Fenix & Scisson, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1973

207 N.L.R.B. 752 (N.L.R.B. 1973)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fenix & Scisson, Inc. and Congress of Independent
Unions
Local 318, International Union of Operating Engi-
neers, AFL-CIO and Laborers International Un-
ion of North America, Southern Illinois District
Council, AFL-CIO and Congress of Independent
Unions. Cases 14-CA-7196, 14-CB-2563, and
14-CB-2588
December 10, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 24, 1973, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent Unions filed
joint exceptions and a joint 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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
below.
paid with interest at 6 percent per annum in
accordance with Isis Plumbing & Heating Co., 138
NLRB 716."
2. Substitute the following for paragraph II 2(a):
"(a) Jointly and severally with Respondent Compa-
ny reimburse Respondent Company's employees
who have been engaged on the Tetco Cavern project,
who were not already members of Respondent
Union, for all initiation fees, dues, and other moneys
which they were required to pay as a result of the
existence, maintenance, or enforcement of the union-
security clause contained in the agreement between
Respondent Engineers and Respondent Company
covering said employees."
3. Substitute the following for paragraph III 2(a):
"(a) Jointly and severally with Respondent Compa-
ny reimburse Respondent Company's employees
who have been engaged on the Tetco Cavern project,
who were not already members of Respondent
Union, for all initiation fees, dues, and other moneys
which they were required to pay as a result of the
existence, maintenance, or enforcement of the union-
security clause contained in the agreement between
Respondent Laborers and Respondent Company
covering said employees."
4. Substitute the attached notices for Appendixes
B and C of the Administrative Law Judge.
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 Fenix &
Scisson, Inc., Lick Creek, Illinois; Local 318,
International Union of Operating Engineers,
AFL-CIO, Harrisburg, Illinois; and Laborers Inter-
national Union of North America, Southern Illinois
District Council, AFL-CIO, West Frankfort, Illinois,
shall take the action set forth in the said recommend-
ed Order, as so modified.
We agree with Respondent Unions that there was
no basis for the Administrative Law Judge to order
each separate Respondent Union to be jointly and
severally liable for the obligations of the other. We
will amend his Order accordingly. We will also order
that "The Remedy" of the Administrative Law Judge
be modified as set forth below.
1. Insert the following sentence after the words
"enforcement of the union-security clauses in these
agreements." in the third paragraph of the section
entitled "The Remedy":
"The reimbursement for such dues and fees will be
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give effect to, maintain, or
enforce our agreement with Fenix & Scisson, Inc.,
entered into in January 1973, covering the
Company's Tetco Cavern project.
WE WILL rcimburse employees who have been
engaged in working on the Tetco Cavern project
under an agreement between the Company and
Local 318, International Union of Operating
Engineers, AFL-CIO, who were not already
members of the Union, for all initiation fees,
dues, and other moneys which they were required
to pay as a result of the union-security provision
of that agreement.
WE WILL NOT restrain or coerce the employees
of Fenix & Scisson, Inc., in the exercise of rights
guaranteed under Section 7 of the National Labor
Relations Act.
207 NLRB No. 104
FENIX & SCISSON , INC. 753
LOCAL 318,
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 210 North 12th Boulevard, Room
448, St . Louis, Missouri 63101, Telephone
314-622-4167.
APPENDIX C
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give effect to, maintain, or
enforce our agreement with Fenix & Scisson, Inc.,
entered into in January 1973, covering the
company 's Tetco Cavern project.
WE WILL reimburse employees who have been
engaged in working on the Tetco Cavern project
under an agreement between the Company and
Laborers International Union of North America,
Southern Illinois District Council , AFL-CIO,
who were not already members of the union, for
all initiation fees, dues, and other moneys which
they were required to pay as a result of the union-
security provision of that agreement.
WE WILL NOT restrain or coerce the employees
of Fenix & Scisson , Inc., in the exercise of rights
guaranteed under Section 7 of the National Labor
Relations Act.
LABORERS
INTERNATIONAL UNION
OF NORTH AMERICA,
SOUTHERN ILLINOIS
DISTRICT COUNCIL,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 210 North 12th Boulevard, Room
448, St . Louis, Missouri 63101, Telephone
314-622-4167.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Marion, Illinois, on May I and 2,
1973, upon an order consolidating cases and complaint
and notice of hearing issued on March 23, 1973.1 The
complaint alleges (a) that Fenix & Scisson, Inc. (herein
"the Company," or "Respondent Company"), on or about
October 2, 1972, entered into a prehire collective-bargain-
ing agreement, pursuant to Section 8(f) of the Act, with
Congress of Independent Unions (herein "the CIU")
covering employees in an appropriate unit at the Compa-
ny's project referred to as the TETCO cavern project, (b)
that shortly thereafter, on or about December 26, 1972,
while the project was uncompleted, and at a time that a
majority of the Company's employees on the project had
designated CIU as their bargaining representative, Respon-
dent Company withdrew recognition from the CIU and
ceased giving effect to the CIU agreement, and (c) that on
or about January 2, 1973, the Company recognized Local
138, International Union of Operating Engineers,
AFL-CIO (herein "Respondent Engineers") for some of
the employees in the appropriate unit, and Laborers
International Union of North America, Southern Illinois
District Council, AFL-CIO (herein "Respondent Labor-
ers") for other employees in the unit (both unions herein
together referred to as "the Respondent Unions"), and
entered into collective-bargaining agreements with each of
the Respondent Unions requiring the Company's employ-
ees to obtain and maintain membership in such union, and
that since that time the Company and the Respondent
Unions have maintained and enforced these bargaining
agreements. The complaint alleges that the Company
thereby violated Sections 8(a)(1), (2), (3), and (5) of the
Act, and that the Respondent Unions thereby violated
Sections 8(b)(1)(A) and (2) of the Act. The answers of the
Respondent Company and the Respondent Unions deny
the commission of any of the alleged unfair labor practices.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due considera-
tion of the briefs filed by the General Counsel, Respondent
Company, the Respondent Unions, and the CIU, I make
the following:
I Charges were filed in Case 14-CA-7196 on January 8 and March 8,
1973, in Case 14-CB-2563 on January 8 and March 8, 1973, and in Case
14-CB-2588 on March 8, 1973.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. SUMMARY OF THE ISSUES
This proceeding presents some knotty problems concern-
ing the interpretation and application of Section 8(f) of the
Act, which permits "an employer engaged primarily in the
building and construction industry to make an agreement
covering employees engaged (or who, upon their employ-
ment will be engaged)" in that industry with a labor
organization (not established, maintained, or assisted in
violation of the Act) "of which building and construction
employees are members," notwithstanding that "the
majority status of such labor organization has not been
established [under the provisions of the Act] prior to the
making of such agreement."
1. Respondent Unions contend that the record does not
show that the Respondent Company is "engaged primarily
in the building and construction industry," but that it
indicates that the Company is engaged in mining opera-
tions, and further assert that there is no proof that the CIU
has building and construction employee members, or that
the employees covered by the CIU contract were engaged
in that industry.
2. Respondent Unions further contend that even if it be
found that the operations involved come within the
purview of Section 8(f), the CIU contract was not a legal
bargaining agreement and did not bar the Company from
thereafter signing agreements with Respondent Unions
covering the same operations and appropriate unit, for the
following asserted reasons:
(a) The CIU agreement was not signed prior to the
start of the Company's operations at the Tetco project, or
was not, in fact, agreed before Respondent Union's
contracts covering the same operations were agreed
(suggesting that an oral agreement may satisfy the
requirements of 8(f)).
(b) The CIU contract covers an inappropriate unit,
differing from that alleged in the complaint, which all
parties agree is an appropriate unit.
(c) The CIU was never selected or designated by a
majority of the employees engaged on the Tetco project,
the cards signed by employees on the project on December
4, 1972, being, it is argued, "tainted" by statements of the
CIU representative at the time they were signed, further,
that that there is no proof of majority status of CIU at the
time Respondent Unions' agreements were executed.
(d) In any event, at the time the CIU cards were
signed, no representative complement of employees was
employed on the Tetco project, in accordance with
principles established by the Board in respect to other
industries.
(e) There is no proof of illegality of the Respondent
Unions' agreements, since, assertedly, there was no
coercion of Respondent Employer to sign the agreements,
and, it is claimed, there is no proof that Respondent
Unions were not the designated or selected representatives
of a majority of the employees in the appropriate unit
when their agreements were signed.
2 Respondent Unions' answer as amended at the hearing appears
somewhat garbled in the transcript. According to my notes, Respondent
Unions' counsel stated (at p. 10, 1 6) "We further admit the allegations in
3. Respondent Unions contend that this matter should
be determined by arbitration under the CIU agreement.
4. Respondent Company admits that its contract with
CIU was made pursuant to Section 8(f) of the Act, as
alleged in the complaint, but asserts that its agreements
with Respondent Unions were also made pursuant to
Section 8(f), thus raising an issue as to whether bargaining
agreements made after the start of a project, and after the
engagement of employees on that project come within
Section 8(f) of the Act, and, if so, whether there must be a
representative complement at the time the contract is
made, as Respondent Unions claim.
5. Respondent Company asserts that it was led to cease
recognizing CIU, and to sign agreements with Respondent
Unions under coercive circumstances, and did so in good
faith to protect its property and the persons working on the
Tetco project.
II. BUSINESS OF THE COMPANY
The Company, an Oklahoma corporation with its
principal offices in Tulsa, Oklahoma, is and has been
engaged in various states of the United States in the
creation and development of subterranean caverns for the
storage of petroleum products. In addition to the facts in
the instant matter, I have taken notice of the Board's
Decision in International Hod Carriers, Building and
Common Laborers' Union of America, Local No. 1445 (Fenix
& Scisson, Inc.), 126 NLRB 226 (1960), which finds that
Respondent Employer was engaged in such operations in
nine states at that time. During times material to the
complaint in this matter, the Company has been engaged
near Lick Creek, Illinois, South of Marion, Illinois, in the
creation of such an underground reservoir for the storage
of propane gas.
The complaint alleges, and the answers admit, that the
Company is "engaged in business as a general contracting
and engineering firm," which in a recent annual period
caused to be delivered from outside the State of Oklahoma
to its place of business at Tulsa, Oklahoma, building
materials valued in excess of $50,000, and which in the
same annual period performed services valued in excess of
$50,000 for enterprises located outside the State of
Oklahoma.2
Respondent Unions, pointing to the fact that the
complaint describes Respondent Employer merely as "a
general contracting and engineering firm," and also to the
fact that the Company refers to its operations at the Tetco
project generally as "mining," assert, as has been noted,
that there is no proof that the Company is primarily
engaged in the building and construction industry within
the meaning of Section 8(f) of the Act.
However, the terms "general contractor" and "engineer-
ing" are common terms in the building and construction
industry, and it has long been accepted that underground
construction, such as the creation of tunnels, subways, and-
resevoirs, are heavy construction within the building and
construction industry. See Standard Industrial Classification
Manual 1972 (Office of Management and Budget, GPO),
Paragraphs 2(a) through (e);' and the transcript is ordered to be corrected to
so state.
FENIX & SCISSON, INC. 755
pp. 49-51. The basic distinction between construction and
mining appears to rest upon whether the purpose in
removing the underground material is to realize the value
of the material removed, or whether the material is
removed for the purpose of creating an underground
structure of some sort. Cf. Standard Classification Manual,
supra, pp. 31-38.3 In this case the purpose of the project
involved was to create or construct an underground
reservoir. The tools and equipment referred to in the
record as used in the project are those used by operating
engineers in the building and construction industry.
It is further clear that all of the parties involved have
customarily treated the Company as engaged in the
building and construction industry and did so at the Tetco
project. Thus, the Company has customarily employed
classifications and trades in that industry as the record in
this case and the Board's decision in the prior case show.
The Company has customarily dealt with' building and
construction trades unions and been subjected tojurisdic-
tional disputes among them. The Company's contracts at
the Tetco project entered into with Respondent Unions
were standard heavy construction agreements, as, it
appears from the Board's prior decision, has been the case
with other building trades unions at similar projects
elsewhere. It is not without significance that before the
Tetco project got fairly underway, the Company's local
project manager was visited by the president of the local
building trades council and agents of some affiliated
trades, as well as the Teamsters, seeking contracts from the
Company. It is also clear that the Company and CIU
considered that their agreement was within the building
and construction industry, not only by the terms of the
union-security clause contained therein, but by the fact
that they discussed the necessity of securing the approval
of the Construction Wage Stabilization Committee for the
wage rates agreed to. Finally, it is noted that in the Board's
prior decision, it was found that the Company "is engaged
as a contractor in the building and construction industry
primarily in the construction of underground storage
facilities." 126 NLRB at 234.
Based upon the above and the entire record in this
matter, it is found that the Company is an employer
engaged primarily in the building and construction
industry whose operations affect commerce within the
meaning of the Act.
III. THE LABOR ORGANIZATIONS
The complaint alleges, the answers of Respondent
Unions' and the Company admit, and I find that Respon-
dent Engineers, Respondent Laborers, and the CIU are
each labor organizations within the meaning of the Act. It
is further found on the basis of the record as a whole, and
on the basis of other decisions of the Board, of which I take
judicial notice, that each of these unions are organizations
of which building and construction employees are mem-
bers within the meaning of Section 8(f) of the Act. For
another instance in which sister locals of these unions were
3 This seems to be recognized in Resp. Unions' br. (p. 3) which
speculates that if the rock removed were sold at a profit, the operation
should be classified as mining, and argues that General Counsel had the
involved in a dispute before the Board in the construction
industry see Harrawood's, Inc., 193 NLRB 1136.
IV. THE FACTS
A. The Negotiation of the CIU Agreement
The CIU and the Company had previously been parties
to a collective-bargaining agreement covering employees at
a project performed by the Company in Missouri. This had
proved satisfactory to the Company because of the
flexibility permitted by that agreement, the absence of
concern over jurisdictional disputes, and, because it
afforded (the Company felt) better insurance and pension
protection for the Company's employees, and, therefore,
sometime in September 1972, Fred Scharf, a vice president
of the Company, got in touch with Truman Davis,
president of CIU concerning the impending Tetco project.
The two discussed terms for an agreement over the
telephone, and Davis drew up a written agreement and
mailed it to Scharf in Tulsa. Scharf had some disagreement
with the terms submitted, and discussed these with Davis
over the phone . The two agreed on terms. Scharf retyped
the agreement, and on October 2, 1972, returned it
unsigned to Davis. Davis thereafter signed the agreement
as submitted and returned it to Scharf who likewise
executed it and returned fully signed copies to Davis. Both
Davis and Scharf testified that the contract was fully
executed before December 4, 1972, the first day that the
Company employed rank-and-file employees on the
project. However, the testimony of both of these men as to
dates and the time of execution of the agreement leaves
something to be desired in terms of firmness and
consistency of recollection, and Respondent Unions
suggest, as I have noted , that the evidence is quite
consistent with the CIU contract having been agreed or
executed even after Respondent Unions' contracts were
agreed or executed I have considered the record very
carefully and have concluded that the testimony of, Davis
and Scharf on this point, which is uncontradicted, should
be credited. I am convinced that the two witnesses, despite
their vagueness as to times and dates, were attempting to
testify truthfully in asserting that the agreement was
executed prior to December 4, and this seems most
consistent with the record as a whole. Thus, all of the terms
of the CIU agreement were agreed to over the phone by
October 2, 1972, and the completed document was mailed
to Davis on that date. No subsequent changes were
discussed or made. It is unlikely that the exchange of
signed documents would have taken more than 2 months.
Further, when Davis appeared at the project on December
4 to sign up the employees, die states he had a copy of the
agreement with him, This was confirmed by the,Compa-
ny's resident project manager, Walter Wickstrom. The two
employees who testified also affirm that a, document
purporting to be the contract was circulated among them
by, Davis at the meeting on that date. It also appears that
shortly after December 1 Respondent Engineers was
advised that the Company had signed an agreement with
burden of negativing this fact . I do not agree that this one fact would be
controlling or that the General Counsel in this case had the burden of
proving this negative.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIU, and an agent of Respondent Engineers, Ralph
Oswald, called Scharf to remonstrate with him concerning
this.4 Finally, considering the Company's experience in the
industry and its demonstrated concern with securing a
prehire agreement prior to starting the project, I believe it
unlikely that the Company would have let the matter slide
for 2 months or that it would have started work with its
own employees on this project without such an agreement,
absent unusual circumstances not shown here.
The CIU agreement, which by its terms was to "be in full
force and effect only for the duration of the TETCO
cavern project," and was to terminate when the project was
completed, recognized the CIU as the sole and exclusive
representative, for the duration of the agreement, of "all
[the Company's] employees, excluding clerical and selling
employees, guards, professionals and supervisors as de-
fined in the act . . . This recognition extends only for the
term of the contract . . . and only to employees who
devote all of their working time to the TETCO cavern
project located at Lick Creek, Illinois." 5
The agreement also provides that employees covered by
the agreement hired on or after its execution shall become
and remain members of CIU after 8 days from the time
they are employed.
B. The CIU Sign-Up of Employees
Prior to December 4, 1972, the Company had only
supervisory personnel at the Tetco project, directing the
work of subcontractors who were sinking shafts in the
ground preparatory to the Company's operations. The
Company first brought its own employees on the project
on December 4. These numbered a maximum of eight,
including a field clerk. In accordance with the Company's
usual practice, these were employees with previous experi-
ence in the Company's operations in other states. At least
one had been employed by the Company at a project in
Missouri under a previous agreement with CIU.
On the morning of December 4, CIU President Davis
arrived at the site and informed Walter Wickstrom, the
Company's project manager that the CIU had a bargaining
agreement covering the project, which was exhibited to
Wickstrom (it appears that Wickstrom had been previously
informed of the agreement) and requested that he be
permitted on the site to talk to the employees. Wickstrom
permitted Davis the use of space in the Company's field
office where Davis met with seven employees (it would
appear that the field clerk did not attend). According to
Davis, he advised the employees that the CIU held a
prehire contract covering the Company's operations on the
project, that he was there to sign them up if they were
4 As noted hereinafter, Wickstrom, the Company 's local project
manager, had met with Respondent Engineers on December 1, at which
time he discussed the terms under which the Engineers would permit the
project to be performed . The terms were not satisfactory to the Company.
The Respondent Unions argue that the Company would not have met with
the Engineers on December I if the Company had already agreed or signed
with the CIU . I disagree . Whether the Company would have signed with
Respondent Engineers at that point if satisfactory terms had been offered,
and repudiated its agreement with the CIU before starting work on the
project is now a moot point . It was the Company's rejection of the
Engineers ' offer of which Oswald complained to Scharf in early December.
5 The parties agree, and I find, that the following unit alleged in the
complaint is an appropriate unit within the meaning of Section 9(b) of the
ready to sign, "and they had a choice which they wanted to
do." Davis states that he never explained what the choice
was to which he referred, but he agrees that he intended
that the employees would have to join the CIU in order to
work under the CIU agreement. As previously noted, a
copy of the agreement was circulated among the employees
present. One of the employees present, Lloyd Lang, who
stated that he could not recall Davis' specific words at the
meeting, testified that Davis said "we had to sign [the card]
or you wouldn't be able to work." At the time Lang was a
member of a sister local of Respondent Engineers. The
only other employee member of the group to testify,
Robert A. Skelton, testified that Davis "passed out these
cards, and he said that he was going to represent this job,
and that we had eight days to join, and that our dues would
be $7 per month and $50 initiation fees. He didn't care how
we paid the initiation fees just so we paid it." Skelton had
previously worked for Respondent Company under a CIU
agreement.
Of the three accounts of the events of this meeting I was
most impressed with the testimony of Skelton, which
seemed to me to be the most reliable, and it is credited. I
do not consider the testimony of Davis and Lang as
necessarily inconsistent with Skelton's testimony, but to
the extent that they vary from that of Skelton, I do not
credit their version.
At the meeting, each of the seven employees present
signed applications for membership in the CIU and
apparently also a checkoff card in favor of that union .6
C. The Company's Dealings with Respondent
Unions
In the fall of 1972 (September or early October),
Respondent Engineers placed a picket at the Tetco project
jobsite against one of the two subcontractors then
employed on the project. The Company was informed that
the Respondent Engineers wished to meet with the two
subcontractors and the Company. At the meeting Respon-
dent Engineers stated that it wanted contracts with the
Company and the two subcontractors (it was stated that
the contract held by one of the subcontractors was not
valid in that area). The Company took the position that it
had no work at the project at the time and had attended
only at the request of the union, that it was not prepared at
that time to enter into an agreement, and desired that the
Union clear up its problems with the subcontractors who
were on the job. Respondent Engineers requested that the
Company get in touch with the Union before the Company
commenced operations. It was the understanding of the
Company's vice president Scharf that the subcontractors
Act: "All employees of the [Respondent Company] at its Tetco cavern
project at Lick Creek , Illinois, excluding clerical employees , selling
employees , guards, professional employees , and supervisors as defined in
the Act ." Respondent Unions argue (Br. pp. 4-6) that the CIU contract unit
allegedly excludes part-time employees from the unit . The issue was not
raised at the hearing and there is no evidence supporting this contention
except as may be derived from the terms of the agreement as discussed
hereinafter.
6 There is some evidence that during this meeting a supervisor passed
through the office, but none to indicate that any supervisor was present
when the cards were signed or that the execution of the cards was in any
way influenced by supervisory personnel.
FENIX & SCISSON, INC.
signed with Respondent Operating Engineers. The picket
line was removed.
Later in the month of October, as has been noted, the
project was visited by the president of the local building
trades council and representatives of several affiliated craft
unions, including Respondents Engineers and Laborers, as
well as the Teamsters, inquiring whether the Company
would sign agreements with the various crafts. Wickstrom
advised that the Company had no employees on the project
and referred them to the Company's main office in Tulsa.
On December 1, Wickstrom met with agents of Respon-
dent Engineers, in response to the request of the Engineers
made at their earlier meeting. Wickstrom again informed
the Engineers that he was not authorized to negotiate a
bargaining agreement , but was prepared to discuss items in
the Engineers ' standard agreement which the Company felt
would not fit their operations at the Tetco project.
Apparently, the Engineers indicated that they might make
certain concessions on a verbal basis, but were unwilling to
make written variations from their standard agreement.
Thus, Wardell Riggs, the Engineers representative said he
would talk to Scharf about the contract, but he would not
"tear up" the Engineers ' agreement . Scharf was advised of
the positions taken by the Engineers in this meeting, but
considered that they did not meet the Company's needs.
Very shortly thereafter, Respondent Engineers learned of
the CIU agreement, and Engineers International Repre-
sentative Oswald called Scharf to complain that "after Mr.
Riggs had bent over backwards to make [the Company]
come to an agreement with them," the Company had
nevertheless signed with the CIU. Scharf replied that the
Engineers would not negotiate an agreement from scratch,
and the changes offered were not enough. Contrary to
Respondent Unions' contention, I find that the Engineers
and the Company did not arrive at an agreement on this
occasion.
On the morning of December 12, an icy, cold morning,
when Amos Coggin, the Company's general foreman on
the Tetco project had sent the employees home because
conditions were unsuitable for work, an estimated 100 or
more men descended upon the project and began to start
up and move the equipment, in spite of Coggins' request
that they desist. The record makes clear that these men
were well acquainted with the operation of the complex
machinery involved. Coggins asked to speak with their
business agent ("B.A."), and was informed, "We don't
have any here." Coggins was advised that he should "get
out of here," and some of the men accompanied Coggins
back to the Company's field office. Up to this point
Coggins was unable to identify any of the men. Later some
of these men came into the field office, and with them were
two men whom Coggins recognized as having previously
worked for one of the Company's subcontractors on the
project and who wore Engineer buttons. One of the group
in the office roughly accused Coggins of using an intercom,
which Coggins denied. (The invaders had cut the telephone
wires). The spokesman of the group asked Coggins for
Wickstrom, and when informed that Wickstrom was not
there, stated to Coggins, "Well, I'm telling you this. We
can't find Mr. Wickstrom and I'm telling you . . . Don't
start this job until you get right . . . We have killed men
757
for the same thing and we will do it again ." About this time
one of the men who Coggins recognized as having worked
for the Company's subcontractor on the project informed
the spokesman that Coggins was one of the Company's
foremen . As the men started milling out of the office, the
spokesman again warned Coggins not to "start this job
until you get right." When Coggins said that was not his
decision, but would be handled in Tulsa, the spokesman
informed him, "We've talked to Tulsa, ... I'm just telling
you." The mob of men then departed the jobsite, leaving a
large amount of damaged equipment behind. The Compa-
ny was unable to resume operations until mid-January
1973.
According to the record in this case , neither the local nor
the federal authorities have been able to find anyone who
was responsible for these acts of vandalism and coercion.
At the hearing the Respondent Unions appeared to be
laying a foundation for the argument (not followed up in
their brief) that these were the actions of local citizens (not
connected with Respondent Unions) who were outraged at
the Company bringing in out-of-state workers on the
project. On the basis of this entire record I find that
position implausible (inter alia, all of these out-of-state
workers returned to the project, without incident, after the
Company signed agreements with Respondent Unions).
However, neither the complaint nor the issues in this case
make it necessary that responsibility for this incident be
considered, and I make no finding on that point.
After this incident, Project Manager Wickstrom was
instructed by the Company to set up a meeting with
Respondent Unions. At this meeting, on January 3, 1973,
the Company came to agreement with Respondent Unions,
and on that date or a few days thereafter signed bargaining
agreements , containing hiring hall provisions and union-
security clauses as permitted by Section 8(f) of the Act,
with each of Respondent Unions covering the same
operations and employee classifications as the CIU
contract. It would appear that the terms of the Engineers'
agreement were substantially the same as those discussed
on December I. Neither of Respondent Unions offered the
Company any proof that it represented any of the
employees who had been employed on the project
previously, and no proof was offered at the hearing that
either of the Respondent Unions (or the two together) at
that time represented a majority of those employees.
After these agreements were signed, Project Manager
Wickstrom got in touch with the eight employees who had
been employed on the project prior to December 12, and
requested that they return to work. He further notified
these employees that Respondent Unions desired that they
clear through the unions ' hiring halls, and it appears that
the employees did so, signed up with the Respondent
Unions, and were cleared for work on the project. They
have since been employed on the project.
At the time of the hearing, 34 employees (18 engineers
and 16 laborers) were employed on the project, and it was
estimated that at the peak of employment, during the
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
summer, a total of 45 employees will be engaged on the
site.?
The Company, has since January 3, 1973, refused to
recognize CIU as the representative of the employees in the
bargaining unit covered by the CIU agreement, and since
that date has refused to honor and has ceased giving effect
to the CIU agreement. Since entering into agreements with
the Respondent Unions in early January 1973, covering
employees engaged on the Tetco project, the Company has
maintained and enforced those agreements with respect to
the terms and conditions of employees engaged on the
Tetco project.
V. OTHER PROCEEDINGS BEFORE THE BOARD
At the hearing in this matter, Respondent Unions
offered certain papers in evidence showing that on or
about April 23, 1973, Respondent Engineers and Respon-
dent Laborers had each filed a petition for certification as
representatives of employees engaged by Respondent
Employer on the Tetco project. Accompanying these
papers were lists of signatures purporting to indicate that
certain named individuals had designated Respondent
Unions as their bargaining representative. These names
and signatures were not authenticated. After counsel for
Respondent Unions asserted that he would argue the
relevance of these documents in his brief, and upon the
basis that it would be appropriate to take judicial notice of
these documents, as official Board records, in any event,
these documents were received in the record as a matter of
convenience. There is no reference to these documents in
Respondent Unions' brief that I can determine.
However, General Counsel and Respondent Unions, in
accordance with the discussion at the hearing, have
submitted documents showing that on May 2, 1973, the
Regional Director dismissed the petitions, and on May 18,
1973, the Board dismissed Respondent Unions' appeal
from the Regional Director's actions, on the ground that
no question concerning representation could be raised
during the pendency of the complaint in this matter, which
alleges that the Respondent Employer assisted Respondent
Unions in violation of the Act, and refused to bargain with
CIU in violation of the Act. The Board further advised that
Respondent Unions' "contention that a Section 8(a)(5)
violation cannot be founded upon a collective-bargaining
agreement entered into pursuant to Section 8(f) of the Act
can only be considered in the above mentioned unfair
labor practice proceeding."
For the purpose of those who may have occasion to
review this matter, the letter from Regional Director
Joseph H. Sohen to Mr. Harold Gruenberg, counsel to
Respondent Laborers in Case 14-RC-7333, dated May 2,
1973, is hereby received in evidence as Respondent
Unions' Exhibit 5, the letter from the Regional Director to
Mr. J. F. Souders, counsel to Respondent Engineers in
T Respondent Unions also adduced testimony that the Company had
previously hired a crane from a crane rental company pursuant to a rental
arrangement under which the rental company provided an operator and
oiler to operate the crane while engaged on the Company's project (a fairly
common practice in the rental of equipment in the construction industry).
The record as a whole makes it clear that the rental company is an
independent contractor and the crane operator and oiler are employees of
Case 14-RC-7334, dated May 2, 1973, is hereby received
in evidence as Respondent Unions' Exhibit 6, and the
Board's Ruling on Administrative Appeal in those two
cases, dated May 18, 1973, is hereby received in evidence
as Respondent Unions' Exhibit 7.
VI. ANALYSIS AND CONCLUSIONS
A. Validity of the CIU Agreement
As has been found, the CIU agreement, agreed and
executed prior to the employment of Respondent Compa-
ny's employees upon the Tetco project on December 4,
1972, was between an employer (Respondent Company)
engaged primarily in the building and construction
industry and a labor organization (CIU) of which building
and construction employees are members, covering em-
ployees engaged, or to be engaged, in that industry. There
is no evidence that the CIU was established, maintained, or
assisted by Respondent Company within the meaning of
Section 8(f) of the Act. Thus, notwithstanding a lack of
proof that the CIU had been designated as their represent-
ative by a majority of Respondent Company's employees
at the time the agreement was agreed or executed, this
agreement was initially a valid agreement under Section
8(f) of the Act.8 In coming to this conclusion I have given
full consideration to Respondent Unions' contention that
the CIU agreement covers an inappropriate unit because it
allegedly does not cover part-time employees. There is no
evidence that part-time employees have been, or were
expected to be, employed on this project. There is further
no evidence that the parties intended to exclude part-time
employees from coverage under the agreement. The first
part of the recognition clause in the CIU agreement covers
all the employees engaged on the_ project. The following
language, to which the Respondent Unions refer, is
manifestly an attempt in somewhat inartistic language to
make clear that the agreement was a project agreement
only, covering only employees engaged on this project (and
not on other company projects) and only for the term of
the project. It is thus unnecessary to consider whether the
exclusion of part-time employees from an agreed unit
would in fact make the unit inappropriate.
Although the CIU agreement was thus valid when
executed , the Board in a number of cases has had occasion
to hold that the mere existence of a contract valid because
entered into pursuant to Section 8(f) raises no presumption
that the contract is thereafter supported by a majority of
the employees covered thereunder, or prevents proper
attack upon the continuing validity of the agreement or
upon the representative status of the contracting union.
See, e.g.,' R. J. Smith' Construction' Co., I Inc.,, 191 NLRB
693; Komatz Construction, Inc., 191 NLRB 846; cf. The
Irvin-McKelvy Company, 194 NLRB 52. Obviously, when
parties are permitted by law to enter into a bargaining
agreement without regard to whether the contracting union
the rental company and not of Respondent Company. The point is not
mentioned in Respondent Unions' bnef.
8 I find it unnecessary to consider , as Respondent Unions suggest,
whether an oral agreement will satisfy the requirements of Section 8(f). In
any case, the CIU contract was agreed and signed before the Company ever
came agreement with Respondent Unions or either of them for a contract
covering the Tetco project.
FENIX & SCISSON , INC. 759
is the representative of the employees concerned, more
than the existence of that agreement is required to show
that the Union is in fact the valid choice of the employees
employed under that agreement.
In the present case , the CIU, on the first day that
Respondent Company brought its own rank-and-file
employees on the Tetco project, came upon the project,
spoke to the employees, and secured from all, or substan-
tially all of them signed applications for membership and
checkoff authorizations (which later were turned over to
Respondent Company). These cards were obtained under
circumstances which the Board, considering similar facts,
has held not violative of the Act. See Loney Davenport,
Contractor, 173 NLRB 232. I find that on December 4,
1972, CIU was property designated as the bargaining
representative of the employees in the appropriate unit set
forth in the agreement . Contrary to Respondent Unions'
contention, it is further found that this initial core of
employees continued to be employed through the time
Respondent Company signed bargaining agreements with
Respondent Unions on or about January 3, 1973, covering
the same operations. Thus, Project Manager Wickstrom
testified that Respondent Company had eight construction
workers on the project between December 4 and December
12, when the project was shut down by vandals, that after
the agreements with Respondent Unions were signed, he
notified the men who had previously worked on the project
and called the Respondent Unions' referral system, "and
we brought in men that were on the job, on December 4,"
and stated that all eight men returned to the site and were
working there at the time of the hearing in this matter.
Lastly, Respondent Unions argue that the designation of
the CIU should be disregarded because, allegedly, at that
time the Company did not employ a representative
complement of employees on that project. Thus, at the
time of the hearing, the Respondent Company employed
34 employees, and estimated that sometime prior to the
completion of the project in December 1973, it would
employ a peak number of 45 construction employees on
the project.
It is of course well established in cases involving
industries with stable employment patterns that, in order
that an employer and a favored union may not foist a
bargaining agreement and a bargaining representative
upon the majority of the employees without an opportunity
for free choice, an employer may not recognize a union as
bargaining representative, or contract with it, unless the
Union has been selected by a majority of the appropriate
employee unit at a time a representative complement of
employees has been engaged. To hold otherwise would
permit an initial minority group to designate the bargain-
ing representative in derogation of the rights and interest of
the stable majority group which will be employed . See, e.g.,
Scottex Corporation, 200 NLRB No. 75. Such doctrine is
hardly appropriate to the usual construction project which
frequently operates with a transient work force normally
9 It is frequently stated that the principal reasons for the enactment of
Section 8(f) were to permit employers to determine their costs prior to
entering into a project, and to permit the employer to obtain help through
the Union by the execution of such agreements. See, e.g., Zidell
Explorations, Inc. 175 NLRB 887. Of course, such agreements also serve
other purposes, e.g., to settle jurisdictional problems, determine manning,
building up to a peak employment as the construction
progresses and then decreasing thereafter, and it is
certainly inapplicable under Section 8(f) which contem-
plates agreements in this industry even though no
employees at all have been employed.
Thus, as has been previously noted, Respondent Unions'
contention seems to raise the issue as to whether agree-
ments in the building and construction industry agreed or
executed after the project has started and employees have
been employed are encompassed under Section 8(f) of the
Act at all, for agreements under that Section can clearly be
signed without consideration of the representative comple-
ment of employees to be engaged. It is noted that while
such agreements under Section 8(f) are commonly called
"pre-hire" contracts, this terminology does not appear in
the statute , which speaks of "employees engaged (or upon
their employment will be engaged) in the building and
construction industry." I have discovered nothing in the
legislative history of the Section which would exclude
agreements made after the start of a project in this industry
from the purview of Section 8(f), and my impression from
scanning the legislative history is to the contrary, although
such agreements do not fully coincide with the stated
purposes for the enactment of this provision of the law .9 I
have further noted that in Loney Davenport, Contractor,
supra, Section 8(f) was held applicable to an agreement
executed after the employer had begun work on the project
involved with a substantial crew of workers. But cf. Komatz
Construction, Inc. v. N.L.R.B., 458 F.2d 317, 323 (C.A. 8,
1972), footnote 4. Obviously, if Section 8(f) is applicable, as
I believe, to agreements entered into in this industry after
the start of the project involved, the absence of a
representative complement of employees when the agree-
ment is agreed or executed is of no significance.10
In addition, since the CIU held a valid agreement which
required those employees hired thereafter to become and
remain members of that union and since the evidence
shows an intent on the part of the CIU to administer and
enforce the agreement, it was to be anticipated that the
CIU would have continued to be the duly designated
representative of the employees under that agreement on
the Tetco project, if that project had been permitted to run
its normal course . For the reasons stated it is found that
the validity of the agreement and the representative status
of the CIU under that agreement was not affected by the
fact that Respondent Company anticipated a substantial
increase in its employment complement before the comple-
tion of the project.
B. The Agreements with Respondent Unions
Eight days after Respondent Company began work on
the Tetco project with its own employees, a horde of men
descended upon the project in the morning, destroyed
Respondent Company's equipment on the project, cut the
telephone wires, and threatened Respondent Company's
define disputed working conditions, and the like.
ro Indeed , if the principle urged by Respondent Unions were applied, it
would also cast doubt upon the validity of Respondent Unions' agreements
which were likewise executed at a time when only eight employees were
employed by Respondent on the project.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervision against "start[ing] this job until you get right
... We have killed men for the same thing and we will do
it again." Responsibility for these acts has not been
established, but Respondent Company, interpreting these
actions in light of Respondent Unions' prior efforts to
secure contracts on the Tetco project, determined that its
interests and that of its employees would best be served in
the circumstances by withdrawing recognition from and
repudiating its agreement with CIU and by entering into
agreements with Respondent Unions and recognizing them
as representatives of the employees in the same operations.
At the time these agreements were entered into, Respon-
dent Unions offered no evidence that they, or either of
them, represented a majority of the employees then
employed. The record indicates that only one of the eight
employees was at that time a member of a sister local of
Respondent Engineers. Under the circumstances in which
these agreements were reached no presumption of majority
status or validity is permissible from the agreements.
Respondent Unions' suggestion that it was incumbent
upon General Counsel to further negative Respondent
Unions' representative status is rejected.
C. Conclusions
Respondent Company suggests that its action in recog-
nizing and contracting with Respondent Unions and
withdrawing recognition from CIU was reasonable and in
good faith and should not be considered a violation of the
Statute. However, it has long been settled that "The act
prohibits unfair labor practices in all cases. It permits no
immunity because the employer may think that the
exigencies of the moment require infraction of the statute.
In fact, nothing in the statute permits or justifies its
violation by the employer." See Star Publishing Co., 97
F.2d 465, 470.
Since CIU was at all material times herein a party to a
valid collective-bargaining contract and was the designated
representative of the construction employees of Respon-
dent Company on the Tetco project, as the Board has
stated in analogous circumstances, "Respondent [Compa-
ny] was thus obliged to negotiate with [CIU ] over the
employees on [that project]. It was not free at [that project]
to take any unilateral action with respect to wages, hours,
or conditions of employment or to withdraw recognition
and confer it on another union." Irvin-McKelvy Company,
supra.
Therefore, on the basis of the record as a whole, and the
above analysis, Respondent Company, by its actions on
January 3, 1973, and thereafter, in withdrawing recognition
of CIU, and refusing to honor, maintain, and give effect to
its contract with CIU at the Tetco project, and in
recognizing and contracting with Respondent Unions as
representatives of the construction employees engaged on
that project, violated Section 8(a)(1), (2), and (5) of the
Act. Further, it was in violation of Section 8(a)(1) and (3)
of the Act because of its conduct in contracting with
Respondent Unions to require employees on that project to
thereafter join one of Respondent Unions as a condition of
employment.
Respondent Unions, and each of them, by accepting
recognition and assistance from Respondent Company,
and entering into and maintaining a collective-bargaining
contract with Respondent Company covering an appropri-
ate unit of employees of the Company at the Tetco project,
at a time that CIU was the exclusive bargaining representa-
tive of the employees in such appropriate unit and held a
valid collective-bargaining contract covering such bargain-
ing unit which was being maintained and enforced,
violated Section 8(b)(1)(A) and (2) of the Act. See
Harrawood's Inc., supra.
D. Deferral to Arbitration
As has been noted, Respondent Unions argue that the
validity of the CIU agreement under Section 8(f) of the Act
should be deferred to arbitration under the terms of the
CIU agreement, which agreement Respondent Company
has repudiated, and which Respondent Unions attack in
this proceeding as invalid. No other party joins in this
contention. I cannot conceive that such a proceeding-in
which Respondent Unions would clearly have no standing,
and in which the arbitrator presumably would be requested
to declare invalid the very document from which he derives
his authority to act-could possibly carry out the purposes
of the Act, or effectuate the rights guaranteed in the
Statute. Inasmuch as the issue to be decided is not whether
some provisions of the agreement have been violated, but
whether the agreement itself is valid and enforceable under
the law, this is a responsibility which the Board must
exercise, to assure uniformity and consistency in the
interpretation and administration of the Act. For these
reasons , I have determined that the request to defer this
issue to arbitration must be denied. Cf. Communications
Workers of America, AFL-CIO (Western Electric Compa-
ny), 204 NLRB No. 94.
CONCLUSIONS OF LAW
1. The Respondent Company is an employer engaged
primarily in the building and construction industry whose
operations are in and affect commerce within the meaning
of Sections 2(6), and (7) and 8(f) of the Act.
2. Respondent Engineers, Respondent Laborers, and
CIU are labor organizations of which building and
construction employees are members within the meaning
of Sections 2(5) and 8(f) of the Act.
3. By recognizing and entering into collective-bargain-
ing contracts with Respondent Engineers and Respondent
Laborers covering the appropriate unit set forth below at a
time when CIU held a valid collective-bargaining agree-
ment covering Respondent Company's employees in said
appropriate unit, Respondent Company has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, and has
contributed support and assistance to Respondent Engi-
neers and Respondent Laborers, thus engaging in unfair
labor practices in violation of Sections 8(a)(1) and (2) of
the Act.
4. By entering into , maintaining, and enforcing bar-
gaining agreements with Respondent Engineers and
Respondent Laborers since on or about January 3, and
January 5, 1973, requiring membership in those organiza-
tions as a condition of employment, the Respondent
FENIX & SCISSON, INC.
Company has discriminated in regard to hire or tenure of
employment to encourage membership in Respondent
Engineers and Respondent Laborers and to discourage
membership in CIU, thus engaging in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
5. Respondent Engineers and Respondent Laborers,
and each of them, by entering' into, maintaining, and
enforcing the collective-bargaining agreements, and each
of them, referred to in paragraph numbered 4 above,
causing Respondent Company to discriminate with respect
to the hire or tenure of employees in violation of Section
8(a)(3) of the Act, thereby engaged in unfair labor
practices in violation of Section 8(b)(1)(A) and (2) of the
Act.
6. All employees of the Respondent Company at its
Tetco Cavern project, at Lick Creek, Illinois, excluding
clerical employees, selling employees, guards, professional
employees, and supervisors as defined in the Act constitute
an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
7. At all times material, CIU has been the exclusive
representative for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act of the
employees in the appropriate unit set forth above.
8. By terminating its agreement with CIU on or about
January 3, 1973, and refusing to recognize and bargain
with that labor organization thereafter as the representative
of employees in the appropriate unit set forth, Respondent
Company has engaged in unfair labor practices in violation
of Section 8(a)(1) and (5) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMELY
It having been found that Respondent Company and
Respondent Unions, and each of them, have engaged in
and are engaging in certain unfair labor practices, it will be
recommended that they be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that Respondent Company and
Respondent Unions, each of them, violated the Act by
entering into, maintaining, and enforcing contracts cover-
ing employees engaged by Respondent Company on the
Tetco project, whereby Respondent Company recognized
Respondent Unions as the bargaining representatives for
those employees, it will be recommended that Respondent
Company withdraw recognition from Respondent Unions,
and each of them, as representatives of those employees,
and cease giving effect to the contracts with Respondent
Unions, and each of them, or any supplement, extension,
or renewal thereof, covering those employees. Nothing
contained herein, however, should be taken to require the
Respondent Company to vary wages, hours, or other
substantive conditions of work established under those
agreements, or either of them, to the benefit of the
employees.
11 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
761
It having been found that Respondent Company and
Respondent Unions, and each of them, unlawfully execut-
ed, maintained, and enforced agreements covering employ-
ees engaged at the Tetco project, under which those
employees were required to join and maintain membership
in such unions, or one of them, it will be recommended
that the Respondent Unions and the Respondent Compa-
ny jointly and severally be required to reimburse the
employees for the dues and fees thus exacted from them as
a result of the existence, maintenance, or enforcement of
the union-security clauses in these agreements. Employees
who were already members of Respondent Unions, or
either of them, when employed by Respondent Company
on the Tetco project shall not be entitled to reimburse-
ment. Identification of such employees may be made in
compliance proceedings, if necessary. See The Irvin-McKel-
vy Company, supra.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
issue the following recommended:
ORDER 11
I. Respondent Fenix & Scisson, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or giving support to Respondent Engineers
or Respondent Laborers by recognizing or entering into
bargaining agreements with such Union when another
labor organization has been validly recognized as the
bargaining representative of employees involved or holds a
valid bargaining agreement covering such employees, or by
otherwise recognizing or contracting with Respondent
Engineers or Respondent Laborers when such unions are
not lawfully entitled to recognition under the Act.
(b) Giving effect to the agreements with Respondent
Engineers or Respondent Laborers, or either of them,
executed by Respondent Company on or about January 3
or 5, 1973, or any extension, modification, renewal, or
supplement thereof.
(c) Requiring membership in Respondent Engineers or
Respondent Laborers as a condition of employment on
Respondent Company's Tetco Cavern project.
(d) Refusing to recognize and bargain with CIU as the
exclusive representative of Respondent Company's em-
ployees in the appropriate unit found hereinabove in
footnote 5 of the Decision.
(e) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Respon-
dent Engineers and Respondent Laborers, and each of
them, as the collective-bargaining representative of em-
ployees included in the appropriate unit found hereinabove
in footnote 5 of the Decision.
(b) Jointly and severally with Respondent Engineers and
Respondent Laborers, reimburse its employees who have
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been engaged on the Telco Cavern project, who were not
already members of Respondent Engineers or Respondent
Laborers, for all initiation fees, dues, and other moneys
which they were required to pay as a result of the existence,
maintenance , or enforcement of the union -security clauses
contained in the agreements between the said Unions and
Respondent Company.
(c) Upon request, bargain with CIU in good faith with
respect to the wages, hours, and working conditions of the
employees in the appropriate unit found hereinabove, and
abide by its contract with CIU covering such employees.
(d) Post at its premises at Lick Creek, Illinois, copies of
the attached notice marked "Appendix A." 12 Copies of
said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by Respondent
Company's representative, shall be posted by Respondent
Company 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 Respondent Company to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
II. Respondent Local 318, International Union of
Operating Engineers, AFL-CIO, its officers , agents, and
representatives shall:
1. Cease and desist from:
(a) Giving effect to, maintaining, or enforcing the
agreement with Respondent Company executed on or
about January 3, 1973, covering the appropriate unit found
hereinabove in footnote 5 of the Decision, or any
extension, modification, renewal , or supplement thereof.
(b) Restraining or coercing the employees of Respondent
Company in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Laborers and
Respondent Company reimburse Respondent Company's
employees who have been engaged on the Tetco Cavern
project, who were not already members of Respondent
Unions, for all initiation fees, dues and other moneys
which they were required to pay as a result of the existence,
maintenance, or enforcement of the union-security clauses
contained in the agreements between Respondent Engi-
neers and Respondent Laborers and Respondent Compa-
ny covering said employees.
(b) Post at its business office copies of the notice
attached hereto and marked "Appendix B."13 Copies of
said notice, to be furnished by the Regional Director for
Region 14, shall after being duly signed by an official
representative of Respondent Engineers, be posted imme-
diately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director for Region 14 signed
copies of the notice marked Appendix B attached hereto
for posting at the Telco Cavern project, Respondent
Company willing.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
III. Respondent Laborers International Union of
North America, Southern Illinois District Council,
AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Giving effect to, maintaining, or enforcing the
agreement with the Respondent Company executed by the
Company on or about January 5, 1973, covering the
appropriate unit found hereinabove in footnote 5 of the
Decision, or any extension, modification, renewal, or
supplement thereof.
(b) Restraining or coercing the employees of Respondent
Company in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Engineers and
Respondent Company reimburse Respondent Company's
employees who have been engaged on the Tetco Cavern
project, who were not already members of Respondent
Unions, for all initiation fees, dues and other moneys
which they were required to pay as a result of the existence,
maintenance, or enforcement of the union-security clauses
contained in the agreements between Respondent Engi-
neers and Respondent Laborers and Respondent Compa-
ny covering said employees.
(b) Post at its business office copies of the notice
attached hereto and marked "Appendix C." 14 Copies of
said notice, to be furnished by the Regional Director for
Region 14, shall, after being duly signed by an official
representative of Respondent Laborers, be posted immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places were notices to members are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director for Region 14 signed
copies of the notice marked Appendix C attached hereto
for posting at the Tetco Cavern project, the Respondent
Company willing.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
13 Subject to the amendment set forth in fn . 12 above.
14 Subject to the amendment set forth in fn . 12 above.
FENIX & SCISSON, INC. 763
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE wiLL withdraw and withhold recognition from
Local 318, International Union of Operating Engineers,
AFL-CIO, and from Laborers International Union of
North America, Southern Illinois District Council,
AFL-CIO, on the Tetco Cavern Project, and cease
giving effect to the contracts executed with those
organizations in January 1973, covering the Tetco
Cavern Project, or to any renewal, extension, modifica-
tion or supplement thereof.
WE wmL, together with the Operating Engineers and
the Laborers Unions, reimburse our employees who
have been engaged in working on the Tetco Cavern
Project under the contracts with the Operating Engi-
neers and the Laborers Unions, who were not already
members of those Unions, for all initiation fees, dues,
and other moneys which they were required to pay as a
result of the union-security provisions of those agree-
ments.
WE WILL NOT refuse to recognize and bargain with
Congress of Independent Unions as the representative
of the employees engaged on the Tetco Cavern Project
in the unit set forth in our agreement with that Union,
and WE WILL reinstate and give effect to our contract
with Congress of Independent Unions covering the
Tetco Cavern Project until its termination or any
extension thereof.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act.
Dated By
FENix & SCIssoN, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4167.