M&M Backhoe Service

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 462 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 29
462
M&M Backhoe Service, Inc. and International Union
of Operating Engineers Local 487, AFL–CIO.
Cases 12–CA–22384, 12–CA–22404, 12–CA–
22450(1–5), and 12–CA–22458
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 10, 2003, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief. The Respondent filed
an answering brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions, to amend the remedy,2 and to
adopt the recommended Order.
1. In finding that the 8(f) bargaining relationship be-
tween the Respondent and the Union validly converted to
a 9(a) relationship, the judge applied the approach set
forth in Staunton Fuel & Material, 335 NLRB 717, 719–
720 (2001), pursuant to which an agreement that meets

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by photographing picket-line activity, Member
Schaumber observes that there was no showing that the Respondent
photographed the picketers in order to document unlawful activity, such
as trespass.
2 We amend the remedy section of the judge’s decision to provide
that the make-whole remedy for the Respondent’s unlawful unilateral
change in the way it compensated employees for overtime is to be
computed in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Chairman Battista and Member Schaumber note that the judge pro-
vided for an instatement and backpay remedy pursuant to J. E. Brown
Electric, 315 NLRB 620, 622–623 (1994), for the Respondent’s unlaw-
ful unilateral cessation of use of the Union’s hiring hall. Chairman
Battista and Member Schaumber find it unnecessary now to address
issues concerning the validity of that decision. See concurring opinions
in Brown and in Coulter’s Carpet Service, 338 NLRB 732 (2002); see
also dissenting opinions in M. J. Wood & Associates, 325 NLRB 1065,
1068 fn. 9 (1998); Baker Electric, 317 NLRB 335, 336 fn. 4 (1995).
We shall substitute a new notice in accordance with our decision in
Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d
534 (6th Cir. 2004).
certain requirements is independently sufficient to estab-
lish a union’s 9(a) status. The viability of this approach
was challenged by the United States Court of Appeals for
the District of Columbia Circuit’s decision in Nova
Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003).
In Nova Plumbing, the D.C. Circuit denied enforcement
where the Board had relied solely on contract language to
find 9(a) status “despite strong record evidence that the
union may not have enjoyed majority support.” Supra at
533. Here, however, the record evidence clearly demon-
strates that the Union enjoyed majority support at the
time that the recognition agreement was executed. Thus,
we need not reassess here the rule of Staunton Fuel &
Material because the result in this case would be the
same under Nova Plumbing.
2. The General Counsel excepts to the judge’s rec-
ommended Order on the ground that, in ordering a make-
whole remedy for the Respondent’s unilateral cessation
of payments into the Union’s health and welfare fund,
the judge failed also to order a like remedy for the Re-
spondent’s cessation of payments into the Union’s pen-
sion, apprenticeship, and vacation funds. The General
Counsel observes that the Respondent stipulated that it
ceased making payments into all four of these funds after
June 2002. The General Counsel requests that the Board
modify the judge’s findings of fact, conclusions of law,
and recommended Order accordingly.
We decline to grant the General Counsel’s exception.
It is axiomatic that a respondent cannot fully and fairly
litigate a matter unless it knows what the accusation is.
Here, although the complaint specifically alleged that
“[s]ince on or about July 1, 2002, Respondent has ceased
remitting health and welfare fund contributions,” the
complaint did not similarly allege that the Respondent
unlawfully ceased payment into the pension, apprentice-
ship, or vacation funds. Further, the General Counsel
never sought to amend the complaint to include these
allegations, nor were these issues litigated at the hearing.
Accordingly, the Respondent was not on notice, at the
time of the stipulation the General Counsel invokes, that
its cessation of payments into those three funds was at
issue. Under these circumstances, the Respondent’s ces-
sation of payments into these additional union funds was
not fully and fairly litigated. See Mine Workers District
29, 308 NLRB 1155, 1158 (1992) (mere presentation of
evidence relevant to a possible violation of the Act does
not satisfy the requirement that matter be “fully and
fairly litigated”). Unlike our colleague, we find that the
generalized language in the complaint, alleging that the
Respondent “changed other terms and conditions of em-
ployment,” is too vague to put the Respondent on notice
that its contributions to the pension, apprenticeship, and
M&M BACKHOE SERVICE 463
vacation funds were at issue, particularly given that the
complaint specifically alleged cessation of payments into
the health and welfare fund and omitted mention of any
other union fund.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, M&M Backhoe Service, Inc.,
Homestead, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Order, ex-
cept that the attached notice is substituted for that of the
administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unlawfully withdraw recognition from
the International Union of Operating Engineers Local
487, AFL–CIO and refuse to bargain with it as the exclu-
sive collective-bargaining representative of the employ-
ees in the unit described below.
WE WILL NOT unilaterally cease to pay daily and Satur-
day overtime.
WE WILL NOT unilaterally fail and refuse to use the Un-
ion's hiring hall to hire employees.

3 Member Liebman would grant the General Counsel’s exception.
She would find that the Respondent’s cessation of payments into the
Union’s pension, apprenticeship, and vacation funds was both closely
related to its refusal to pay into the health and welfare fund and, con-
trary to the majority’s view, fully and fairly litigated by the parties.
The Respondent stipulated that it stopped paying into all four union
funds. Moreover, the complaint provision alleging cessation of pay-
ments to the health and welfare fund on or about July 1, 2002, also
alleged that “on or about the same date and thereafter, the Respondent
changed other terms and conditions of employment of employees in the
Unit.” Thus, when the Respondent stipulated that it ceased payment
into all four of the funds on July 1, 2002, it was on notice that all its
unilateral changes on that date were at issue.
WE WILL NOT unilaterally cease to pay health and wel-
fare benefits on your behalf.
WE WILL NOT fail and refuse to provide the Union with
requested relevant information.
WE WILL NOT promise you benefits to persuade you to
withdraw your support from the Union and WE WILL NOT
threaten any of you with termination for continuing to
support the Union.
WE WILL NOT solicit you to sign a petition requesting
that we withdraw recognition from the Union.
WE WILL NOT photograph lawful strike activity.
WE WILL NOT reprimand or suspend any of you for en-
gaging in lawful strike activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of the
rights set forth above.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time Equipment Opera-
tors, Oilers, Drivers and Equipment Mechanics em-
ployed by the Employer in the counties of Broward,
Charlotte, Collier, Miami-Dade, Glades, Hendry, High-
lands, Indian River, Lee, Martin, Okeechobee, Palm
Beach and St. Lucie, Florida; excluding all other em-
ployees, guards and supervisors as defined in the Act.
WE WILL make you whole, with interest, for any losses
you suffered because we unlawfully ceased paying daily
and Saturday overtime.
WE WILL offer immediate and full employment to those
applicants who would have been referred to us by the
Union’s hiring hall were it not for our unlawful conduct,
and make them whole, with interest, for any losses suf-
fered as result of our failure to hire them.
WE WILL make you whole for any losses you suffered
as a result of our unlawful failure to make contributions
to the Union’s health and welfare fund by making all
delinquent contributions to the fund, including any addi-
tional amounts due the fund, and by reimbursing you,
with interest, for any expenses you incurred as a result of
our failure to make those contributions.
WE WILL provide the Union in a timely manner with
the information it requested by letters dated June 27 and
July 12, 2002: our current contract with Florida Power &
Light, the 401(k) and health care plans we provide to
both bargaining unit and nonbargaining unit employees,
and the names, addresses, and phone numbers of any
employees we hired to operate equipment who were not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD464
referred by the Union, together with their wage rates,
fringe benefits, paid holidays, paid vacation, and/or any
other benefits or compensation being provided or prom-
ised in the future, all of which information is necessary
and relevant to the Union’s duties as collective-
bargaining representative of employees in the unit de-
scribed above.
WE WILL make Eddie Falcon whole, with interest, for
any loss of earnings and other benefits suffered by him as
a result of his unlawful suspension for engaging in strike
activity.
WE WILL, within 14 days from the date of the Board's
Order, remove from our files any reference to the unlaw-
ful discipline issued to Tommy Miliano and Eddie Fal-
con, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the discipline
will not be used against them in any way.
M&M BACKHOE SERVICE, INC.
Shelley B. Plass, Esq., for the General Counsel.
Michael E. Avakien, Esq., for the Respondent.
Mr. Gary Waters and Susan Mohorcic, Esqs., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Miami, Florida, on April 8, 9, and 10, 2003, pursu-
ant to a consolidated complaint that issued on November 25,
2002.1 The complaint alleges several violations of Section
8(a)(1) of the National Labor Relations Act (the Act), the warn-
ing of one employee and the warning and suspension of two
employees in violation of Section 8(a)(3) of the Act, and failure
to provide relevant information, various unilateral changes, and
the withdrawal of recognition from the Union in violation of
Section 8(a)(5) of the Act. The Respondent’s answer denies any
violation of the Act. I find that the Respondent did violate the
Act substantially as alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, M&M Backhoe Service, Inc. (the Com-
pany) is a Florida corporation engaged in the building and con-
struction industry from its facility at Homestead, Florida. The

1 All dates are in 2002, unless otherwise indicated. The charge in
Case 12–CA–22384 was filed on July 25. The charge in Case 12–CA–
22404 was filed on July 29. The charges in Cases 12–CA–22450(1-4)
were filed on August 20, and the charge in Case 12–CA–22450(4) was
amended on September 30. The charge in Case 12–CA–22450(5) was
filed on August 28. The charge in Case 12–CA–22458 was filed on
August 27.
Company, in conducting its business, annually purchases and
receives at its facility goods and materials valued in excess of
$50,000 directly from points located outside the State of Flor-
ida. The Respondent admits, and I find and conclude, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Union of Operating Engineers Local 487, AFL–CIO,
the Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Robert E. Miley, president of the Company, is a former
member of the Union. He founded the Company in 1991. From
1992 until June 30, 2002, the Company entered into successive
8(f) agreements with the Union. The appropriate unit is:
All full-time and regular part-time Equipment Operators, Oil-
ers, Drivers and Equipment Mechanics employed by the Em-
ployer in the counties of Broward, Charlotte, Collier, Miami-
Dade, Glades, Hendry, Highlands, Indian River, Lee, Martin,
Okeechobee, Palm Beach and St. Lucie, Florida; excluding all
other employees, guards and supervisors as defined in the
Act.
Although entering into successive agreements, the Company
had, in recent years, expressed some reluctance in continuing
its 8(f) relationship. In 2001, President Miley advised Union
Business Manager Gary Waters that the Company would not
sign another agreement. The Union obtained authorization
cards from the unit employees but, upon Miley’s agreement to
bargain, did not seek an election or recognition. Thereafter, the
parties entered into an 8(f) contract that expired on June 30,
2002.
The instant case relates to events preceding and following
the expiration of the foregoing contract. Critical to the issues
herein is whether, on April 4, the 8(f) relationship between the
parties was converted to a 9(a) relationship.
B. The 9(a) Status
On March 26, President Miley wrote Business Manager Wa-
ters stating that the Company “will not be reentering into con-
tract negotiations . . . when our existing contract expires at
midnight June 30th.” Upon receipt of that letter, Business Man-
ager Waters directed Union Business Agent James Allbritton to
obtain authorization cards from the unit employees. At that
time, the unit consisted of 17 employees. At the hearing, the
General Counsel introduced 17 authorization cards signed by
the unit employees on March 28 and 29.
On March 28, Business Agent Allbritton went to the facility
in order to obtain authorization cards from the employees. He
met shop steward Phil Gambill, who introduced him to the
employees as they began arriving at work. Allbritton presented
the authorization cards to the employees stating that it looked
as if Miley was not going to sign a contract and so the Union
needed to get the representation cards signed. Gambill recalls
Allbritton stating that “as usual Bob [Miley] is being a pain in
the ass about the contract this year” and that he needed to get
M&M BACKHOE SERVICE 465
“the representation cards filled out so we can get on with the
contract.” Some employees did specifically ask about the cards
and, when asked, Allbritton explained that the cards “showed
that the Union represented them” and that “we may need to file
[for] an election, so we can use the card for that.” There is no
evidence challenging the authenticity of the authorization cards
signed by the 17 unit employees which were received in evi-
dence without objection.
On March 29, Waters wrote Miley, enclosing two copies of a
recognition agreement. In pertinent part, the letter stated:
Enclosed please find two copies of a recognition agreement.
We have determined it is in the best interest of the Un-
ion, and your employees currently represented by this Un-
ion, to provide your firm with affirmation that a majority
of your employees have authorized the Union to represent
them in collective bargaining. Therefore, we are seeking to
gain voluntary recognition from your firm and 9(a) status
under the National Labor Relations Act. We will make
available for your review, representation authorization
cards signed by a majority of your employees.
Alternative to attaining 9(a) status by voluntary recog-
nition, we may petition the National Labor Relations
Board for a representation election. As this would be time
consuming and inconvenient for both of us, we hope you
will agree to voluntary recognition.
Please sign and date one copy of the agreement and re-
turn it to this office.
By letter dated April 2, President Miley responded stating
that the Company “is willing to sit down and collective bargain
under Section 9(a).”
By memorandum dated April 4, Business Manager Waters
responded to Miley’s letter stating:
Thank you for offering to meet to negotiate a new collective-
bargaining agreement. However, in order to change our bar-
gaining relationship from 8(f) to 9(a) status under the National
Labor Relations Act, you must voluntarily recognize that the
union has majority status by signing the previously provided
agreement or by a representation election conducted by agents
of the NLRB.
Waters concluded by noting that he had unsuccessfully at-
tempted to reach Miley by telephone and that, if he heard noth-
ing further, the Union would file a representation petition.
Later that day, April 4, President Miley admits that he signed
and dated, and sent to the Union by facsimile, the Recognition
Agreement which provides as follows:
The Union claims, and the Employer acknowledges
and agrees, based on a showing of signed authorization
cards, that a majority of its employees have authorized the
Union to represent them in collective bargaining.
The Employer hereby recognizes the Union as the ex-
clusive bargaining agent under Section 9(a) of the Na-
tional Labor Relations Act of all full-time and regular part-
time Equipment Operators, Oilers, Drivers and Equipment
Mechanics on present and future jobs sites within the ju-
risdiction of the Union.
Although the Union had, on March 29, advised the Company
that it would “make available for your review, representation
authorization cards signed by a majority of your employees,”
Miley never requested to see the authorization cards. Miley was
aware that Allbritton had come to the facility. Superintendent
William Loy, who had greeted and shook hands with Allbritton
on March 28, knew that he was soliciting authorization cards. It
is clear that Miley was satisfied that the Union did possess au-
thorization cards from a majority of the employees since, on
April 4, he signed the Recognition Agreement which states that
“the Employer acknowledges and agrees, based on a showing
of signed authorization cards, that a majority of its employees
have authorized the Union to represent them in collective bar-
gaining.” Notwithstanding Miley’s failure to avail himself of
the offer to review the authorization cards, Business Manager
Waters testified that, on April 11, he directed Business Agent
Allbritton to carry a manila envelope containing copes of the
cards to the Company. Allbritton testified that he presented the
manila envelope to Office Manager Jan Pfrenger. Pfrenger
denied receiving the package and Miley testified that he never
received it. The foregoing contradictory testimony need not be
resolved since Miley neither requested to review the cards nor
disputed their existence or authenticity.
Regarding the validity of those cards as designations of the
Union as the employees’ collective-bargaining representative,
there is no evidence challenging the validity of the cards signed
by the following nine employees: Phil Gambill, Bob Leininger,
Tommy Miliano, Joe Spear, Lon Chatman, Chris Sanchez,
Eddie Falcon, Luke Tease, and Alex Rohling.
The Company presented eight employee witnesses who testi-
fied regarding the circumstances surrounding the signing of
their cards.
Employee Dennis Coates testified that Allbritton said some-
thing about the card “helping us.” He recalled that “everybody
was kind of in a bunch and he [Allbritton] wanted everybody to
sign the card, and we just signed it.” Coates read the card be-
fore he signed it.
Employee Daniel Collins, although denying that he read the
card, acknowledged that he filled out all the information on the
card and signed it. He testified that Allbritton asked the em-
ployees to sign the cards but did not explain anything about the
card.
Francisco Ocasio recalled that Allbritton asked him to sign
the card stating that “it was for our benefits.” Although ac-
knowledging that he filled out all of the information on the
card, he denied reading it.
Marcos Falcon testified that Allbritton came to the facility,
passed out cards and said, “[H]ere, sign it.” Although Falcon
testified that he could not read the print on the card that was
presented to him on the witness stand because he did not have
his glasses, when asked whether he had his glasses when sign-
ing the authorization card Falcon avoided a direct answer, testi-
fying, “I don’t usually carry it [them] because I break them all
the time.” Falcon did not deny reading the card and acknowl-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD466
edged that he was aware that the card “was something from the
Union, . . . I belong to the Union, I just took it and signed it.”
Former employee James Ferguson recalls that he was ap-
proached by an individual whom he did not know, but whom he
identified at the hearing as being Business Agent Allbritton. He
recalls that Allbritton passed him a card and said to sign it, that
he saw “everyone else sign it so I signed it too.” Although de-
nying that he read the card, Ferguson acknowledged identifying
the Union logo on the top of the card and testified, “I knew
what it was for.”
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Court stated:
Under the Cumberland Shoe doctrine, [Cumberland
Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917
(6th Cir. 1975)] if the card itself is unambiguous (i.e.,
states on its face that the signer authorizes the Union to
represent the employee for collective bargaining purposes
and not to seek an election), it will be counted unless it is
proved that the employee was told that the card was to be
used solely for the purpose of obtaining an election. [Id. at
584.]
. . . .
[E]mployees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words calcu-
lated to direct the signer to disregard and forget the lan-
guage above his signature. [Id. at 606.]
The failure of a card signer to read the authorization card, the
purpose of which was not misrepresented, does not affect the
validity of the authorization. Keystone Pretzel Bakery, 242
NLRB 492, 493 (1979).
None of the foregoing employees testified to any misrepre-
sentation by Allbritton or Gambill. The cards are single purpose
cards authorizing the Union “to represent me for the purpose of
collective bargaining.” I find that all of the foregoing cards
constitute valid designations of the Union as the employees’
collective-bargaining representative.
Jorge Deulofeu testified that Allbritton told him to sign the
card “to see how many people were in the Union.” He denied
that he read the card, although he does read English. He re-
called that, when he filled out and signed the card, he did so on
a vehicle. A laborer, who was not in the unit, was with him. He
denied giving a card to his father.
Steward Phil Gambill confirmed that Allbritton gave the card
to Deulofeu. Gambill observed that Alejandro Deulofeu, the
father of Jorge Deulofeu, was not at work and requested that
Jorge, his son, take him a card and “get it back to me.” Jorge
agreed to do so. Gambill testified that Jorge returned the card to
him the following day.
Alejandro Deulofeu, who is not fluent in English, testified
through an interpreter. He acknowledged filling out and signing
the union authorization card bearing his signature and dated
March 28. Although testifying that he could not remember who
gave the card to him or to whom he returned it, he did recall
that his son told him that it was a paper to “see how many peo-
ple were signed up with the Union.” In an affidavit provided to
the Company on August 16 and witnessed by Office Manager
Jan Pfrenger, Alejandro Deulofeu states that Allbritton gave
him the card, but this simply is incorrect since he was not at
work. The affidavit then states that his son, Jorge Deulofeu,
told him that the card “meant that I selected the Union to repre-
sent me in bargaining,” and that, had he known what the card
meant when he signed it, he would not have done so. There is
no explanation regarding how the card admittedly signed by
Alejandro Deulofeu, who was not at work, came into the Un-
ion’s possession other than by Jorge Deulofeu having complied
with Gambill’s request that he take the card to his father, have
his father sign it, and return the card. Alejandro Deulofeu’s
affidavit explicitly contradicts his testimony regarding what his
son told him and implicitly contradicts the testimony of Jorge
Deulofeu that Allbritton told him that the card was “to see how
many people were in the Union.”
“When a card signer is illiterate, or has no ability in English,
it must be established that the card signer knew what he was
signing and in fact authorized the Union to represent him.”
Brancato Iron Works, Inc., 170 NLRB 75, 81–83 (1968). There
must be evidence that the card was translated or explained so
that the card signer “understood the meaning and purpose of an
authorization card.” Unless it is established that the signer intel-
ligently designated the Union as collective-bargaining represen-
tative, the card in question “cannot be counted toward estab-
lishing the Union’s majority support.” Food Cart Market, 286
NLRB 1016, 1017 (1987). I find, consistent with Gambill’s
credible testimony, that Jorge Deulofeu took the card to his
father. Alejandro Deulofeu’s affidavit states that his son ex-
plained that the card “was for the Union to represent him in
bargaining,” and he never repudiated that statement. Upon re-
ceiving that explanation, the same explanation that I find Jorge
received from Allbritton, Alejandro signed the card. Jorge re-
turned the card to Gambill. Alejandro Deulofeu went to Cuba
for 17 days on March 29, returning in mid-April. I find that the
cards signed by Jorge and Alejandro Deulofeu constitute valid
designations of the Union as their collective-bargaining repre-
sentative.
Angel Ocasio testified that Allbritton asked him to sign a
card, that he told Allbritton that he needed to go to his truck
and get his glasses so that he could read it, that Allbritton told
him, [N]o, we had to sign it.” Thereafter, Ocasio elaborated,
testifying that Allbritton also stated that he would let Ocasio
use his glasses and that he actually tried them on but “it didn’t
work.” Ocasio denied filling out the additional information on
the card, testifying that he does not write English well. Allbrit-
ton denied filling out the additional information. I am inclined
to credit Allbritton, but I need not make this credibility resolu-
tion since, even without Ocasio’s card, the Union is shown to
have been authorized as the unit employees’ collective-
bargaining representative by valid cards signed by 16 of the 17
unit members.
Giving the Company the benefit of any doubt, the validity of
only one card, that of Angel Ocasio, who, notwithstanding the
purported absence of his glasses, was able to sign his name at
the appropriate space on the authorization card, is even ques-
tionable. Thus, I find that a majority, 16 of 17 of the employees
in the unit at the time Miley signed the Recognition Agreement
on April 4, had designated the Union as their collective-
M&M BACKHOE SERVICE 467
bargaining representative.
Thus, the only issue is the efficacy of the Company’s recog-
nition of the Union and whether that recognition converted the
8(f) relationship to a 9(a) relationship. If, as the Respondent
argues in its brief, Miley simply did what Waters told him he
needed to do “in order for the Union to continue to bargain with
M&M,” the obvious question is what motivated Miley, who on
March 26 had stated he was not going to bargain, to agree to
bargain. The answer to the foregoing question is equally obvi-
ous. He received the letter from Waters requesting that the
Company voluntarily recognize the Union and stating that, if
the Company would not agree to do so, the Union would peti-
tion for an election which would be “time consuming and in-
convenient for both of us.” Insofar as Miley relied upon what
Waters told him, he relied upon the representation, a represen-
tation that the record establishes was truthful, that the Union
had obtained authorization cards from a majority of the em-
ployees in the unit and would petition for an election if the
Company did not voluntarily recognize the Union.
The Respondent argues that there was no meeting of the
minds regarding recognition. That argument simply ignores the
facts. Miley had, on March 26, informed the Union that he
would “not be reentering into contract negotiations.” Miley’s
testimony concerning his purported lack of understanding re-
garding the Recognition Agreement that he signed was uncon-
vincing. Regardless of Miley’s purported ignorance of 9(a)
status, he had to understand after receiving Waters’ letter of
March 29 and memorandum of April 4 that, unless the Com-
pany agreed to voluntarily recognize the Union, the Union was
going to petition the National Labor Relations Board for a rep-
resentation election. The Respondent’s brief does not set out
the contents of either of those communications. Miley, on April
4, signed the Recognition Agreement. His assertion that he
thereafter attended the bargaining sessions with the Union and
three other contractors in June “because I wanted to hear what
the rest of them had to say,” rather than because the Company
had recognized the Union, was incredible and is contradicted
by his admission that he actually entered into negotiations. The
Recognition Agreement that Miley admittedly read and signed
clearly states its purpose. As the General Counsel points out,
citing Hayman Electric, 314 NLRB 879, 887 (1994), a case
involving multiple unions and employers, “[t]here was no pur-
pose in the Unions demanding recognition based on majority
status and the Respondents signing of recognition agreements if
all that was intended was to preserve the existing 8(f) relation-
ships.”
The Board, in Staunton Fuel & Material, 335 NLRB 717
(2001), adopting the approach of the Court of Appeals for the
Tenth Circuit, held that an 9(a) relationship is established
where “(1) the union requested recognition as the majority or
9(a) representative of the unit employees; (2) the employer
recognized the union as the majority or 9(a) bargaining repre-
sentative; and (3) the employer’s recognition was based on the
union’s having shown, or having offered to show, evidence of
its majority support.” Id. 720. The Board noted that “the un-
ion’s required request for recognition can be fairly implied
from the contract language stating that the employer grants the
required recognition” and that “the employer’s grant of recog-
nition must be express and unconditional.” Regarding majority
support, the Board noted the inadequacy of statements to the
effect that “the union ‘represents’ a majority of unit employees”
or that a majority of employee “are members” of the union.
Ibid. The Respondent’s brief does not set out the Recognition
Agreement herein which states that “the Employer acknowl-
edges and agrees, based on a showing of signed authorization
cards, that a majority of its employees have authorized the Un-
ion to represent them in collective bargaining” I find that the
foregoing clear statement constitutes the required acknowl-
edgement of majority support. There is no question that the
Union had valid authorization cards from at least 16 of the 17
employees in the unit. The Company never questioned or dis-
puted the Union’s majority status. Following his execution of
the Recognition Agreement, Miley entered into negotiations
with the Union. I find that the Union attained 9(a) status on
April 4.
C. The Unfair Labor Practice Allegations
1. The 8(a)(5) allegations
a. The information requests
Following the grant of recognition, the Union requested ne-
gotiations on April 9. Thereafter, the parties met twice, on June
5 and 11, in joint negotiations with the Company and three
other companies. The three other companies agreed to in-
creased contributions to the contractual health and welfare
fund. M&M Backhoe did not agree. Although President Miley
testified that the Company raised issues related to the referral of
unqualified individuals by the Union, all written proposals ex-
changed were economic. On June 20, Waters wrote Miley,
noted the agreement to which the Union and the three other
companies had come, and requested a counter offer. On June
21, Miley made a counter offer, with no mention of any matter
other than economic issues, in which he referred to the Com-
pany’s contract with Florida Power & Light “that is binding”
and concluding that “any increase at this time would be cost
prohibitive.”
On June 27, Waters wrote Miley requesting, among other in-
formation, the current contract between the Company and Flor-
ida Power & Light and “[a]ll information pertinent to 401K and
health care plans provided to both bargaining unit employees
and nonbargaining unit employees.” The letter was sent by
facsimile and mail.
On July 8, Miley asked a local attorney to call Business
Manager Waters and tell him that the Company was “through
with negotiations” and that the information the Union had re-
quested on June 27 would not be provided. Whether the attor-
ney did so or, as Waters testified, agreed to review the contracts
into which the other contractors had entered is immaterial since
it is undisputed that the information was not provided. The
Respondent argues that the requested information was not pre-
sumptively relevant since Miley’s assertion that increased
health and welfare contributions were “cost prohibitive” did not
specifically assert an inability to pay. In this regard, I note that
the Union’s information request of June 27 also included a
request for profit-and-loss statements, but the failure to provide
that information is not alleged in the complaint. Insofar as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD468
Miley specifically cited the Company’s “binding” agreement
with Florida Power and Light in his counter offer, that docu-
ment was clearly relevant. Similarly, documents reflecting the
cost of noncontractual health benefits and other benefits being
provided by the Company, such as the requested 401(k) plan,
were clearly relevant to negotiations in view of the Company’s
resistance to increases in contributions to the contractual health
and welfare plan. By failing to provide the foregoing informa-
tion, the Respondent violated Section 8(a)(5) of the Act.
In early July, after expiration of the contract, the Company
hired new employees not referred by the Union. On July 12,
Business Manager Waters wrote Miley requesting “the names,
addresses, and phone numbers of any and all newly hired em-
ployees engaged in the operation of equipment for your firm.
Additionally, please provide information regarding the wage
rates, fringe benefits, paid holidays, paid vacation and/or any
other benefits or compensation being provided, or promised in
the future, to said employees.”
The Respondent made no reply to the foregoing request. In-
formation relating to employees performing bargaining unit
work is presumptively relevant. By failing to provide the fore-
going information, the Respondent violated Section 8(a)(5) of
the Act.
On August 12, the Union called a strike. The Union advised
the Company of the names of the employees who struck.
Thereafter, the Company disciplined three of the strikers. On
August 20, Attorney Kathleen M. Phillips wrote the Company
on behalf of the Union requesting, among other information, all
documents relating to the discipline imposed, copies of the
employees’ personnel files, and any documents relied upon in
imposing discipline. On August 29, Attorney Michael E. Ava-
kian responded to Phillips stating that the agreement between
the Union and Company expired on June 30 and that “it is the
Company’s position that it would be a violation of Section
8(a)(2) and 301(c)” of the Act to provide the requested infor-
mation.”
The foregoing response, predicated upon the expiration of
the contract, did not mention the Recognition Agreement or
assert that the Union was no longer supported by a majority of
the employees. There is no claim that information relating to
the discipline of represented employees is not relevant. By
failing to provide the requested information, the Respondent
violated Section 8(a)(5) of the Act.
b. The unilateral changes
The complaint alleges that the Respondent unilaterally,
without notice to or bargaining with the Union, changed over-
time pay, ceased using the hiring hall and hired employees not
referred by the Union, and ceased remitting health and welfare
fund contributions.
At the hearing, it was stipulated that, after June 30, the Re-
spondent ceased paying overtime for work in excess of 8 hours
in a single day and ceased paying overtime for work on Satur-
day unless that work exceeded 40 hours. Under the contract, all
hours over 8 in a single day and all Saturday work were com-
pensated as overtime. The Respondent’s answer admits the
cessation of use of the hiring hall and of remission of health
and welfare benefits.
Once the employees’ collective-bargaining representative at-
tains 9(a) status, an employer is not privileged to unilaterally
alter the terms and conditions of the employees’ employment.
Overtime compensation is a term and condition of employment
that may not be altered absent bargaining. Hiring hall proce-
dures are an existing practice that an employer may not change
unilaterally. American Commercial Lines, 291 NLRB 1066,
1075 (1988). The unilateral failure to continue to make contrac-
tual health and welfare fund contributions also violates the Act.
Decorative Floors, Inc., 315 NLRB 188, 189 (1994). The fore-
going three unilateral changes made by the Respondent violated
Section 8(a)(5) of the Act.
c. The withdrawal of recognition
The complaint alleges that the Company unlawfully with-
drew recognition from the Union on August 29, the date of
Attorney Avakian’s letter. The Respondent argues that it had no
bargaining obligation upon expiration of the 8(f) agreement on
June 30 and further contends that the Union did not represent a
majority of its employees.
I have found that the Recognition Agreement executed on
April 4 established a 9(a) relationship between the parties, thus,
the 8(f) contract became a 9(a) contract. VFL Technology
Corp., 329 NLRB 458 (1999). Upon the expiration of a 9(a)
contract, a Union’s majority status is presumed to continue.
The Company argues that it obtained “actual knowledge of
the [U]nion’s minority status” on the basis of expressions of
dissatisfaction with the Union by various employees. Only one
employee, Isaias Ocasio, expressed dissatisfaction to President
Miley and, because of the manner in which Ocasio spoke,
Miley misunderstood what he said. Ocasio was hired upon
referral by Local 487 in May. Ocasio acknowledged that he
stated to Miley that he was “not supporting the Union at all.”
Ocasio’s testimony reveals that, although he referred to “the
Union,” he was actually expressing dissatisfaction with his
former local, Local 925, not Local 487. Miley testified that he
also heard of employee dissatisfaction from Loy. He testified to
only one such conversation and, although initially placing this
conversation at the time of negotiations, he then placed it in late
March, “during right after the time that Jimmy Allbritton had
come in.”
Superintendent Loy testified that he reported to Miley, in late
March, which would have been prior to execution of the Rec-
ognition Agreement on April 4, that a majority of the unit em-
ployees did not wish to be represented by the Union. According
to Loy, Miley, in late March, informed him and the other fore-
men that he did not intend to sign another contract with the
Union and that he, Loy, responded that “we,” referring to him-
self and the other foremen, “felt that the majority of the opera-
tors did not want representation by the Operating Engineers.”
The foregoing statement is the extent of Loy’s representation.
He named no employees. His statement was made on the basis
of comments that he testified various employees had made to
him that expressed dissatisfaction with Local 487, all of which,
according to Loy, included the statement that the employee did
not want to be represented by the Union. Loy testified to such
comments by a total of 10 employees, one of whom was Luke
Tease who engaged in the strike against the Company in Au-
M&M BACKHOE SERVICE 469
gust. Loy named only seven employees who expressed dissatis-
faction with the Union prior to April 4 when President Miley
signed the Recognition Agreement, thus his reference to a “ma-
jority” was inaccurate. According to Loy, those employees
were Danny Collins, Dennis Coates, Joe Spear, Marcos Falcon,
Luke Tease, and Angel and Frank Ocasio.
The Respondent argues in its brief that a majority of the unit
employees informed Loy that they did not want the Union to
represent them and that Loy informed Miley of this, but the
Respondent fails to note that their only conversation established
by the evidence occurred, according to Loy, in late March, and
according to Miley “right after the time that Jimmy Allbritton
had come in.” At that time, Loy could have only spoken with
eight of the 10 employees he named. The conversation he re-
ported with Jorge and Alejandro Deulofeu included reference to
Allbritton’s solicitation of authorization cards, and it, therefore,
had to have occurred after Alejandro, who had not been at work
when the cards were signed, returned from Cuba in mid-April.
Although Loy testified that he spoke with employee James
Ferguson in June, Ferguson testified that he spoke with Loy
shortly after signing the authorization card. Loy stated that the
card was for the Union to represent him, and Ferguson re-
sponded that he did not “need no representation.” The forego-
ing comment relating to “need” is ambivalent at best and does
not establish that Ferguson did not want representation, an in-
ference consistent with the absence of any action by Ferguson
to revoke the card. Thus, regardless of the date of that conver-
sation, Loy could not have received statements of dissatisfac-
tion from a majority of the employees.
Loy asserted, as if by rote, that each employee with whom he
spoke stated that he “did not want the Operating Engineers to
represent him.” I do not credit that testimony. Only Collins and
Coates testified to making such a statement. I find that Loy
interpreted any statement of dissatisfaction as a statement that
the employees did not wish to be represented. “[E]vidence of
dissatisfaction bears only indirectly on the question of majority
support, and will often be entirely consistent with continued
employee desires for union representation. NLRB v. Koenig
Iron Works, 681 F.2d 130, 138 (2d Cir. 1982). Ferguson testi-
fied that he told Loy that he did not “need no representation.”
He did not state that he did not want the Union to represent
him. Marcos Falcon, who spoke with Loy shortly after signing
the card presented to him, said nothing about the card. Al-
though Marcos Falcon was working at M&M, Loy testified that
he commented that he was “not satisfied” with the Union be-
cause the Union had “no place . . . to put him to work.” Neither
of the foregoing statements expressed “opposition to continued
representation.” Rockwood & Co., 281 NLRB 862 fn. 30
(1986). Neither Falcon nor Ferguson, indeed, none of the em-
ployees, sought to have the authorization cards that they had
signed returned to them.
In March, Loy mentioned no names when referring to the
Union’s purported lack of a majority, and Miley recalls none.
On April 4, Miley signed the Recognition Agreement. There is
no evidence of any further conversation between Miley and
Loy regarding union representation prior to August 1. Thus,
there is no basis upon which the Respondent could conclude
that a majority of its unit employees did not desire representa-
tion. As of June 30, Joe Spear, Chris Sanchez, and Alex Roh-
ling had ceased employment and Isaias Ocasio had been hired.
The unit numbered 15. There is no evidence that a majority of
those employees did not desire continued representation. Isaias
Ocasio was dissatisfied with Local 925, not Local 487 and Loy
never spoke to him regarding the Union. There is no evidence
of any dissatisfaction, much less opposition to representation,
on the part of employees Phil Gambill, Bob Leininger, Tommy
Miliano, Lon Chatman, and Eddie Falcon. I have not credited
Loy’s testimony that each employee who expressed some dis-
satisfaction with the Union also stated that he did not want to
be represented, and I have found that neither Marcos Falcon nor
Ferguson expressed “opposition to continued representation.”
Thus, I find that the Union continued to represent a majority of
the unit employees. There is no probative evidence that the
Respondent possessed any objective evidence establishing that
a majority of its employees did not desire continued union rep-
resentation, and there is no evidence of any conversation be-
tween Miley and Loy after March in which the Union’s major-
ity status was either discussed or questioned.
As already noted, there is a dispute regarding what was said
in the conversation between Business Manager Waters and the
local attorney on July 8. Even if the attorney informed Waters
that Miley was “through with negotiations,” there is no conten-
tion that he stated that the Respondent was withdrawing recog-
nition from the Union or that the Respondent disputed that a
majority of its employees had authorized the Union to represent
them.
On August 1, more than four months after the employees had
signed authorization cards, Loy admits that he went to “each
and every operator, I didn’t exclude anyone, and asked if they
wanted to sign this form.” He recalls that all but four employ-
ees signed the identical copied form that he presented to them.
The form, in pertinent part, states:
. . . I WISH TO RETRACT ANY CARD TAT [SIC] I
MAY HAVE SIGNED WITH OPERATING ENG. LCL.
487. . . .
I, THE EMPLOYEE OF M&M BACKHOE
SERVICE, INC. DO REQUEST THAT THE COMPANY
(M&M) DOES NOT BARGAIN WITH LCL 487 AS
THEY DO NOT REPRESENT MY BARGAINING
RIGHT.
Loy’s actions confirm that the Respondent was fully aware
that its employees had authorized the Union to represent them
and that the Respondent had recognized, and was obligated to
bargain with, the Union. Although Loy denied that he was re-
sponsible for the language on the form, his circulation of the
form retracting “any card” confirms that the Respondent knew
that a majority of its employees had signed and had not revoked
cards that authorized the Union to represent them. Supervisory
involvement in the solicitation of petitions expressing disaffec-
tion with a union taints those expressions of disaffection. Exxel-
Atmos, Inc., 323 NLRB 884, 886 (1997). Prior to August 1,
there was no objective evidence that a majority of the unit em-
ployees did not desire representation. The evidence obtained on
August 1 was tainted. The forms were solicited by a supervisor
and followed the Company’s failure to provide requested in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
formation and unilateral changes in the employees’ working
conditions.
The Company’s letter of August 29 in which it refused to
provide requested information because it was “the Company’s
position that it would be a violation of Section 8(a)(2) and
301(c)” of the Act to do so constituted withdrawal of recogni-
tion from, and refusal to bargain with, the employees’ 9(a)
collective-bargaining representative and violated Section
8(a)(5) of the Act.
2. The 8(a)(1) allegations
Employee Tommy Miliano testified that Loy approached
him and stated that the Company “was going to offer the paid
vacation, the paid holidays,” “if I wanted to go non-Union,
that’s . . . the benefits I would get,” and then handed him a
document. Miliano read the document and understood that, if
he signed it, he would be “giving up my bargaining rights.”
Miliano declined to sign the document and informed Loy that
he was “going to stay Union.” Loy then noted that there was no
sense in carrying the “conversation on any further [a]nd that I’d
probably be out of a job in a couple of days [a]nd good luck.”
In late July, after the Company had hired employees not re-
ferred by the Union, ceased paying overtime for work over 8
hours in a day as provided in the contract, and ceased making
contributions to the health and welfare plan, Loy was ap-
proached by employees Dennis Coates, Danny Collins, and
Frank Ocasio. Coates recalled that they informed him that they
“weren’t happy with the Union.” Loy informed the employees
that “probably the best way to state our feelings” was to write a
letter. Each wrote a letter. According to Loy, the letter written
by Ocasio was unintelligible. Loy concluded that it was “fruit-
less for them to go to these extremes” and, therefore, he took
the letter that had been written by Danny Collins, the document
noted above in which the signer stated that he wished “TO
RETRACT ANY CARD” and requested that the Company
“NOT BARGAIN WITH LCL 487,” had Office Manager
Pfrenger type it and made enough copies for each operator to
have one. On the following morning, August 1, Loy admits that
he went to “each and every operator . . . and asked if they
wanted to sign this form.”
The complaint alleges that Loy promised benefits to employ-
ees, including insurance benefits, paid vacation, and holidays, if
they withdrew their support for the Union and threatened em-
ployees with discharge because of their union support. Loy
admitted presenting the foregoing form to Miliano, but he de-
nied having any further conversation with him. I credit Miliano.
The Respondent argues that Loy simply advised an employee
of the benefits extended to nonunit employees. Miliano’s credi-
ble testimony establishes that Loy’s recitation of benefits was
conditioned upon repudiation of representation by the Union.
When Miliano responded that he would continue to support the
Union, Loy threatened him with termination, stating that he
would “probably be out of a job in a couple of days.”
The complaint also alleges that Loy solicited employees to
sign a petition requesting that the Company withdraw its recog-
nition of the Union, and Loy admits circulating the foregoing
form. The Respondent argues that Miley was unaware of Loy’s
actions, but that is not relevant. The Respondent cannot incon-
sistently maintain that expressions of dissatisfaction with the
Union expressed to Superintendent Loy, admitted in the Re-
spondent’s answer to be a supervisor and agent, establish ab-
sence of majority status, but that his circulation of a petition
disavowing the Union do not constitute actions of the Respon-
dent. The Respondent violated Section 8(a)(1) by promising
benefits, threatening termination, and soliciting employees to
sign a petition requesting that the Respondent withdraw its
recognition of the Union.
The final 8(a)(1) allegation is that President Miley engaged
in surveillance. As hereinafter discussed, the Union engaged in
a strike from Monday, August 12, through Thursday, August
15. Pickets at the facility on the morning of August 13 included
Business Representative Allbritton and employees Eddie Fal-
con, Tommy Miliano, and Phil Gambill. On that morning,
Miley came to the picket line and took at least one photograph
with a digital camera. Miley testified that he took a picture of
one of the picket signs. There is no claim that the pickets were
engaging in improper conduct. Although Miley claims to have
been photographing a sign, not a person, his camera was obvi-
ously pointed towards the individual carrying the sign. Photo-
graphing lawful strike activity “inherently tends to coerce em-
ployee in the exercise of their statutory right to strike and
picket. . . . So far as they [the striking employees] knew, Com-
pany had captured them on film and was keeping that film as
part of its records.” Mercedes Benz of Orland Park, 333 NLRB
1017, 1047 (2001). Any argument suggesting lack of intimida-
tion is obviated by the evidence that, shortly before this, Miley
had presented disciplinary notices to Miliano and Gambill
when they turned in their keys at the office. In the absence of
any claim that the photograph was a predicate for legal action,
such as an injunction, I find that the Respondent’s photograph-
ing violated Section 8(a)(1) of the Act.
3. The 8(a)(3) allegations
On July 22, the Union filed the charge in Case 12–CA–
22384 alleging that the employer had ceased using the hiring
hall and failed to pay daily overtime. On July 29, the Union
filed the charge in Case 12–CA–22404 alleging the failure of
the Respondent to bargain or provide requested information. On
Monday, August 12, the Union called a strike to protest the
Company’s unfair labor practices. On August 13, Waters wrote
Miley identifying employees Eduardo Falcon, Phil Gambill,
Tom Miliano, and Robert Leininger as being on strike and mak-
ing an unconditional offer on their behalf to return to work on
Friday, August 16. The letter was sent by facsimile at 6:50 a.m.
Thereafter, also on August 13, the Union informed the Com-
pany that employee Luke Tease had joined the strike and would
also return on August 16. This letter was sent by facsimile at
11:35 a.m. Falcon and Leininger honored the picket line at the
main gate. Gambill and Miliano were operating equipment at
jobsites on August 12.
Miliano was operating a backhoe in Hialeah for M&M at a
jobsite for a company identified as Renew Restoration. While
working, he observed an individual he identified as Eric begin
picketing. Miliano called Business Manager Waters who in-
formed him that if he wanted to stay Union he should honor the
picket and, if he did not, to keep working. Miliano ceased work
M&M BACKHOE SERVICE 471
and secured his machine by placing an outrigger lock around
the cylinder and locking it with a padlock. He informed the
representative of Renew Restoration that he was honoring the
picket and thereafter informed Office Manager Pfrenger that he
had locked down the machine and was going home. Loy spoke
with the representative of Renew Restoration who informed
him that he did not need another operator and that he was going
to let things “cool down.” Loy confirmed that Miliano had
properly secured the backhoe and “I felt comfortable in leaving
the backhoe there another day.”
Shop steward Gambill was working for M&M at a Florida
Power & Light jobsite. He was picketed by Business Agent
Scott Singer at 11 a.m. Upon being picketed, Gambill ceased
work and advised the Florida Power & Light crew leader that
he “had to stop working, there was a picket here.” The crew
leader signed Gambill’s time sheet for the 4 hours that Gambill
had worked. Gambill testified that his backhoe did not have an
outrigger lock and he therefore disabled it by removing the
ignition fuse and placing it in another slot. He testified that this
was the same manner in which he disabled the machine when
leaving it overnight. He acknowledged that he did not advise
the Company that he was leaving the job because of the picket.
Loy contends that the backhoe did have an outrigger lock and
that it was not padlocked.
On the morning of August 13, Miliano and Gambill reported
to the office to turn in their keys and equipment. Both were
presented a reprimand letter dated August 12 that informed
them that they were being suspended for one day for abandon-
ing company equipment and failing to notify management that
they were leaving the job. Both refused to sign the discipline
and neither were suspended at that time because both were on
strike.
A strike, by definition, is the withholding of labor. Employ-
ees who engage in a lawful strike are engaged in protected ac-
tivity and may not be lawfully disciplined for conduct inherent
in the act of striking, such as absence from work. See Frick
Co., 161 NLRB 1089 (1966), enfd. 397 F.2d 956 (3d Cir.
1968). Miliano had informed the Company that he was leaving
the job. Loy admitted that Miliano had properly secured the
equipment and that he was “comfortable” leaving it there. The
Respondent, by reprimanding Miliano for abandoning equip-
ment that Loy confirmed had been properly secured violated
Section 8(a)(3) of the Act. Miliano obtained other employment
during the strike and therefore never was suspended.
Employees who go on strike have an obligation to assure that
the equipment they are leaving is secure. The Board has long
held that employees who strike have “responsibility for the
[employer’s] property which might be damaged” as a result of
their “sudden cessation of work.” Columbia Portland Cement
Co., 294 NLRB 410, 422 (1989), citing Marshall Car Wheel
Co., 107 NLRB 314 (1953). If, as Gambill contends, he could
not secure the backhoe because it did not have an outrigger
lock, he was obligated to inform the Company that he had not
secured the equipment in the traditional manner and explain the
unconventional manner in which he had disabled the equip-
ment. Gambill acknowledges that he did not contact the Com-
pany. If, as Loy contends, the backhoe was not properly pad-
locked, Gambill did not properly secure the machine. Either
version compels the conclusion that Gambill was remiss, and I
find that his 1-day suspension for abandonment of Company
equipment was justified. I shall recommend that the allegation
relating to Gambill’s discipline be dismissed.
On August 16, when employee Eddie Falcon reported to
work pursuant to the unconditional offer to return that had been
made on his behalf by the Union, he was informed that he was
being suspended for one day for unexcused absences. Falcon
had been on strike and the Union had informed the Company
that he was on strike. In disciplining Falcon for absences in-
curred in the course of his protected strike activity, the Respon-
dent violated Section 8(a)(3) of the Act. See Frick Co., supra.
CONCLUSIONS OF LAW
1. By promising benefits conditioned upon disavowal of the
Union, threatening termination for continuing to support the
Union, soliciting employees to sign a petition requesting that
the Respondent withdraw its recognition of the Union, and
photographing lawful strike activity, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By reprimanding and suspending employees for engaging
in lawful strike activity, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
3. By failing and refusing to recognize and withdrawing
recognition from the Union, failing and refusing to provide the
Union with relevant information, and changing the terms and
conditions of unit employees without notice to and bargaining
with the Union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having unlawfully disciplined employees, it
must rescind that discipline and make Eddie Falcon whole for
any loss of earnings and other benefits he suffered as a result of
his suspension, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
The Respondent, having failed and refused to provide the
Union with requested relevant information, it must provide the
current contract between the Company and Florida Power &
Light, all information pertinent to 401(k) and health care plans
provided to both bargaining unit employees and nonbargaining
unit employees, and the names, addresses, and phone number
of any and all newly hired employees engaged in the operation
of equipment who were not referred by the Union together with
their wage rates, fringe benefits, paid holidays, paid vacation
and/or any other benefits or compensation being provided, or
promised in the future. It appears that all requested information
relating to employee discipline is part of the record of this pro-
ceeding, thus any order in that regard would be superfluous.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
The Respondent, having unilaterally changed the manner in
which it compensated employees for overtime, it must make all
affected employees whole for any daily overtime work that was
not compensated at time and one-half and any Saturday work
that was not compensated at time and one half, plus interest.
In order to remedy the Respondent’s unilateral cessation of
utilization of the hiring hall, the Respondent must, pursuant to
J. E. Brown Electric, 315 NLRB 620 (1994), offer immediate
and full employment to those applicants who would have been
referred to the Respondent by the Union were it not for the
Respondent’s unlawful conduct, and make them whole for any
losses suffered by reason of the Respondent’s failure to hire
them. Reinstatement and backpay issues will be resolved by a
factual inquiry at the compliance stage of the proceeding. Id.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., supra, plus interest as prescribed in New Horizons
for the Retarded, supra.
Having found that the Respondent violated Section 8(a)(1)
and (5) by unilaterally ceasing, since July 1, 2002, to make
health and welfare contributions, the Respondent must make
whole its unit employees by making all such delinquent contri-
butions, including any additional amounts due the funds in
accordance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its failure to
make those contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, supra.
Finally, having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) by withdrawing recognition from the Un-
ion, the Respondent must recognize the Union and bargain with
it in good faith as the exclusive collective-bargaining represen-
tative of the unit employees, and, if an understanding is
reached, to embody the understanding in a signed agreement.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, M&M Backhoe Service, Inc., Homestead,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with, and
withdrawing recognition from International Union of Operating
Engineers Local 487, AFL–CIO.
(b) Unilaterally ceasing to pay daily and Saturday overtime.
(c) Unilaterally failing and refusing to use the Union’s hiring
hall to hire employees.
(d) Unilaterally ceasing to pay health and welfare benefits on
behalf of unit employees.
(e) Failing and refusing to provide the Union with requested

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
relevant information.
(f) Promising employees benefits if they withdraw their sup-
port from the Union and threatening employees with termina-
tion for continuing to support the Union.
(g) Soliciting employees to sign a petition requesting that the
Respondent withdraw its recognition of the Union.
(h) Photographing lawful strike activity.
(i) Reprimanding and suspending employees for engaging in
lawful strike activity.
(j) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize the Union as the exclusive representative of
the employees in the following appropriate unit and, on request,
bargain with the Union concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time Equipment Operators, Oil-
ers, Drivers and Equipment Mechanics employed by the Em-
ployer in the counties of Broward, Charlotte, Collier, Miami-
Dade, Glades, Hendry, Highlands, Indian River, Lee, Martin,
Okeechobee, Palm Beach and St. Lucie, Florida; excluding all
other employees, guards and supervisors as defined in the
Act.
(b) Make whole all affected employees for any losses they
incurred as a result of the unilateral change in the manner in
which the Respondent compensated overtime with interest as
set forth in the remedy section of the decision.
(c) Offer immediate and full employment to those applicants
who would have been referred to the Respondent by the Union
were it not for the Respondent’s unlawful conduct, and make
them whole for any losses suffered by reason of the Respon-
dent’s failure to hire them with interest as set forth in the rem-
edy section of the decision.
(d) Make whole all unit employees by making all delinquent
contributions to the health and welfare fund, including any
additional amounts due the funds, and reimburse any affected
unit employees for any expenses they incurred as a result of the
failure to make those contributions, with interest, as set forth in
the remedy section of the decision.
(e) Provide the Union with all requested relevant information
as set forth in the remedy section of the decision.
(f) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline issued to
Tommy Miliano and Eddie Falcon and within 3 days thereafter
notify them in writing that this has been done and that the dis-
cipline will not be used against them in any way.
(g) Make whole Eddie Falcon for any loss of earnings and
other benefits that he suffered as a result of his unlawful sus-
pension as set forth in the remedy section of the decision.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
M&M BACKHOE SERVICE 473
records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of back-
pay due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its fa-
cilities in Homestead, Florida, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since July 1, 2002.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.