant and substantive evidence
Although the language in such case seems to indicate that the Administrative
Law Judge in said case considered such "consistent" statements relevant and
part of a chain of events on which he based his findings, I am not persuaded
the effect that Hicks, at the end of the August 13, 1975,
luncheon meeting, agreed to accept the terms of the
recently negotiated AGC-Local 49 contract containing an
expiration date of April 30, 1978.
2. The refusal to bargain
The facts are clear and undisputed that Egan on August
19, 1975, for Local 49, requested Hicks, for the Respondent,
to sign a document whereby the Respondent in effect
would be bound to honor and abide by the terms of an
agreement which had been negotiated by the Associated
General Contractors of Minnesota Highway, Railroad and
Heavy Construction and International Union of Operating
Engineers , Local No. 49 with terms thereof effective from
Monday July 14, 1975, through April 30, 1978.11
The facts are also clear and undisputed that Hicks, for
Respondent, on August 19,1975, and at all, times thereafter,
has refused to sign such an agreement or a document of
acceptance of terms thereof.
Considering the foregoing, it is clear and I conclude and
find that Respondent, by Hicks, on August 19, 1975, and
thereafter, has refused to signa written document as to a
collective-bargaining agreement previously agreed to, and
thereby has violated Section 8(a)(5) and (1) of the Act.
General Counsel alleges and Respondent denies that "On
or about August 20, 1975, and August 22, the Respondent,
by its President Darrell A. Hicks, at its Buffalo, Minnesota
place of business, bargained directly and individually with
employees in the unit described above in paragraph' 6,
concerning rates of pay, wages, hours of employment, and
other terms and conditions of employment."
Hicks and Egan testified with respect to a discussion on
August 19, 1975, wherein Egan had attempted to get Hicks
to sign an acceptance agreement for the AGC-Local 49
agreement. In such discussion, both Hicks and Egan
testified with respect to remarks made by Hicks as to his
desire to talk with or present proposals to the employees. It
suffices to say that Egan appeared to be the more credible
witness as to such conversation. I credit his testimony over
Hicks' where in conflict, and conclude and find that Egan
did not agree that Hicks could negotiate directly with the
employees, and Egan in fact told Hicks that it was improper
for him to negotiate with the employees. Hicks' testimony
in overall effect was ambiguous and appeared to be an
attempt to convey that he merely wanted to talk and to
report the bargaining and problems to employees, and to
convey that at the meetings on August 20 and 22, 1975, he
did not negotiate but merely reported the result of bargain-
ing positions and problems to employees. Hicks' testimony,
and the testimony of the other witnesses, clearly reveals that
on August 20 and 22, 1975, Hicks presented bargaining
that the issue of relevancy was presented , considered , or really passed on by
the Board. Such "consistent" statements as presented in this case are self-
serving and hearsay in nature and are admissible only when evidentiary
contentions of inconsistent statements or events have been raised
11 The same agreement previously agreed to by Hicks and in' the record of
this proceeding is referred to as G.C. Exh. 5
BUFFALO BITUMINOUS, INC. 405
proposals to the employees and in fact was engaged in
negotiations with the employees directly and individually.12
As previously indicated, Curtis Duinick testified to the
effect that Egan told him just prior to Respondent's August
20, 1975, meeting with employees that he could now go
ahead and say anything he wished to the employees. As
previously indicated, I credit Egan's denial that he made
such remarks to Duinick.
In sum, I credit Egan's testimony to the effect that he did
not agree with Respondent (with either Hicks or Duinick)
that Respondent could negotiate directly with the employ-
ees. I also credit Egan's testimony to the effect that he told
Hicks that it was improper -for Respondent to negotiate
with the employees.
Although some of-Hicks' testimony was to, the effect that
he did not negotiate with employees on August 20 and 22,
1975, Hicks' testimony otherwise and the testimony of
other witnesses make it clear and I conclude and find that
Respondent, by Hicks, on August 20, and 22, 1975, engaged
in negotiations directly and individually with employees.13
3. Conclusion
It is clear from the foregoing and I conclude and find that
Respondent, by Hicks, on August 20 and 22, 1975, engaged
in negotiations directly and individually with employees,
such negotiations were an attempt to bypass Respondent's
obligations to recognize and bargain with Local - 49 as the
exclusive collective-bargaining agent of such employees,
and such conduct was and is violative of Section 8(a)(5) and
(1) of the Act. It is so concluded and found.
August 22, 1975, made separate threats of cessation of
operations which are violative of Section 8(a)(1) of the Act.
It is sufficient to summarize the relevant facts to this issue
as follows. The facts are clear that Respondent was
concerned over its financial conditions, its profits had not
been as high during the preceding year as in the past, and
President Hicks adverted to Respondent's financial condi-
tions on August 22,. 1975. The facts are also clear that
Respondent, by Hicks, argued that it had a right to
negotiate a contract as an independent employer and that
Hicks argued the competitive disadvantage Respondent
faced in rural areas where many of the competing employ-
ers were not under contract with the Union and where "pre-
determined" wages were not in effect. The facts are clear
that the employees were aware and knowledgeable of the
foreseeable problems concerning competitive bidding in
such rural areas and the possible effect on loss of job
opportunity in such areas. During the discussions -Esterly, a
representative of the Teamsters Union, argued in effect to
Hicks that Respondent's problem might not be with, labor
but with the way Respondent managed its affairs.14 Hicks
responded by saying that this could be true, that he was
going to have some cost-accounting surveys made, that if he
found that part of the organization was not making money,
he might have to shut down a plant or shut down a paving
crew if it were not profitable. When Hicks told the
employees that unprofitable parts of the operation might be
eliminated, Hicks stated that this goes for "you and you
and you, too," and pointed to an employee named Phil
Ritze, a member of Local 49.15 -
The facts are also clear that Respondent has not had
"performance" surveys in the past.
C. The Alleged Threat of Cessation of Operations
The General Counsel alleges and Respondent denies that
"Since on or about August 22, 1975, and continuing to
date," Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and coercing its
employees in exercise of rights guaranteed-in Section 7 of
the Act, in that its president, Darrell A. Hicks, at its
Buffalo,- Minnesota, place of business, threatened employ-
ees that it would cease some of its operations if the
employees did not accept a I-year collective-bargaining
agreement.
On August 20 and 22, 1975, Respondent's officials met
with employees at a meeting in Respondent's shop at which
certain union representatives for the Teamsters Union and
Local 49 were present. It has already been concluded and
found that Respondent violated Section 8(a)(5) and (1) of
the Act by, at such time, bargaining directly and individual-
ly with employees and attempting to bypass said employ-
ees' exclusive collective-bargaining agent, Local 49. The
issue now presented is whether Respondent, by Hicks, on
12 The facts are clear that Hicks presented his proposals to a group of
employees and he engaged in some discussions thereto with specific
individual employees as to terms of the agreement , the length of the duration
of the agreement, and certain specific wages thereto. Although Egan, for
Local 49, was present at the August 20 and 22, 1975, meetings, Hicks had
only invited Egan to be present at a meeting on August 22, 1975. An
employee had called Egan and advised him of the setting of an employer-
employee meeting on August 20, 1975.
13 I discredit the testimony of any witness inconsistent with the facts
found.
Contentions and Conclusions
General Counsel contends that President Hicks' remarks
relating to a possible cutback or cessation of operations
accompanied by the singling out of employees in relation
thereto, in the context of Respondent's unlawful direct
negotiations with employees, constitute a separate threat of
reprisal in violation of Section $(a)(1) of the Act. Respon-
dent contends in effect that such remarks were not violative
of Section 8(a)(1) of the Act, and that such remarks were
simply expressions of economic belief and argument.
Considering all of the foregoing, I conclude and find that
the General Counsel has not established that Respondent
made threats of economic reprisals. violative of Section
8(a)(l) of the Act . It is clear that. Respondent's direct
negotiation with employees in this case is violative of
Section 8(a)(5) and (1) of the Act. The presentation of
economic arguments directed to the employees as part of
such refusal-to-bargain conduct is clearly improper. Such
economic arguments, however, do - not rise above the
unlawful conduct of a refusal to bargain and constitute a
14 Considering the logical consistency of all of the evidence and the
testimony and demeanor of Hicks while testifying on this issue , I credit
Hicks' testunony to the effect that Esterly argued,the point as indicated. I
discredit any testimony inconsistent with the findings herein.
15 The facts are based on a composite of the credited aspects of the
testimony of Egan, Hicks, Scheubal , and Brown. I discredit the testimony of
any witness inconsistent with the facts found.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate threat of reprisal. It is clear that employees were
aware that the arguments made were economic arguments.
Especially is this so when the references to cost-accounting
surveys, possible cessation of operations, and possible
effect-on individuals were raised in response to a counter-
argument by a union representative. Accordingly, I
conclude and find that such conduct does not constitute
more than a derivative violation of Section S(a)(1) following
the basic 8(a)(5) violation already found, and does not
constitute a separate violation of Section 8(a)(1) of the Act
on its own accord. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to bargain collectively
with the Union, the exclusive collective-bargaining agent,
by (1) bargaining directly with individual employees and (2)
refusing to sign an agreed-to contract, it will be recom-
mended that Respondent be required to bargain collective-
ly with the Union, and be required to sign and execute a
written contract embodying the terms and conditions of the
agreed-to contract, and to make all employees covered by
such contract whole for any loss of wages or other benefits
resulting from Respondent's refusal to sign such contract
on August 19, 1975, with interest added in accord with Isis
Pltanbing & Heating Co., 138 NLRB 716 (1962).
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Buffalo Bituminous , Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 49, International Union of Operat-
ing Engineers , AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. The employees described in section III, A, 2, of this
Decision constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Local Union No. 49, International Union of Operat-
ing Engineers, AFL-CIO, has been at all times material
herein and is now the exclusive bargaining representative of
all the employees in the above-referred-to appropriate
collective-bargaining unit.
5. By refusing to bargain collectively with the Union,
described above, bargaining directly with individual em-
ployees, and refusing to sign an agreed-upon written
contract on August 19, 1975, and since, Respondent has
violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 16
The Respondent, Buffalo Bituminous , Inc., Buffalo,
Minnesota, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union No.
49, International Union of Operating Engineers, AFL-
CIO, by bargaining directly with individual employees and
by refusing to sign agreed-upon written contracts, or by in
any other manner refusing to bargain with said Union.
(b) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful agree-
ments in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, meet with and bargain collectively with
Local Union No. 49 , International Union of Operating
Engineers, AFL-CIO, as the exclusive collective-bargain-
ing representative of all the employees in the appropriate
bargaining unit , below, and, if an understanding is reached,
embody such understanding in a signed agreement. The
appropriate collective-bargaining unit is:
All employees employed by Respondent who per-
form operating engineer work as set forth and defined
in the agreement between Associated General Contrac-
tors of Minnesota , Highway, Railroad and Heavy
Construction with International Union of Operating
Engineers Local No. 49 for 1972, 1973, 1974, excluding
all other employees, office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
(b) If the said Union so requests, sign the collective-
bargaining agreement , or document of acceptance thereof,
previously agreed to by the parties on August 13, 1975.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its
Rules and Reg ulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed
conclusions, and recommended Order herein shall, as provided in Sec 102.48 waived for all purposes.
BUFFALO BITUMINOUS, INC. 107
(c) Make whole all employees for any loss of wages or
other benefits, with interest added thereto, resulting from
its refusal to sign said collective-bargaining agreement on
August 19, 1975.
(d) Post at Respondent's plant at Buffalo, Minnesota,
copies of the attached notice marked "Appendix." 17 Copies
of said notice, on forms provided by the Regional Director
for Region 18, after being duly signed by Respondent's
representatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
17 In the event the Board's Order is enforced by a Judgment of the' United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet with and bargain
collectively with Local Union No. 49, International
Union of Operating- Engineers, AFL-CIO, as the
exclusive collective-bargaining representative of all the
employees in the appropriate bargaining unit, below,
and if an understanding is reached, embody such
understanding in a signed agreement . The appropriate
collective-bargaining unit is:
All employees employed by the Respondent
who perform operating engineer work as set forth
and defined in the agreement between Associated
General Contractors of Minnesota, Highway,
Railroad and Heavy Construction with Interna-
tional Union of-Operating Engineers Local No. 49
for 1972, 1973, 1974, excluding all other employ-
ees, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act.
If Local Union No. 49, International Union of
Operating Engineers, AFL-CIO, so requests, WE WILL
sign the collective-bargaining agreement, or a document
of acceptance thereof, previously agreed to on August
13, 1975.
WE wiLL make whole all employees for any loss of
wages or other benefits, with interest at the rate of 6
percent per annum added thereto, resulting from our
refusal to sign said collective-bargaining agreement on
August 19, 1975.
WE WILL NOT refuse to bargain collectively with
Local Union No. 49, International Union of Operating
Engineers , AFL-CIO, by bargaining directly with
individual employees and by refusing to sign agreed-
upon written contracts, or by in any other manner
refusing to bargain with said union concerning employ-
ees in the appropriate collective-bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed- in Section 7 of the Act except to
the extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
BUFFALO BITUMINOUS, INC.