Machias Sand and Gravel Co.

National Labor Relations Board - Board Decisions

Oct 20, 1967

167 N.L.R.B. 944 (N.L.R.B. 1967)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mader Plastering Corp. d/b/a Machias Sand and
Gravel Co. and International Union of Operating
Engineers , Locals 17-17A-17B, AFL-CIO. Case
3-CA-3113
October 20, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On June 2, 1967, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as 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 Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Mader Plastering Corp.
d/b/a Machias Sand and Gravel Co., Buffalo, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
Delete paragraph 2(d) of the Trial Examiner's
Recommended Order and substitute in lieu thereof
the following:
"(d) Post at its plant in Machias, New York, cop-
ies of the attached notice marked "Appendix."
Copies of said notice, on forms provided by the Re-
gional Director for Region 3, after being signed by
an authorized representative of the Respondent,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner- This matter, a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was
heard at Buffalo, New York, on March 14 and 15, 1967,
with all parties participating pursuant to due notice upon
a complaint issued by the General Counsel on January
24, 1967,' alleging violations of Section 8(a)(1) and (3) of
the Act by Mader Plastering Corp. d/b/a Machias Sand
and Gravel Co., hereafter referred to as the Respond-
ent.
The complaint as amended at the hearing alleges, in
substance, that Respondent threatened reprisals against
employees because of their membership in or activities on
behalf of the Union and interrogated them concerning
their union activities in violation of Section 8(a)(1) of the
Act; and also discriminatorily discharged certain em-
ployees in violation of Section 8(a)(3) and (1) of the Act.
Respondent admitted certain allegations but denied the
commission of any unfair labor practices.
All parties were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument,
and to file briefs. The General Counsel and Respondent
filed briefs which have been duly considered. Upon the
entire record in the case, and from my observation of the
witnesses, I make the following.
FINDINGS OF FACT
1. COMMERCE
According to the pleadings and stipulations made at the
hearing, the Respondent, a New York corporation, at all
times material herein has maintained its principal office
and place of business in the city of Buffalo, State of New
York, where it is engaged primarily in performing plaster-
ing work on a subcontract basis. Since on or about Au-
gust 6, 1966,2 Respondent has owned a sand and gravel
pit in Machias, New York, where it operates a wash
plant, the only place of business involved herein. An-
nually, in the course and conduct of its business opera-
tions, Respondent purchased, transferred, and delivered
to its various New York State operations goods and
materials valued in excess of $50,000, which it received
from other enterprises, including, inter alia, Thruway
Builders Supplys, Inc., and Altenberg Brick Co., Inc.,
located in the State of New York, which enterprises had
received said goods and materials directly from States
other than New York. Respondent also annually per-
forms services valued in excess of $50,000 for John W.
Cowper Co., Inc., which is engaged in interstate com-
merce. The Respondent admits, and 1 find, at all times
material herein, that it has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
' Based on a charge filed on December 13, 1966 , by International
Union of Operating Engineers , Locals 17-17A-17B, AFL-CIO,
hereafter called the Union
2 All dates hereafter refer to the year 1966 unless otherwise noted
167 NLRB No. 133
MACHIAS SAND AND GRAVEL CO. 945
II. THE LABOR ORGANIZATION INVOLVED
At the hearing Respondent admitted , and I find, that at
all times material herein the Union has been a labor or-
ganization within the meaning of Section 2(5) of thN Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
In August, Respondent purchased the Machias Sand
and Gravel Co., the owner and operator of a gravel pit in
Machias, New York, and continued its operations under
the supervision of John Rakiecki as plant superintendent.
Rakiecki was a prior part owner of the pit and had
operated the plant since the preceding May. Herbert
Luksch, Respondent's financial adviser and accountant
whom Rakiecki recognized as his supervisor, exercised
general control of the plant, visiting it from one to three
times a week. Luksch, who had no experience in the busi-
ness , did not participate in its day-to-day operations, and
relied completely upon Rakiecki.
Pixley was hired on October 15 as a rock thrower. Oc-
casionally, he also drove truckloads of gravel from the
pond to the wash plant. Upon being hired he inquired of
Rakiecki whether the job was a year-round one and was
advised that it would be, operating the plant during the
summer and doing construction work on the plant during
the winter.
Rakiecki did not specifically deny the testimony of the
alleged discriminatees concerning their assertions that he
assured them of year-round employment. Moreover, he
admitted that he had discussions with them about the pos-
sibility of doing the following work on the plant: widening
and raising the top of the dump hopper, raising the top
shaker, installing a crusher under the hopper, installing a
Mason Screw, and, weather permitting, painting the
dragline and stockpiling gravel for the spring. He, how-
ever, denied that any definite plans were made concern-
ing these matters prior to November 30. I, accordingly,
conclude that the alleged discriminatees were given as-
surances by Rakiecki, either at the time they were hired or
during the course of their employment, that they had
year-round jobs.
B. The Hiring and Employment of the Alleged Dis-
criminatees
The complaint, as amended at the hearing, alleges that
three employees, Walter J. Lipka, Edwin Ponton, and
Richard Pixley, were discriminatorily discharged on
November 30.3 Respondent contends that they were laid
off because the advent of adverse winter weather made it
unfeasible to operate until the return of appropriate
weather.
Lipka was hired during the latter part of May as a
dragline (a scooping machine) operator to dig gravel from
Respondent's pond and stockpile it on the bank from
where it was eventually removed for washing to a nearby
wash plant. According to Lipka, he and other employees
were advised in September by Rakiecki that they would
be kept on all winter long because an expansion of the
plant was being planned and structual plant modifications
were being considered upon which the employees would
work. In another conversation, date unknown, Rakiecki
told him that he would be kept on to stockpile material for
the following spring.
Ponton began working in May for Respondent as a
truckdriver, loading trucks with washed gravel and then
trucking it to a stockpile area. He quit his job during the
latter part of the summer and was rehired about a month
later as a rock thrower (removing large rocks that piled up
on top of the hopper). He asserted that a few weeks after
starting to work, he informed Rakiecki that unless the job
was a year-round one he would look elsewhere for work,
and that Rakiecki assured him that during the summer he
would be running gravel and in the winter, if it became too
cold to operate the plant, he would be assigned to main-
tenance work, repairing trucks, and making plant alter-
ations to accommodate expected new equipment. During
the fall, Rakiecki again assured him that he would be em-
ployed all winter.
3 General Counsel 's unopposed motion was granted to delete the name
of employee Larry Larson from the complaint as a discriminatee . It is un-
disputed that each of these employees was hired by Rakiecki.
4 Rakiecki testified that Lipka inquired about operating the plant in the
C. The Union Activity of the Alleged Discriminatees
On November 14, Ponton , Pixley, and Larson met
with Lipka at his home to discuss possible unionization of
the plant . Lipka was designated as spokesman and
authorized to contact a union . On November 17, he con-
tacted Richard Chaffee , the Union 's business representa-
tive, and was advised to make sure that the employees
wanted a union . Following further discussions among the
aforesaid employees at Lipka's home , a meeting was ar-
ranged for November 29 at Lipka 's home , which was at-
tended by them and Chaffee . At that meeting the four em-
ployees signed union authorization cards.
D. The Layoffs
On November 30, Lipka, Ponton , and Pixley reported
for work at their usual starting time at 8 a.m . Shortly
thereafter , Lipka became ill and was driven home by
Rakiecki. During this trip , Lipka assertedly discussed
what work had to be done at the plant in the near future
and told Rakiecki if a period developed in which no work
could be done , he would accept a layoff slip.4
According to Rakiecki , shortly after his return to the
plant , Luksch made an appearance and instructed him to
close down the plant and lay off all the employees except
one for maintenance purposes because of the weather.
Rakiecki , thereupon , told employee Larson that he was
being laid off and to inform Ponton and Pixley to that ef-
fect . Ponton testified that while he was working with
Pixley in the pumping house extracting the torque con-
verter from the dragline , which had broken down , Larson
appeared and advised them that Rakiecki instructed him
to inform them that they had been laid off because the
Union was trying to come in . Pixley 's version of that con-
versation differed in that Larson stated that they were
being laid off because Rakiecki had found out that they
winter, and that he replied it depended upon the weather , which already
was turning bad, and that there was a possibility of a general layoff. Based
on the demeanor of the witnesses , the findings related above based on the
testimony of Lipka are credited
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had signed union authorization cards.5 Following their
conversation with Larson, Ponton and Pixley went to the
scale house where Rakiecki confirmed their layoff, and,
according to Pixley, said, "If you guys want to play that
way, that's the way it would have to be,"6 and added as
they were about to leave, "Well, go see your leader and
see what he has to say about this."7 Rakiecki also as-
serted that there was no discussion with the employees at
the time they were laid off as to when they would return
to the job. Shortly after this conversation between
Rakiecki and the employees, Pixley, Ponton, and Larson
visited Lipka at his home and advised him of their layoff.
The following day, Lipka visited the plant and asked
Rakiecki, "Why the sudden change," to which he replied,
"You know as well as I do." When Lipka remonstrated
that he was unable to follow him, Rakiecki stated, "Don't
stand there and play games with me. I haven't any time to
argue with you." At this point, Rakiecki became busy
serving customers, but returned shortly to the scale house
where Lipka was waiting for him and they resumed their
conversation with Lipka stating, "John, you seem to think
I know why we got laid off," to which Rakiecki replied,
"If you boys want to hire out for union scales, go across
the streets and hire out for work." Lipka thereupon
asked, "You mean to tell us because we signed union
cards that you laid us off? That sounds kind of foolish,"
and Rakiecki responded, "Yes, it does, doesn't it."9
Following Lipka's visit to the plant on December 1, the
alleged discriminatees, either alone or together, visited
the plant on several occasions. Thus, on or about
December 3, Lipka returned to the plant with Ponton and
Larson and they were greeted by Rakiecki, "Here comes
the politicians." As they were leaving, after Ponton
received his paycheck, Rakiecki said to him "It looks like
you're union boys now," to which Ponton replied "Yes it
seems so. It's not-likely to change either."10 Pixley
testified that he and P_nnton visited the plant about 2
weeks before Christmas, and while he was talking to em-
ployee Dave Ferris, who had been retained as a main-
tenance man, he overheard Rakiecki state that when the
Union comes into the plant, he could, if he wished, go
across the street" for 5 or 10 cents more an hour, and if
he had to he could close down the pit. Pixley returned to
the plant about the end of December and in a conversa-
tion with Rakiecki was asked why he had signed the
union card.12 When Pixley replied because he wanted to,
Rakiecki stated that he made a lot of trouble for the Com-
pany, and added, in effect, that they would be getting a
Christmas bonus if they hadn't brought the Union in.13
Sometime in January 1967 (following the filing of the un-
5 Respondent's objection to the admission of this testimony was over-
ruled Rakiecki admittedly dispatched Larson to inform Ponton and
Pixley of their layoff but denied stating that the Union had anything to do
with it. As noted, supra, Larson's alleged discriminatory discharge was
stricken from the complaint. He thereupon left the hearing room with the
alleged approval of the General Counsel Respondent thereafter objected
that he was deprived of an opportunity to call Larson as a witness regard-
ing his conversation with Rakiecki because of his unforeseen departure,
but, nevertheless, declined a proffered continuance to subpena Larson.
Even assuming the statements attributed to Larson by Ponton and Pixley
to have probative value as hearsay, if credited, I find in the circumstances
herein that General Counsel's failure to introduce corroborating evidence
of the message Larson was allegedly requested to convey, or to refute
Rakiecki's denial therein, precludes placing any reliance on the above-re-
lated testimony of Ponton and Pixley
0 Rakiecki did not specifically deny making this statement, and it is
credited
9 Although Rakiecki denied making any reference to Lipka as the
leader, it is not unreasonable to infer, and I find, that without identifying
Lipka as the leader, he made a veiled reference to him As appears, supra,
fair labor practice charge herein) Lipka again visited the
plant and in a conversation with Rakiecki was told that
business was good and the men would be returning to
work in a couple of weeks, and that they expected
delivery of the new equipment in approximately 2 weeks.
In February, Lipka returned to the plant, this time he was
advised by Rakiecki that delivery of the new equipment
had been delayed. According to Ponton (corroborated by
Pixley and denied by Rakiecki), he visited the plant early
in January 1967 and in an ensuing conversation with
Rakiecki was asked whether he was serious about bring-
ing in the Union. Upon being so assured, Rakiecki, in ef-
fect, stated that the Company did not want the Union,
that it could shut down, and that if the Union came in, the
Company had the option of going across the street and
hiring union labor.
The record also shows according to Rakiecki's
testimony that neither Respondent's dragline nor its wash
plant has been operated since November 20, except that
in December a small pile was run through its wash plant
for 2 hours, that Elmira Transit Mix, a neighborhood
competitor of Respondent, closed down on approximate-
ly November 20 because of the weather, and that Buffalo
Slag Co., 3 miles away, shut down about a week prior to
Elmira Transit. It also appears that employees Fred
Rakiecki (a brother of John) and Gerald Rubeck were laid
off a day or two after the alleged discriminatees, and that
employee Dave Ferris, allegedly a more competent em-
ployee than the others, remained on the job as a main-
tenance man and to load trucks out.
Conclusions
Respondent contends that the layoffs were dictated by
purely economic reasons because of adverse winter
weather, and that it was wholly unaware of the union ac-
tivity of its employees, General Counsel's assertions to
the contrary notwithstanding. Thus, in order to prevail,
General Counsel must establish Respondent's dis-
criminatory motivation for the layoffs and its knowledge
of the union activities or interests of the involved em-
ployees. The credited testimony of the alleged dis-
criminatees concerning their conversations with Rakiecki
following their layoffs establishes that Respondent was
motivated to lay them off because of their union activi-
ties. Some of Rakiecki's comments during these conver-
sations clearly manifested references to the Union as the
cause of the layoff, while other remarks, not specifically
directed to their union activities, nevertheless carried
he, in fact, was the leader in organizing the employees.
"The record shows that Olean Sand and Gravel Co., a unionized
firm, was located across the street
9 Rakiecki testified that Lipka returned to the plant on the afternoon of
November 30 to find out what had happened, and was told that Luksch
had visited the plant and instructed him to lay off all the employees. He
denied that Lipka met him on December 1, and asserted that he next saw
Lipka the following Tuesday or Wednesday when he called for his
paycheck, at which time there was no discussion concerning the Union.
Based on the demeanor of the witnesses, I find that the testimony of Lipka
was persuasive and is credited as related by him.
10 Rakiecki denied greeting the employees as asserted, but did not
specifically deny making the parting remark to Ponton , which is credited
11 The reference to "across the street" apparently was to the Olean
Sand and Gravel Co.
12 Although Rakiecki denied generally discussing the Union with the
men at any of these meetings , he did not specifically deny questioning
Pixley about his union card.
13 Pixley's testimony was corroborated by Ponton, and Rakiecki's deni-
al of having had any discussion about a Christmas bonus is not credited
MACHIAS SAND AND GRAVEL CO. 947
unmistakable innuendos and implications to that effect.
Moreover, in resolving whether inferences can be drawn
indicating Respondent's discriminatory motivation, it is
not essential that specific evidence of subjective intent be
established. N.L.R B. v. Erie Resistor Corp., et al., 373
U.S. 221.
Furthermore, even assuming as Respondent asserts,
that adverse weather conditions were curtailing its opera-
tions, to the extent that a decision to shut down for the
winter was impending, Respondent, nevertheless, vio-
lated Section 8(a)(3) if the union activities of its em-
ployees entered into and were a matter of concern in its
deliberations to shut down the plant. "The charge [a dis-
criminatory layoff] is sufficiently established if, in addi-
tion to an economic ground shown in the Labor Board
hearing, there is proof from which the examiner may
fairly find . . that the layoffs were motivated by a pur-
pose to interfere with union organizational activities."
N.L.R B. v. Associated Naval Architects, 355 F.2d 788,
792 (C.A. 4). See also N L.R.B. v. Jamestown Sterling
Corp., 211 F.2d 725, 726 (C.A. 2); N.L.R.B. v. Great
Eastern Color Lithographic Corp , 309 F.2d 352, 355
(C.A. 2), cert. denied 373 U.S. 950. However, in
establishing that motive in the absence of direct proof,
General Counsel must at least provide a reasonable basis
for inferring that the permissible ground alone would not
have led to the layoff at the time, so that it was partially
motivated by an impermissible one. N.L.R.B. v. L. E
Farrell Company, Inc., 360 F.2d 205, 208 (C.A. 2). In
resolving whether such reasonable basis has been
established, it is pertinent to assess the circumstances at-
tending the layoffs. Thus, they occurred precipitously in
midmorning of November 30 following the signing of
union authorization cards the previous night by the four
employees involved. Nor was any satisfactory explana-
tion given as to why Respondent did not at least permit
Ponton and Pixley to complete their day's work on the
dragline on which they were engrossed at the time of the
layoff. "The abruptness of a [layoff] and its timing are
persuasive evidence as to motivation ..." N.L.R.B. v
Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A.
2), cert. denied 355 U.S. 829. See also N.L.R.B. v. L. E.
Farrell, supra. It also appears that Luksch, who admit-
tedly had no experience in operating the plant and relied
on Rakiecki, assertedly made the decision to shut down
the plant immediately after arriving at and observing the
plant on the morning of November 30 without consulting
with Rakiecki or anyone else. I find it difficult to believe
that no other considerations, such as the Union, did not
enter into his decision. It appears further that of the seven
employees who were working for Respondent on
November 30, only the four who signed union authoriza-
tion cards were laid off. I find from the foregoing circum-
stances and from the evidence in its entirety that only one
reasonable inference is strongly suggested - Respondent
became aware of the union organizational efforts of its
employees before laying them off to discourage union
membership and activity, and thereby violated Section
8(a)(3) and (1) of the Act. In arriving at this conclusion,
I am not unmindful of the fact that Respondent may have
considered shutting down its plant for the winter insofar
as normal operations were concerned, and that, as the
record indicates, it had discussed with the employees
plans to retain them on plant construction work during
the winter. I find, however, that the organizational activi-
ties of the discriminatees provoked and accelerated
Respondent's decision to lay them off and drastically cur-
tailed its operations , including its contemplated plant,im-
provements . In accord with the applicable authorities
cited above , I find that Respondent 's precipitous laying
off of its union -member employees and shutting down its
operations were premature and, at least , partially
motivated by the organizational activities of those em-
ployees in violation of the Act.
E. The Alleged Interference, Restraint, and Coercion
I also find, as alleged in the complaint and related
above, that Rakiecki's threat to close the plant if the
Union came in, his threat to hire other union help in lieu
of Respondent's employees if they went union, his state-
ment to the employees that if they wanted union scales to
go across the street (to Olean Sand and Gravel Co.) and
get jobs, and his interrogation of Pixley as to why he
signed a union card, interfered with, restrained, and
coerced employees in the exercise of their statutory rights
in violation of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
111, above, and therein found to constitute unfair labor
practices defined in the Act, occurring in connection with
the operations of Respondent as outlined in section 1,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case I make the following.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminatorily laying off Lipka, Ponton, and
Pixley, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section
7 of the Act, Respondent has engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and that it take certain affirmative ac-
tion, including the posting of appropriate notices,
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily laid off
Lipka, Ponton, and Pixley because of their union activi-
ties and to discourage their union support, I shall recom-
mend that Respondent be required to offer them rein-
statement to their former jobs or substantially equivalent
jobs and make them whole for any loss of earnings caused
by their layoffs in accordance with the remedial policies
310-5410-70-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outlined in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the seasonal effect of adverse winter
weather upon Respondent's operations, the plant may not
be in normal operation at the time it is prepared to comply
with the provisions of the Recommended Order herein re-
garding the offer of reinstatement to the discriminatees
and the posting of the required notice. At such times, it
would be impractical to require Respondent to reinstate
the discriminatees, and the posting of a notice would not
be as meaningful as contemplated. It, accordingly, will be
necessary to accommodate this possibility in the Recom-
mended Order. Cf. Melrose Processing Company, 146
NLRB 979. In this way an effective remedy could be
achieved without imposing a disproportional financial
hardship upon Respondent.
In view of the nature of the violations found herein, I
shall recommend that Respondent be required to cease
and desist from in any other manner infringing upon em-
ployees' rights guaranteed in Section 7 of the Act.
Upon the basis of the entire record, the findings of fact
and conclusions of law, I make the following:
RECOMMENDED ORDER
The Respondent Mader Plastering Co. d/b/a Machias
Sand and Gravel Co., its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Laying off, discharging, refusing to reinstate, or
otherwise discriminating against employees in order to
discourage membership in or support of International
Union of Operating Engineers, Locals 17-17A-17B,
AFL-CIO, or any other labor organization.
(b) Threatening its employees with discharge or other
reprisals if they became or remained union members.
(c) Threatening employees that the plant will be shut
down if a union comes in.
(d) Interrogating employees concerning their union
membership or activities in a manner violative of Section
8(a)(1) of the Act.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative actions which as
found will effectuate the purposes of the Act:
(a) Offer Walter J Lipka, Edwin Ponton, and Richard
Pixley immediate reemployment (or, if the plant is not
operating or is operating on a reduced basis because of
adverse winter weather at the time of the effectuation of
this Order, place their names on a preferential hiring list
and offer them reemployment at their former positions or
substantially equivalent positions at its plant in
preference to any other persons hired after their initial
hiring when the plant resumes normal operations),
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
suffered by reason of the discrimination against them, in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Notify Walter J. Lipka, Edwin Ponton, and
Richard Pixley if presently serving in the Armed Forces
of the United States of their right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms hereof.
(d) Post at its plant at Machias, New York, at the time
of the effectuation of this Order, copies of the attached
notice marked "Appendix."19 Copies of said notice, to be
furnished by the Regional Director for Region 3, after
being signed by an authorized representative of the
Respondent, shall be posted immediately upon receipt
thereof, and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date hereof, what steps the
Respondent has taken to comply herewith. 15
14 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
15 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT layoff, discharge, refuse to reinstate,
or otherwise discriminate against any employee in
order to discourage membership in or support of In-
ternational Union of Operating Engineers, Locals
17-17A-17B, AFL-CIO, or any other labor or-
ganization.
WE WILL offer Walter J. Lipka, Edwin Ponton,
and Richard Pixley full reinstatement to their former
or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
and make them whole for any losses they may have
suffered by reason of our discrimination against
them.
WE WILL NOT threaten our employees with
discharge or other reprisals if they become or remain
union members or give assistance or support to a
union.
WE WILL NOT threaten our employees that the
plant will be shut down if a union comes in.
WE WILL NOT interrogate our employees concern-
ing their union membership or activities in a manner
violative of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
MACHIAS SAND AND GRAVEL CO. 949
their rights to form, join, or assist any labor organiza- of the United States of their rights to full reinstatement
tion, or not to do so. upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
MADER PLASTERING CORP. as amended, after discharge from the Armed Forces.
D/B/A MACHIAS SAND AND This notice must remain posted for 60 consecutive
GRAVEL CO. days from the date of posting and must not be altered,
(Employer) defaced, or covered by any other material.
Dated By If employees have any question concerning this notice
(Representative) (Title) or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 4th Floor, The
Note: Notify Walter J. Lipka, Edwin Ponton, and 120 Building, 120 Delaware Avenue, Buffalo, New York
Richard Pixley if presently serving in the Armed Forces 14202, Telephone 842-3100