Spearin Preston & Burrows, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1980

248 N.L.R.B. 1384 (N.L.R.B. 1980)

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spearin, Preston & Burrows, Inc. and Shopmen's
Local Union No. 445 of the International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO. Cases 29-CA-6116
and 29-CA-6440
April 24, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO,
AND TRUESDALE
On December 10, 1979, Administrative Law
Judge James M. Fitzpatrick issued the attached
Decision in this proceeding. Thereafter Respon-
dent,1 the Charging Party, and the General Coun-
sel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
Respondent states in its exceptions, "In the event that the Board does
not confirm the Decision and Recommended Order of the Administrative
Law Judge that the complaint be dismissed in its entirety, or in the event
that there is a proceeding for Court review of the Board's order, Respon-
dent respectfully takes the following exceptions to the Findings, Decision
and rulings at the hearing by the ALJ." In light of our Decision herein,
which adopts the Administrative Law Judge's dismissal of the complaint,
we find it unnecessary to pass on Respondent's exceptions.
2 The Charging Party and the General Counsel have excepted to cer-
tain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
s In affirming the Administrative Law Judge's finding that the welding
superintendent, Carl Agrell, did not make statements constituting an ex-
pression of union animus, we rely on his refusal to credit the testimony of
employee Tom Forts. We do not rely on his further finding that the al-
leged remarks, even if Forts be credited, are not strong evidence that
union animus influenced Respondent's decisions.
In adopting the Administrative Law Judge's refusal to find that Re-
spondent herein must bargain with the Union, we do not rely on his dis-
cussion relating to whether or not the 8(a)(5) charge was time-barred
under Sec. 10(b) of the Act. No unfair labor practices on the part of Re-
spondent were found and unfair labor practices are the necessary predi-
cate for a bargaining order since the Board, with the approval of the Sur-
preme Court, holds that in the absence of such unfair labor practices, or
an agreement to permit majority status to be determined by other means,
an employer need not bargain with a union that has not demonstrated its
majority status by means of an election. Linden Lumber Division, Summer
& Co. v. N.L.R.B., 419 U.S. 301 (1974).
248 NLRB No. 185
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATIEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge:
The ultimate questions here are whether: (a) the Em-
ployer was obligated to bargain with the Union, (b) its
layoff of seven welders was motivated by antiunionism
or by business considerations, and (c) the circumstances
entitle the Union to a bargaining order based on employ-
ee authorization cards. As set out below, I find that, be-
cause the layoffs are not shown to be discriminatory, a
bargaining order based on authorization cards is not war-
ranted and questions relating to union representation
should be resolved by normal representation procedures.
These proceedings began with unfair labor practice
charges filed December 16, 1977, in Case 29-CA-6116
by Shopmen's Local Union No. 455 of the International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO (the Union), against Spearin, Pres-
ton & Burrows, Inc. (the Respondent). A complaint
based on these charges issued January 27, 1978, alleging
that Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Na-
tional Labor Relations Act, as amended. Respondent an-
swered, denying the allegations of unfair labor practices.
On May 31, 1978, the Union filed additional charges
(Case 29-CA-6440) which on July 7, 1978, were consoli-
dated with the initial charges, and an amended complaint
issued alleging unfair labor practices within the meaning
of Section 8(a)(3), (5), and (1) of the Act. Respondent
again answered, denying the alleged unfair labor prac-
tices. On October 11, 1978, the Union amended the initial
charges (Case 29-CA-6116) and on October 17, 1978, a
second amended consolidated complaint issued alleging,
inter alia, that Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(3), (5), and
(1) of the Act. Respondent also answered this complaint
denying, inter alia, the appropriateness of the alleged bar-
gaining unit, the majority status of the Union for that
unit, the demand by the Union for recognition, the refus-
al to bargain, the discriminatory discharge and refusal to
reinstate seven employees, the allegation of unfair labor
practices so serious as to preclude the holding of a fair
election, and the necessity for a bargaining order.
The issues were heard at Brooklyn, New York, on Oc-
tober 30 through November 2 and November 6 through
9, 1978. At the conclusion of the General Counsel's case
in chief Respondent moved to dismiss for his failure to
make out a prima facie case. More specifically, Respon-
dent urged a fatal variance between the bargaining unit
asserted in the underlying charges and that alleged in the
complaint, and further that there was no proof of a refus-
al to bargain for the unit alleged, and no evidence indi-
cating the seven discharges were because of union activi-
ties. Respondent also moved to dismiss Case 29-CA-
6440 on the ground that the complaint alleged conduct
occurring more than 6 months prior to the filing of the
charge. Ruling was reserved on these motions. Respon-
dent also moved to dismiss Case 29-CA-6440 on the
SPEARIN, PRESTON & BURROWS, INC. 1385
ground that the complaint alleged unfair labor practices
occurring on dates different than asserted in the charges.
That motion was denied. Respondent moved to exclude
from evidence all authorization cards and testimony re-
lating thereto which were not authenticated through the
testimony of the signer of the card. This motion also was
denied.
At the conclusion of all evidence Respondent renewed
its motions previously made. Those which had earlier
been denied were again denied. In addition Respondent
renewed its motion, on which ruling had earlier been re-
served, to dismiss the complaint in Case 29-CA-6440 be-
cause of a variance between the unit described in the
charge and that asserted in the complaint. The renewed
motion was denied. Respondent further moved to dismiss
because in closing the General Counsel admitted the
Union had made no demand for recognition for the bar-
gaining unit alleged in the complaint. Ruling was re-
served on this motion.
Based on the entire record,' including my observations
of the witnesses and consideration of the briefs filed by
the General Counsel and Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. THE EMPLOYER
Respondent, a New York corporation with its princi-
pal office in New York City, is engaged at various pro-
ject sites in New York, New Jersey, Connecticut, and
Puerto Rico in heavy and marine construction. It annual-
ly performs services outside New York State valued
over $50,000. It is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
Respondent also operates a marine yard and basin on
Staten Island in New York where it stores, repairs, and
prepares equipment and receives, stores, and distributes
supplies and parts for use on its projects. Only this yard
is directly involved in the present matter. Although
normal activities at the yard are as described above, at
the time of the events involved in this case, Respondent
was engaged in two, one-time, yard projects. The first
involved rebuilding and refurbishing a small barge called
the YD barge. The second involved redesign and re-
building of a large (about the size of a football field)
jack-up barge with numerous adjustable legs to support it
above the surface of the water in shallow areas of the
ocean.
11. THE LABOR ORGANIZATION
At its various construction sites, Respondent operates
as a union contractor and has longstanding collective-
bargaining agreements with various construction unions
whose members perform heavy and marine construction
work, including, inter alia, the District Council of Car-
penters, Dock Builders Local 2456, Metallic Lathers
I Inexplicably two exhibits not admitted in evidence have been trans-
mitted by the reporter as part of the record. These are marked, GC.
Exh. II, which was offered in evidence but rejected, and G.C. Exh. 15.
which was neither offered nor admitted. These are not properly part of
the record and have not been considered in reaching this decision.
Union Local 46, Laborers Union Local 731, Teamsters
Local 282, Operating Engineers Locals 14, 15, 15A, 15C,
15D and 25, Tugboat Operators Local 333, and Timber-
men's Local 1536. At its Staten Island yard, Respondent
employs both union and nonunion workers. New hires
are obtained both by referrals through union halls and
off the street. Those hired off the street are hired with-
out regard to union membership or lack thereof.
The Charging Union, a labor organization within the
meaning of Section 2(5) of the Act, claims to represent
some of the employees at the Staten Island yard, but it
has never had a collective-bargaining agreement with
Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Work in the Yard
As noted above, at the time involved here two special
projects were in progress at the Staten Island yard. Both
might have been contracted out to shipyards, but in each
case Respondent's management decided the work should
be done in its own yard because of cost considerations
and the belief that its own organization and facilities
were adequate to perform the jobs.
The YD (for yard derrick) barge was an old vessel of
modest size which had had a derrick mounted on its
deck for use in marine construction. While in use on a
project, it suffered storm damage, capsized, and sank. It
was later raised by a salvage company, placed in an in-
verted position aboard a barge of the salvage company,
and towed to Respondent's basin for repairs. The repairs
required, among other things, complete replating with
steel of the bottom of the barge. This was to be accom-
plished with the YD barge in its inverted position on the
salvage barge. While this work was in progress Respon-
dent continued to be obligated to the salvage company
for $100-per-day rental for the salvage barge. Respon-
dent's management was eager to complete the replating
so the YD barge could be floated on its own, thus elimi-
nating the expense of the salvage barge.
The jack-up barge redesign involved improving its ca-
pability for off-shore duty in all seasons and weather
conditions. Specifically, it was being redesigned to pro-
vide a secure off-shore platform for installation of a
sewage out-fall in the Atlantic Ocean off Long Island.
The redesign work was extensive and highly technical. It
involved considerable welding, some of which could be
performed adequately by ordinary welders, and some in-
volving high-stress welds requiring welders of greater
competence. One particular type of welding in this latter
category involved welding high pressure pneumatic
tubing for which a welder certified by the Coast Guard,
a 5C welder, was required.
Respondent normally employs ordinary welders as
well as high-stress welders in its yard. In order to per-
form the YD barge and jack-up barge projects it hired
additional welders off the street.
Edward Sabella, a member of the Charging Union,
was hired August 30, 1977, as the first of these additional
welders and, as more were hired, was made leadman of
the welding crew working on the YD barge. In hiring
the extra welders, including Sabella, Welding Superinten-
1386 DECISIONS OF NATIONAL LABOR RELTIONS BOARD
dent Carl Agrell indicated there was plenty of work
which would last for some time.
B. The Union Activity
Not long after Tom Forts was hired on October 5 as
one of the additional welders, he and Sabella began dis-
cussing between themselves and with other welders in
the yard the benefits of union representation. In early
November Sabell contacted Union President William Co-
lavito, informing him he was working on barges in a
nonunion yard where some employees were interested in
union representation. Colavito then met with Sabella and
Forts in Respondent's parking lot. He explained the or-
ganizing steps necessary to obtain support of a majority
of the employees and supplied them with blank authori-
zation cards. On November 17, 18, and 19, Sabella and
Forts solicited other employees in the yard to sign au-
thorization cards for the Union. Those who signed cards
returned them to either Sabella or Forts. Forts handed
over to Sabella the ones he collected, and Sabella mailed
all of them to Colavito at the union hall. In this matter
the Union received back 17 cards in late November and
2 more in December making a total of 19 authorization
cards apparently signed by employees of Respondent.
For reasons set out hereinafter, it is unnecessary to deter-
mine here the authenticity of those cards.
The record does not reveal any further organizational
activity until the meeting of December 8 described her-
einafter.
C. The Request for Bargaining and the Petition for
Certification
On November 29, the Union, relying on the authoriza-
tion cards obtained, sent a telegram to Respondent re-
questing recognition as the representative of "the over-
whelming majority of your production and maintenance
employees" at the Staten Island yard and requesting a
meeting to discuss their terms and conditions of employ-
ment. Respondent received the telegram late the same
day.
On the following day, November 30, the Union peti-
tioned the Board for certification as the exclusive repre-
sentative of "all production and maintenance employees"
at the Staten Island yard. It is undisputed that Respon-
dent has given no overt recognition to the Union as a
representative of its employees. But on December 12 Re-
spondent's vice president, Gerald Neumann, Jr., with its
attorney, William Finneran, at the request of the Board's
Regional Office, attended a meeting for the purpose of
discussing the Union's petition for an election. The
Union's attorney, Mrs. Eherenburg, also attended.
During this meeting Finneran declared Respondent's
willingness to participate in a Board-conducted election
in the unit for which the Union had petitioned. The
union attorney indicated that it was filing unfair labor
practice charges. As a result, neither the Board nor the
Union took further action in the representation proceed-
ing.
D. Interrogation by Carl Agrell
Following receipt of the Union's request for recogni-
tion, Respondent's vice president, Neumann, asked Yard
Superintendent Warren Barbour whether he or Agrell
knew what Local 455 was.2 Barbour did not know but
said he would ask Agrell, which he did. Agrell replied
that he did not know. Agrell then went to the welding
shop where four or five welders, including Sabella, were
gathered, and asked the group whether anybody knew
who Local 455 was. Sabell identified it as the Ornamen-
tal Iron Workers and gave Agrell the union address. He
in turn asked Agrell whether they had received a letter.
Whether Agrell made any reply is not established. Agrell
relayed to Barbour the information he had obtained. I
infer that Barbour informed Neumann.
In her brief counsel for General Counsel argues that
Agrell's question to the assembled welders violated Sec-
tion 8(a)(1) of the Act in that it was threatening and co-
ercive. I disagree. It was not alleged as an independent
violation of Section 8(a)(1) in any of the three com-
plaints. The question only sought general information
which any member of the public might possess. Answer-
ing it need not have revealed employee involvement or
noninvolvement with that organization. When an em-
ployer receives a request for recognition from a union
unknown to the employer, it is not unreasonable, nor is it
an unfair labor practice, nor does it reveal union animus,
for the employer to attempt to identify the union by
asking its employees.
E. Agrell's Comment to London
Robert Taylor, a welder, testified that some time in
the first week of November he walked into the welding
shop and overheard Agrell state to someone, probably
David London, Respondent's project engineer, as fol-
lows:
There was no union coming in the yard and he was
going to find out who was passing the cards out
and when he finds out who it was, they are going
out of the gate.
Agrell and London denied Agrell made such a state-
ment. I credit these denials. Both testified in a credible
manner. Taylor, on the other hand, was not a convincing
witness. He admitted he had a poor memory for names,
places, and details. He was evasive about conversations
during pretrial preparation. Moreover, between the time
of the events in question and the hearing he had been the
victim of a mugging resulting in brain damage affecting
his memory.
F. Agrell's Comment to Forts
As set forth elsewhere herein, Forts solicited union au-
thorization cards on November 17, 18, or 19. He testified
that a week or a week and a half later Agrell, on instruc-
tions from London, polled the welders as to whether
they had cards showing they were certified welders.
Some of the welders then exhibited some type of docu-
mentation. The following morning Forts brought in a
2 Local 455, the Charging Party herein.
SPEARIN, PRESTON & BURROWS, INC. 1387
statement "To Whom It May Concern" on the letterhead
of a drydock company for which he had previously
worked certifying him as a pipe welder first class. On
looking at this document London said, according to
Forts, "Your papers are all right."
A day or two later, according to Forts, he heard
London tell Agrell that if the welder did not have certi-
fications he would call in Local 25.3 Agrell questioned
that course by asking, "Call Local 25 and ask for what?
This is no more than shipyard work." Forts went on to
testify that 3 or 4 days following the above occurrence,
on an occasion when Forts came off the barge to obtain
additional welding wire, Agrell said to him, "See, I am
trying to help the shipyard workers and they went out to
try to get a union in here and it's out of my hands and I
can't do nothing." Forts responded by advising Agrell to
talk to the men but Agrell repeated, "It's out of my
hands, I can't do nothing."
During his testimony Agrell in effect denied these
latter two statements.
With respect to the events above reported, Forts ap-
peared forthright, but on other topics his testimony is
subject to question. For example, he endeavored to au-
thenticate a union authorization card purportedly signed
by a person who was not employed by Respondent.
Agrell testified in a credible manner and as between the
two I credit Agrell as the more reliable witness.
However, even if Forts be credited, the remark is not
strong evidence that union animus figured importantly in
the decision as to which welders to use. Consideration
must also be given to the credible testimony of both
London and Neumann, who were responsible for the de-
cision, that antiunionism played no part and also to the
substantial evidence, discussed hereinafter, of business
reasons for the decision.
G. The Meeting of December 8
On the evening of December 8 Colavito held an orga-
nizing meeting at Patty's Pub, a few blocks from the
Staten Island yard. Sabella had earlier invited welders in
the yard to attend. Between 10 and 15 attended, includ-
ing Sabella, Forts, Wongwing, Charles, and Lord, all al-
leged discriminatees in this case, and also Schuldwach
and Taylor, about whom no discrimination is alleged.
Gebo and Ortega, both alleged discriminatees, apparently
did not attend. The employees told Colavito the Compa-
ny was for the first time asking if they had welding certi-
ficates and was hiring welders from Local 25. They at-
tributed this to their own efforts to organize a union. Co-
lavito gave them a progress report on his filing of the
representation petition, the Union's request to the compa-
ny for recognition, and the lack of a response thereto.
H. The Layoffs
At the end of the shift on December 9, Agrell laid off
the seven-man welding crew on the YD barge, including
Sabella, Forts, Anthony Charles, Thomas Gebo, Alvin
Lord, Oscar Ortega, and John Wongwing. All but
Charles had signed union authorization cards, and he, al-
though a member of Local 25, Operating Engineers, had
I Local 25 of the Operating Engineers.
attended the December 8 organizing meeting for the
Charging Union. A number of other welders, including
Ole Bjonnes, Myron Schuldwach, John Zancocchio,
Francesco Vergaro, Charles Lake, Juan Gonzalez,
Eugene Overton, Sr., Guy Consolazio, Pat Gambardello,
Albino Calderon, Robert Taylor, Royton Whitelocke,
and John Dewar, who had signed authorization cards
but were not working on the YD barge on December 9,
were not laid off.
Prior to the layoff and in anticipation of the comple-
tion of the bottom plating on the YD barge, Neumann
checked with London as to whether the welding crew
on the YD barge could be used on the jack-up barge
project. London informed him they could no, so Neu-
mann ordered the layoff of the YD barge welders.
In laying off Sabella, Agrell told him work was slow.
Sabella protested that there appeared to be plenty of
work and he asked to be reassigned. In the past welders
on the YD barge had, on occasion, been temporarily
reassigned to other work in the yard including jack-up
barge work. Agrell went to the office to see what could
be done for Sabella. Finding that the final paychecks for
the YD barge welders were already made out, he decid-
ed it was too late to do anything and returned to Sabella
saying, "Its out of my hands, no way, no way."
In urging that the layoffs were motivated by antiunion
considerations, the General Counsel relies heavily on the
coincidence of timing 11 days after the Union's request
for recognition and the day after the meeting at Patty's
Pub. It is clear, I think, that Agrell (and therefore Re-
spondent) had general knowledge that yard employees
were interested in the Union, but the extent of that
knowledge is unclear. There is no specific evidence man-
agement knew of the December 8 meeting. The aspect of
timing together with company knowledge to the extent
shown is suspicious, but, in the circumstances, is not suf-
ficient to substain a finding of discrimination. Although 7
YD barge welders were laid off, 13 other cards signers
were not. There is no persuasive evidence of company
union animus or of independent unfair labor practices
from which such animus may be inferred. On the con-
trary, Respondent is party to collective-bargaining agree-
ments with a variety of marine construction unions,
which indicates its general acceptance of collective bar-
gaining.
Uncontroverted evidence shows that Respondent was
paying $100 per day rental for the salvage barge. As
soon as the bottom plating on the YD barge was com-
pleted on December 9, Respondent cut off further liabil-
ity for that rent by notifying the salvage company that it
was not longer needed.4 Thus, adequate business reason
existed for the special effort to put the YD barge in such
shape that liability or the salvage barge could be termi-
nated.
There was further work to be done on the inside and
topside of the YD barge if it could be floated first side
up. As it turned out, the barge still remained in its invert-
ed position at the time of the hearing herein. Thus, at the
time of the layoffs, all current work on the YD barge
4 The fact that the salvage company left its barge in Respondent's
basin on a no-rental basis indicates only that that Company had no other
current need for the salvage barge.
1388 DECISIONS OF NATIONAL LABOR RELTIONS BOARD
had been completed. To hold that Respondent should
have continued work on the YD barge in order to give
the seven welders work would be to intrude into the
area of business judgment.
The General Counsel argues that, because the laid-off
welders could have been used on the jack-up barge, Re-
spondent's failure to reassign them to that project shows
it discriminated against them. I disagree. The failure to
reassign is not alleged as unlawful discrimination, only
the layoffs are. With regard to the layoffs, it is sufficient
that the work on the YD barge was, for the time being,
completed. Respondent was not obliged to reassign em-
ployees performing that work rather then lay them off.
Agrell had told some of the welders at the time of hire
that there was plenty of work, indicating it would last
for some time. He undoubtedly believed that to be the
case. He apparently also felt that ordinary welders were
sufficiently competent to work on the jack-up barge.
This plainly was true as to some of that work because
Respondent retained a number of such welders. The de-
cision as to which welders to use for jack-up work was
not Agrell's responsibility. The responsibility lay with
Project Engineer London and Neumann and they for
technical reasons had long before decided to use welders
with 5C certification by the coast guard for certain high-
pressure pneumatic tubing. Prior to layoff of the YD
barge welders all the welders were polled as to whether
any of them had certifications. Three were asked to take
the difficult test. Only one did so. It is beyond dispute
that Respondent was anxious to have any welders so cer-
tified. None of the laid-off welders were shown to have
such certification.
Welders working on the jack-up barge as of December
9 were retained without regard to their involvement
with the Union. Welders from the YD barge apparently
could have been reassigned in their place, but then some
of those already on the jack-up barge would have been
laid off.
What the General Counsel points to as the keystone of
the affirmative case is the fact that on December 2 Neu-
mann asked Local 25, Operating Engineers, to refer
three welders and on December 6 four more. Neumann
and London testified that they believed Local 25 welders
were more competent to perform high stress welds than
were ordinary shipyard welders. In addition, Neumann
construed the current collective-bargaining agreement
with Local 25, which gives its members jurisdiction of
mobilization work on the vessel, as applying to the in-
stallation of jack-up assemblies on the barge and there-
fore requiring Local 25 welders for that work.
The General Counsel argues that these were subjective
considerations which should not be given weight. The
argument is not persuasive. The barge will be subject to
the most stringent coast guard examination. Respondent
and its management officials including Neumann and
London are responsible for the safety and seaworthiness
of the barge while in use under the severest weather con-
ditions. The Board will not substitute its judgment for
theirs in determining which employees to use in fulfilling
that responsibility.
With respect to Neumann's interpretation of the Local
25 collective-bargaining agreement as applying to instal-
lation of jacks on the barge, reasonable minds may differ.
His interpretation was an informed judgment and at least
arguably correct. No other party to that contract dis-
putes his application of it. Nothing in this record demon-
strates that he seized on his interpretation for invidious
reasons and it cannot be presumed that he did so. In
short, the decision to use Local 25 welders appears to
have been prompted by prudent business and professional
considerations rather than a desire to unload seven union
supporters.
In the final analysis the General Counsel has the
burden of proving the motive for the December 9 lay-
offs. To point to the suspicious timing and to argue as to
the validity Respondent's business judgment does not
carry that burden. Absent more convincing evidence of
animus toward the Union than is present in ths record,
the proof of motive is insufficient to establish discrimina-
tion. Accordingly, Respondent's motion to dismiss the
8(a)(3) allegations of the complaint for lack of proof of
unlawful motive must be granted.
I. The Bargaining Issues
The complaint alleges that beginning November 29,
1977, Respondent refused to recognize or bargain with
the Union, thereby violating Section 8(a)(5) of the Act.
In this respect the complaint is procedurally based on
charges filed by the Union on May 31, 1978, and served
on Respondent June 1, 1978. Respondent moves to dis-
miss these allegations on the ground that the underlying
charges are untimely. As already noted, following re-
ceipt of the union demand on November 29, Respondent
did nothing regarding that demand, other than to attend
a conference with the Board's Regional Office and the
Union's attorney called to consider the Union's represen-
tation petition to the Board. At that meeting Respon-
dent's attorney indicated his willingness to have the
Union's right to represent the employees determined in a
Board election. Thus, the alleged unfair labor practice
occurred more than 6 months prior to the filing with the
Board and the service on Respondent of the underlying
charges and, under Section 10(b) of the Act, the com-
plaint, insofar as it alleges a violation of Section 8(a)(5),
is time barred. The Herald Company, 181 NLRB 421
(1970), enfd. 444 F.2d 430 (2d Cir. 1971); Local Lodge
No. 1424, International Association of Machinists [Bryan
Mfg. Co.] v. N.L.R.B., 362 U.S. 411 (1960). Accordingly,
Respondent's motion to dismiss the 8(a)(5) allegations is
granted.
The General Counsel also contends that apart from the
8(a)(5) allegations Respondent should be required to bar-
gain with the Union as the representative of burners,
welders, and fitters in its yard because (a) a majority of
them executed authorization cards to the Union and (b)
Respondent committed unfair labor practices so serious
that a fair election under Board auspices is unlikely or
impossible, relying on N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969), and Beasley Energy, Inc., d/b/a
Peaker Run Coal Company, Ohio Division No. 1, 228
NLRB 93 (1977). The difficulty with the theory is that
this record does not reveal such unfair labor practices.
Absent serious unfair labor practices, Respondent is not
obligated to recognize the Union. Beasley Energy, Inc.,
SPEARIN, PRESTON & BURROWS, INC. 1389
supra. Respondent has not rejected resolution of repre-
sentation questions through the Board's representation
procedures. In these circumstances no cause of action
under Section 8(a)(5) has arisen. The Union's claimed
majority status as well as questions of appropriate unit
may be determined in the pending representation pro-
ceedings for which it petitioned. It is unnecessary to con-
sider Respondent's other pending motions to dismiss on
the ground that the bargaining unit alleged in the com-
plaint varies from that described in the request for recog-
nition. Accordingly, I do not reach those questions.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By laying off Anthony Charles, Thomas Forts,
Thomas Gebo, Alvin Lord, Oscar Ortego, Edward Sa-
bella, and John Wongwing on December 9, 1977, and
thereafter failing to reinstate them, Respondent did not
engage in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER s
The complaint is dismissed in its entirety.
s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.