Roadhome Construction Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1968

170 N.L.R.B. 668 (N.L.R.B. 1968)

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadhome Construction Corp. and Chauffeurs,
Teamsters , Warehousemen and Helpers , 'Local
301, I. B. of T.'
Roadhome Construction Corp. and International
Union of Operating Engineers , Local 150,
AFL-CIO. Cases 13-CA-7596, 13-CA-7892,
and 13-CA-7597
' In that portion of his Decision entitled "The Remedy,", the Trial Ex-
aminer recommends that the striking employees, whom the Respondent
unlawfully failed to reinstate, be made whole for any loss of pay incurred by
reason of the Respondent's discrimination by paying to each of them a sum
of money equal to that which he normally would have earned as wages
from the opening of Respondent's season in the spring of 1967 to the date
of Respondent's offer of reinstatement , less net earnings during such
period To avoid any possible misinterpretation, we-note here that no pay
will-be due for that period during which there would normally be no work
for these individuals, e g , from the end of the 1967 season to the beginning
of the 1968 season.
March 22, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 14, 1967, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those al-
legations. Thereafter, the Respondent filed excep-
tions to the Decision and a supporting brief, and
the General Counsel and Local 301, International
Brotherhood of Teamsters, filed cross-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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, briefs,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Roadhome Construc-
tion Corporation, Barrington, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On charges filed
September 21, 1966, in Cases 13-CA-7596 and
7597 by Chauffeurs,, Teamsters, Warehousemen
and Helpers, Local 301, I.B. of T. and by Interna-
tional Union of Operating Engineers, Local 150,
AFL-CIO, hereinafter called Teamsters and En-
gineers, respectively, the General Counsel" by the
Regional Director, issued his consolidated com-
plaint on January 3, 1967, alleging that Roadhome
Construction Corp., hereinafter called Respondent,
violated Section 8(a)(1) of the Act by threats and
promises addressed to its employees with reference
to their union activities and violated Section
8(a)(5) by refusing to bargain with the Charging
Parties on and after September 15, 1966.
Thereafter, pursuant to said complaint, a hearing
was commenced on May 18 and 19, 1967, before
me at Chicago, Illinois. During the course of the
hearing, on May 19, 1967, an additional charge was
filed by Teamsters in Case 13-CA-7892 and served
upon all parties at the hearing. Noting that the new
charge had to do with issues presently before me, I
adjourned the hearing to enable the General Coun-
sel to complete his investigation and take what
steps he deemed necessary. Thereafter, General
Counsel issued a complaint in Case 13-CA-7892,
and moved to consolidate it with the complaint in
Cases 13-CA-7596 and 13-CA-7597. Upon re-
sumption of the hearing on June 1, 1967, 1 granted
the motion to consolidate. All parties were present
and had an opportunity to present evidence, argue
on the record, and file briefs. Briefs have been
received from the General Counsel, Teamsters, and
Respondent. Upon the record of the case, and from
my observation of the witnesses, and in considera-
tion of the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is an Illinois corporation en-
gaged near Chicago, as a contractor constructing
and repairing roads, driveways, parking lots, and
similar structures. Respondent annually purchases
materials valued in excess of $50,000 from other
170 NLRB No. 91
ROADHOME CONSTRUCTION CORP. 669
enterprises located in Illinois, which in turn
receives said materials directly from places in
States of the United States other than the State of
Illinois. Respondent at all times material herein has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Teamsters and Engineers are each of them labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
BACKGROUND
Respondent is a small contractor engaged
primarily in constructing and repairing private
roads, driveways and parking lots, using a max-
imum of fewer than 10 employees at any given
time. Until August 1966 Respondent mainly used
students as employees during their summer vaca-
tions with a nucleus of a few full-time year-round
employees. In September of 1963, Respondent and
Teamsters entered into a collective-bargaining
agreement, although it appears that at that time the
Teamsters represented none of Respondent's em-
ployees. This agreement expired December 31,
1965; there is no indication that Respondent or
Teamsters at any time during its life paid any atten-
tion to the agreement except that in 1964, Respon-
dent paid the initiation fees for Felix Hernandez,
who was apparently its only employee at the time.'
At some date, variously placed in April, May,
and July, 1966, Teamster Representative Barnes
met with Lyle Ritzenthaler, president, and his son,
David Ritzenthaler, vice president and manager of
Respondent, and presented them with a new indus-
trywide contract which he asked them to sign. Lyle
Ritzenthaler stated that he wanted to read the con-
tract first and Barnes left a copy and said he would
retuin.2 Barnes returned 2 or 3 weeks later at which
time Lyle Ritzenthaler declined to sign the contract
as it was and asked to have provisions for health
and welfare and pensions deleted. Barnes stated
that he could not change the contract.' It is clear
that at that time Barnes did not claim to represent
any employees nor did he represent any, except
Hernandez, who testified that he kept his dues paid.
Early in August, Barnes, accompanied by Mc-
Donald representing the Engineers, Lazzaretto
representing the Laborers, and various other union
representatives, met with the two Ritzenthalers,
Condill, and "Rags" Hanson, Respondent's superin-
tendent. Barnes, McDonald, and Lazzaretto asked
Respondent to sign their respective area collective-
bargaining agreements while Lyle Ritzenthaler
requested that they leave the contracts for him to
study, which they did. He apparently declined to
talk _in the presence of such a large group and ar-
rangements were made for a later meeting. Mc-
Donald testified that Lyle Ritzenthaler answered his
request to sign the Engineers' contract with the
statement that he had never bargained with Local
150 and he was not interested in signing their con-
tract . Barnes testified that he told Respondent's of-
ficials on this occasion that he represented two of
the men and that the rest of the men wanted the
Unions to represent them and that they were there
for that purpose.
A few days later, Barnes , McDonald, and Laz-
zaretto returned and spoke to the same four-men.4
At this meeting the parties discussed the health and
welfare plans , comparing them with an insurance
plan which the Company had been considering and
David Ritzenthaler stated that he had analyzed the
contracts and that they would put Respondent out
of business if Respondent adopted them. Respon-
dent contends that it offered at that time to sign the
contract in April 1967, but that this offer was
refused. Barnes and McDonald offered to let
Respondent finish the jobs for which it had already
contracted at the existing rates, but when these jobs
had been completed the Union's contract should go
into effect. This was declined by Respondent unless
the Unions would put the offers in writing, which
they declined to do.
On September 14, the Charging ]Parties had a
joint meeting with the employees at which five em-
ployees signed cards for the Union, two of them for
the Engineers and three for the Teamsters.' At this
meeting the employees were told that the Unions
would demand bargaining the next morning and if
the Employer did not recognize them that they
would go on strike.
The following morning the employees gathered
together at Respondent's plant. Barnes and Mc-
Donald went into the, office where they met with
Condill who told them that Lyle Ritzenthaler was
out of town and that he was in charge in his
absence. They presented Condill with their
authorization cards and according to his testimony
told him that if he didn't sign the contract, the em-
ployees would go on strike. Barnes and McDonald
both testified that they said that if he didn't recog-
' The contract is a booklet contract negotiated between various locals of
the Teamsters and several employer-associations , to none of which
Respondent belongs.
Y Barnes testified that in October 1965 a letter was sent to Respondent
notifying him of the expiration of the then current contract and stating the
arrangements for negotiations for a new one Each of Respondent's of-
ficers, Lyle and David Ritzenthaler and James Condill, the assistant
manager, testified that no such notification was received
Barnes testified that he had no authority to change the contract and
that neither he nor Teamsters ever changed the area contract for any em-
ployer.
' Respondent 's witnesses testified that there were three meetings in Au-
gust , Barnes and McDonald that there were only two There appears to be
no substantial difference as to what was said
Hernandez was still a member of the Teamsters On September 8, em-
ployee Gordon, a truckdriver, had signed his card and mailed it to Team-
sters.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize the Unions they would go on strike. Condill
testified that he did not believe that the cards were
valid, and he refused to check them' against the
payroll records.' Whether the Unions asked for
recognition or demanded that Condill sign the con-
tracts, Condill declined to do so, whereupon the
strike started. All seven card signers crossed the
railroad tracks separating Respondent's property
from the public right-of-way and set up a picket
line. All the strikers picketed for the first day or
two. Thereafter four of them continued the picket-
ing until sometime in November, when the picket
line was dropped.
In December Teamsters wrote a letter' requesting
reinstatement of all the employees which was an-
swered a week later by Respondent, with a letter
stating that they had a job for Hernandez, but that
due to the seasonal nature of the enterprise there
was no work for the other employees. It, is clear
that there has been no demand for recognition
since the strike began nor any attempt to negotiate
on either side.
The Alleged Refusal To Bargain
Initially Respondent contends that it has no duty
to bargain because no demand spelling out an ap-
propriate unit was ever made, because there were
conflicting claims at least between the Teamsters
and the Laborers Unions, and because all em-
ployees concerned were casual employees with no
reasonable expectation of permanent employment.
I believe that the Respondent's position is not well
taken. Each of the three unions, and in particular
the two Unions with which we are here concerned,
had, prior to their. demand for bargaining,
presented copies of their contracts to the Respon-
dent and Respondent was obviously at no time
under the misapprehension that the Teamsters unit
included any employees other than the drivers of
their various trucks as spelled out in the Teamsters
contract, or the Engineers unit included anyone but
the operators of the various equipment spelled out
in the Engineers proffered contract. Respondent at
no time raised this issue with either union. Respon-
dent, which has had some experience in the con=
struction industry, can hardly be ignorant of the
fact that the Teamsters traditionally represent
truckdrivers and the Operating Engineers tradi-
tionally represent the heavy equipment operators in
the construction industry. Further Respondent had
theretofore contracted with the Teamsters for a
unit covering its truckdrivers and cannot now be
heard to plead ignorance with respect to' the unit
which it represents. There can-be no question that
these units are appropriate in the industry. The
Board has so found in the cases of R. B. ' Butler,
Inc., 160 NLRB 1595; Del-Mont Construction Corn-
pany, 150 NLRB 85; and Graver Construction Com-
pany, 118 NLRB 1050, cited by counsel for the
General Counsel.
Respondent also contends that because the em-
ployees testified that they did various kinds of work
there-is no showing by the General Counsel that the
labor organizations represented the employees
within appropriate bargaining units. The record
reveals that employees Whitman and Higgins spent
approximately 95 and 75 percent, respectively, of
their time operating the heavy equipment which is
clearly within the unit contended for by Engineers
while employees Forrister, Gordon, Gorniak, and
Hernandez each spent in excess of 70 percent of
their time driving a truck 'and employee Kryzwicki
spent about half of his time driving a truck.'
In support of its contention that the employees
worked in mixed categories'and accordingly do not
fit into the descriptions in the complaint; Respon-
dent introduced through David Ritzenthaler a
document entitled "Employees as of September 15,
1966." David Ritzenthaler testified that he
prepared the document in December with the
assistance of the Company's accountant and that
the job -titles thereon were the titles that appear on
the records of the Company. The document, as it
was originally prepared, and distributed at -the hear-
ing, contains notations that Gorniak, Gordon, Kryz-
wicki, Forrister, Victor Dahir, Carlson, Higgins,
Whitman, and Hernandez were -all laborers and
truckdrivers and after Whitman's naive additionally
was written the words "and machine operator."
Confronted with the original records David ' Rit-
zenthaler admitted that they showed Gorniak as a
laborer, Forrister as a truckdriver, Dahir as a
foreman, Carlson as a laborer, Higgins as an opera-
tor, Whitman as an operator , and Hernandez as a
laborer. The original copy of the document, Exhibit
3, showed that the designation "laborer and
truckdriver" had been scratched out in' pen for
Harlan Whitman.' Lyle Ritzethaler, in a deposition
on October 5, 1966, stated that Jim Condill had no
position or title, yet Respondent's Exhibit 3 shows
him with the title "salesman ." In the same deposi-
tion Lyle Ritzenthaler testified that until that time,
October 5, 1966, either he or his son would ac-
tually take orders on the phone or in person and if
neither he nor his son was there a note would be
8 Condill also testified that he never had any question who the Union
represented and explained that his basis for doubting the authenticity of the
cards was that he had had occasion to read a number of publications deal-
ing with "what to do when the Union man comes knocking at your door,"
and that one thing that was said was always to doubt the authenticity of the
cards General Counsel contends that this does not give rise to a good-faith
doubt within the Board's Rules I quite agree
, I have disregarded evidence adduced by Respondent from various per-
sons about what other employees spent their time doing , and I have
credited each of the employees' testimony as to what he himself did. It is
obvious to me that each employee is the best witness to testify concerning
his own operation It is clear that there were two employees in the En-
gineers unit and five in the Teamsters and that all employees did varying
amounts of what they considered to be laborer 's work.
8 The copies furnished the parties and the Trial Examiner were not so al-
tered
ROADHOME CONSTRUCTION CORP. 671
made of it and it would be followed up. When the
discrepancies between Exhibit 3 and the company
records were pointed out to David Ritzenthaler he
testified that in fact Exhibit 3 was made up from his
personal knowledge and the company records and
stated that the company records were wrong. I
noted throughout the hearing both David Rit-
zenthaler and Condill referred to each of the
truckdrivers as laborers and truckdrivers and to
Condill as a salesman , although it is obvious that his
position was that of assistant manager under David
Ritzenthaler. I can conclude only that Exhibit 3 was
contrived and that the testimony of David Rit-
zenthaler and Condill was equally contrived in an
effort to becloud the unit issue. Mere carelessness
in the preparation of Exhibit 3 could not explain
why Higgins and Whitman were originally
designated as laborers and truckdrivers when it is
clear that they worked almost exclusively as heavy
machine operators., I consider that the episode in-
dicates a predeliction on the part of both David Rit-
zenthaler and Condill to shade their testimony to
support their case and substantially destroys any
credit that, I might give their testimony.
A more colorable position is advanced by
Respondent in the contention that all the em-
ployees are. casual and that Respondent has histori-
cally hired employees off the street at the beginning
of each season , around April. Most of the em-
ployees in the past have been college students
working for the summer. However, David Rit-
zenthaler testified, in August 1966 in an effort to
upgrade their employees, Respondent for the first
time in its existence advertised for truckdrivers and
operators in the newspaper. Pursuant to this ad,
Whitman, Higgins , Forrister, and possibly Kryz-
wicki -were hired. Whitman testified that Rit-
zenthaler "mentioned snow removal and shop
work" when Whitman asked about working
through the winter. Forrister testified that he was
told that he would be a permanent employee and
that he would work in the winter time doing recon-
ditioning work on the buildings on the property.
Asked on cross-examination whether David Rit-
zenthaler promised he would work in the winter or
said it was a possibility that he might work in the
winter, he answered that David said that they
would, and to him that meant it was guaranteed.
Gordon, „who was' hired in June and is the only
present employee who testified, testified that he
was told that he would be seasonal and that if the
work slowed up he would be laid off. It is not clear
whether he was told this in his initial hire or in his
rehire in 1967. He also testified that David Rit-
zenthaler told him that there would be a little bit of
snow plowing but said nothing to him that he would
be employed in that work. Gorniak, who was also
hired in June, testified that he was told that he
would have an all year-round job as long as he
stayed with the Company, and that he was told this
both by Lyle and ,David„ Ritzenthaler. Kryzwicki
testified that he applied for a job as truckdriver and
maintenance man, and was told that. more than
likely he would work in the winter time repairing
the trucks and repainting them. He admitted- his
memory was somewhat vague, that he was told that
the work was seasonal and was given no promise of
year-round work, but from the conversation they
had he anticipated that he would not be laid off at
the end of the season. Hernandez, who had been
hired in 1964, was employed continuously except
for 1 week in 1965 when he was laid off,
David Ritzenthaler testified that when he hired
Forrister he told him that when things were slack
on rainy days rather than having to send him home
Respondent was developing some industrial proper-
ty and he could clean and paint the -buildings. He
testified that he did not say anything to Forrister
about year-round employment, but "as I do with all
employees, informed him that our type of work was
seasonal and we would just do our best to keep him
on as long as we could." With regard to Gorniak he
said that he would have an all-round job, but not an
all year-round job. With regard to Higgins he
testified that only he and Higgins were present
when he hired Higgins. He testified he did not tell
Higgins that he would have year-round work and in
fact he asked Higgins why he wanted to come with
Respondent because they were seasonal. Higgins
answered that in his then present job he had to
work nights and he was getting too old to work
nights. -
Condill testified that he interviewed Kryzwicki
and hired him, and that at the time he told him that
he might work through November but that would
be the latest he could work, and
. that we did like-we were attempting to
train men and get- experienced men back, and I
would hope that even if he had to leave in
November he could come back in the spring
and if he really became valuable to us in the
supervisory end, he would be given the oppor-
tunity to go on salary and by going on salary it
would be a full year-round employment.
-I told him we did that type of thing [main-
tenance work] in the winter time and that if he
became valuable to us and was offered a sa-
lary, he may be a full-time man on a superviso-
ry level....
I conclude that Respondent had come to realize
that they could best perform with experienced and
capable employees, rather than with casual em-
ployees as in the past. Accordingly, in August,
Respondent, in an attempt to upgrade its work
force, advertised for truckdrivers and operators
with the intention of keeping them employed as
fully as possible on a seasonal basis. Respondent at
that time had considerable snow removal work in
the winter time as well as custodial work, and the
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refurbishing of empty buildings owned by a sister
corporation for rental purposes. Respondent obvi-
ously hoped to increase its snow removal work in
the wintertime, a circumstance that did not come to
fruition in the winter of 1966-67, perhaps because
of the Union's strike. At any rate, I conclude that
Respondent gave its prospective employees to be-
lieve that there was a possibility of year-round work
if their performance was satisfactory, but,
acknowledged that the job was primarily seasonal.
The Board has pointed out many times that the
construction industry has somewhat different
problems, and has met them in somewhat different
ways than other industries with which the Board
has dealt. Accordingly the Board has found, not
only that employees who have a reasonable ex-
pectancy of employment from year to year or from
season to season comprise an appropriate unit, but
that employees whose employment with an in-
dividual employer is somewhat more sporadic
because of the fact that they move from employer
to employer with greater fluidity, nevertheless, have
a sufficient interest in the terms and conditions of
employment to appropriately belong in the unit.' I
find here that the employees are clearly seasonal
employees with a reasonable expectancy of con-
tinued employment, rather than casual employees
as Respondent contends. I find further that the
heavy equipment operators constitute a clearly
identifiable and functionally distinct group with in-
terests distinquishable from those of other em-
ployees,10 as do the truckdrivers. Accordingly, I
find that the Teamsters and the Engineers made
their demands for appropriate units and that the
employees whose cards they presented were ap-
propriately members of such units, and constituted
a majority of the employees in such units.tt
Conclusion Regarding the Refusal-to-Bargain
Allegation
I have found that the normal prerequisites to a
finding of an 8(a )(5) violation are present. The
Unions each represented a majority of the em-
ployees in an appropriate unit. Each union commu-
nicated the fact of its majority standing to the Em-
ployer and demanded bargaining. The Employer
declined recognition and the Unions went on
strike.12 Nevertheless I do not find a violation of
Section 8(a)(5) of the Act.
It is clear that for at least five meetings prior to
September 15, the Teamsters demanded that the
Respondent sign its area contract and declined to
modify it in any , respect. Union Vice President
Barnes acknowledged that he did not have the
authority to vary the terms of the area agreement
'R. B Butler, 160 NLRB 1595, Daniel Construction Company, Inc, 133
NLRB 264
10 Del-Mont Construction Company, 150 NLRB 85
" While it is not completely clear it appears that only Dahir and Carlson
did not sign cards Carlson was a laborer and Dahir was a supervisor on the
and that neither he nor the Union had ever done so
to his knowledge. Similarly on at least two and per-
haps three occasions prior to September 15, En-
gineers, by its representative, McDonald, de-
manded that Respondent sign its area contract. Mc-
Donald also testified that he personally did not vary
the terms of the area contract once they are set in
master negotiations and that he has no authority to
vary them, and that it was a policy of Engineers
that the terms cannot be varied in fairness to other
employers who have signed the agreement.
As Respondent's counsel suggested on the
record, collective bargaining in the construction
trades is sometimes quite different from collective
bargaining in industrial situations or elsewhere. But
the same law applies in the one as in the other. The
Board has found that an employer who negotiates
with a fixed purpose, a "take it or leave it" attitude,
without any genuine effort to reconcile differences,
bargains in bad faith," and the Supreme Court has
held that the provisions of Section 8(d) setting
forth the duty to bargain apply equally to unions
and employers." As far back as 1947 the Board
considered the proposition that it is a defense to a
charge of employer bad faith, that the union was
not itself in good faith. The Board said in Times
Publishing Company, 72 NLRB 676, 682-683:
... the question of whether an employer is
under a legal duty to bargain with a union that
contemporaneously declines to negotiate on
certain subjects with that employer has been so
earnestly briefed by counsel that the Board
cannot let it pass without comment. The test of
good faith in bargaining that the Act requires
of an employer is not a rigid but a fluctuating
one, and is dependent in part upon how a
reasonable man might be expected to react to
the bargaining attitude displayed by those
across the table. It follows that ... a union's
refusal to bargain in good faith may remove
the possibility of negotiation and thus preclude
existence of a situation in which the employer's
own good faith can be tested. If it cannot be
tested, its absence can hardly be found.
In the circumstances of the instant case, the Em-
ployer is not required to go through an exercise in
futility by affirmatively responding to the Unions
demand for "recognition" and then sitting down
with the Unions to once again be told that it must
sign the area contracts without change. This is cer-
tainly the position in which Respondent would have
found itself. Whether or not McDonald and Barnes
asked for recognition or bargaining or to have their
contracts signed on September 15, it is clear that
the issue in the strike was whether Respondent
would sign the contracts tendered them. The
critical date
12 Thereby conclusively proving their majorities
is Herman Sausage Co, 122 NLRB 168
14 N L R B v Insurance Agents' International Union , AFL-CIO [Pru-
dentialIns Co ],361 U.S 477
ROADHOME CONSTRUCTION CORP. 673
Unions made no attempt to communicate with
Respondent after the commencement of the
strike,15 but the communications between Respon-
dent and the employees on the picket line dealt
with the comparison between the wages and work-
ing conditions offered by Respondent and those
embodied in the Unions' contracts. It is clear to me
based on the record before -me that the only'alter-
natives Respondent had on September 15 were to
agree to the Unions' contracts or to take a strike,
and it is equally clear to me that they chose the
strike. Unless and until the Board or the Congress
sets up different bargaining standards for the con-
struction industry, and I am aware of no decision or
legislation to that end, I cannot find that Respon-
dent was guilty of an unfair labor practice in refus-
ing to bargain with the -Unions on September 15.
Accordingly, I shall recommend that the complaint
be dismissed insofar as it alleges violations of Sec-
tion 8(a)(5).
troubling you." And he immediately began to
tell me that business agents from the Teamsters
and the Operators had been contacting him at
night two or three times a week and were ask-
ing him to organize for them or organize our
men, apparently, and he said he didn't like to
do this -and that if -he didn't, he would be
blackballed.
So I said "What do you mean blackballed,"
and he said, "Because I have a card." And, in-
cidentally, I didn't know up until this point that
he even carried a card of any kind and he said,
"Because I carry a card they will blackball me"
and explained it by saying he would never be
able to get a card again, and he went a little
more about this situation.
So I said, "under this kind of a threat it
might be a good thing if you, looked for
something else where you wouldn't have this
problem."
8(a)(1) Allegations
General Counsel contends that prior to the strike
Respondent, by its president, Lyle Ritzenthaler,
threatened employees and promised economic
benefits to employees to refrain from union activi-
ties. The conduct complained of consists of two
conversations allegedly held by Lyle Ritzenthaler
with employee Forrister, on two jobs known as the
"Old Dundee Road" job and the "Hayward" job,
on or about September 12 and 13, 1966, respec-
tively. Forrister testified that he was driving a truck
on the Old Dundee Road job when Lyle Rit-
zenthaler came out to the job, called him to the
side, and asked him if he was trying to get the men
to go to a meeting or to sign up with, the Union.
Forrister acknowledged that he was, whereupon
Lyle Ritzenthaler said, "well you're causing friction
with the men." 'Forrister asked him how he felt
about the Union. Ritzenthaler said that he objected
to it and that-he would sell his Company first before
he'd allow the Union in. Forrister then asked if Lyle
Ritzenthaler was going to operate his restaurant16
without a union and he said he was, and then said,
"Bobby, the best thing for you is to quit, I'll give
you a good reference to go into a union shop." For-
rister declined to quit, stating that Ritzenthaler
would have to fire him, but Ritzenthaler said he
couldn't do that because "under the tension with'
the Union he'd be in trouble if he did."
Lyle Ritzenthaler testified that he overheard two
unidentified employees talking about Forrister so-
liciting employees for union membership. He
wanted to learn more of what was going on where-
upon he went out to the job and called Forrister
aside and asked him how things were going.
He made a general reply, okay, so I countered
with, "Are you happy here? Is something
's Other than during the course of considerable litigation.
*
I really didn 't indicate that he should. I of-
fered him the opportunity if he felt he was
under pressure here , and this threat was hang-
ing over his head I just gave him the freedom
to go and look for something else.
I didn 't intend to fire him , didn 't want to fire
him, but-
Quite aside from what I deem the inherent im-
probability of Lyle Ritzenthaler 's testimony, his
demeanor as a witness convinced me that he is not
worthy of credence . He was equivocal and evasive
in his answers on cross -examination. As pointed out
elsewhere , he testified in direct conflict with the af-
fidavit which he submitted to the Board in their in-
vestigation of a companion case, and his answers to
some questions were such as to convince me -that
he was deliberately falsifying his testimony . For in-
stance , he testified that he was -called by' Condill-on
the morning of the strike and that Condill told him
that there was a strike and told him nothing else
nor did he ask. He testified that he did not know
nor did he ask who was striking , how many em-
ployees were on strike or what affect the strike had
or what gave rise to the strike. This is especially un-
believable in view of his testimony that he was
unaware of the meeting of the employees the night
before, which conflicts with his affidavit in which
he stated that he was informed on September 14 of
the meeting . We are thus left to believe that more
than 2 weeks - after his last contact with the Union
he is informed of a strike by his office manager in
his absence and made no effort to find out any par-
ticulars . This is an amazing statement for the pre-
sident of a corporation to make.
On the other hand , I found Forrister's account
believable. His testimony suffered only- from a cer-
'S Another enterprise in which Lyle Ritzenthaler was interested.
350-999 0 - 71 - 44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tain verbosity. It was obvious from his demeanor
that he enjoyed testifying and that he enjoyed his
status as a union member. I do not believe that he
would have made the statements attributed to him
by Ritzenthaler. On the contrary, from the tenor of
his testimony, I am convinced that any steps he
took to organize Respondent's employees were
taken willingly and with enthusiasm and pride.
Forrister also testified that on a day or two fol-`
lowing the incident at the Old Dundee Road, while
he was working on the Hayward job, Lyle Rit-
zenthaler again came out to the job and criticized
the work that was being done, which Forrister
acknowledged was not of the best, saying
something to the effect that the employees were'
doing poor work because they were involved with
the Union and again he stated that he would rather
shut the business down than recognize the Union.
Ritzenthaler denied the conversation completely.
I believe that Ritzenthaler in fact interrogated
Forrister and for no other reason than to ascertain
the extent of and if possible squelch the union or-
ganization which he admittedly believed to be con-
ducted by Forrister. It is clear that this interroga-
tion was not accompanied by any assurances nor
conducted under such circumstances that it is
privileged under the Board's rules set forth in Blue
Flash Express,17 or Johnnie's Poultry.18 I further find
that his suggestion to Forrister that Forrister should
resign his job and his statement to Forrister on two
occasions that he would sell the Company first be-
fore he allowed the Union in, both amounted to a
threat of discharge or reprisal because of the em-
ployees' union activities and that such interrogation
and threats constitute unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
General Counsel also contends that the action of
Superintendent John Suchy, immediately after the
strike started, in going out to the car where some of
the strikers were sitting and asking if any of the em-
ployees who had not signed cards were there, con-
stituted unlawful interrogation. I do not find
Suchy's question to amount to interrogation within
the meaning of Section 8(a)(1) of the Act, under
the circumstances. Suchy was responsible for
getting the work started on the morning of the
strike. At least one and perhaps two employees had
not gone on strike and were at the time inside the
Company's building. In response to Suchy's
question, employee Whitman answered that every-
one there had signed a card and that the ones who
had not signed a card were in the building, where-
upon Suchy left. I do not believe that this interroga-
tion is such as to interfere with, restrain, or coerce
any employee in the exercise of his protected rights
but rather constitutes an attempt by Suchy to find
out who was on strike and who was not. I shall
recommend that the complaint be dismissed insofar
as this incident is alleged as a violation.
General Counsel contends that Respondent by its
vice president, David Ritzenthaler, engaged in
threats of retaliation and promises of benefit to its
employees on the picket line on September 30 and
October 7. The evidence upon which the General
Counsel relies is that about 2 weeks after the strike
started, Higgins was on the picket line and as Con-
dill and David Ritzenthaler passed him, David Rit-
zenthaler said that he thought the strike would be
over in a week or so, and that he had hired two
men that fit in well with their type of operation. He
said that if they could get three or four more they
wouldn't need the striking employees at all. David
also said that they had an insurance plan working
and told Higgins that he would make as much
money working year round at the rate he had been
getting from Respondent as if he worked under a
union contract at a higher rate of pay for only 6
months. He also said that David told him that
everybody was going to get a raise. Neither David
Ritzenthaler nor James Condill, who was alleged to
be present on this occasion by Higgins, was asked
about the conversation, accordingly I accept Hig-
gins' testimony as it is given.
Gorniak testified that at some time during the
first week of the strike David and Lyle Ritzenthaler
came to him on the picket line and Lyle said that
he would give the pickets a steady all year-round
job and would give them $8,000 a year plus a
steady job of employment if they would go back to
work.
Gorniak said that a week later Condill and David
Ritzenthaler came to him and Ray Kryzwicki on the
picket line, and they entered into a conversation
concerning insurance during the course of which
Condill said that the Company had a better in-
surance plan than the Union had.ts
Ray Kryzwicki testified, concerning the second
incident, that David and Lyle Ritzenthaler came up
to him and Tony Gorniak on the picket line and
David Ritzenthaler asked what his wife thought of
them being on strike. Kryzwicki answered that she
had no choice. He then testified that "Dave and
Lyle offered Tony and I $8,000 a year if we went
back to work without the Union," and Dave
reached out the window and pointed to the picket
sign and said "without the Union." One of the em-
ployees questioned that Respondent was spending
so much money for lawyers and asked why they
didn't just "join the Union and give us the money
instead of spending it on lawyers." He quoted Lyle
Ritzenthaler as answering that before he would turn
around and give the employees the money, he
IT Blue Flash Express, Inc, 109 NLRB 591
8 Johnnie's Poultry Co, 146 NLRB 770
18 Gormak also testified that before the Union had come up the Com-
pany had stated in a meeting of all employees that they were going to get mn-
surance for the employees He also stated that Lyle Ritzenthaler in the
earlier conversation told him that Respondent was willing to sign the union
contract if they didn't have to pay the pension and health and welfare.
ROADHOME CONSTRUCTION CORP. 675
would sell the business. Kryzwichki testified that
David Ritzenthaler and Condill were on the picket
line on another occasion and they got into a con-
versation about an insurance policy which Rit-
zenthaler said was better than the Union's. Rit-
zenthaler said that he was willing to sign with the
Union providing he could keep his own insurance
plan. On this occasion , David Ritzenthaler got a
brochure of Respondent's insurance policy and
gave it to the pickets to read.
David Ritzenthaler testified with regard to the
conversation with Gorniak and Kryzwicki during
the week after the strike, that his father was
present, that he asked Kryzwicki what his wife
thought of him being on the picket line, and Kryz-
wicki said his wife had no choice, and that he,
David Ritzenthaler, mentioned to both of them if
they were ready to go to work, if they'd like to lay
down their signs and go to work that Respondent
had work for them. He denied that $8,000 a year
was ever mentioned. Concerning the last conversa-
tion, David Ritzenthaler's testimony is substantially
the same as that of Kryzwicki except that he did not
testify that he was prepared to sign the union con-
tract if he did not have to pay for the insurance.
Condill testified concerning the last conversation in
substantial accord with the others and stated that it
could very well have been in this conversation that
he stated that the Company had no squabble with
the union wages, and that the part of the contract
they objected to was the insurance and pension
plan.
It is clear that there is no substantial issue con-
cerning the last conversation. The only real issue
concerns the conversation in which Lyle Rit-
zenthaler is quoted as having offered $8,000 a year
to the employees if they would come back to work.
I don't credit completely, any of the accounts of
that conversation. However, I believe that Gorniak
had the best recollection of it and that what in fact
was said by Lyle Ritzenthaler was that the em-
ployees could work the year round in Respondent's
employ and make more money than they could
make in the, construction industry under the union
contract. I believe that he suggested that $8,000 a
year was the basis on which they were paid. I do
not believe that his statement with regard to going
out of business before he'd pay the employees what
he was paying his lawyer is violative, if it were
made.
General Counsel vigorously contends that the
Respondent in its picket line contacts with the em-
ployees offered them improved benefits if they
would reject the Union and come back to work.
With the exception of the statements reported by
Gorniak whom I have credited, I believe that what
the Respondent was doing was pointing out to the
employees that the benefits that they already had as
employees before going on strike, which included
the insurance, were as good as the benefits that
they would get under the union contract, but less
costly to the Employer. However, I believe that
Respondent's statements as reported by Gorniak
and Higgins with regard to year-round employment
were, in effect, a promise of better terms and con-
ditions of employment than the Employer had
theretofore held out to them. As such, I would find
the statements violative of Section 8(a)(1) of the
Act. It is clear that an employer breaches the Act
when he offers to striking employees improvements
in working conditions that he has not offered
through the union ,' and attempts to go behind the
union and deal directly with striking employees.21
Sometime during the - spring or early summer
Felix Hernandez borrowed $250 from Lyle Rit-
zenthaler to purchase a new motor for .his automo-
bile. When the strike commenced on September
15, he had paid back all but $80 of his indebted-
ness . About 2 weeks after the commencement of
the strike, Hernandez testified, Lyle Ritzenthaler
came to Hernandez' home and asked him if he
wanted to go back to work. Hernandez said he
would not go back to work unless Ritzenthaler
"agreed to negotiate with the Union, sign a con-
tract." Ritzenthaler said he wouldn't go union that
he didn't want to be associated with "this kind of
people, this Union-he said that they were a bunch
of crooks." Ritzenthaler told Hernandez that the
door was always open for him if he wanted to come
back to work and then told him that if he wasn't
coming back to work he wanted his money. Her-
nandez said he didn't have the money and Rit-
zenthaler left.
About 3 weeks after the first conversation Her-
nandez testified that Lyle Ritzenthaler again came
to his home and told him that he wanted the money
that Hernandez owed him. Hernandez refused to
pay the money until Respondent paid him vacation
money that he had coming. Ritzenthaler said that
was a different matter and he wanted the money
that Hernandez owed him and an argument ensued.
Hernandez finally assured Ritzenthaler that he was
going to yay him the money but he didn't have it at
the time. 2
Lyle Ritzenthaler testified that on the first occa-
sion he went to Hernandez' house for the purpose
of asking Hernandez, who was behind in his pay-
ments on the personal loan, if he would like to
bring his payments up to date. Hernandez brought
up the Union but Ritzenthaler said that he didn't
want to talk about the Union, he was simply there
to talk about the loan that he had made to Hernan-
dez and he thought that Hernandez could pay some
of it. Hernandez said he couldn't because he had
been out of work for awhile and "we left it at that."
Ritzenthaler denied making any statement about
20 National Furniture Manufacturing Company, Inc., 130 NLRB 712 22 It appears that at some later time Hernandez received his vacation pay
21 Frick Company, 161 NLRB 1089 and repaid the $80 to Ritzenthaler.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating with the Union or stating that he didn't
want to be associated with "this kind of people."
He testified that he went out to visit Hernandez
again because he knew that Hernandez had been
working but didn't know how much and he felt
there was a possibility of clearing up the loan. He
testified that he simply asked Hernandez if he
would take care of the balance and Hernandez bel-
ligerently said he wouldn't pay any of it until he
received his vacation check. Ritzenthaler said that
he was not there to talk business and that he was
sure that when the time came for the vacation
check to be due Hernandez would receive it. He
also testified that he told Hernandez that he could
come back to the Company anytime he wanted to
and that that remained his position at the time of
the hearing.23
The General Counsel contends that the two visits
by Ritzenthaler to Hernandez' home and the state-
ments there made constituted "an unlawful induce-
ment" to force Hernandez from exercising his
rights to engage in strike activity, therefore a viola-
tion of Section 8(a)(1) of the Act.
I do not find that Lyle Ritzenthaler's request to
Hernandez to pay the money which unquestionably
Hernandez owed him violates the Act. It is clear,
however, that Ritzenthaler used the indebtedness as
the occasion to call upon Hernandez and solicit him
to return to work in spite of the strike and at that
time stated that he would not "go Union." This so-
licitation I find violative of Section 8(a)(1) of the
Act, but in my opinion the request for repayment of
the loan unaccompanied by any threats or induce-
ments with regard to the loan does not in itself con-
stitute an unfair labor practice.
The 8(a)(3) Allegations
As I have stated above Teamsters on December 3
made an unqualified offer to return to work on be-
half of employees Hernandez, Gordon, Forrister,
Gorniak, and Kryzwicki and advised that the strike
was terminated. In response thereto on December
12 Respondent accepted the offer on behalf of Her-
nandez, giving him until 8 a.m. Thursday,
December 15, to report and stated that as to the
other employees they were unable to accept the
offer because of insufficient available work.
Hernandez went to Respondent's office and
talked to Lyle Ritzenthaler. His account is as fol-
lows:
29 At the hearing Respondent's Counsel asked counsel for the General
Counsel to transmit an offer of employment to Hernandez who was not in
the room at the time
24 Lyle Ritzenthaler was not questioned about this conversation Condill
who testified that he was present gave a slightly different account of the
conversation which I do not credit
21 Texas Gas Corporation , 136 NLRB 355
26 It appears that there was rehabilitation work on buildings owned by a
sister corporation which may have been available but which was not ac-
complished during the winter
... and he told me-and Lyle told me if I
come back to work for him-that if he did not
agree to sign the contract with the union, if I
was going to walk out again on a strike, and I
told him yes.
He told me, "you're not going to work for
me, you're going to work for the union." Then
he say, "no, I don't think we can use you this
winter. We don't got enough work for you this
winter, just snow plowing, that's all."
He say, "I'll call you in the spring when
things start moving again, and I never heard
from him ever since then."
Although it is clear that the Union's offer to
return to work on behalf of Hernandez was
unqualified, it appears that Hernandez in his con-
versation with Lyle Ritzenthaler24 candidly in-
formed Ritzenthaler that he would walk out again
on strike. Ritzenthaler's refusal, in view of this ad-
mission by Hernandez, to reinstate him is in effect
the act of conditioning reinstatement upon a com-
mitment by Hernandez not to strike again. This is
clearly unlawful.25 Although Respondent contends
that it had no work for Hernandez its letter of
December 12 leads me to the contrary conclusion.
It is clear that in the years that Hernandez worked
for Respondent it kept him busy through the
winter; whether it would have done so in the winter
of 1966-67 appears to be an appropriate subject
for subsequent proceedings.26
General Counsel contends as to the remaining
employees, Gordon, Forrister, Gorniak, and Kryz-
wicki, that Respondent had a duty to recall them in
the spring and that its failure to do so constitutes a
violation of Section 8(a)(3) of the Act.27 Respon-
dent on the other hand contends that historically it
has never called back employees in the opening of
its season but has manned its payroll with em-
ployees who came to its gate seeking work. Ac-
cordingly, Respondent contends it had no duty to
change its normal method of manning its work
force in order to call back the strikers.
Respondent's position appears logical, however,
it fails to take into account a factor which Respon-
dent itself, for other purposes, brought out in the
hearing . That is that in August in order to upgrade
its work force Respondent deliberately changed its
manner of manning its jobs and in the interviews
with the employees hired in response to its adver-
tisement in August informed the employees that the
operation was a seasonal one and that if they
2' Gordon testified that in the spring of 1967 he was visited on the job on
which he was working by Superintendant Suchy who asked him to come
back Accordingly he came to Respondent's office and was rehired He
testified that he returned to work on April 3, 1967 Dave Ritzenthaler
testified he knew nothing of any contact between Suchy and Gordon, but
that he hired Gordon when he applied for work in the spring of 1967 He
also testified that Gordon came in with Louis Holm at the end of April
1967 1 credit Gordon's account Accordingly there can be no issue
whether Gordon was discriminatorily denied reinstatement at the
beginning of the season I find that Respondent called him back before any
regular employees were hired I shall recommend dismissal of the allega-
tion with regard to Gordon
ROADHOME CONSTRUCTION CORP. 677
worked out they would work on a year-to-year ba-
sis. The only factor that appears to have changed
was that the employees participated in a strike.
Under the circumstances Respondent's practice ap-
pears to be irrelevant. Respondent assumed in Au-
gust a new practice in its attempt to build a regular,
more experienced work force. Accordingly, the em-
ployees having made an appropriate unqualified
offer to return to work after their strike and being
unreplaced have a right to be called in the spring
when the season opened. General Counsel does not
contend that Respondent had any duty to employ
these men during the winter months and, as I have
found above, it is clear that they were hired on a
seasonal basis with the expressed hope that they
would work out as supervisory employees. Ac-
cordingly I find that Respondent had a duty at the
opening of its season to offer reinstatement to these
three men, the failure of which constituted a viola-
tion of Section 8(a)(3).
Respondent contends that one Holthusen was
hired as a foreman. General Counsel contends that
to call Holthusen a foreman "is preposterous in
light of an absence of employees to supervise." I do
not agree with the General Counsel . It is clear that
Holthusen left a supervisory position to work for
the Employer and was employed in February at a
time when, other than casual labor, Respondent
had no nonsalaried employees on its payroll. It is
clear that Respondent anticipated using Holthusen
as a supervisor and the fact that a month and a half
after the season opened Respondent had not yet
built up its work force to the point where a second
crew was required does not militate against this
conclusion. I do not consider that Holthusen was a
rank-and-file employee although at the time of the
hearing he had performed in that capacity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations of Respondent set forth in section I,
above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1)_ and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act. Since the Respondent unlawfully refused
to reinstate its striking employees upon the Team-
sters unconditional application in their behalf, it
will be recommended that Respondent offer them
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice
to their seniority or other rights and privileges,
discharging, if necessary, any replacements . hired
after their unconditional application in order to
provide work for such strikers. It will also be
recommended that Respondent make them whole
for any loss of pay they may have suffered by
reason of Respondent's discrimination against them
by paying to each of them a sum of money equal to
the amount he normally would have earned as
wages from the opening of Respondent's season in
the spring of 1967 to the date of Respondent's offer
of reinstatement less his net earnings during said
period. The amount of backpay due shall be com-
puted according to the Board's policy set forth in F.
W. Woolworth Company, 90 NLRB 289, with in-
terest on backpay computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
Payroll records in possession of Respondent are to
be made available to the Board or its agents to
assist in such computation and in determining the
right to reinstatement.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAw
1. Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Teamsters and Engineers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. At all times material herein Teamsters has
been and now is the exclusive representative of the
employees in a unit consisting of all truckdrlvers
employed by Respondent Company but excluding
office clerical employees , professional employees,
guards and supervisors as defined in the Act and all
other employees.
4. At all times material herein Engineers has
been and now is the exclusive representative of the
employees in the unit consisting of all operating en-
gineers employed by Respondent but excluding of-
fice clerical employees , professional employees,
guards and supervisors as defined in the Act and all
other employees.
5. Respondent has not failed and refused to bar-
gain in good faith with Teamsters or Engineers.
6. By refusing reinstatement to Felix Hernandez
on or about December 15, 1966, and to Robert
Forrister , Justine A. Gorniak , and Raymond A.
Kryzwicki at the opening of its 1967 season upon
their unconditional offer to return to work , Respon-
dent discriminated in regard to their hire and
tenure of employment thereby discouraging mem-
bership in the Union in violation of Section 8(a)(3)
and (1 ) of the Act.
7. -By interrogating and threatening employees
and by offering them benefits to discontinue their
strike , Respondent has interfered with , coerced,
and restrained its employees in the exercise of their
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights , guaranteed in Section 7 of the Act all in
violation of Section 8(a)(1) of the Act.
8. The, aforesaid unfair labor practices are unfair
labor ' practices ' affecting commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
9. Respondent has not committed other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of ,fact and
conclusions of law and upon the entire record in
the case, it is recommended that the National
Labor Relations Board, pursuant to Section 10(c)
of the "National Labor Relations Act, as amended,
order, that the Respondent, Roadhome Construc-
tion Corp., its officers, agents , successors, and as-
signs , shall:
1. Cease and desist from:
(a) Discouraging membership in Chauffeurs,
Teamsters, Warehousemen and Helpers, Local 301,
I.B. of T., or any other labor organization by dis-
criminatorily failing or refusing upon their uncondi-
tional request to reinstate any of its employees who
have engaged in the strike and are lawfully entitled
to reinstatement.
(b) Interrogating or threatening its employees
with reprisals because of their membership in or ac-
tivities on behalf of the above-named Union or In-
ternational Union of Operating Engineers, Local
150, AFL-CIO.
(c) Promising its employees benefits if they
would discontinue striking or other concerted ac-
tivities on behalf of either of the above-named
labor organizations.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights - guaranteed in Section 7 of the
Act. -
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Felix Hernandez, Robert Forrister,
Justine A. Gorniak-, and Raymond A. Kryzwicki im-
mediate and full reinstatement to their former or
substantially equivalent positions without prejudice
to their seniority or other rights and privileges and
make them whole in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify the said employees if presently serv-
ing in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training -and Service Act; as
amended, after discharge'from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personel records and reports,
and all other records necessary to determine the
amount of backpay due and 'to analyze reinstate-
ment rights under the terms of this Recommended
Order.
(d) Post at its plant in Barrington, Illinois, copies
of the attached notice marked "Appendix."28 Co-
pies of said notice, on forms provided by the Re-
gional Director, after being duly signed by -Respon-
dent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the' Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 13,
in writing, within 20 days from the date of receipt,
of this Decision, what steps the Respondent has
taken to comply herewith?9
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges violations not
specifically found herein.
88 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
Pe In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 13, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in
Chauffeurs, Teamsters, Warehousemen and
Helpers, Local 301, I.B. of T., or any other
labor, organization, by discriminatorily failing
or refusing upon their unconditional request to
reinstate any of our employees who have en-
gaged in the strike and are lawfully entitled to
reinstatement.
WE WILL NOT interrogate or threaten our
employees with reprisals because of their mem-
bership in or activities on behalf of the above-
named Union or International Union of
Operating Engineers, Local 150, AFL-CIO..
WE WILL NOT promise our,--employees
benefits if they would discontinue- striking or
other concerted activities on behalf of either of
the above-named labor organizations.
WE WILL NOT in any like or related manner
interfere, with, restrain, or coerce our em-
ployees in the exercise of rights guaranteed in
Section 7 of the Act.
ROADHOME CONSTRUCTION CORP.
WE WILL offer to the following named em-
ployees immediate and full reinstatement to
their former or substantially equivalent posi-
tions without prejudice to their seniority or
other rights and privileges and make them
whole for any loss of pay they may have suf-
fered as a result of our discrimination:
Felix Hernandez
Robert Forrester
Justine A. Gorniak
Raymond A. Kryzwicki
ROADHOME
CONSTRUCTION CORP.
(Employer)
Dated By
679
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 881 U.S. Courthouse and Federal Office
Building, 219 South Dearborn Street, Chicago, Il-
linois 60604, Telephone 828-7570.
(Representative ) (Title)