J. P. Sturrus Corp.

National Labor Relations Board - Board Decisions

Apr 26, 1988

288 N.L.R.B. 668 (N.L.R.B. 1988)

668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
J. P. Sturrus Corporation and General Teamsters
Local No. 406, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CI0. 1 Case 7-CA-
26695
April 26, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On September 9, 1987, Administrative Law
Judge Walter H. Maloney Jr. issued the attached
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order
as modified.
1. We agree with the judge's finding that the
charge was not time barred by Section 10(b) of the
Act, but only for the following reason. In late July
1986, the Union, through Business Agent Piper,
wrote a letter to the Respondent's owner, Sturrus,
in which he requested that Sturrus or his represent-
ative contact him within 10 days to schedule meet-
ings for the purpose of arriving at a new agree-
ment. Piper indicated that the Union would consid-
er a failure to respond to be tantamount to a refusal
to bargain and that an unfair labor practice charge
would be filed. By letter dated August 4, 1986,
Sturrus, through counsel, requested the Union's at-
torney to detail in writing the legal and factual
basis for the Union's claim that it represented the
employees in the bargaining unit. By letter dated
August 22, 1986, the Union's attorney provided in
detail the factual and legal basis for the claim, and
requested that the Respondent contact the Union
1 On November 2, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 In sec LB, of his decision, the judge found that state law requires the
seller of a business to notify any union that is a party to a collective-bar-
gaitung agreement that a sale is being contemplated. The record estab-
lishes, however, that it was the collective-bargaining agreement m effect
between Wheeler Transit Mix and the Union, not state law, that required
this notification
The judge inadvertently referred m fn. 4 of his decision to a communi-
cation between a clerical employee of the Teamsters health and welfare
fund and the Respondent. We find that there is no evidence in the record
to support the conclusion that this communication took place.
The judge incorrectly cited the following cases Johnson Ready-Mix
Co., 142 NLRB 437 (1963), Barrington Plaza & Tragniew, 185 NLRB 962
fn 6 (1970).
within 10 days to schedule bargaining sessions. The
Respondent did not reply. At no time prior to the
Respondent's failure to reply to the August 22,
1986 letter did the Respondent clearly notify the
Union of its refusal to bargain. Thus, because the
10-day reply date mentioned in the August 22
letter would fall within the 6-month period imme-
diately preceding the filing of the charge, we find
that the charge was timely filed. Accordingly, it is
unnecessary to pass upon the judge's conclusion
that the Respondent's refusal to bargain with the
Union should be viewed as a continuing violation.
Arizona Portland Cement Co., 281 NLRB 304
(1986).
2. We agree with the judge's finding that the Re-
spondent is not in the building and construction in-
dustry within the meaning of Section 8(0 of the
Act. In doing so, we note that its drivers occasion-
ally, and at their own discretion, assist the contrac-
tor at the construction site with screening and
spreading of concrete, after they have poured it,
when the contractor's own employees are unavail-
able. The drivers are not required or asked to per-
form these functions by the Respondent or the con-
tractor; nor were they asked to do so by Wheeler,
the Respondent's predecessor. Rather, the drivers
offer their assistance on occasion in order to finish
the job faster so that they can move on to their
next assignment. The drivers also regularly hose
the contractor's tools as part of their cleanup. We
find that these incidental tasks do not bring the Re-
spondent within the building and construction in-
dustry as contemplated by Section 8(1) of the Act.
3. The Respondent ceased making payments into
various funds set forth in the contract between the
Union and Wheeler. The judge's recommended
Order provides, inter alia, that the Respondent pay
to the trustees of the health, welfare, pension, and
vacation funds of the collective-bargaining agree-
ment between Wheeler and the Union any money
due and owing to them, with interest. We do not
adopt this portion of the recommended Order. The
Supreme Court has held that there may be "in-
stances in which it is perfectly clear that the new
employer plans to retain all of the employees in the
unit and in which it will be appropriate to have
him initially consult with the employees' bargaining
representative before he fixes the terms," and in
which an obligation to notify and bargain with the
union may therefore exist prior to setting any initial
terms and conditions of employment. NLRB v.
Burns Security Services, 406 U.S. 272, 294-295
(1972). In this case, however, this issue was not liti-
gated. Consequently, there is insufficient evidence
in the record to support the finding that a reim-
bursement remedy is appropriate. Compare Howard
288 NLRB No. 77
J. P. STURRUS CORP. 669
Johnson Co., 198 NLRB 763 (1972) (where evi-
dence shows that successor hires work force with-
out first announcing new terms and conditions of
employment, it is appropriate to impose reimburse-
ment remedy); Good Foods Mfg. & Processing Corp.,
200 NLRB 623 (1972) (same). Moreover, we note
that the General Counsel specifically points out
that she did not seek this remedy in the complaint,
at the hearing, or in her brief to the judge.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, J. P. Sturrus Corporation, Greenville,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified
1. Delete paragraph 2(b) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the following for paragraph 2(d).
"(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
3 The judge also included in his recommended Order a visitatorial
clause authorizing the Board, for compliance purposes, to obtain discov-
ery from the Respondent under the Federal Rules of Civil Procedure
under the supervision of the United States court of appeals enforcing this
Order. Under the circumstances of this case, we find it unnecessary to
include such a clause. Cherokee Marine Terminal, 287 NLRB No. 53 (Jan.
28, 1988). Accordingly, we shall modify the judge's recommended Order
by deleting this provision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
collectively with General Teamsters Local No.
406, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO, as the exclusive collective-bargain-
ing representative of all our truckdrivers, mechan-
ics, laborers, and pitmen employed at our Green-
ville, Michigan plant, exclusive of office clerical
employees, guards, and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, recognize and bargain col-
lectively with the Union as the exclusive collec-
tive-bargaining representative of our employees in
the unit.
J. P. STURRUS CORPORATION
Ellen Rosenthal, Esq., for the General Counsel.
Stuart Cohen, Esq., of Grand Rapids, Michigan, for the
Respondent.
Michael Fayette, Esq., of Grand Rapids, Michigan, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Grand
Rapids, Michigan, on an unfair labor practice com-
plaint,' issued by the Regional Director for Region 7,
which alleges that Respondent, J. P. Sturrus Corpora-
tion, 2 violated Section 8(a)(1) and (5) of the Act. More
particularly, the complaint alleges that the Respondent is
a successor to Wheeler Transit Mix, Inc. (Wheeler) and
that it failed and refused to recognize and bargain with
General Teamsters Local No. 406, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union or Teamsters) as the bar-
gaining representative of its production, maintenance,
and trucktitiver employees. The Respondent denies that
it is a successor to Wheeler and asserts additional de-
fenses—that it is engaged in the building and construc-
tion industry within the meaning of Section 8(0; that the
Union has never become a Section 9 bargaining repre-
sentative, but remains an 8(0 representative from whom
the Respondent is privileged to deny recognition at the
termination of a collective-bargaining agreement; and
that the complaint is barred by limitations. On these con-
tentions the issues here were drawn.3
The principal docket entries in this case are as follows:
Charge filed by the Union against the Respondent on February 26,
1987; complaint issued against Respondent by the Regional Director for
Region 7, on April 7, 1987; Respondent's answer filed on April 16, 1987;
hearing held in Grand Rapids, Michigan, on June 24, 1987; and briefs
filed by the General Counsel and the Respondent on July 27, 1987,
2 Respondent admits, and I find, that it is a Michigan corporation that
maintains its office and place of business in Greenville, Michigan, where
it is engaged m the manufacture, sale, and distribution of redi-mix con-
crete. In the course and conduct of its business the Respondent annually
derives gross revenue in excess of $500,000, and purchases indirectly
from points and places located outside the State of Michigan goods and
materials valued in excess of $50,000. Accordingly, the Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3 Certain errors in the transcript have been noted and corrected.
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT'
I. THE UNFAIR LABOR PRACTICES ALLEGED
The Respondent operates a quarry, batch plant, and
delivery service for redi-mix concrete on Snow's Lake
Road in Greenville, Michigan. It purchased this facility
on June 20, 1986, from Wheeler, which had operated the
business for many years at the same location. Beginning
in the late 1960s, the Charging Party began to represent
Wheeler's production, maintenance, and truckdriver em-
ployees and had executed and maintained a series of 3-
year agreements with Wheeler, the most recent of which
expired in July 1986, just after the Wheeler assets had
been acquired by the Respondent.
Wheeler employed about 9 or 10 employees in the bar-
gaining unit, while a few employees were laid off during
winter months during a regular seasonal decline in busi-
ness. Some of these employees had worked for Wheeler
for over 20 years and most for more than 5 years. All
but one were hired by the Respondent as Sturrus em-
ployees. They continued to perform essentially the same
work that they had done for Wheeler. The Respondent
also continued Wheeler's supervisor and its dispatcher in
its employ.
The Respondent is a corporation that is wholly owned
by Jim Sturrus, About a week before the transfer of
assets, the former owners brought Sturrus to the plant,
introduced him to the employees, and informed them of
the impending sale. Following the sale, former Wheeler
employees filled out new job application forms for the
Respondent. At least some experienced a slight increase
in their hourly rate. However, the Respondent discontin-
ued Teamsters health, welfare, pension, and vacation
benefits.
Sturrus was aware of the existence of the collective-
bargaining agreement between Wheeler and the Union
that expired on July 1. Apparently state law requires the
seller of a business to notify any union that is party to a
collective-bargaining agreement that a sale is being con-
templated. It precludes settlement on a buy and sell
agreement for a period of 30 days following notification
by the Union to the buyer of the existence of a collec-
tive-bargaining agreement. By letter dated April 15,
1986, the Union notified Sturrus of the existence of its
contract with Wheeler and forwarded a copy of the
agreement to him. On April 30, Wheeler gave the Union
a conventional 60-day letter notifying it of the Compa-
ny's desire to terminate the existing contract. On June
19, Wheeler further notified the Union that the sale was
taking place the following day. Sometime late in July,
Union Business Agent Ray Piper wrote a letter to Stur-
rus in which he asserted that a majority of Wheeler's em-
ployees continued to be employed by the Respondent in
the same job classification and that they were union
members. He requested Sturrus to contact him within 10
days for the purpose of engaging in collective bargaining
looking toward a new contract. Piper further stated that
he would consider the Respondent's failure to respond to
his request as an unfair labor practice.
The response to Piper's letter was made on August 4
by the Respondent's attorney. He sent a letter to the
Union's attorney, which stated as follows:
Would you please detail for me in writing the
basis of the Union's claim that they represent the
employees of the bargaining unit in question. In this
question, please detail what facts you are relying
upon along with any legal support for your posi-
tion.
Upon receipt of this information, we will advise
you of the Company's position.
On August 22, 1986, the Union's attorney replied stat-
ing that its claim of representation was based on a long
history of collective bargaining with Wheeler, a contract
that had recently expired, and the fact that Sturrus was
merely a successor to Wheeler. The Union's attorney
again requested the Respondent's attorney to contact him
in 10 days with a view toward scheduling bargaining ses-
sions. No such contact has ever taken place. 4 The charge
was filed on February 26, 1987.
II. ANALYSIS AND CONCLUSIONS
A. The Respondent as Successor to Wheeler
The Board's position respecting successorship and the
obligation of an employer who purchases a business to
continue to recognize and bargain with the union repre-
senting employees of its predecessor has been set forth
many times and in many cases. The essentials of the
Board's position, at least as it applies to the facts of this
case, were upheld in 1972 by the Supreme Court in
NLRB v. Burns Security Services, 406 U.S. 272 (1979).
One Board case closely in point is Johnson Ready Mix
Co., 142 NLRB 437, 441 (1963). It was cited by the Su-
preme Court with approval in Burns.
In Johnson Ready Mix, the Respondent purchased and
continued to operate a company that was engaged in the
preparation, sale, and delivery of ready-mixed concrete.
Its predecessor, who was subject to a recent certification
issued by the Board, went bankrupt and sold its assets to
the Respondent, whom the Board found to be the same
operating entity as its predecessor. This finding was
based on the fact that the Respondent had purchased the
land, machinery, supplies, and equipment of the prede-
cessor, was producing the same product for essentially
the same customers, had hired a majority of the prede-
cessor's employees to do the same jobs they had been
doing for the predecessor, and had hired some of the
predecessor's supervisors for the new operation. In find-
ing a successorship and a continuing duty on the part of
the purchaser to honor a certification within the certifi-
cation year, the Board stated that "a mere change in
ownership in an 'employing industry' is not such an un-
usual circumstance as to affect the force of a certifica-
tion, for it is equally well settled that where the 'employ-
ing industry' remains essentially the same after a transfer
of legal ownership, the certification continues effective
for the normal operative period and the obligation to
bargain devolves upon the successor employer." 142
At some point during the summer, a clerical employee of the Team-
sters health and welfare fund contracted Sturrus to request that he for-
ward overdue health and welfare payments. Sturrus informed the individ-
ual in question that his Company was not union.
t
J. P. STURRUS CORP. 671
NLRB at 442. The language used by the Supreme Court
in Burns in addressing this point is almost in haec verba.
406 U.S. at 279. Although there is no certification in-
volved in this case, the Board has repeatedly applied the
same rationale to impose a bargaining obligation on suc-
cessor who purchase a business in which a union has
achieved recognition in some manner other than by a
Board election. Virginia Sportswear, 226 NLRB 1296
(1976); Western-Davis Co., 236 NLRB 1224 (1978); Ste-
phenson Haus, 279 NLRB 998 (1986).
The Respondent is in every respect in pad materia
with the redi-mix concrete company who was the re-
spondent iri Johnson Ready Mix. Sturrus purchased all
the fixtures and equipment owned by Wheeler. It hired
all but one of Wheeler's drivers, mechanics, and yard-
men. It also hired Wheeler's dispatcher and supervisor.
Its operation is the same as the Wheeler operation, its
employees do the same work, and it delivers the same
product to essentially the same customers. In fact, the
Respondent here still holds itself out to the public as
Wheeler, using the name Wheeler in its telephone direc-
tory listing, on its trucks, and on a sign posted on the
front of the plant. In light of these factors, it is plain that
the Respondent is the same continuing industry as
Wheeler and, in the absence of a good-faith and reason-
ably founded doubt, is obligated to recognize and bare
gain collectively with the Charging Party as the exclu-
sive collective-bargaining representative of its truckdriv-
ers, mechanics, and yardmen. Barrington Plaza & Trag-
niew, 185 NLRB 962 fn. 4 (1970).
B. The Obligation to Bargain
The Union in this case achieved initial recognition
from Wheeler in the late 1960s and, as noted above, has
continued to represent employees in the Wheeler-Sturrus
bargaining unit since that time over the years. It has con-
cluded a series of contracts with Wheeler, the most
recent of which was in effect at the same time of the sale
of the business. The Respondent was aware of the exist-
ence a the contract when he concluded the purchase
from Wheeler. The contract was the product of a ratifi-
cation vote taken at the plant in 1983 at a meeting called
by Piper and attended by almost every member of the
bargaining unit. With almost no exceptions, the same em-
ployees are now on the Respondent's payroll. In light of
this evidence, the Respondent has no basis for asserting a
good-faith doubt of the Union's continuing majority
status, as that phrase has conventionally been used in
Board law.
Instead, the Respondent contends that it was free to
deny recognition to the Union at the conclusion of the
contract term on July 1, 1986, irrespective of any ques-
tion of good-faith doubt of its status until such time as
the Union might demonstrate that status at a Board elec-
tion. Relying on John Deklewa & Sons, 282 NLRB 1375
(1987), Respondent argues that it is in the building and
construction industry within the meaning of Section 8(1)
of the Act, that the Charging Party is not now nor has it
ever been anything more than an "8(f)" bargaining repre-
sentative of its employees, that the contract concluded
by the Union with Wheeler was a prehire agreement
within the meaning of Section 8(1), and that, until the
Charging Party becomes a "Section 9(a)" bargaining rep-
resentative, it does not enjoy the conventional presump-
tion of continuing majority status found in other situa-
tions. Accordingly, the Respondent felt free to refuse to
bargain with it in response to a demand that was made
following the takeover and the expiration of the Wheeler
Teamsters contract. This contrived argument falls short
of the mark in a great many respects.
The Respondent is a supplier to companies some of
which may be deemed to be within the provisions of
Section 8(f) of the Act, but this fact does not mean that
Respondent is in the building and construction industry
any more than a hardware store that furnishes hammers
and nails to building contractors is engaged in the build-
ing and construction industry. The Respondent has a
stable complement of employees, some of whom worked
for Wheeler for 20 years or more. Although Wheeler ex-
perienced seasonal layoffs, its senior employees worked
throughout the year, and those who were laid off during
the winter months were contractually entitled to recall
when business picked up in the spring. The Respondent
operates from a single location, which was in existence
since the inception of the Wheeler Company. Respond-
ent's only contact with the building and construction in-
dustry takes place when some, but not all, of its employ-
ees make deliveries of concrete to building sites from the
plant. The fact that a delivery man may pour concrete at
a jobsite from a cement mixer, often at the request or di-
rection of the customer, does not invest him with the
status of a customer's employee any more than a truck-
driver becomes a customer employee because he unloads
a van and places cargo in a warehouse at a customer's
request, nor does this fact serve to incorporate the Re-
spondent into the building and construction industry. A
deliveryman driving a cement mixer may visit several
jobsites in the course of a day and pour concrete at sev-
eral locations for several different customers. In those in-
stances in which customers are also the owners of the
building sites, it is more than likely that they are not
themselves a part of the building and construction indus-
try, within the meaning of Section 8(1) of the Act, but
merely homeowners, farmer, or businessmen who re-
quire one or more loads of concrete at their respective
premises. The Board has held that redi-mix concrete de-
livery companies are not engaged in the building and
construction industry within the meaning of either Sec-
tion 8(e) or (f) of the Act, and those cases are controlling
here. Inland Concrete Enterprise, 225 NLRB 209 (1976);
Island Dock Lumber Co., 145 NLRB 484 (1983). The fact
that the Respondent's newer equipment discharges con-
crete from the front of the truck rather than from the
side or rear of the truck is a distinction without a differ-
ence.
Section 8(1) was placed in the Act in order, to permit
employers and labor organizations who are engaged in
an industry peculiarly marked by sporadic employment
at locations that are continually changing to maintain
some stability in their relationship by signing contracts
before employees are hired at a particular site and to in-
clude in those contracts provisions that otherwise would
be deemed to be illegal under the Act. In particular, a
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prehire contract in the building and construction indus-
try may contain a 7-day, not a 30-day, union-security
clause. The contracts between Wheeler and the Union
that form a part of the Union's claim of majority status
here do not contain clauses peculiar to prehire agree-
ments, nor is there any evidence in the record that any
of these contracts were entered into before employees
were in fact hired in the bargaining unit. James Roberts,
the shop steward, testified without contradiction that he
had been working at the plant when the Teamsters first
organized it back in 1967 and that the contract which ex-
pired in July 1986 was the product of a ratification vote
taken by bargaining unit employees who were already on
the Wheeler payroll in 1983 when the vote was taken.
These undispUted facts made it abundantly clear that the
Union was never an "8(0" bargaining representative, was
at all times a "9(c)" bargaining representative, and that
the holdings and dicta in John Deklewa, supra, have no
relevance to its standing in this case.5
C. The Question of Limitations
The last string in the Respondent's bow is that the
Union was untimely in the filing of a charge, and that
any enforceable obligation on the Respondent's part to
bargain with the Union is barred by the 6-month statute
of limitations contained in Section 10(b) of the Act. Ac-
cording to the Respondent, Piper wrote a letter to Stur-
rus sometime late in July making a demand for bargain-
ing and giving Sturrus 10 days to reply. Hence, the stat-
ute of limitations began to run sometime late in July or
early in August but, in any event, more than 6 months
before the Union filed the charge on February 26. This
argument ignores the fact that, on August 22, the
Union's attorney again wrote the Respondent, through
counsel, renewed the Union's demand for recognition
and bargaining, and gave the Respondent 10 days in
which to reply. The 10-day reply date mentioned in
counsel's letter would fall within the 6-month period im-
mediately preceding the filing of the charge.
However, neither of these factual considerations need
be relied on as dispositive of the Respondent's conten-
tion. A demand to bargain is an act of a continuing
nature. This is so because an employer's obligation to
bargain with the majority representatives of its employ-
ees is a continuing obligation. Such a demand cannot be
extinguished by an Employer's refusal to acknowledge
the obligation, much less by its unlawful refusal to ac-
knowledge and comply. Spruce Up Corp., 209 NLRB
194, 197 (1974); Dardanelle Enterprises, 250 NLRB 377
(1980); Pick-Mt. Laurel Corp., 239 NLRB 1257 (1979);
5 Moreover, the Respondent cannot undermine a union's Status as bar-
gaining agreement by a stale claim that the union was not a bargaining
representative. Sec. 10(b) applies to contentions made by a respondent as
well as to issues raised by the General Counsel in the complaint. "The
existence of a prior contract, lawful on its face, raises a dual presumption
of majority—a presumption that the union was the majority representa-
tive at the time the contract was executed, and a presumption that the
majority continued at least through the life of the contract. Following up
the expiration of the contract, this presumption continues and is not de-
pendent upon independent evidence that the bargammg relationship was
originally established by a certification or a majority card showing." Bar-
rington Plaza, supra at 963 See also Machinists Local 1424 v. NLRB, 362
U.S. 411 (1960).
Aircraft Magnesium, 265 NLRB 1344, 1345 (1982); Auto
Workers v. NLRB, 363 F.2d. 702 (D.C. Cir. 1963).
Hence, the Union's July 1986 demand for recognition
and bargaining continues to date. It has never been with-
drawn. The Respondent has not flatly refused to bargain.
It simply has never bargained, but this untimely delay in
meeting its obligations under the Act constitutes a viola-
tion of Section 8(a)(1) and (5) of the Act. I so find and
conclude.
On the foregoing findings of fact and on the entire
record, I make the following
CONCLUSIONS OF LAW
1. J. P. Sturrus Corporation is, and at all times materi-
al, has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. General Teamsters Local No. 406, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act,
3. Respondent is a successor to Wheeler Transit Mix,
Inc.
4. All redi-mix, tandem, and dump truck drivers, me-
chanics, general laborers, and pitmen employed by the
Respondent at its Greenville, Michigan facility, exclud-
ing office clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act.
5. At all times material, the Union has been the exclu-
sive collective-bargaining representative of all the em-
ployees in the unit found appropriate in Conclusions of
Law 4 for the purpose of collective bargaining within
The meaning of Section 9(b) of the Act.
6. By failing and refusing to recognize and bargain col-
lectively in good faith with the Union as the exclusive
collective-bargaining representative of the employees in
the unit found appropriate in Conclusions of Law 4, the
Respondent has violated Section 8(a)(1) and (5) of the
Act. The aforesaid unfair labor practices have a close, in-
timate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take other
affirmative actions necessary to effectuate the policies of
the Act. This obligation includes the duty to forward to
the trustees of the health, welfare, vacation, and pension
trust funds established to carry forth the provisions of
the expired collective-bargaining agreement with Wheel-
er any money due and owing to those funds. Interest that
may be due and owing on those payments will be com-
puted at the compliance stage of these proceedings.
Mertyweather Optical Co., 240 NLRB 1213 (1979). The
General Counsel has requested the inclusion of a visita-
torial clause, which will assist the Board in policing com-
pliance with the provisions of this Order. I will recom-
mend such a clause. I will also recommend the posting
J. P. STURRUS CORP. 673
of the usual notice advising employees of their rights and
of the results in this case.
On these fmclings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
The Respondent, J. P. Sturrus Corporation, Green-
ville, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
General Teamsters Local No. 406, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as the exclusive collec-
tive-bargaining representative of all of its truckdrivers,
mechanics, laborers, and pitmen employed at its Green-
ville, Michigan plant, exclusive of office clerical employ-
ees, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with General Teamsters Local No. 406, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO as exclusive collec-
tive-bargaining representative of all its truckdrivers, me-
chanics, laborers, and pitmen employed at its Greenville,
If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
Michigan plant, exclusive of office clerical employees,
guards, and supervisors defmed in the Act.
(b) Pay over to the trustees of trust funds established
to carry into effect the health, welfare, pension, vacation
funds provisions of the contract between Wheeler and
the Union any moneys due and owing to them, with in-
terest.
(c) Post at the Respondent's Greenville, Michigan
plant copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its authorized representatives, may
obtain discovery from the Respondent or its officers,
agents, successors, or assigns, or any person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure. Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had on any matter reasonably re-
lated to compliance with this Order, as enforced by the
court.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pnrsuluit to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."