West Sand and Gravel Co.

National Labor Relations Board - Board Decisions

Dec 20, 1978

239 N.L.R.B. 931 (N.L.R.B. 1978)

WEST SAND AND GRAVEL COMPANY
West Sand and Gravel Company and Wrentham Sand
and Gravel Company, Divisions of S. M. Lorusso &
Sons, Inc.' and Local #4, International Union of
Operating Engineers. Case I CA-13764
December 20, 1978
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS PLNEI.l()
AND TRUIESDALF
On September 20, 1978, Administrative Law Judge
George F. McInerny issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
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, as modified
below, and hereby orders that the Respondent, West
Sand and Gravel Company and Wrentham Sand and
Gravel Company, Divisions of S. M. Lorusso &
Sons, Inc., Walpole and Wrentham, Massachusetts,
its officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order, as so
modified:
1. Add the following as paragraph l(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
IThe name of Respondent appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made b) the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
3In par. I of his recommended Order. the Administrative Law Judge
inadvertently oriitted the narrow cease-and-desist language. "in any like or
related manner," which the Board traditionally provides in cases involving
8(aXI) and (5) violations. We shall modify the recommended Order and
notice accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NAIO1NAt LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request, to bargain
in good faith with Local #4, International
Union of Operating Engineers, regarding rates
of pay, hours of employment, or other terms and
conditions of employment of all employees in
the following units found to be appropriate bar-
gaining units of our employees.
West Sand and Gravel Company unit: All en-
gineers of West Sand and Gravel Company, a
Division of S. M. Lorusso & Sons, Inc., oper-
ating power shovels, cranes, shovel dozers,
bulldozers, front end loaders, other power
loading equipment, and plant operators, me-
chanics and welders at its Walpole, Massa-
chusetts. location.
Wrentham Sand and Gravel unit: All engi-
neers of Wrentham Sand and Gravel Compa-
ny, a Division of S. M. Lorusso & Sons, Inc.,
operating power shovels, cranes, shovel doz-
ers, bulldozers, front end loaders, other power
loading equipment, and plant operators, me-
chanics and welders at its Wrentham, Massa-
chusetts, location.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of the
Act.
WE WIIL., upon request, bargain in good faith
with the above-named labor organization re-
garding the rates of pay, hours of employment.
and other terms and conditions of employment
for the appropriate units described above, and if
an agreement is reached, reduce said agreement
in writing and sign it.
WEST SAND AND GRAVEL COMPANY AND
WRENIHAM SAND AND GRAVEL COMPANY.
DIVISIONS OF S M LORt SSO & SONS. INC
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY. Administrative Law Judge: Upon
a charge filed October 20, 1977, by Local #4, International
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of Operating Engineers, herein called the Union,
against West Sand and Gravel Company and Wrentham
Sand and Gravel Company, Divisions of S. M. Lorusso &
Sons, Inc.,' herein called Respondent or the Company, the
General Counsel of the National Labor Relations Board,
by the Acting Regional Director for Region 1, issued a
complaint dated December 23, 1977, alleging that Respon-
dent violated Section 8(a)(5) and (1) and Section 2(6) and
(7) of the National Labor Relations Act, as amended.
herein called the Act. Respondent has denied the comrris-
sion of any unfair labor practices.
Pursuant to notice a hearing was held before me at Bos-
ton, Massachusetts, on June I and 2, 1978, at which all
parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. Thereafter, all of the
parties filed briefs, which have been duly considered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respodent S. M. Lorusso & Sons, Inc., is a Massachu-
setts corporation. West Sand and Gravel Company, locat-
ed at Walpole, Massachusetts, and Wrentham Sand and
Gravel Company, located at Wrentham, Massachusetts,
are wholly owned divisions of S. M. Lorusso & Sons, Inc.,
and are engaged in the processing, distribution, and sale of
gravel, stone, and sand at those locations. In the course of
its business, Respondent annually purchases products and
materials from points outside the Commonwealth of Mls-
sachusetts having a value in excess of $50,000. The com-
plaint alleges, the answer admits, and I find that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Local #4, International Union of Operating Engineers, is a
labor organization within the meaning of Section 2(5) of
the Act.
tI. THE UNFAIR LABOR PRACTICES
A. Background
To a larger measure than in most cases, the background
of this case serves to illuminate, and ultimately to resolve,
the issues which arose in June and July 1977 out of Re-
spondent's refusal to continue to recognize and bargain
with the Union.
The relationship between this Union and Respondent
began sometime in the 1950's. Records are no longer avail-
able in the Regional Office files to show when that time
was or whether the relationship commenced as the result of
a Board certification or through voluntary recognition of
The name of the Employer appears as amended at the hearing.
the Union. It was agreed by the parties to this case that,
however long the relationship has existed, the unit descrip-
tion in the successive collective-bargaining agreements en-
tered into over the years has remained the same in the
separate contracts covering the employees of West and the
employees of Wrentham; "only engineers of West (Wrent-
ham) Sand and Gravel Company operating power shovels,
cranes, shovel dozers, bulldozers, front-end loaders, other
power loading equipment, and plant operators, mechanics
and welders in its crushed stone quarries."
While this unit description is clear cut and precise, Re-
spondent claims that, in fact, the coverage of employees
under the collective-bargaining agreements over the years
has been limited to certain named employees and identi-
fied jobs and that other, nonunion employees have, with
the knowledge and acquiescence of the Union, traditional-
ly and consistently performed work which ostensibly came
within the unit description given above.2 It is therefore nec-
essary to examine in somewhat more detail than is custom-
ary the history of the Company's operations, the relations
between the Company and the Union, and the historical
employment practices followed by the Company in order
to determine whether the Company's admitted refusal to
bargain in July of 1977 was justified by the circumstances
of this case.
S. M. Lorusso & Sons, Inc., has been involved, over the
years following World War II, in a number of different
operations, all of which concerned crushed stone, gravel,
and sand.
The business began at a place referred to as the "Wrent-
ham Quarry" in 1947 or 1948. The quarry is a cut-in solid
rock where, after the overlying timber and topsoil have
been removed, the face of the rock is drilled, blasted, and
then processed by means of crushers and screeners into
various-sized rocks and stones as the Company's customers
require. Although the operations at the quarry include the
use of loaders, crushers, and other equipment falling within
the unit description in the West and Wrentham contracts
and from time to time employees covered by those con-
tracts have been assigned to work at the quarry, it is undis-
puted that neither the quarry nor its employees have ever
been covered by a union contract.
The West Sand and Gravel Company was founded by
the Lorusso family in the early 1950's on West Street in
Walpole, Mass., a few miles from the Wrentham quarry. 3
West has facilities for the crushing of rocks into various
sizes of stone, as at the quarry, and, in addition, has equip-
ment for washing the stone where required. West also pro-
cesses other materials, such as gravel and sand,4 which do
not originate in the quarry.
2 On December I. 1977. Respondent filed petitions in Cases I RM 1032
and I RM 1033 alleging on behalf of West Sand and Gravel Company and
Wrentham Sand and Gravel Company that in each case the Companies
held a good-faith doubt of the Union's majority. Under the date of January
3. 1978, the Acting Regional Director for Region I dismissed both petitions
on the grounds that the issuance of complaint in the instant case precluded
the existence of question concerning representation.
I take judicial notice that all of the operations described in this case are
in close geographic proximity to one another, and all of the towns men-
tioned. Wrentham, Norfolk, Walpole, Franklin, and Plainville, are located
in southern Norfolk County. Massachusetts.
4 There is a cement plant at West, but this is leased to another company,
which is not involved here.
932
WEST SAND AND GRAVEL COMPANY
There is a garage on the property at West, and at one
time the Company's trucks were garaged and maintained
there. During 1971 the trucks were moved to another ga-
rage about a quarter mile from the West plant in Walpole.
The drivers of the trucks are represented by Teamsters Lo-
cal 653, and the status of the mechanics who service these
trucks seems from the record to be that they are not repre-
sented by any union.
In the early 1960's the Company started operations at
Wrentham Sand and Gravel Company, in a neighboring
town, performing the same work as at West on a slightly
smaller scale. The Wrentham location also has a garage on
the property where trucks are garaged and maintained.
These drivers are also Teamsters Union members, and the
mechanics are unrepresented, as at West.
On November 1, 1974, the Company acquired a former
competitor called Norfolk Sand and Gravel, located in the
town of Norfolk. Presumably Norfolk is the same kind of
operation as West and Wrentham, but its employees are
not represented by any union. There is some evidence of
interchange of employees between Norfolk and the other
divisions of S. M. Lorusso & Sons, Inc.
In addition to these operating divisions, Lorusso owns
part of a gravel pit known as Nardone's Pit in the town of
Franklin. The owner of the other part of Nardone's Pit is a
corporation called Plainville Quarry, which is not a quarry
but an operator of gravel pits which is owned by the Lorus-
so interests.5 The gravel stripped from Nardone's Pit is
trucked to one of the other divisions for processing and
sale.
The Company also operates in other locations, stripping
gravel from leased locations, and its drivers travel through-
out the area to deliver its products, but none of these oper-
ations have any material bearing on the issues in this case.
Respondent argues, and the evidence shows, that the two
bargaining units at West and Wrentham were coordinated
in Respondent's operation with the nonunion divisions at
the Wrentham quarry and Nardone's Pit. This coordina-
tion resulted in part from the nature of the Company's
business, in that the raw material dug from Nardone's Pit,
and to a lesser extent from the Wrentham quarry, had to be
transported to the processing plants at West or Wrentham
to be treated, graded, and sorted prior to sale. Additional-
ly, the seasonal nature of Respondent's business resulted in
a peak demand during the construction season and little if
any demand in the winter. In these circumstances the
Company adopted a policy of shifting employees around,
bringing workers from the quarry or the pit to West or
Wrentham to operate equipment when demand was high,
and moving employees from the Union's bargaining units
at West and Wrentham from one unit to the other and
even into the nonunion operations at the pit or the quarry.6
The Company also used such employees to perform main-
The Company uses this means of ownership by two entities presumahly
to obtain licenses from the town to remove nmore gravel than if only one
enterprise operated the pit
There is only limited evidence of employee interchange with the non-
union operatio. at Norfolk Sand and Gravel. Thus I do not find that the
Norfolk operation is matenal to the issues here
tenance, repair, and plant replacement duties during slack
seasons, even utilizing equipment operators to do painting
and other make-work stopgaps to spare the employees the
hardship of layoff.
Aside from these employee transfers, which I find were
motivated by business necessity and were casual or spo-
radic in nature, the evidence shows other situations where
assignments of nonunion persons were made, sometimes
on a permanent basis, at other times on a long-term re-
placement basis, to jobs ostensibly covered by the collec-
tive-bargaining agreements. This kind of thing had been
going on as far back as, at least, 1971 but was accelerated
in 1976 and 1977 by circumstances, including accident, ill-
ness, resignation, and retirement affecting bargaining unit
employees at both West and Wrentham.
Prior to the onset of these circumstances, at the time of
the negotiations for the 1975-76 agreements in the fall of
1975, there were four employees at West and two at Wrent-
ham covered by the agreements. At West were Ernest
Crognalo, loader operator, Joe Di Pietro, general mainte-
nance, Andy Kushnir, welder, and Richard Di Placido,
plant operator. At Wrentham were Ken Hickerson, plant
operator, and Jim McCusker, loader. All of these employ-
ees were members of the Union at that time. From the
testimonies of Union Representative O'Keefe and Compa-
ny President Antonio Lorusso, which are not inconsistent
in this area, I find that these employees formed the basic
employee complement at each location and, with certain
exceptions, such as the winter of 1975-76, when the Wrent-
ham operation was closed down and the employees there
assigned to West, were permanently stationed at their re-
spective locations.
However, at West there was another, nonunion employ-
ee, also assigned on a permanent basis, whose name was
John Zahner, who operated equipment and a second pro-
cessing plant at West from 1971 onward and whose pres-
ence was never disputed or protested by the Union.
At Wrentham, too, there was a nonunion mechanic
named Ralli who maintained and repaired the equipment
used by bargaining unit employees. However, Ralli also
worked on the trucks which were based at the Wrentham
garage. There is no breakdown in his time as to how much
was spent on unit equipment. Thus I do not find that
Ralli's performance of unit work is sufficient to categorize
him as a nonunion bargaining unit member.
With respect to the other persons classified as mechan-
ics, Antonio Lorusso did testify that they worked at West
and Wrentham servicing and repairing equipment used by
unit employees. However, his testimony was so imprecise
as to the amounts of time so spent that I cannot find they
should have been included within the bargaining unit. I
find, rather, that the mechanics at West were located at the
truck garage, a quarter mile from West's plant, and their
connection with that plant was casual and sporadic. The
other mechanic at Wrentham I find to have the same ca-
sual relationship to the unit at Wrentham.
A number of other employees were alleged by Lorusso
to be included within the bargaining units at West and
Wrentham. I do not agree with this contention for two
reasons: first, Lorusso's testimony. while extensive, was re-
markably vague and lacking in essential details, such as
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percentages of time spent at various locations and times of
movement from one place to another; and, second, al-
though Lorusso testified that up to some time in 1975, the
Company maintained separate payrolls for its different op-
erations, no payroll records were introduced to substanti-
ate Respondent's claim that these employees actually
worked for West or Wrentham. Indeed, there were appar-
ently no records, even up to the present time, which could
be used to corroborate Lorusso's wide-ranging and gener-
alized testimony concerning these employees. They would,
then, fall into the same category as the mechanics, sporadic
or casual employees, used as needed, by West and Wrent-
ham on a temporary basis.
Thus I find that in the fall of 1975 there were five perma-
nent employees of West, of whom four, Crognalo, Di Pie-
tro, Kushnir, and Di Placido were union members and one,
Zahner, was not. At Wrentham, at the same time, there
were two permanent employees, Hickerson and McCusker,
both of whom were members of the Union. Ralli and Ac-
corsi, described by Lorusso as mechanics, were in fact em-
ployees who performed maintenance on the trucks garaged
at Wrentham as well as the equipment used by Hickerson
and McCusker at the Wrentham Sand and Gravel opera-
tion.
In December 1976 Di Pietro retired and was not re-
placed. In June or July 1976 two employees, Crognalo and
Kushnir, suffered heart attacks. Crognalo, who was a load-
er operator, was replaced during his absence by a non-
union employee named Hunchard. The Union was aware
of this, but no question was raised as to the propriety of the
Company's action because the employer continued to pay
Crognalo his full wages while he was ill. At that time Kush-
nir, a welder, was not officially replaced, but a nonunion
employee named Hart undertook welding duties at West.
Kushnir never returned to work and retired on May 8,
1977. It was later agreed between the Company and the
Union that Hart would be covered by the union contract.
Crognalo eventually did return to work in June or July
1977.
Sometime, also apparently in 1976, the plant operator at
West, Di Placido, was injured. This left him with a perma-
nent disability which prevented him from operating the
gravel plant at West. He was, however, retained to perform
general maintenance at West, and a nonunion employee,
Paul Benson, was hired in April or May 1977 to run the
gravel plant.7
Early in the spring of 1977, Ken Hickerson, who operat-
ed the plant at Wrentham, was killed in a motorcycle acci-
dent. He was replaced by a nonunion employee named
Paul Zahner.
Finally, at the end of August 1977, Jim McCusker, the
loader operator at Wrentham, quit. The record does not
show by whom, or even whether, he was replaced. In any
event, this resignation occurred after Respondent had de-
termined that the Union no longer represented a majority
of the employees in the bargaining unit.
7There is alsc evidence that Benson was hired on June 6. 1977 The actual
date of his hire is not important to a determination of the issue in this case.
B. Bargaining History
Until 1975 negotiations between West, Wrentham, and
the Operating Engineers were conducted on an informal
basis. The Union would mail the contracts to the Compa-
nies; they, in turn, would sign and send them back.
In 1975 there was an industrywide strike by the Operat-
ing Engineers which affected the Lorusso operations at
West and Wrentham. This led to the withdrawal of Lorus-
so from the multiemployer group and to face-to-face nego-
tiations between the Lorusso brothers, Antonio, Jim, and
Sam, and Union Representatives O'Keefe and Walter
Ryan. During a meeting which occurred in October 1975,
there was a broad discussion between the parties about all
of the Lorusso operations, including the Wrentham quarry
and the recent acquisition of Norfolk Sand and Gravel.
Then, according to the testimony of Antonio Lorusso,
Ryan indicated clearly that their agreement covered the six
people who were there and suggested that they reach an
agreement on that basis. At this same meeting it was
agreed that Di Pietro would not be replaced, so the units
then consisted of five employees. During the one or two
meetings which constituted negotiations for the 1976-77
contract, including the same five participants, there was no
question about continuing on the same basis, with five unit
employees, despite the fact that Crognalo was out with a
heart attack. The parties expected him to return, as he did,
and his nonunion replacement left. With regard to Kush-
nir, also a heart attack victim, the parties agreed to leave
the question of his replacement until later.
8
There the situation rested during the life of the 1976-77
contract. In April or May 1977 Business Representative
O'Keefe, having heard of Hickerson's death, visited the job
and talked to Antonio and Jim Lorusso, expressing his
8In making these findings I am guided generally by the testimony of
Antonio Lorusso. While, as noted. Lorusso was a voluble witness who paint-
ed with a broad brush, there is no substantial conflict between his testimony
and that of O'Keefe and Ryan. O'Keefe's recollections as to the composi-
tion of the work force and the various individuals employed at different
locations was extraordinarily poor. It was plain that he had only a superfi-
cial grasp of the Lorusso operations. This may have been due to the fact
that he rarely visited the jobsites or that he did not want to lose what job
opportunities for members did exist in a declining construction industry.
However. I do not discredit his testiomony, nor do t feel that he was cons-
ciously not telling the truth. O'Keefe, as well as Lorusso, was ascatter-gun
vilness spraying impressions, afterthought. and anecdotes around the hear-
ing room along with more direct answers to questions. Walter Ryan, the
business manager of the Union, was only remotely connected to the situa-
tion at West and Wrentham. In fact, there is no evidence that he had any
connection with the Company prior to the 1975 negotiations other than to
,end and receive contracts through the mail. The inconsistencies between
lorusso's testimony, on one hand, and Ryan's and O'Keefe's. on the other,
may be understood when one realizes that throughout their dialogue, they
were talking about two different things. Lorusso, from his position at the
center of Respondent's multifarious operations. saw them as a whole, with
West and Wrentham as merely two spokes of the corporate wheel. Ryan
and O'Keefe saw things from the periphery of Respondent's operations and
thus viewed each unit as an individual and discrete operation which, in their
experience and from their perspective. required a certain identifiable num-
ber of employees to run it. even though. admittedly, they were aware of the
wa? employees moved in and out of West. Wrentham. Norfolk. the quarry.
and Nardone's Pit.
Thus I make no credibility findings as between O'Keefe and Lorusso, but
I have found Lorusso's testimony more reliable in regard to the placement
of individuals As noted above, however. this testimony is not precise
enough. nor sufficiently corroborated. to establish the bargaining unit urged
upon me hb Respmndent.
934
WEST SAND AND GRAVEL COMPANY
concern about the union membership of the Zahner broth-
ers, Benson, and Hart. It was agreed sometime in early
1977 between the parties that Hart would replace Kushnir
as the welder at West and the Company would consider
whether the contract would cover him. At the same time,
the parties discussed the five or six positions which, at that
time, both parties agreed were covered by the contract.
On July 15, 1977, another meeting was held which was
attended by the three Lorusso brothers, Ryan, and
O'Keefe. I find 9 that at that time the Lorussos raised ques-
tions of the application of the journeyman rate to Benson
and the Zahners, particularly to Paul Zahner, who was a
relatively new employee. The Union responded by propos-
ing a "secondary plant rate" for these people. The Compa-
ny agreed to this in principle and proposed a figure of $6
for the secondary plant rate. The Union countered with a
$7 figure. John Zahner was to be excluded from the unit
because of the peripatetic nature of his duties. The unit at
Wrentham would then consist of Paul Zahner and Jim Mc-
Cusker, and the West unit would consist of Crognalo, Di
Placido, Benson, and Hart.10 Lorusso admitted that if the
Union had agreed to the $6 proposal for the secondary
plant rate, provided that only five employees were covered,
there would have been no further disagreement of the par-
ties. Later (the exact date does not appear in the record) "
there was a further discussion between O'Keefe, Ryan, and
Antonio and Jim Lorusso, at which time all parties agreed
on the contract, but a final decision was to be left until
Sam Lorusso, who was away, returned. When Sam did re-
turn another meeting took place. At this point Sam Lorus-
so told the union representatives "Take your people, and
we're not interested. It's too much money." '2
C. The Withdrawal of Recognition
There is testimony that there were several other meetings
between the parties, but the dates are not certain and the
content is not stated in the record. In addition it is not
clear exactly when the Company refused to bargain further
with the Union. The charge filed on October 20, 1977, al-
leges a failure to bargain from May I, but that allegation is
not borne out by the facts. The complaint alleges the un-
lawful refusal to bargain to have commenced on or about
July 31. This is more likely because of testimony that the
refusal occurred sometime after the July 15 meeting. Since
Respondent has admitted that July 31 was the date it com-
menced its refusal to bargain, that is the date concerning
which determinations must be made as to the appropriate-
ness of the bargaining units described in the complaint and
9 These findings are based primanrily on the testimons of Antonio I rus-
so.
m Hart. as a welder, serviced both units and also spent time at other
company locations
For these findings I rely on the undenied and credible lesutimrns of
Business Representative O'Keefe. While I find his nlemors to he spolrs I
also find him to be a condid and open witness. Hls testimons with regald to
these negotiations accords with the inherent probabilities of the situation
derived from all of the evidence in the record Lo'russo did not testif, as to
this meeting.
12 Sam Lorus! , was present through the entire hearing but s.as not called
upon to lestify.
the existence of a majority of employees in these units who
favored the Union.
D. The Appropriate Bargaining Units
The units alleged in the complaint to be appropriate are
identical for both West and Wrentham: "All engineers op-
erating power shovels, cranes, shovel dozers, bulldozers,
front end loaders, other power loading equipment and
plant operators, mechanics and welders at Respondent's
(West or Wrentham) stone quarry and plant exclusive of
guards and all supervisors as defined in Section 2(11) of the
Act."
Respondent argues, first, that the West and Wrentham
units have merged, and, second, that not only have these
two units merged because of a common bargaining history
and a community of interest between the two groups of
employees, but these two units have further merged with
the quarry on Elysium Street in Wrentham and the truck
garage on West Street in Wapole.
Taking the second contention first, Respondent's argu-
ment appears to be based in part on the fact that the unit
description in the complaint as well as in the collective-
'argaining agreements in evidence in this case speak in
terms of employees working in "crushed stone quarries" (in
the contracts) or in "stone quarry" (in the complaint).
From this Respondent urges that I find that the parties
intended over the years t3 to include the Wrentham quarry
within each unit. Further, Respondent points to evidence
showing that the mechanics at West and Wrentham work
on all kinds of equipment, including that used by operating
engineers, and that they all work side by side, to conclude
that the mechanics are indistinguishable from the operat-
ing engineers.
This position is not, in my opinion, warranted by the
facts in this case. Where the parties have negotiated for
years and have not seen fit over those years to modify the
unit description, even though there is not the slightest sug-
gestion in the record that either of them ever entertained a
notion that the Wrentham quarry was included in either
unit, much less in both of them, it is evident that the inclu-
sion of references to "stone quarries" in the unit descrip-
tion are merely inadvertent. The Wrentham quarry, or any
quarry, was not included in the contemplation of the par-
ties at any time as being covered by their negotiations or in
the agreements resulting therefrom. The question of inter-
change of quarry employees as well as mechanics has been
treated above. I conclude that while there was considerable
movement of employees to and from the quarry and from
time to time the mechanics from the West Street garage
and from the Wrentham truck garage worked on equip-
ment used by operating engineers at West and Wrentham,
these movements were casual and temporary in nature and
do not constitute grounds for a finding that the only appro-
priate unit in this case is one including West, Wrentham,
the quarry, and the mechanics at the West Street and
Wrentham garages.
The question of a merger of the units at West and
Wrentham, while not really raised at the hearing, is equally
1 It was stipulated that the unit descriptions in the contracts were un-
changed since ai least 1967
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear once the bargaining and employment background is
considered. It was apparent that it was in the perceived
best interests of both parties to keep the units separate.
They had bargained in that fashion for some years. Wal-
pole and West are separate business entities at separate
locations holding themselves out as separate entities with
separate officers, each with an ostensible as well as a real
existence. Despite the fact that it was made clear by Re-
spondent that West and Wrentham are not independent
companies, but only operating divisions of S. M. Lorusso
& Sons, Inc., the latest collective-bargaining agreements,
effective in 1976-77, show Antonio J. Lorusso, Jr., execut-
ing the agreement as president of West Sand and Gravel
Company, and Samuel Lorusso signing as president of
Wrentham Sand and Gravel Company. As late as Decem-
ber 1, 1977, Respondent filed not one, but two, RM peti-
tions in the name of West and Wrentham, with Antonio J.
Lorusso signing both petitions as "President" respectively
of West and Wrentham.
While it is true that there has been common bargaining
and common labor relations policy, job classifications,
pay, and working conditions, the two units have always
been treated as separate units. Employees of each unit have
remained in that unit except for temporary assignments
during off-seasons or in emergencies. There is not one in-
stance of a permanent transfer of an employee between
West and Wrentham in this record. Thus the cases cited by
Respondent are not precisely on point.
In W. T. Grant Company, 179 NLRB 670 (1969), the
union and the employer had an agreement covering em-
ployees of a distribution center. A few years later the em-
ployer opened an appliance service depot, and the parties
then executed a separate contract covering the employees
of this division. Later, however, the union and the em-
ployer negotiated on an overall basis and entered into a
new agreement covering both the employees at the distri-
bution center and the appliance service depot. The Board
found that under these circumstances the units had been
merged and dismissed a decertification petition filed for
the depot only.
Similarly, a decertification petition filed in General Elec-
tric Company, 180 NLRB 1094 (1970), was dismissed by the
Board on the grounds that a number of certified or recog-
nized units within the company had surrendered their au-
tonomy and merged their identity into a multiplant bar-
gaining unit. The union and the company had bargained
on such a multiplant basis for 19 years and had left only
minor legal issues to be negotiated on a local basis.
Neither of these cases approaches the factual situation in
the instant case. In view of the circumstances in this case, I
find that the appropriate bargaining unit in each case is the
historic one, saving only that the inadvertent references to
"stone quarries" be eliminated and the appropriate corpo-
rate name be included. The units should be described as
follows:
Engineers of West (Wrentham) Sand and Gravel
Company, a Division of S. M. Lorusso & Sons, Inc.
operating power shovels, cranes, shovel dozers, bull-
dozers, ;-ont end loaders, other power loading equip-
ment, and plant operators, mechanics and welders at
its Walpole (Wrentham) Massachusetts, location.
E. The Question of Majority
Having disposed of the question of the appropriate units
in this case, we come to the question of the Union's majori-
ty status at the time of the withdrawal of recognition on
July 31, 1977. In view of my holding on the question of the
appropriateness of the units, it is clear that during the
1975-76 contract and for some time into the 1976-77 con-
tract, union members constituted a majority at each of the
two locations in question here. This gives rise to a pre-
sumption of a majority, at least up to the expiration date of
the 1976-77 contract, which was August 31, 1977. Since the
initial refusal to bargain admittedly took place on or about
July 31, it seems clear to me that Respondent's arguments
do not purport to defend this action, but rather attempt to
refute further allegations in the complaint concerning a
continuation of unlawful conduct after the contract ex-
pired.
Turning to this aspect of the case, it is axiomatic that the
presumption of majority, just as in certification situations,
extends beyond the expiration date of the agreement. Ray
Brooks v. N.L.R.B., 204 F.2d 899 (9th Cir. 1953), 348 U.S.
96 (1954); Terrell Machine Company, 173 NLRB 1480,
1!969). The burden then falls on Respondent to show a
good-faith doubt, based upon objective considerations,
that the Union no longer represents a majority of the em-
ployees in the appropriate unit.
Respondent here attempts to do this by a fivefold argu-
ment, as follows:' 4
I. The fact that at the expiration of the contract
union members did not constitute a majority in either
unit.
2. The Union's limitations of its bargaining de-
mands and its failure to "police" the agreement show
that the Union never intended to enter into a real col-
lective-bargaining relationship with Respondent.
3. The fact that only one employee went out on
strike when called upon to do so late in September.
4. The absence of affirmative evidence of certifica-
tion, election, or card check showing that a majority of
the employees favor the Union.
5. The Union's "unusual conduct" in negotiating a
lower wage rate for some employees performing unit
work.
As to the first argument, it does not seem to appreciate the
holding in Bartenders, Hotel, Motel and Restaurant Em-
ployers Bargaining Association of Pocatello, Idaho, 213
NLRB 651, 652 (1974), where the Board reiterated its view
that "a showing that less than a majority of the employees
in the unit are members of the union is not the equivalent
of showing lack of majority support. The reason is substan-
tially the same as that regarding the checkoff figures,
namely, that no one can know how many employees who
favor union representation do not become or remain mem-
' Respondent's words have been altered, hut the substance of the argu-
ments is as stated.
936
WEST SAND AND GRAVEL COMPANY
bers of the union." See also N.LR.B. v. Gulfmont Hotel
Company, 362 F.2d 588 (5th Cir. 1966).
In this case, at the expiration of the contract, the em-
ployee complement at West in the unit I have found to be
appropriate was composed of Crognalo and Di Placido,
both union members, and Benson, John Zahner, and Hart,
not members. We have testimony in the record that John
Zahner did not favor the Union. However, Hart had filed
an application for union membership (which had not been
acted upon as of the time of hearing in this case). Of
Benson's desires we know nothing.
At Wrentham, on the same date under the same circum-
stances, we had McCusker, a union member, and Paul
Zahner, who was not. As with Benson, we know nothing
about Paul Zahner's views on the Union.
Thus, based on Board precedent, and since Respondent
has not brought forth evidence as to whether Hart, Benson,
and Paul Zahner did or did not favor the Union at the
expiration of the 1976-77 contract, I find that Respondent
has not met its burden of rebutting the continuing pre-
sumption of majority in these units.
Respondent's second line of defense is based on its view
that the Union, by limiting its contract demands to five
(really six, as I have found) employees in the two units 16
and by failing to enforce the unit works and union-shop
provisions, shows its lack of intent to enter into a real col-
lective-bargaining relationship.
The cases cited by Respondent in support of its theory
that the parties here never intended to enter into a "real
collective-bargaining relationship" are not really much
help in resolving the issue in this case. In Ace-Doran Haul-
ing & Rigging Co., 171 NLRB 645 (1968), the Board found
that "the agreements in evidence failed to define a unit
with a sufficient degree of clarity to warrant a finding that
the contracts are ones to which a presumption of majority
status can attach and because the practice under the 'con-
tracts' makes it evident that the parties had no intention of
entering into real collective-bargaining relationships." That
is not the situation here. In this case the contracts clearly
define the unit covered, despite the fact that other nonunit
employees performed unit work, as I have found, with one
single exception, on a sporadic or casual basis. Bender Ship
Repair Company, Inc., 188 NLRB 615 fn. 2 (1971), was a
case where the Board found that "the record lacks evidence
of majority status by the Union in any appropriate unit at
any critical date herein." Such is, admittedly, not the case
here.
In Glenlynn, Inc. d/b/a McDonald's Drive-In Restaurant,
204 NLRB 299 (1973), the General Counsel offered no evi-
dence that the union in that case had ever represented a
majority. Indeed, the case shows that the union in Glenlynn
executed a contract at the time the employer's stores
opened, indicating clearly that there were no members of
the union on signing the contract. The union later attempt-
ed to organize the employees, but with only limited suc-
t~ Hart. Benson, and Paul Zahner are apparently still in Respondent's
employ and, like John Zahner, could have been brought in to testif' The
fact that they were not leads me to the inference that if they had testified.
they would have testified adversely to Respondent's interests
I The fact th. t McCusker quit in September does not alter the finding.
since there is no evidence as to the feelings of his successor about the Union.
cess, and never did succeed in signing up a majority. In this
case, as noted above, the Union retained its majority in the
West unit until at least the time that Kushnir retired and at
Wrentham until the death of Hickerson, both of which
events occurred early in 1977.
The third argument is that only one employee partici-
pated in the strike called by the Union at the end of Sep-
tember. This may not, of course, be relied upon as an "ob-
jective consideration" allowing Respondent to avoid its
bargaining obligation. Strange and Lindsey Beverages, and
Dr. Pepper Bottling Co., Inc., Joint Employers d/b/a Pepsi-
Cola-Dr. Pepper Bottling Co., 219 NLRB 1200 (1975); Ida-
ho Fresh-Pak, Inc., 215 NLRB 676 (1974).
Fourth, the fact that no affirmative evidence was ad-
duced of certification, election, or authorization cards acts
to the disadvantage of Respondent, since the burden is on
Respondent to rebut the presumption of continuing major-
ity. It is not the duty of the General Counsel to bring forth
affirmative evidence of majority in this situation.
The last argument of Respondent is rejected as not re-
flecting the facts in this case. The so-called secondary plant
rate was the Union's response to the Company's opposition
to paying relatively new employees at the journeyman's
rate. Further, there is no evidence that the employees cov-
ered by the secondary plant rate would not also receive
health and welfare pension benefits as well as other con-
tract benefits. This does not seem to be so unusual as to
permit the inference that the Union was not functioning in
an appropriate manner. Certainly the course of conduct
pursued by the union in Peoples Gas System, Inc., 214
NLRB 944 (1974), is far from analogous to the situation
here.
F. Conclusions
Having thus rejected as lacking in merit the defenses
interposed by Respondent to the charges that it violated
the law by continuing to refuse to recognize and negotiate
with the Union following the expiration of the parties' last
collective-bargaining agreement, I find and conclude that
Respondent has so violated the law.
The credible facts show that Respondent's true motiva-
tions for its actions were reflected in Sam Lorusso's state-
ment to O'Keefe sometime after the July 15, 1977, meeting
that what the Union wanted was "too much money." Then,
seizing the opportunity presented by the fortuitous combi-
nation of circumstances which had depleted the Union's
membership at West and Wrentham, the Respondent at-
tempted to finish off the Union entirely. I conclude further
that the Employer's questions about the composition of the
unit and the quality and nature of the Union's representa-
tion of the employees and the question of the Union's ma-
jority are merely post hoc attempts to legitimize its unlawful
conduct.
I conclude that Respondent first violated the law by
withdrawing recognition from the Union on July 31, 1977,
prior to the expiration of the existing contract, and further
violated the law by its continuation of its refusal to recog-
nize and deal with the Union after August 31, 1977, when
the contract did expire.
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, West Sand and Gravel Company
and Wrentham Sand and Gravel Company, Divisions of
S. M. Lorusso & Sons, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local #4, International Union of Operating Engi-
neers, is a labor organization within the meaning of Section
2(5) of the Act.
3. By withdrawing recognition from and refusing to bar-
gain with the Union on July 31, 1977, during the term of a
collective-bargaining agreement with the Union, Respon-
dent has violated Section 8(a)(l) and (5) of the Act.
4. By continuing to refuse to recognize and bargain with
the Union after the expiration of the parties' collective-
bargaining agreement on August 31, 1977, and thereafter,
the Respondent has violated Section 8(a)(1) and (5) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '7
West Sand and Gravel Company and Wrentham Sand
and Gravel Company, Divisions of S. M. Lorusso & Sons,
Inc., its officers, agents, successors, and assigns, shall:
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
1. Cease and desist from:
(a) Withdrawing recognition from and refusing, upon
request, to bargain in good faith with Local #4, Interna-
tional Union of Operating Engineers, during the term of
any collective-bargaining agreement between Respondent
and said Local #4.
(b) Refusing, upon request, to bargain in good faith with
said Local #4 regarding rates of pay, hours of employ-
ment, or other terms and conditions of employment of all
employees in the unit herein found appropriate.
2. Take the following affirmative action which I deem is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with said Local
#4 regarding rates of pay, hours of employment, and other
terms and conditions of employment for the employees in
the appropriate unit, and if an agreement is reached, re-
duce said agreement to writing and sign it.
(b) Post at its location at West Street, in Walpole, Mas-
sachusetts, and at Riverside Drive, in Wrentham, Massa-
chusetts, copies of the attached notice marked "Appen-
dix." is Copies of said notice, on forms to be provided by
the Regional Director for Region I after being duly signed
by Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region I, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
1t In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National l.abor Relations Board."
938