Marquis Elevator Co., Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1975

217 N.L.R.B. 461 (N.L.R.B. 1975)

MARQUIS ELEVATOR COMPANY, INC. 461
Marquis Elevator Company, Inc . and International
Union of Elevator Constructors, Local Union 31.
Case 23-CA-5078
April 21, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On September 26, 1974, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
We adopt the Administrative Law Judge's findings
that Respondent violated Section 8(a)(5) and (1) of the
Act by withdrawing on April 20, 1974, its recognition
of Local Union 31 of the International Union of Eleva-
tor Constructors as the collective-bargaining represen-
tative of Respondent's elevator constructor mechanics
and helpers, all of whom were members of the Union.
We further find that Respondent violated Section
8(a)(5) and (1) by refusing to bargain thereafter, and by
unilaterally changing the existing terms and conditions
of employment by instituting its own wage guidelines
and discontinuing payments to the various employee
trust funds. We also adopt the Administrative Law
Judge's finding that Respondent violated Section
8(a)(3) by constructively discharging employees Foster
and Sobolik by unlawfully and knowingly creating con-
ditions that made it impossible for them to maintain
their union membership and continue to work for the
Respondent. We further agree that Respondent vi-
olated Section 8(a)(3) of the Act by discharging em-
ployees Loving and Derr. However, while the Adminis-
trative Law Judge found that Respondent
constructively discharged these two employees, we find
that by not recalling them after March 25, 1974, their
discharges were actual discharges and not constructive
discharges.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
We disagree with and therefore do not adopt the
Administrative Law Judge's finding that employee
Kilsby was the subject of a constructive discharge when
he quit the Respondent's employ in February 1974.
Employee Kilsby's tenure with the Respondent com-
menced in November 1973 and continued through Feb-
ruary 20, 1974, the date of his resignation. Kilsby testi-
fied that in the midst of a conversation in December
1973 concerning the mileage Kilsby was charging Re-
spondent, Respondent's president, Bob Marquis, stated
"looks like I'm going to have to go `rat.' "I Kilsby
replied that in that case he would have to quit. Toward
the end of January 1974 a similar conversation was
repeated between Respondent and Kilsby. When ques-
tioned about his resignation on February 20, Kilsby
testified that if he continued working for the Respond-
ent he could see he "was going to get in bad with the
Local." Kilsby explained that Bob Marquis often
worked with tools, a violation of the standard agree-
ment, and on at least one occasion sought Kilsby's
assistance to enable him to perform such work.
The Administrative Law Judge found that Kilsby's
resignation was the direct result of the Respondent's
conduct during the months prior to its total repudia-
tion of Local Union 31 and, therefore, a constructive
discharge in violation of Section 8(a)(3).
We find that, while Foster and Sobolik's resignations
were the direct result of the Respondent's unfair labor
practices on April 20 and thereafter, Kilsby's departure
2 months earlier on February 20 was premature and
cannot be attributed to Respondent's subsequent un-
lawful actions. Until April 20 Respondent took no ac-
tion other than revealing its hostile attitude toward the
recognized bargaining agent in infrequent and brief
conversations with.a few employees. While resigning in
the face of the unlawful withdrawl of union recognition
and termination of existing union benefits and member-
ship is one thing, quitting in anticipation that such may
take place later on is an entirely different matter.
Therefore, we find that in the case of employee Kilsby
there is no constructive discharge and therefore no
8(a)(3) violation.
We find it unnecessary to determine whether Re-
spondent engaged in individual bargaining with em-
ployees Morrison and Foster in violation of Section
8(a)(5) and (1) of the Act, since the bargaining order
being issued to remedy the other violations of Section
8(a)(5) and (1) of the Act necessarily includes a prohi-
bition against the bargaining with individual em-
ployees.
We also find the General Counsel's exception con-
cerning backpay is meritorious and will include in our
Order a provision calling for the payment to all em-
ployees sums of money equal to the amounts they nor-
2 The term "rat" in these circumstances means to go nonunion.
217 NLRB No. 78
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally would have earned under the terms of the July
1972 industrywide contract . This backpay should also
include the payment of interest at 6 percent per annum
to be computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
Amended Remedy
Delete from the second paragraph , line 7 , the name
"Kilsby."
AMENDED CONCLUSIONS OF LAW
1. Delete present paragraph 7 and substitute the fol-
lowing:
"7. Since April 20, 1974, the Respondent has vi-
olated Section 8(a)(5) and (1) of the Act by refusing to
bargain collectively with the Union and on April 20,
1974, by withdrawing recognition from the Union and
thereafter changing wages and employee benefits and
other terms and conditions of employment."
2. Delete from paragraph 8 the word "construc-
tively" and the name "Paul W . Kilsby."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that Respondent, Marquis Elevator
Company, Inc., Houston, Texas, its officers, agents,
successors , and assigns , shall take the action set forth
in the said recommended Order , as so modified:
1. Delete paragraph 1(d) in its entirety and reletter
the remaining paragraphs accordingly.
2. Delete from paragraph 2(d) the name "Paul W.
Kilsby."
3. Add the following as paragraph 2(e) and reletter
the subsequent paragraphs accordingly:
"(e) Make whole all its employees for any loss of
wages and other benefits that they may have suffered
as a result of Respondent's unlawful refusal to bar-
gain."
4. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
MEMBER JENKINS , concurring and dissenting in part:
I agree with my colleagues in all respects except for
the failure to find, as did the Administrative Law
Judge, that the Respondent constructively discharged
employee Kilsby. In brief, we agree that by withdraw-
ing recognition from Local Union 31 and repudiating
its bargaining agreement on April 20, 1974, the Re-
spondent created a situation which made it impossible
for employees Foster and Sobolik to retain their union
membership and remain in the Respondent 's employ.
But I find no difference between the Hobson's choice
presented these employees and that which confronted
Kilsby.
The record shows that Kilsby was longstanding
union member of some 15 years and, according to his
credited testimony, quit his previous employer to join
the Respondent in late 1973 because he had known the
Respondent 's president , Bob Marquis , a former union
member, for some time and thought that his new job
"would be a good opportunity for me to better myself."
Of course, at that time the Respondent was ostensibly
adhering to its bargaining agreement . However , Kilsby
noticed on numerous occasions that Marquis was
working with his tools in open violation of that agree-
ment. Kilsby further testified that when these clear
infractions were brought to Marquis ' attention he,
Marquis, would quit. Moreover, Marquis, troubled by
other restrictions imposed by the contract , twice, in
December and again in early February, told Kilsby that
he was going to "rat," and asked Kilsby what he would
do if the Respondent went to an open-shop policy. On
each occasion, Kilsby said he would have to resign.
Other employees were similarly approached by Mar-
quis. Furthermore, as the Administrative Law Judge
found , Marquis, as early as January , disclosed his plans
to break with the Union and go to an open shop and
unlawfully attempted to enlist employees Morrison and
Foster in his scheme.
For Kilsby, matters came to a head shortly after his
second conversation with Marquis about going "rat."
Thus, later in February Marquis twice asked Kilsby to
work with him after hours in derogation of the con-
tract . Kilsby begged off the first time, explaining that
he had a prior commitment . However , on the second
occasion Kilsby simply replied that he "just couldn't do
it," and quit on February 20, explaining that there had
been a "buildup of a number of things" and he was
"going to get in bad with the Local."
My colleagues question neither Kilsby 's reasons for
leaving an otherwise desirable job nor the foregoing
circumstances which impelled his decision . Nonethe-
less, they conclude that his action was "premature" in
view of the fact that the Respondent did not formally
sever its relations with the Union until April 20. This
reasoning is both unpersuasive and unresponsive for it
overlooks not only the course of unlawful conduct,
beginning in January , of which the April repudiation
was only the final act, but also the specific circum-
stances which led to Kilsby ' s discharge , as set out
above.
MARQUIS ELEVATOR COMPANY, INC." 463
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
-NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection -
To refuse to do any or all of these things.
WE WILL NOT refuse to give effect to and to com-
ply fully with the Standard Agreement of July 8,
1972, with respect to the employees in the appro-
priate unit represented by the International Union
of Elevator Constructors, Local Union 31. The
appropriate unit is:
All elevator constructor mechanics and helpers
employed by the Company , excluding office
clericals, guards , watchmen and supervisors
within the meaning of the Act.
WE WILL revoke and cease to give effect to the
changes we unilaterally instituted, except in such
particulars as Local Union 31 may request that a
particular change not be revoked.
WE WILL restore and place in effect all terms
and conditions of the aforesaid contract.
WE WILL make all payments to the pension, wel-
fare, and educational funds on behalf of those em-
ployees in the unit for whom we previously made
contributions , and for whom such contributions
would have continued had we fully complied with
our contract of July 8, 1972.
WE WILL make whole all our employees for
wages they would have earned if we had fully
complied with our contract of July 8, 1972.
WE WILL, upon request , recognize and bargain
collectively with Local 31 as the representative of
the employees in the aforesaid unit , with respect to
rates of pay, wages, hours of work, and other
terms and conditions of employment.
WE WILL in all respects comply with the con-
tract of July 8, 1972, according to its tenor and
legal effect.
WE WILL offer Donald E . Derr, John B. Loving,
Paul Foster, and Roger J. Sobolik their old jobs
back, if the same exist , or, if not, substantially
equivalent jobs , without prejudice to their se-
niority or other rights and privileges and make each
of them whole for any wages lost by reason of our
failure to comply with our contract of July 8, 1972,
with Local Union 31 , together with 6-percent in-
terest.
WE WILL NOT unlawfully discharge employees or
otherwise discriminate against them because they
are union members.
WE WILL NOT do anything to interfere with our
employees in the exercise of the aforementioned
rights.
WE WILL NOT tell our employees in the aforesaid
unit that we have no work for them unless they
agree to work under conditions we unilaterally
impose, instead of the conditions provided in a
union contract by which we are bound.
MARQUIS ELEVATOR COMPANY, INC
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on August 8 and 9, 1974 , in Houston, Texas,
pursuant to a charge duly filed and served,' and a complaint
issued on June 14, 1974. The complaint presents questions as
to whether the Respondent violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended (herein
called Act). In its answer, duly filed , the Respondent
conceded certain facts with respect to its business operations,
but it denied all allegations that it had committed any unfair
labor practices.
At the trial all parties were represented by counsel and
were given full opportunity to examine and cross -examine
witnesses , and to file briefs . A motion to dismiss, made by the
Respondent at the close of the trial , is disposed of as appears
hereinafter in this Decision . On September 3, 1974, briefs
were received from all parties. Upon the entire record in the
case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its principal
office and place of business at Houston, Texas. At all times
material herein , it has been engaged in elevator construction
and maintenance . During its fiscal year preceding issuance of
the complaint, the Respondent purchased goods and materi-
als valued in excess of $50,000 from points outside of Texas
and during the same period it purchased goods and materials
valued in excess of $50 ,000 from firms which in turn pur-
chased such goods and materials from points located outside
the State of Texas. Upon the foregoing facts, which the Re-
spondent concedes , I find that Marquis Elevator Company,
Inc., is engaged in commerce within the meaning of the Act.
Siemons Mailing Service, 122 NLRB 81, 84-86 (1958).
I The charge was filed on April 29, 1974
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION INVOLVED
International Union of Elevator Constructors, Local
Union 31 (herein Union, or Local 31), is a labor organization
within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A."Background
Bob G. Marquis is the president and principal owner of the
Company. His wife, Gerry F. Marquis, is the vice president.
President Marquis was a member of Local 31 from June 1955
until September 1968, when he established the Respondent
Company and went into business for himself . He thereupon
took out a nonworking card and withdrew from Local 31. He
testified that shortly thereafter he signed a collective-bargain-
ing agreement with the Union, wherein the latter was recog-
nized as the exclusive representative of all the Respondent's
elevator constructor mechanics and helpers.
For some time the industrywide representative for the
elevator manufacturers was the National Elevator Manufac-
turing Industry, Inc. (herein NEMI). Sometime before 1972
the NEMI was succeeded by the National Elevator Industry,
Inc. (herein NEII). In 1967, NEMI signed a nationwide con-
tract (herein known as a standard agreement) with Local 31
which was to run until March 23, 1972. The Respondent was
not a member of the NEMI, but in the fall of 1968, and at
the time he organized the Company, Marquis signed what
was known as an interim agreement whereby the Respondent,
as an independent, adopted the terms of, the industrywide
contract which the NEMI had negotiated the preceding year.
On April 4, 1972, Marquis and Local 31 signed another
interim agreement whereby they agreed to continue in effect
the terms and conditions of the 1967-72 standard agreement.
The interim agreement provided that it would terminate as of
the time the then NEII and the Union entered into a new
standard agreement.
B. The Facts
The NEII and the Union signed a new contract on July 8,
1972, to be effective until July 8, 1977. For reasons unex-
plained by the record, Marquis and the Union never signed
an instrument formally adopting for themselves the new con-
tract for the industry, as they had in prior years. Neverthe-
less, Marquis testified at the hearing that in the period from
July 1972 to April 1974, the Company observed the terms
and conditions of the new standard agreement "as close as
possible." According to Marquis, "I had every intention of
keeping our relations with the Union good and [to] work
under the standard agreement."'
The standard agreement required that each month the em-
ployer make contributions to various joint trust funds estab-
lished by the contract. These included contributions to a
welfare plan,' a pension plan, and an educational fund. The
contract 'required the employer to make monthly contribu-
tions to each of the plans, the amount to be based on the
number' of hours worked that month by all elevator mechaii-
2 The quotations in this paragraph are from Marquis ' testimony.
3 This provided life insurance , sickness and accident benefits, and hospi-
talization insurance
ics and helpers in its employ. The contract further required
that the employer withhold a fixed amount from the pay of
each of his employees and that the total be forwarded to the
trustee at the end of each month. Finally, the contract pro-
vided that the employer alone make contributions to the
educational fund on the basis of the number of hours worked
by its elevator mechanics and helpers during the preceding
month. Each month from 1972 to and including April 1974,
and in strict conformity with the standard agreement, the
Company regularly submitted its share of the prescribed
amounts for the foregoing plans, as well as the amounts it
withheld from the wages of its employees, to the First Penn-
sylvania Bank, Philadelphia , Pennsylvania, administrator of
the funds. Likewise during the same period and until the
latter part of April 1974 the Company paid its employees
pursuant to the wage scale set forth in the contract.
Marquis testified that from March 1972 and until April 20,
1974, he was in frequent contact with representatives of Local
31, just as he had been at all times previous thereto. These
representatives included Jack Seibert, business manager for
the Union, and J. D. Peoples, regional director and vice
president of the International Union, as well as those who
maintained the Union's hiring hall. According to Marquis,
from the time he started in business for himself in 1968 and
until April 20, 1974, he used union personnel exclusively and
secured all of his personnel through the union hiring hall. In
conformity with the Union and industry practice, Marquis
had a wall plaque at his office that the Union had supplied
and which signified that he was a union employer and ad-
hered to the terms of the industrywide agreement. He re-
ceived it initially in 1968 when he signed his first agreement
with the Union. On April 20, 1974, Marquis had a telephone
conversation with Peoples in which he explained at great
length the many problems he had had with the Union and
with Business Manager Seibert. Peoples credibly testified that
on this occasion Marquis told him that he had had enough
of working with Local 31, that thereafter he was going to
work nonunion and that he would mail the "charter"' back
to the Union. Marquis denied that he told Peoples that he was
going to go nonunion. On the other hand, Marquis acknowl-
edged that during the course of their discussion Peoples asked
him, "You don't want to work under the standard agree-
ment?" and that he responded, "Exactly." Marquis also
conceded that he told Peoples at this time that he would
return the "charter," or wall plaque, to the Union.
Subsequent to April 20, 1974, the Respondent made no
effort to adhere to the provisions of the standard agreement.
It discontinued making payments to any of the employee
benefit plans established by that contract and thereafter the
Respondent set its own wage rates and terms and conditions
of employment.
The standard agreement, in effect from 1972 to 1977, had
numerous rules on work jurisdiction. These were designed to
protect the work of employees in the unit and forbade, inter
alia, the employer from performing any unit work himself.
Nevertheless , on several occasions during the period 1973 to
1974, Marquis engaged in this practice. When this was re-
ported to the Union by the employees, Business Agent Seibert
charged Marquis with having violated the contract and in-
4 The term in quotation is from Peoples' testimony
MARQUIS ELEVATOR COMPANY, INC.
listed that, pursuant to the agreement, those employees who
might have done the work would have to be paid for the
amount of time they would have spent in performing the same
job. When confronted with the Union's allegations that he
had engaged in such violations of the standard agreement,
Marquis acquiesced and paid the penalty which the Union
imposed for his alleged transgression of the collective-bar-
gaming agreement. The last of these instances, involving em-
ployees John Loving and Donald Derr, occurred in March
1974.
It appears that from July 1972 until April 1974 the Re-
spondent continued to recognize the Union as the representa-
tive of its employees and to bargain with it about their griev-
ances and complaints in the same fashion as it had done
during the years prior to 1972 Not only did the Respondent
secure all of its personnel through the union hiring hall,
Marquis consistently required all its employees to be mem-
bers of the Union in good standing. In the summer of 1973
Marquis wanted to employ Ernest E. Morrison, a mechanic
whom he had known a long time and whom he knew to be
a skilled worker. Morrison, however, had had difficulties
with the Union because he had worked during a strike and
as a result had been fined $2,000 by Local 31. Marquis cau-
tioned him that before starting to work he would have to be
cleared by the Union. Marquis testified that he talked with
Seibert himself before hiring Morrison in order to be sure that
Morrison was "clear"5 and could get a card. Marquis testi-
fied that from 1972 to April 20, 1974, he continued to have
contact with Seibert in his official capacity as business
manager of Local 31, through telephone calls and
otherwise.' Marquis further testified, however, that by April
1974 his relations with Seibert deteriorated to the point where
"Our conversations led almost to fist fights."7 According to
Marquis, because of the difficulties he had in exchanging
views with Seibert, on April 20 he telephoned J. D. Peoples,
vice president of the International Union, to secure his assist-
ance. Marquis went on to testify that this occasion was "not
the first time I have asked for his [Peoples'] assistance."8 At
this time, Peoples declined to become embroiled in the dis-
pute and told Marquis that he felt the Company's problems
with Seibert should be settled at the local union level rather
than by getting the International Union involved. As found
earlier, at that point Marquis thereupon announced to Peo-
ples that the Company henceforth would operate a nonunion
shop and that he would return the Union's "charter."
5 The quotation is from Marquis' testimony.
6 As to whether, during that period, he was in contact with the business
agent via the telephone, in response to the following question, Marquis gave
the answer which appears below
Q. Did you have telephone calls')
A Right, I did. He was well aware that. . we had plenty of work,
and I think everyone in the Local, especially Jack [Seibert], knew that
we needed men with more experience to help us out. So, I am sure there
were several occasions when we talked about this.
r The quotation is from Marquis' testimony.
8 The quotations in this paragraph are from Marquis' testimony
465
C. The Alleged Violations of Section 8(a)(5); Findings and
Conclusions in Connection Therewith
1. The appropriate unit
The original standard agreement, which covered the period
from 1968 to 1972, established a unit made up of the Respon-
dent's elevator constructor mechanics and helpers. The
standard agreement for the period from 1972 to 1977 con-
tained this same unit description. This grouping defines an
homogenous unit of craft employees. Consequently, it is now
found that all elevator constructor mechanics and helpers
employed by the Respondent, excluding office clericals,
guards, watchmen and supervisors within the meaning of the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act.
2. The majority issue
Marquis testified that from 1972 to April 1974 he used
union personnel exclusively, as he had in all prior years that
he had been in business . From January 1 to April 20, 1974,
the Respondent had a total of 10 employees engaged at one
time or another, the number at work on any given day vary-
ing from 3 to 5. The entire complement on the Respondent's
work force during this period was made up of employees
James A. Beard, Jr., Donald E. Derr, Paul Foster, Paul W.
Kilsby, John B. Loving, Leonard L. McKee, Ernest E. Morri-
son, Albert W. Stubblefield, Jr., Roger J. Sobolik, and Larry
D. Wakefield.' Bill Baichtal, a member of the executive
board of Local 31, testified, credibly and without contradic-
tion, that all of the foregoing were union members in good
standing at that time. In the light of the foregoing facts, it is
now found that on April 20, 1974, and at all times material,
the Union had a majority in the appropriate unit.
3. The contract issue
The Respondent contends that subsequent to the expira-
tion of the interim agreement on July 8, 1972, it was under
no binding contractual obligation to the Union. Nevertheless,
it is evident that until April 20, 1974, the Respondent con-
tinued to recognize .the Union as the representative of its
employees and to bargain with Business Manager Seibert and
Vice President Peoples. Further, although the parties did not
execute any document that would constitute a formal adop-
tion of the new standard agreement it is apparent that the
parties' course of conduct from July 1972 and until April 20,
1974, constituted an adoption of that contract. Throughout
the period in question, the Respondent Contributed to the
trust funds established by the standard agreement. It adhered
to the wage provisions and to all other terms and conditions
of that agreement. When Marquis violated the contract by
working with tools himself, he paid the penalty assessed
against him by the Union for this breach. Until April 20,
1974, and at all 'times prior thereto, the Respondent con-
tinued to hire all its personnel through the Union, it discussed
grievances with Business Manager Seibert and International
9 This finding is based upon the monthly reports which the Respondent
submitted to the' First Pennsylvania Bank for the period from January
through April 1974, as well as the testimony of the employees themselves.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vice President Peoples, and, according to Marquis, during
that period' he never refused to discuss complaints or other
matters with the Union. Notwithstanding the present conten-
tion of the Respondent, maintained at the trial and in its brief,
that in April 1974 no contract was in existence, it is evident
that on April 20 Marquis himself felt that the Company was
then bound by the standard agreement. There is no other
explanation for his conduct on that date when he telephoned
Peoples, the Union's International Representative, to tell him
that he was severing all relations with the Union, that hence-
forward he was going to work as a nonunion employer and
that he would return to the Union its wall plaque which he
had had since 1968.
The Board has held, in deciding whether an employer and
a union have agreed upon a contract, that it is not bound by
the technical rules of contract law. Lozano Enterprises v.
N.L.R.B., 327 F.2d 814 (C.A. 9, 1964). In John Wiley & Sons
v. Livingston, 376 U.S. 543, 550 (1964), the Supreme Court
held that a collective-bargaining agreement is not governed
by the same common law concepts which govern private
contracts, nor is it an ordinary agreement comparable to one
for the purchase of goods and services. Cf. Operating Engi-
neers v. Flair Builders, Inc., 406 U.S. 487 (1972). Here, as in
Manor Research, Inc., 165 NLRB 909 (1967), the continued
utilization of the welfare, pension, and educational funds, the
use of the Union as the source of employees and for the
settlement of grievances, "demonstrate the existence of a con-
tinuing relationship between the Respondent and the Union."
In Marquis' own words, he adhered to the standard agree-
ment for 1972 to 1977 "as close as possible." Of the period
subsequent to the effective date of the foregoing contract
Marquis further testified, "I had every intention of keeping
our relations with the Union good and [to] work under the
standard agreement." In pursuing this policy, Marquis con-
tributed to the trust funds established by that contract and
paid the wage scale established therein. At the same time he
utilized the provisions of the agreement in securing new em-
ployees through the union hall.
On the basis of the above findings, it is now found that by
this course of conduct the Respondent adopted the current
standard agreement and until April 20, 1974, abided by it,
except for those occasions when Marquis worked with his
tools and was charged by the Union with a breach of its
terms. Even then, however, Marquis acquiesed in the penalty
which the Union imposed on him for violating the provisions
of that contract. As the result of its adoption of the current
standard agreement and the fact that at no time prior to April
20, 1974, did the Respondent give the Union any notice that
it did not consider itself bound by that agreement, the Re-
spondent is estopped from now making a claim to the con-
trary. Homer Gale and Howard Gale, co-partners, d/b/a
American Sign & Neon Company, 176 NLRB 1049,
1051-52 (1969). On the facts present here, Marquis was
bound to the terms of the current standard agreement. John-
son Electric Company, Inc., 196 NLRB 637, 643-644 (1972),
enfd. 472 F.2d 161 (C.A. 6, 1973); John E. Holkko, d/b/a
Lifetime Shingle Company, 203 NLRB 688 (1972). More-
over, under Section 8(d) of the Act he had no right to repudi-
ate it without notice as he sought to do on April -.20,
1974.10 By his declaration to Peoples, on the latter date, to
the effect that the Respondent was going to go nonunion and
by his declaration to the union representative that he was
sending the Union's charter, back to it, Marquis withdrew the
recognition that, until then, and pursuant to the Act, the
Respondent had accorded the employees' bargaining agent.
By Marquis' action then, and by the Respondent's continuing
refusal thereafter to recognize and bargain with the Union,
the Respondent violated, and is continuing to violate, Section
8(a)(5) and (1). Moreover, by its action in rescinding the
standard agreement, discontinuing all payments to the em-
ployee benefit plans provided by that contract, and thereafter
unilaterally establishing its own wage rates and other terms
and conditions of employment, the Respondent further vi-
olated Section 8(a)(5) and (1) of the Act. Lozano Enterprises
v. N.L.R.B., supra at 818-819; Lifetime-Shingle Company,
supra; Johnson Electric Company, Inc., supra.
D. The Alleged Individual Bargaining by Marquis;
Findings and Conclusions in Connection Therewith
There is'substantial evidence in the record that for a period
of several months prior to April 1974, Marquis engaged in
numerous conversations with his employees on the subject of
the Respondent's becoming a nonunion employer. Several
employees credibly testified on this matter. Marquis did not
deny their testimony when, he subsequently took the stand.
Employee Ernest E. Morrison credibly testified as follows:
On two occasions during the latter part of 1973 and while he
was at work in the shop, Marquis asked'him if he thought the
Company "could make it as a nonunion" employer. On the
latter occasion, which took place in November, Marquis
asked Morrison if he would go with him when this change
was made. Morrison declined to encourage these plans with
the statement "I had money invested in my [union] card
[and] I didn't want to give it up." In January 1974 Marquis
again brought up the subject and in this instance he proposed
to Morrison that the latter head a nonunion branch of the
Company so that Marquis could more easily compete with
the open shop contractors. As Marquis described it to Morri-
son, the existing business and the proposed open shop'branch
would "in effect, beset up on paper as two separate compa-
10 Sec. 8 (d) provides, in relevant part.
. where there is in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the duty to bargain col-
lectively shall also mean that no party to such contract shall terminate
or modify such contract, unless the party desiring such termination or
modification-
(1) serves a written notice upon the other party to the contract of
the proposed termination or modification sixty days prior to the
expiration date thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is proposed to make
such termination or modification,
(2) offers to meet and confer with the other party for the purpose
of negotiating a new contract or a contract containing the proposed
modifications,
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, and simul-
taneously therewith notifies any State or Territorial agency estab-
fished to mediate and conciliate disputes within the State or Territory)
where the dispute occurred, provided no agreement has been reached
by that time; and
(4) continues in full force and effect, without resorting to sti ike or
lockout, all the terms and conditions of the existing contract for a
period of sixty days after such notice is given or until the expiration
date of such contract, whichever occurs later
MARQUIS ELEVATOR-COMPANY, INC.
nies." The next month , however, in another conversation
with Morrison, Marquis told him that he had abandoned all
plans for establishing a separate nonunion branch of the Re-
spondent and that instead he had decided to go nonunion all
the way with the existing Company . M[orrison again mani-
fested his opposition to being a part of such plans because of
his longstanding connections with - Local 31 and what he
described as the amount he had "invested" in his union
card."
Employee Paul Foster testified credibly and without con-
tradiction about the following exchange with Marquis: On
about April 16, Marquis visited him at the Veterans Hospital
jobsite. While there , Foster questioned him about rumors
then current that the Company was going "nonunion ." With-
out answering directly , Marquis asked whether Foster would
favor such a move . When the employee replied in the nega-
tive, Marquis told Foster that if the Company went nonunion
he could have all the privileges he wanted . "You can hire the
attorney of your choice and draw up all of the papers neces-
sary. I will give you pension benefits , vacation , everything
you've got with the Union , life insurance, plus if you ever
want to leave me and go back [with] the Union I will pay any
fines [imposed by the Union ]." Foster at first asked for time
to think about the matter, but that evening when he returned
to the shop he told Marquis that he could not accept his offer.
Foster further told him that because of the way the Company
was breaking the union rules and planning to go nonunion he
would quit the next day. This would have been April 17. On
that day, Marquis telephoned Foster to tell him that he had
decided to stay with the Union . Foster assured him that in
that event he would continue working . In fact, Foster worked
until the end of that week . Over the weekend , however, Mar-
quis telephoned him again , this time to tell Foster that he had,
indeed , severed relations with Local 31. Foster then told him,
"in that case, I will be in Monday and turn in my tools." The
following morning Foster returned to the shop solely for that
purpose and , after checking in his tools, left. 12
Other employees testified to similar conversations with
Marquis during the last 4 months before April 20 , 1974, when
the Respondent's president announced to the Union that the
Company was severing all relations with Local 31. Their
testimony was credible and undenied . According to employee
Paul W . Kilsby, in the latter part of December 1973 and
about the first of February 1974 he had conversations with
Marquis in which the Respondent 's president stated that it
appeared that the Company would have to go nonunion, or
"rat," a colloquialism with the same intendment . In each
instance Kilsby told him that in such an event he would have
to quit because working at a nonunion shop would cause the
loss of all his union benefits. Employee Donald E. Derr testi-
fied that on two occasions, once on about January 24, 1974,
and again in mid-February, Marquis questioned him as to
whether he would go nonunion if the Company did so. In
each instance , Derr replied in the negative . Employee Roger
Sobolik testified that during the fall of 1973, while on a job
in Orange , Texas, Marquis questioned him as to whether he
11 The quotations in this paragraph are from Morrison's testimony which
was credible and was neither contradicted nor denied by any witness for the
Respondent.
12 The quotations in this paragraph are from the testimony of Foster which
was credible, undenied, and uncontradicted
467
would be in favor of going nonunion. Sobolik replied in the
negative with the explanation that he had been with the
Union too long to give up his card.
The General Counsel alleged that the Respondent, in dero-
gation of the Union as the employees' bargaining agent, had
engaged in individual bargaining with both Morrison and
Foster. This allegation was amply supported by the evidence
as to Marquis' activities that is set forth above. By proposing
to Morrison that the employee could help him establish a
nonunion branch of the Company and by promising Foster
that if he accepted Marquis' plan to have an open shop Foster
would have better wages and more fringe benefits than the
Union could assure him, Marquis caused the Respondent to
engage in further violations of Section 8(a)(5) and (1). Chase
Manufacturing, Inc., 200 NLRB 886 (1972).13
E. The Alleged Constructive Discharges; Findings and
- Conclusions with Respect Thereto
1. Foster, Sobolik, and Kilsby
Earlier herein it was found that when employee Paul Fos-
ter learned from Marquis on-the weekend of April20 that the
Respondent had withdrawn recognition of Local 31 and that
henceforth the Company would operate as an open shop,
Foster told Marquis that he would quit and would report the
following Monday to check in his tools. On the morning of
April 22 Foster reported to the shop for that purpose and left
the Respondent's employ.
Employee Roger Sobolik was hospitalized during the week
of April 15 because of a diabetic condition. On the morning
of April 22, a Monday, and while still in the hospital, Sobolik
telephoned Marquis to inquire as to whether the Company
had gone nonunion. When he found from Marquis that had,
in fact, occurred, Sobolik asked that Marquis prepare his
vacation pay and promised that as soon as released from the
hospital he would return the company tools which he still had
in his possession. Two days later, and upon his discharge
from the hospital, he reported to the company shop and
turned in his tools. Sobolik testified that he took this action
and quit when Marquis told him that the Respondent had
withdrawn recognition from the Union and planned to `do
business as an open shop.
Employee Paul W. Kilsby was a longtime union
member.14 He was in the Respondent's employ from
November 1973 until February 20. During that time, as
found above, Marquis, on two occasions, told Kilsby that it
looked as if the Company would have to go nonunion. The
last of these instances occurred early in February. Kilsby
credibly testified that during the latter 2 months that he was
with the Respondent, Marquis engaged in numerous viola-
13 Marquis' strategem was successful as to only one employee, Leonard
McKee. The latter, a witness for the Respondent, testified that during the
week in April, when Marquis talked with Peoples, Marquis told him that he
might have to go nonunion and that he would like to have McKee stay with
him. According to McKee, when he questioned Marquis as to whether he
would continue to pay the union scale of wages, Marquis promised that he
would. McKee testified that some time later, and after being off the job for
several weeks, he returned to work for the Respondent and found that the
fringe benefits for him then were better than those which he had while the
Respondent was adhering to the standard agreement.
14 He credibly testified that he had been a member since about 1959.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the standard agreement. Most of these involved in-
stances when Marquis joined the men in working with tools,
an open violation of the union contract. In the first part of
February, as found earlier herein, Marquis questioned Kilsby
as to what he would do if the Company went to an open shop
policy. Kilsby replied that if such a development arose he
would have to quit because he could not retain his union
benefits if he worked in a nonunion shop. Kilsby testified that
he quit on February 20, because of Marquis' continuing viola-
tions of the standard agreement which caused him to fear that
he "was going to get in bad with the Local.""
The General Counsel contends that Foster, Sobolik, and
Kilsby were forced to quit because of Marquis' antiunion
policies and that, as a result, their terminations were con-
structive discharges and violative of the Act. Foster and
Sobolik, who quit when the Respondent withdrew recogni-
tion of the Union and repudiated the standard agreement, are
clearly in that category. The actions and conduct of the Re-
spondent, in violation of the Respondent's obligations under
Section 8(a)(5) and (1) of the Act, created a situation which
made it impossible for them to continue in the Company's
employ and retain their union membership. Accordingly, it
is now found that the Respondent was responsible for their
terminations and that, in so doing, the Respondent violated
Section 8(a)(3) of the Act. Kamminga & Roodvoets, Inc., 198
NLRB 208, 209-211 (1972); Barwise Sheet Metal Co., Inc.,
et at, 199 NLRB 372 (1972); Johnson Electric Company, Inc.,
supra; Lifetime Shingle Company, supra; American Enter-
prises, Inc., 191 NLRB 866, 868-869 (1971). It is also found
that Marquis' course of conduct in the months prior to his
total repudiation of the standard agreement and the Respon-
dent's withdrawal of recognition of Local 31 caused Kilsby,
a union member of many years, to quit the Company's em-
ploy because he feared that his continued employment with
Marquis would jeopardize his standing with the Union.
Consequently, by such conduct as to Kilsby the Respondent
further violated Section 8(a)(3).
2. Loving and Derr
John B. Loving was hired as a temporary mechanic in
mid-February and Donald E. Derr was hired as a probation-
ary helper in January. On March 25, Marquis told them that
they were no longer needed. For some while prior thereto
they had been working together on the installation of an
elevator at what was known as the "5959" jobsite. As found
earlier, on two different occasions, once in January and once
in February, Marquis questioned Derr as to whether he
would stay with the Company if it went nonunion and in each
instance Derr's response was in the negative. On the after-
noon of Friday, March 15, Loving and Derr left work at the
end of their shift and after Marquis assured them that if he
needed them over the weekend he would telephone. Marquis
never did so. When they returned on the following Monday
morning, however, they discovered that a substantial amount
of work had been done in their absence. When Marquis ar-
rived, they protested about not having been called in to per-
form the work which had been performed on the job on
Saturday and Sunday. They further told him that they would
15 The quotation is from Kilsby's credible, undenied testimony.
do nothing further until the matter was straightened out, and
then left the scene to telephone Seibert, the Union's business
manager . As the result of Seibert's intervention, Marquis paid
both Loving-and Derr the wages that they would have earned
over the weekend if he had called on them rather than doing
the work himself. Marquis testified that before handing each
one his check he questioned Loving and then Derr as to
whether the individual felt that he was entitled to payment,
and that both of them answered in the affirmative. Marquis
then-handed each a check for the work in question, albeit
reluctantly. Marquis conceded that early the next week he
told Loving not to come back to work because he had nothing
for him to do. Loving, however, credibly testified that in the
same conversation, Marquis told him that employee Leonard
McKee was going to take over the job. Since Loving, the
mechanic, was displaced, there was then no further work for
Derr, his helper. Neither Loving nor Derr received any other
work after March 25.
The General Counsel and the Charging Party contend that
the Respondent's conduct in this regard constituted a con-
structive discharge of Loving and Derr. This is denied by the
Respondent, according to whom these employees quit rather
than stay on the job and finish it on the morning of March
25.
Loving and Derr testified that on Monday morning, March
25, they had been working a 12-hour night shift for the
preceding 7 or 8 days. According to Loving, after they had
been on the job over 12 hours and at the close of the shift early
on the morning of March 25, he telephoned Marquis to in-
form him as to what remained to be done. Loving testified
that Marquis told him at this time that he and Derr could go
home because employee McKee was coming in to take over
the job. According to Loving, Marquis told him to telephone
the next day as to further work and when he did so on March
26, Marquis told him that there was nothing available for him
or.Derr. Neither was ever recalled to work for the Respond-
ent.
Marquis testified that on the morning in question he was
dissatisfied with the work of Loving and Derr in that they had
not completed the job to the point where the elevator could
be used by the tenants of the building. According to Marquis,
when Loving telephoned him at about 7 a.m. on March 25,
the latter told him that the elevator would not operate, but
that he and Derr were tired and were going home. Marquis
made no reference to the testimony of Loving to the effect
that during this conversation Marquis assured him that he
and Derr could go home because employee McKee was then
coming on duty to take over the job. Nor did Marquis con-
tradict Loving's testimony that when he telephoned Marquis
the following day, the latter told him that neither he, nor his
helper Derr, was needed any longer.
Loving and Derr were credible in their testimony as to the
events which occurred on the last day of their employment.
In view of the foregoing conclusions and the lack of any
specific response by Marquis as to their testimony when he
was on the stand , it is my conclusion that Marquis did not
criticize them on the morning in question nor ask them to
remain on the job any longer that day since they already had
completed 12 hours on duty. Rather, it is apparent from
Loving's credible testimony that on that occasion Marquis
told Loving that both Loving and Derr could go off duty at
MARQUIS ELEVATOR COMPANY, INC.
that time and that Leonard McKee would be responsible for
getting the elevator operational that morning. It is my further
conclusion that Marquis' purported objection to -their work,
voiced at the hearing, was an afterthought. Finally, in view
of (1) Marquis' expressed determination to go nonunion; (2)
his having questioned Derr as to whether he would accept
work under such an arrangement and the negative response
of the latter; (3) the incident on March 15 which culminated
in Business Manager Seibert requesting that Marquis pay
Loving and Derr for work they would have performed that
weekend if Marquis had adhered to the terms of the collec-
tive-bargaining contract; (4) Marquis' bitterness toward Sei-
bert as expressed at the hearing when he stated that he could
not talk with the union official, because "our conversations
led almost to fist fights"; and (5) Marquis' course of conduct
which, as found above, resulted in the Respondent's repudia-
tion of the contract and withdrawal of recognition for the
Union on April 20, it is my conclusion that Marquis' explana-
tion as to why he did not recall Loving and Derr was a pretext
and that the real reason was his antipathy for Local 31 and
for the employees having insisted during the preceding week
that Marquis adhere to the terms of the collective-bargaining
agreement. Accordingly, it is now found, in the light of these
conclusions, that Loving and Derr were constructively dis-
charged on March 25 when Marquis did not recall them and
that by this action the Respondent violated Section 8(a)(3).
3. Morrison
On February 28, 1974, employee Ernest E. Morrison gave
notice to Marquis that he had secured another job and that
he would terminate his employment with the Respondent
that afternoon. Morrison had been a union member for many
years. The General Counsel and the Charging Party contend
that because of Morrison's prior experience with the Union,
where, as related earlier, subsequent to one lapse in fealty he
was fined $2,000, the employee was especially vulnerable to
any pressures by the Employer which would bring on further
conflicts with Local 31, and that, on the facts present here,
Morrison's termination must be considered a constructive
discharge. As found above, Marquis made several approaches
to Morrison to induce him to join the Respondent in operat-
ing a nonunion shop. On the other hand, at the trial, when
the General Counsel questioned Morrison as to the reasons
he gave the Employer for quitting, Morrison testified that
although the general job conditions were, in part, responsible,
his primary reason for leaving was the fact that he had been
offered a job by another employer on which he would earn
more money. On the basis of this testimony, it is my conclu-
sion that the General Counsel has failed to prove by a pre-
ponderance of the evidence that Morrison was forced to quit
in a constructive discharge. Accordingly, this allegation of
the complaint must be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
469
3. All elevator constructor mechanics and helpers em-
ployed by the Respondent, excluding office clericals, guards,
watchmen and supervisors within the meaning of the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At least since on or about April 4, 1972, the Union has
been the collective-bargaining representative of the em-
ployees in the aforementioned appropriate unit, and by virtue
of Section 9(a) of the Act has been, and is, the exclusive
representative of all employees in said unit for purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
5. Commencing on or about April 4, 1972, and continuing
to date, the Union requested and continues to request Re-
spondent to bargain collectively with respect to rates of pay,
wages, hours of employment, and other conditions of employ-
ment as the exclusive collective-bargaining representative of
all the employees in the aforesaid appropriate unit.
6. On or about April 4, 1972, and continuing to on or about
April 20, 1974, the Respondent recognized and bargained
collectively with the Union as the exclusive collective-bar-
gaining representative of the employees in the appropriate
unit.
7. Since January 1974, the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to bargain collectively
with the Union, by bargaining directly and individually with
employees in the unit, and, on April 20, 1974, by withdrawing
recognition from the Union and thereafter changing wage
rates, employee benefits, and other terms and conditions of
employment.
8. By constructively discharging Paul W. Kilsby, Donald
E. Derr, John B. Loving, Paul Foster, and Roger J. Sobolik,
the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act.
9. By requiring its employees to elect between foregoing
their rights under the union contract or foregoing employ-
ment with the Respondent, the Respondent coerced and re-
strained said employees in the exercise of rights guaranteed
them by Section 7 of the Act, and thereby engaged in, and is
engaging in, unfair labor practices proscribed by Section
8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within they meaning of Section
2(6) and (7) of the Act.
11. The Respondent did not constructively discharge Er-
nest E. Morrison.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices it will be recommended that it cease and desist
therefrom and take certain affirmative action set forth below,
designed and found necessary to effectuate the policies of the
Act.
The Respondent will be required to cease and desist from
further violations, to revoke its unilateral changes, and to give
retroactive effect to all the terms and conditions of the 1972
to 1977 agreement from the date of the Respondent's rejec-
tion of said agreement on April 20, 1974, and to make whole
its employees for any loss of wages or other benefits they may
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have suffered as a result of the Respondent's unlawful refusal
to bargain. The Respondent will also be ordered to offer
reinstatement to Kilsby, Derr, Loving, Foster, and Sobolik
and to make them whole for wages and other benefits lost.
The backpay herein recommended shall be computed in the
manner set forth in F W. Woolworth Company, 90 NLRB
289 (1950), with interest at the rate of 6 percent per annum,
as provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). It will also be recommended that Respondent be re-
quired to preserve, and, upon request, make available to au-
thorized agents of the Board, all records necessary or useful
in determining compliance with this Order, or in computing
the amount of backpay due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended-
ORDER 16
Marquis Elevator Company, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing to give full effect to, and to comply
fully with the standard agreement between the National
Elevator Industry, Inc., and Local 31, executed on July 8,
1972, and effective until July 8, 1977, according to its tenor
and effect, with respect to the employees in the unit set forth
'above.
(b) Failing or refusing, on request, to bargain collectively
with the aforesaid labor organization as the exclusive collec-
tive-bargaining representative of the employees in the afore-
said unit.
(c) Unilaterally changing the wages and other terms and
conditions of employment of the employees in the aforesaid
unit without prior consultation with the aforesaid labor or-
ganization as the exclusive collective-bargaining representa-
tive of said employees.
(d) Bargaining directly and individually with any employee
in the aforesaid unit.
(e) Coercing or restraining employees in the aforesaid unit
by telling them that they could work for the Respondent only
if they would agree to work under the terms and conditions
of employment unilaterally established by the Respondent,
rather than under the terms and conditions established by the
aforesaid contract, or by any other statement of similar pur-
port.
(f) Unlawfully terminating employees or otherwise unlaw-
fully discriminating in regard to their wages and terms and
conditions of employment.
16 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their 'own
choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Upon request recognize and bargain collectively with
the aforesaid labor organization as the exclusive collective-
bargaining representative of the employees in the aforesaid
appropriate unit, with respect to rates of pay, wages, hours
of work, and other terms and conditions of employment.
(b) Restore and place in effect all terms and conditions of
employment provided by the aforesaid contract of July 8,
1972, which were unilaterally changed by the Respondent.
(c) Make such pension, welfare, and educational payments
on behalf of those employees in the unit for whom such
contributions were previously made and would have con-
tinued to be made had the Respondent not ceased to comply
with the aforesaid contract.
_ (d) Offer Paul W. Kilsby, Donald E. Derr, John B. Loving,
Paul Foster, and Roger J. Sobolik full and unconditional
reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges and make each of them whole for any loss of wages
suffered by reason of the Respondent's conduct, as provided
in the section hereof entitled "The Remedy."
(e) Preserve and, upon request, make available to author-
ized agents of the Board, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(t) Post at its headquarters in Houston, Texas, copies of the
attached notice marked "Appendix."" Copies of said no-
tice, on forms provided by the Regional Director for Region
23, after being duly signed by the Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 23, in writing,
within 20 days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found herein.
17 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 "