McKenize Engineering

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 473 (N.L.R.B. 1998)

MCKENZIE ENGINEERING CO. 473
McKenzie Engineering Co. and Carpenters Local
Union 410, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO. Case 33–
CA–11408
August 27, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME
On July 7, 1997, Administrative Law Judge William J.
Pannier III issued the attached decision. The Respondent
filed exceptions and a brief, the General Counsel filed a
brief in support of the administrative law judge’s deci-
sion and an answering brief, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions as modified
and to adopt the recommended Order as modified and set
out in full below.2
The judge found, and we agree, that the Respondent
repudiated its collective-bargaining agreement with the
Union, in violation of Section 8(a)(5) and (1) of the Act.
The Respondent excepts to the judge’s additional finding
that the Respondent violated Section 8(a)(5) and (1) by
withdrawing recognition from the Union. The Respon-
dent points out that the complaint in this proceeding con-
tained no allegation of an unlawful withdrawal of recog-
nition. The General Counsel, in his answering brief,
urges the Board to adopt the judge’s finding. The Gen-
eral Counsel contends that this violation stems from the
same conduct as the repudiation of the collective-
bargaining agreement that was alleged in the complaint
and found by the judge, and only involves a different
theory under Section 8(a)(5). Although we agree with
the judge’s underlying factual finding that the conduct
found unlawful in this proceeding stemmed from the
Respondent’s intent to rid itself of the Union, we do not
adopt his finding of an additional violation based on the
unalleged withdrawal of recognition.3

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
We agree with the judge’s finding that the Respondent discharged
employees Donald Patterson, Mark Spiekermeier, Steven Perry, and
Fred Arnold Jr. based on their membership in the Union. In so doing,
we find it unnecessary to pass on the judge’s speculation that the Re-
spondent was concerned about its profit margin on the icebreaker pro-
ject.
We grant the General Counsel’s motion to correct the judge’s deci-
sion.
2 We shall modify the judge’s recommended Order to include a nar-
row cease-and-desist provision, which we find sufficient in the circum-
stances of this case.
Chairman Gould would adopt the judge’s recommendation that the
order include a broad cease-and-desist provision.
ORDER
The National Labor Relations Board orders that the
Respondent, McKenzie Engineering Co., Fort Madison,
Iowa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Offering to pay any employee above-scale wages if
that employee will refrain from joining Carpenters Local
Union 410, United Brotherhood of Carpenters and Join-
ers of America, AFL–CIO, or any other labor organiza-
tion; urging by word or action any employee to refrain
from joining the Union or any other labor organization
during the term of a collective-bargaining contract with
that labor organization; offering an amount of money to
an employee if that employee will withdraw membership
in the Union or any other labor organization; presenting
any employee with an insurance or other benefit plan as
an alternative to plans provided by the Union or any
other labor organization to persuade that employee to
refrain from joining or supporting that labor organization
during the term of a collective-bargaining contract with
that labor organization; and threatening that it will have
to go nonunion or intends to go nonunion.
(b) Discharging or otherwise discriminating against
Donald Patterson, Mark Spiekermeier, Steven Perry, and
Fred Arnold Jr., or any other employee, because of sup-
port for or activity on behalf of the Union, or because
such discharge or other discrimination is part of an over-
all plan to repudiate its collective-bargaining agreement
with the Union.
(c) Repudiating and failing to honor the collective-
bargaining contract with the Union as the exclusive col-
lective-bargaining representative of employees in the
following unit, during the term of the contract and any
automatic extensions thereof:

3 In deleting the separate finding of a withdrawal of recognition and
the corresponding provisions of the Order, Chairman Gould and Mem-
ber Fox note that, by ordering the Respondent to cease and desist from
repudiating and failing to adhere to the contract, and by directing it,
affirmatively, to honor that contract and any automatic renewal or
extension of it, the Board implicitly orders the Respondent to grant the
extent of recognition that is owed to a collective-bargaining representa-
tive in an 8(f) relationship. See John Deklewa & Sons, 282 NLRB
1375, 1387 (1987) (enforceable recognitional obligation imposed on
employer in an 8(f) relationship is “coextensive with the bargaining
agreement that is the source of [the union’s] exclusive representational
authority”).
In agreeing with his colleagues not to adopt the judge concerning
withdrawal of recognition, Member Brame relies only on the General
Counsel’s failure to allege such a withdrawal in the complaint.
We find that the General Counsel’s failure to allege an unlawful
withdrawal of recognition is not adequately cured by his motion to
amend the complaint, made for the first time in his answering brief to
the Board. We therefore deny the motion.
326 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
All journeymen and apprentice carpenters employed by
McKenzie Engineering Co., in the following Iowa
counties: Des Moines, Henry, Lee, and Louisa south of
thIowa River, and the following Missouri counties:
Clark, and the eastern one-half of Scotland; excluding
all other employees, professional employees, office
clerical employees, guards and supervisors as defined
in the National Labor Relations Act.

(d) 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) Honor the collective-bargaining contract with the
Union, and any automatic renewal or extension of it,
including paying contractual wage rates, making contrac-
tually required contributions to fringe benefit funds,
making dues deductions pursuant to checkoff authoriza-
tions and remitting amounts deducted to the Union, and
complying with all other terms for all employees in the
bargaining unit.
(b) On request of the Union, rescind all changes in
terms and conditions of employment for bargaining unit
employees made on and after November 1, 1995, and
make whole all employees, the Union, and fringe benefit
funds, with interest, for any losses they may have suf-
fered as a result of the failure to honor the collective-
bargaining agreement, and any automatic renewal or ex-
tension of it, in the manner prescribed in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, offer
Donald Patterson, Mark Spiekermeier, Steven Perry, and
Fred Arnold Jr. full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(e) Make Donald Patterson, Mark Spiekermeier, Ste-
ven Perry, and Fred Arnold Jr. whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Fort Madison, Iowa facility, and at all locations where
bargaining unit employees are working, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 33, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
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 Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December 1,
1995.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT offer to pay employees above-scale
wages if they refrain from joining Carpenters Local Un-
ion 410, United Brotherhood of Carpenters and Joiners,
of America, AFL–CIO, or any other labor organization.
WE WILL NOT, by word or action, urge employees to
refrain from joining the Union or any other labor organi-
zation during the term of the collective-bargaining agree-
ment with that labor organization.
WE WILL NOT offer to pay employees an amount of
money if they will withdraw from the Union or any other
labor organization.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

MCKENZIE ENGINEERING CO. 475
WE WILL NOT present employees with an insurance or
other benefit plan as an alternative to the one(s) provided
by the Union or any other labor organization to persuade
them to refrain from joining or supporting that labor or-
ganization during the term of a collective-bargaining
agreement to which we are party with that labor organi-
zation.
WE WILL NOT threaten that we will have to go nonun-
ion or intend to go nonunion.
WE WILL NOT discharge or otherwise discriminate
against Donald Patterson, Mark Spiekermeier, Steven
Perry, and Fred Arnold Jr., or any other employee, be-
cause of support for or activity on behalf of the Union, or
because such discharge or other discrimination is part of
an overall plan to repudiate our collective-bargaining
agreement with the Union.
WE WILL NOT repudiate and fail to honor our collec-
tive-bargaining contract with the Union as the exclusive
collective-bargaining representative of employees in the
following unit during the term of the contract and any
automatic extension thereof:

All journeymen and apprentice carpenters employed by
McKenzie Engineering Co., in the following Iowa
counties: Des Moines, Henry, Lee, and Louisa south of
the Iowa River, and the following Missouri counties:
Clark, and the eastern one-half of Scotland; excluding
all other employees, professional employees, office
clerical employees, guards and supervisors as defined
in the National Labor Relations Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL honor our collective-bargaining contract with
the Union, and any automatic renewal or extension of it,
including paying contractual wage rates, making contrac-
tually-required contributions to fringe benefit funds,
making dues deductions pursuant to checkoff authoriza-
tions and remitting amounts deducted to the Union, and
complying with all other terms for all employees in the
bargaining unit.
WE WILL, on request of the Union, rescind all changes
in terms and conditions of employment for bargaining
unit employees made on and after November 1, 1995,
and make whole all employees, the Union, and fringe
benefit funds, with interest, for any losses they may have
suffered as a result of our failure to honor the collective-
bargaining agreement, and any automatic renewal or ex-
tension of it.
WE WILL, within 14 days from the date of the Board’s
Order, offer Donald Patterson, Mark Spiekermeier, Ste-
ven Perry, and Fred Arnold Jr. full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Donald Patterson, Mark Spiekermeier,
Steven Perry, and Fred Arnold Jr. whole for any loss of
earnings and other benefits suffered as a result of their
discharges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and, WE WILL, within 3 days thereafter,
notify the employees in writing that this has been done
and that the discharges will not be used against them in
any way.
MCKENZIE ENGINEERING CO.

I. Poltz, Esq., for the General Counsel.
Keith J. Braskich (Keck, Mahin & Cate), of Peoria, Illinois, for
the Respondent.
Marc M. Pekay, of Chicago Judith T., Illinois, for the Charging
Party.

DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I heard
this case in Fort Madison, Iowa, on December 3 through 6,
1996. On March 28, 1996, the Regional Director for Region 33
of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing, based on an unfair labor prac-
tice charge filed on December 1, 1995,1 alleging violations of
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act). All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record, on the
briefs which were filed, and on my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case presents several issues arising from events
transpiring in connection with rehabilitation of an icebreaker
structure located on the Mississippi River, off the Iowa shore.
First, several statements and actions are alleged to have consti-
tuted interference with, restraint, and coercion of employees in
the exercise of their statutory rights, in violation of Section
8(a)(1) of the Act. Second, four employees were discharged on
November 1. It is alleged that those discharges had been moti-
vated by those employees’ assistance of a union, by their in-
volvement in concerted activities protected by the Act, and to
discourage employees from engaging in such activities, in vio-
lation of Section 8(a)(3) and (1) of the Act.

Finally, it is alleged that the discharged employees had been
covered by a collective-bargaining contract with a union which
had been their bargaining agent. In conjunction with their ter-
minations, it is alleged that the employer repudiated that con-
tract and withdrew recognition of that union as the bargaining
agent of the employer’s employees. Subsequently, it is further
alleged, the employer ignored both the union and the collective-
bargaining contract, establishing and maintaining terms and
conditions of employment without regard to what the contract
1 Unless stated otherwise, all dates occurred during 1995.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
specified and without regard to its statutory bargaining obliga-
tion. All of the foregoing bargaining-related conduct is alleged
to have violated Sections 8(a)(5) and (1) of the Act.
Those allegations do not lie uncontested. It is contended that
nothing had been said or done which interfered with, restrained,
or coerced employees in the exercise of their statutory rights. It
is further contended that the discharges had been motivated by
nothing more than unsatisfactory work-related conduct on No-
vember 1, occurring against a background of ongoing difficul-
ties with the work of employees dispatched by the union with
which the employer had a collective-bargaining contract. As to
the bargaining-related allegations, it is contended principally
that the contract, and its underlying bargaining obligation,
never applied to the icebreaker structure project involved in this
proceeding and, in any event, no effort was made by the union
to pursue any remedy for violation of the contract through its
disputes resolution procedures, nor had the union satisfactorily
performed its obligations under that contract and, finally, em-
ployees could be obtained from other sources under Iowa’s
“Right to Work” laws.
For the reasons discussed post, I reject those defenses and
conclude that a preponderance of the credible evidence sup-
ports the complaint’s allegations. Essentially, the situation here
is one where an employer, whose employees have been repre-
sented by a union, had been expressing concern about being
disadvantaged because its employees were unionized while
those of its competitors were not. That employer successfully
underbid competitors for a particular project, but its success
was based on a bid that left it with a relatively narrow profit
margin. As work on that project progressed, the employer be-
came even less satisfied with the union situation and made an
effort to persuade one employee not to choose representation by
that union. Ultimately, the employer took action to eliminate
what it viewed as the higher costs and inconvenience of its
unionized situation: it seized upon certain events as a pretext
for firing almost all of the union-represented employees, while
renewing efforts to persuade the remaining unionized employee
not to remain represented by the union; it repudiated the then-
existing collective-bargaining contract with that union and
withdrew recognition from it as the exclusive representative of
the employer’s employees; and, it began employing workers
under altered employment terms, without regard to contractual
terms and to its bargaining obligations under the Act. By that
conduct, the employer violated Section 8(a)(1), (3), and (5) of
the Act.
B. The Icebreaker Structure Project
Located on the Mississippi River is a hydroelectric power-
house or station operated by Union Electric Co. (Union Elec-
tric). That powerhouse runs roughly north and south, almost
parallel to the river’s western bank. The city of Keokuk, in Lee
County, Iowa, is located on that western bank. The powerhouse
is so situated on the river that a channel, separate from the east-
ern rest of the river, exists between it and Keokuk.
The north end of the powerhouse adjoins the western termi-
nus of the Keokuk Dam, Lock & Dam No. 19, which extends
from there eastward to the Illinois shore of the river, at the city
of Hamilton in Hancock County, Illinois. From the western end
of the Keokuk Dam, where it adjoins the northern end of the
powerhouse, to the Iowa shore is where the above-mentioned
channel begins, running southward to the other end of the pow-
erhouse and the lock. Were that channel left open and unpro-
tected at its northerly beginning, the powerhouse turbines and
generators would be vulnerable to floes and other debris being
carried southward by the river.
To minimize, if not eliminate, the possibility of such dam-
age, a breakwater or icebreaker structure exists at the northern
end of the channel, to protect the channel from whatever is
being carried in the river’s southerly flow. In reality, there are
two sections of that structure. A small portion extends south-
easterly from the Iowa shore into the river. That portion of the
icebreaker is not involved in this proceeding.
What is involved is the much longer section, approximately
1100 feet in length, which commences at the western end of the
Keokuk dam and which, from there, runs northwesterly into the
channel, toward the Iowa shore, terminating at a point some-
what northeast of the southeastern end of the smaller icebreaker
structure section.2 That larger icebreaker structure—which will
be referred to hereafter as the icebreaker structure or ice-
breaker, since the small structure is not involved in the project
involved in the instant proceeding—is essentially a concrete
rectangle, 9 feet wide at the top and 15 feet from top to bottom.
The bottom is supported by piers. A portion of the concrete
rectangle is above the river’s water line; the remainder is sub-
merged down to the piers. Significant to this proceeding is the
fact that although the icebreaker is an extension of a dam which
runs to the Illinois shore, the entire icebreaker structure is lo-
cated on the Iowa side of the river and of its navigable channel.
Over the years the icebreaker had been subjected to consid-
erable wear. By 1995, its upper portion had deteriorated to a
point where Union Electric concluded that rehabilitation or
restoration was in order. It decided to rehabilitate the above-
water portion and, as well, the below-water portion down to 5
feet below the river’s surface. That would require essentially
removal of the old, or punky, concrete from the icebreaker’s
sides and top, to a point 5 feet below the water surface and
replacement by rebarred and anchored new concrete.
The project would be conducted on a beam-by-beam basis.
That is, there are 17 beams which are part of the icebreaker.
Each is 68 to 81 feet in length, with a top width of 9 feet and a
side width of 15 feet. Two concrete pours would be required for
each beam, for a total of 34 pours. At each beam, before the
pours could be made, punky concrete had to be removed, rebars
and anchors had to be installed, and gang forms for the concrete
pours had to be put in place. That work would progress from
beam to beam, meaning that concrete removal, rebar and an-
chor installation, gang form placement, and concrete pouring
would be completed on one beam or a portion of it before pro-
gressing to the next beam or the remaining portion of the beam
which was being worked on.
Union Electric let the project for bid on April 10. It contem-
plated that the project would take 2 years, 1995 and 1996, with
work each season to be completed by November 15. It also
required that, for better quality, the project be performed “in the
dry.’’ That meant that to perform the work on the ordinarily
below-water portions of the icebreaker structure, coffer dams
had to be anchored to the icebreaker, so that water could be
drained and kept away from the normally below-water section
as it was being rehabilitated.

2 A clearer understanding of the positions of the Iowa shore, power-
house, Keokuk dam, and icebreaker structure can be obtained by look-
ing at R. Exh. 2.

MCKENZIE ENGINEERING CO. 477
Several firms bid on the project. Selected by Union Electric
was McKenzie Engineering Co. (the Respondent). At all mate-
rial times, it has been a Delaware corporation, with an office
and place of business in Fort Madison, [Iowa], engaged as a
contractor in the business of marine construction. In the course
of conducting those business operations during calendar year
1995, Respondent derived gross revenues in excess of
$500,000; performed services valued in excess of $50,000 in
states other than the State of Iowa; and, moreover, purchased
goods valued in excess of $50,000 which were received directly
from sources outside of Iowa. Therefore, as admitted in its
answer and affirmative defenses, at all material times Respon-
dent has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. That complaint also ac-
knowledges that Respondent has been “an employer engaged in
the building and construction industry[.]”
Respondent’s owner and president is Robert J. McKenzie, an
admitted statutory supervisor and agent of Respondent. During
1986 he ceased operating the dredging and marine work busi-
ness which he had been operating, McKenzie Dredging and,
during September of that year, incorporated Respondent which,
since then, has performed small construction work. Most of that
work involves rehabilitation of usually concrete structures by
removing deteriorated concrete and replacing it with new rein-
forced concrete. However, Respondent also has repaired barge
damage to railroad bridge structures, has performed water in-
take and pipeline concrete repair work, and has built new dock-
ages. Much of Respondent’s work is performed on the Missis-
sippi River. But, it also has performed some projects on the
Illinois River and in off-river ponds or small lakes. It also has
done some land projects for the United States Corps of Engi-
neers.
Having bid successfully for Union Electric’s project, Re-
spondent had first to fabricate two pairs of coffer dams which
would be attached to the outside walls of each icebreaker sec-
tion—by bolts, grillage, and truss frames—so that river water
could be drained and prevented from reentering the areas
around each beam of the icebreaker as Respondent’s crew
worked on it. Two pairs of coffer dams were constructed. They
allowed the crew to work on a 36-foot section, meaning that
one such section had to be completed each week to achieve the
2-year completion target set by Union Electric.
According to McKenzie, the project had been awarded on
May 3 and, “It took approximately four weeks to fabricate the
coffer dam system.” To move crew and materials from the Iowa
shore to the icebreaker structure, Respondent also constructed a
temporary dock at the Keokuk Yacht Club. From there, Re-
spondent portaged its crew by pontoon boat and its materials by
spud boat to the sections of the icebreaker which were being
rehabilitated.
For each icebreaker section being restored, the coffer dams
would be attached on each side of the icebreaker, the coffer
dams would be de-watered, and concrete would be removed by
milling machine. Ordinarily, it took 2 days to accomplish that
work.
On the third day, still-remaining punky concrete would [be]
chipped out by the crew, using concrete saws and chipping
guns. Holes would be drilled to place the L-shaped rebar an-
chors and each hole would be filled with epoxy from cartridges.
Bundles of 40-foot rebar were stored on the spud barge, an-
chored outside of a coffer dam, and were transferred from there
to the coffer dam and cut to appropriate lengths. Once cut, each
rebar piece is placed or spun into an epoxy-filled hole. What-
ever old concrete remains on the icebreaker were then sprayed,
by spray gun, with Armatech, a substance which Union Electric
required to make a better bond between old and new concrete.
Angle plates were prepositioned at correct elevations to ac-
commodate the gang forms. They were placed to allow for
proper pouring of the concrete. Their bottoms were sealed and,
significant to the events of November 1, their tops tied by rods,
with bulkheads installed at the ends.
The work described in the preceding paragraph is normally
completed during the third day for each icebreaker section.
However, completion of it may carry over into the fourth day of
work on a section. During that fourth day, after completion of
whatever preparation work may still remain, the new concrete
is poured. Ready-mix concrete trucks arrive at the Yacht Club
temporary dock. Concrete is poured into buckets which are
portaged to the appropriate beam where a crane pours each
bucket. Ordinarily, pouring is completed for a section by the
end of the fourth day. Nonetheless, Union Electric required that
concrete be kept moist for a week. That was the reason for Re-
spondent’s fabrication of two sets of coffer dams—so that its
crew could move on to the next icebreaker section while the
just-completed section’s concrete was being kept moist.
C. Respondent’s Collective-Bargaining Relationship
Ever since McKenzie operated as McKenzie Dredging, he
had a bargaining relationship with Carpenters Local 410,
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO (the Union), a labor organization within the meaning
of Section 2(5) of the Act. Paragraph 5(b) of the complaint
alleges that Respondent’s “recognition [of the Union] has been
embodied in successive collective bargaining agreements, the
most recent of which is effective for the period May 1, 1994 to
April 30, 1997.”
In fact, the evidence shows that on April 26, 1994, McKen-
zie executed, on behalf of Respondent, a collective-bargaining
contract with “the NORTHWEST ILLINOIS & EASTERN
IOWA DISTRICT COUNCIL OF CARPENTERS (UNION),
FOR AND ON BEHALF OF CARPENTERS LOCAL UNION
410.” At the time McKenzie executed that contract, the record
shows that it already had been executed on behalf of the Union
by its business representative, Jim S. Decker. Decker testified
that the Union is a member of Northwest Illinois & Eastern
Iowa District Council of Carpenters.
In the final analysis, there is no dispute that Respondent had
executed and has been a party to that 1994–1997 collective-
bargaining contract. In its answer and affirmative defenses,
however, Respondent contends that, “The collective bargaining
agreement between [it] and the Union . . . its terms does not
apply to this dispute.”3

3 Respondent also contends affirmatively that if it should be con-
cluded that the contract does apply to this dispute, then “the Board
lacks jurisdiction over this dispute and should defer to the mandatory
dispute resolution procedures provided in the collective bargaining
agreement.” But, Sec. 10(a) of the Act provides, in pertinent part, that
the Board’s power “to prevent any person from engaging in any unfair
labor practice . . . shall not be affected by any other means of adjust-
ment or prevention that has been or may be established by agreement,
law, or otherwise. . . .” To be sure, the Board has been willing to defer
in certain situations to parties’ disputes resolution agreements. See
Collyer Insulated Wire, 192 NLRB 837 (1971); and United Technolo-
gies Corp., 268 NLRB 557 (1984). However, the Board has not been
willing to extend deferral to situations where, as here, it is alleged, in

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
The recognition provision of the 1994–1997 contract—
article I, section 1 —specifies that:

The Northwest Illinois & Eastern Iowa District Council of
Carpenters is recognized as the bargaining agent for all jour-
neyman and apprentice carpenters employed by the employer
in the following Iowa counties: Des Moines, Henry, Lee, and
Louisa south of the Iowa River, and the following Missouri
counties: Clark, and the eastern one-half of Scotland exclud-
ing all other employees, professional employees, office cleri-
cal employees, guards and supervisors as defined in the Arti-
cle.

In fact, there is no definition of “supervisors” in Article I. Ap-
parently use of the word “Article’’ is a mistake and it was
“Act” that had been the intended word.
Article I of the contract provides for further exclusions from
the scope of its section 1. Article I, section 4 recites:

This Agreement recognizes that there are separate
agreements covering Highway and Heavy construction
work, Residential, Millwrights, and Divers.
This Agreement excludes work under Highway and
Heavy, Residential, and Millwright contracts.

In fact, there is a collective-bargaining contract—the “HEAVY
AND HIGHWAY CONSTRUCTION AGREEMENT” for the
“STATE OF IOWA”—effective by its terms from December 1,
1993, through November 30, 1998. It is between the Heavy
Highway Contractors Association of Iowa and the Iowa State
Council of Carpenters and affiliated Local “Unions.” One of
those affiliated locals is the Union.
In its description of the parties to it, the Heavy and Highway
Construction Agreement recites that it “is entered into by and
between the Heavy Highway Contractors Association of Iowa
[the Association] for and on behalf of those contractors who
have assigned their bargaining rights to the Association as well
as other contractors desiring to participate under the terms and
condition of such Agreement. . . .” However, Respondent is not
a member of the Heavy Highway Contractors Association of
Iowa. The parties stipulated that Respondent has not delegated
bargaining authority to any other association or individual to
sign the Heavy and Highway Construction Agreement on be-
half of Respondent. They further stipulated that Respondent has
not signed that agreement. In short, so far as the record in this
proceeding shows, Respondent is a total stranger to the Heavy
and Highway Construction Agreement. Its only collective-
bargaining contract has been with the Union.
Even so, the fact that Respondent is not a party to the Heavy
and Highway Construction Agreement does not resolve the
issue of whether some or all of its employees, particularly those
working on Union Electric’s icebreaker structure rehabilitation
project, might be excluded from the contract to which Respon-
dent and the Union are parties, as Respondent contends. After
all, article I, section 4 of Respondent’s contract with the Union,
quoted above, does “exclude[ ] work under Highway and
Heavy . . . contracts,” without requiring specifically that em-
ployers signatory to the Council of Carpenters Contract actually
be signatory to the “Highway and Heavy” contract. Accord-
ingly, the subject requires closer examination.

essence, that an employer “has acted in total disregard of its collective-
bargaining obligations, subverted the collective-bargaining or grievance
process, or demonstrated enmity to employees’ exercise of Section 7
rights.” (Fns. omitted.) Servomation Corp., 271 NLRB 1112, 1113
(1984). Moreover, at no point prior to, during or since the hearing has
Respondent shown that it has taken action which could be construed as
willingness to arbitrate the claims of the Union and of the employees
discharged on November 1. See, e.g., Hotel Roanoke, 293 NLRB 182,
187 fn. 19 (1989). To the contrary, Respondent contends that the con-
tract did not encompass the Union Electric project and, in any event,
has repudiated that contract. Accordingly, this is not a dispute to which
deferral is an appropriate alternative to resolution by the Board.
The work which the complaint alleges was covered in this
proceeding is that which is described in subsection B: rehabili-
tation of an icebreaker structure located on the Mississippi
River. Arguably such work could be covered under the Heavy
and Highway Construction Agreement. Its article II, section 3
states, to the extent pertinent, that the agreement “shall govern
all ‘Highway-Heavy and Railroad Construction,’” and its arti-
cle IV defines such work as including, among a plethora of
other items, “locks, dams, levees, revetments, channels, channel
cutoffs, intakes,” as well as “breakwaters, docks, harbors[.]”
Further, that same section’s inclusions covers “dredging except
on the Mississippi and Missouri Rivers[.]” That specific exclu-
sion of those two rivers at that point in the contract could be
construed as some indication that breakwaters and docks, men-
tioned earlier, on the Mississippi River would not be excluded
from the Heavy and Highway Construction Agreement’s cover-
age.
Respondent’s project for Union Electric involved what al-
most everyone usually referred to as an icebreaker structure or,
simply, as an icebreaker. Nevertheless, McKenzie also referred
to the icebreaker as a breakwater. Beyond that, it would be
difficult to conclude that mere lack of mention of icebreakers
from the numerous items included as “Highway-Heavy and
Railroad Construction” would mean that icebreakers are not
encompassed by some of the specific items enumerated in the
Heavy and Highway Construction Agreement’s definition of
that phrase. After all, Union Electric’s breakwater structure is
connected to the Keokuk Dam. It is part of the northern end of
the channel leading to Lock 19. It does serve at least some of
the same functions as the more traditionally thought of break-
waters. It does serve as a cutoff for the channel which termi-
nates at Lock 19. In consequence, there is some basis for con-
cluding that work on the Union Electric icebreaker structure
would be covered by the Heavy and Highway Construction
Agreement and, in turn, excluded from coverage under the
terms of Respondent’s 1994–1997 collective-bargaining con-
tract with the Union.
Still, too hasty a resolution should not be reached whenever
it is a collective-bargaining contract, and its coverage, which is
involved. “A collective-bargaining agreement is not an ordinary
contract for the purchase of goods and services, nor is it gov-
erned by the same old common-law concepts, which control
such private contracts.” (Citations omitted.) Transportation
Union v. Union Pacific Railroad Co., 385 U.S. 157, 160–161
(1966). “For the law of labor agreements cannot be based upon
abstract definitions unrelated to the context in which the parties
bargained and the basic regulatory scheme underlying that con-
text.” NLRB v. C & C Plywood Corp.T1, 385 U.S. 421, 430
(1967). “In order to interpret such an agreement it is necessary
to consider the scope of other related collective bargaining
agreements, as well as the practice, usage and custom pertain-
ing to all such agreements.” Id., 385 U.S. at 161.
The fact that it is the contractual bargaining unit—a non-
mandatory subject of bargaining—which is involved does not
change that analytical process. The scope and the composition

MCKENZIE ENGINEERING CO. 479
of even certified bargaining units can be changed as a result of
agreement, express or implied, between the parties. See, e.g.,
Tom Kelly Ford, 264 NLRB 1080, 1081–1082 (1982); Brom
Machine & Foundry Co. v. NLRB, 569 F.2d 1042, 1043 (8th
Cir. 1978). “When parties by their uniform conduct over a pe-
riod of time have given a contract a particular construction,
such construction will be adopted by the courts.” Pekar v.
Brewery Workers Local 181, 311 F.2d 628, 636 (6th Cir. 1962),
cert. denied 373 U.S. 912 (1963).
The singularly significant facts here are that, until November
1, Respondent had been obtaining carpenters for the Union
Electric icebreaker project through the Union, had been recog-
nizing the Union as the bargaining agent of those employees as
they worked on the icebreaker project, and had been applying
the terms of the 1994–1997 collective-bargaining contract with
the Union to the employment of those employees there. Ac-
cordingly, those carpenters had been treated both by Respon-
dent and by the Union as embraced by their contract’s bargain-
ing unit.
For example, McKenzie testified that “before I even bid the
job,” he had spoken with Business Representative Decker about
the Union’s ability to provide apprentices so that, given “the
rates you guys have” for journeymen, Respondent would be
able “to equalize that wage rate” and, thereby, “meet” the bids
of “the local competition.” Such a meeting before a project
began was not extraordinary. McKenzie testified “this is com-
mon. I mean, in this day and age for the contractor and the un-
ion business agent to get together and try to meet the competi-
tion head on.” Thus, in connection with the icebreaker project,
Respondent had proceeded with its ordinary procedure fol-
lowed in connection with its bargaining relationship with the
Union.
There were later instances, as the project progressed, when
McKenzie concededly referred to Respondent’s understanding
that the 1994–1997 contract with the Union applied to carpen-
ters who were rehabilitating Union Electric’s icebreaker struc-
ture. When an apprentice who was supposed to, but did not,
report for work on the icebreaker, McKenzie testified that he
had complained to Decker, “you are not performing, you have a
contract with me.” McKenzie also described a conversation
with Decker, prior to November 1, about a carpenter who, it
had been reported to McKenzie, would not show up when the
weather was inclement. McKenzie testified that he had told
Decker, “Mark Spiekermeier told me that Fred Arnold was
going to work on good weather days only. And I go, wow! I
said, your contract doesn’t read like that at all.”
McKenzie admitted that Respondent had observed the terms
of its collective-bargaining contract in connection with the
work being performed, at least prior to November 1, on the
icebreaker structure. Wages were paid as specified by that con-
tract. The contractual vacation deduction system was followed.
Union dues were deducted from the pay of carpenters working
on that project and were transmitted to the Union.
In sum, a preponderance of the evidence establishes that, at
least from May to November 1, Respondent had been recogniz-
ing the Union as the bargaining agent of carpenters employed
by Respondent to work on Union Electric’s icebreaker struc-
ture. The Union never objected to being recognized as the bar-
gaining agent of those employees. Rather, it dealt with Respon-
dent as those employees’ bargaining agent. There is no evi-
dence that any other labor organization or the Iowa State Coun-
cil of Carpenters ever claimed that recognition of those em-
ployees should have been extended to a labor organization
other than the Union, nor under a collective-bargaining contract
other than the 1994–1997 contract between Respondent and the
Union. More specifically, there is no evidence of any claim by
anyone that the terms of the Heavy and Highway Construction
Agreement should have been applied to carpenters employed
by Respondent on the icebreaker project.
Therefore, the uniform practice from May to November 1 of
recognizing the Union and of applying the terms of its 1994–
1997 contract with Respondent to the latter’s employees work-
ing on the icebreaker—whether characterized as contractual
interpretation, amendment, modification or novation—serves to
establish that Respondent had recognized the Union as the bar-
gaining agent of those employees and, further, that the parties
had agreed that the 1994–1997 contract should be applied to
those employees. Respondent is not free to now disavow a
practice which it had been following until it became dissatisfied
with continuing to deal with the Union.
Not faring any better is a contention that the project is not
covered because it involves work being performed on a river,
rather than on the Iowa shore. In the first place, as pointed out
in subsection B, the icebreaker is located on the Iowa side of
the Mississippi River and its channel. So, it is within the State
of Iowa. In fact, secondly, the parties stipulated that Union
Electric’s project is geographically located in Lee County,
Iowa. As quoted above that is one of the Iowa counties in-
cluded in the recognition provision of article I, section 1 of the
1994–1997 contract. Finally, as concluded above, Respondent
did, in fact, recognize the Union as the bargaining agent of
employees whom it requested that the Union dispatch to the
icebreaker project and did, in fact, apply the terms of the 1994–
1997 contract to those employees until November 1. Therefore,
the fact that the project was located on the river, rather than on
land, does not serve to establish that the Union had not been the
representative of employees whom it dispatched to work on it.
It is accurate that some of the work performed on the ice-
breaker is not usually thought of as work ordinarily performed
by carpenters. Even so, from May through November 1, no one
raised any jurisdictional dispute about the work assigned to
carpenters whom the Union had dispatched to that project.
Moreover, prior to that project, Respondent had requested and
obtained from the Union’s hiring hall carpenters who worked
for Respondent on a gambling dock in Fort Madison, repair of
spillways on the downstream side of the Keokuk Dam, and
repair of Missouri pump stations. So far as the evidence re-
veals, no one ever protested doing those jobs, even though
some of that work may not ordinarily be thought of as tradi-
tional carpenters’ work.
In light of the foregoing considerations, any objection to the
scope of contractual coverage at this belated point partakes of
trying to relegate a collective-bargaining contract to “an ordi-
nary contract for the purchase of goods and services,” Trans-
portation Union v. Union Pacific Railroad Co., supra, rather
than viewing such a contract as one which “covers the whole
employment relationship,” and “calls into being a new common
law—the common law of a particular industry or of a particular
plant.” Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574, 578–579 (1960). Having initially secured its carpen-
ters from the Union’s hiring hall, having once recognized the
Union as their bargaining agent, and having once applied the
terms of its contract with the Union to those employees, Re-
spondent is in no position to escape its statutory bargaining

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
obligation to the Union as the bargaining agent of those em-
ployees.
Therefore, a preponderance of the credible evidence estab-
lishes that Respondent had recognized the Union as the bar-
gaining agent of carpenters working on the Union Electric ice-
breaker structure project and had applied the terms of its 1994–
1997 contract with the Union to those employees. In conse-
quence, the General Counsel has established that the contrac-
tual bargaining unit is an appropriate one within the meaning of
Section 9(b) of the Act, that journeyman and apprentice carpen-
ters working for Respondent on Union Electric’s Keokuk Dam
icebreaker structure were encompassed by the appropriate bar-
gaining unit, and that the terms of the 1994–1997 contract be-
tween the Union and Respondent covered those employees.
With regard to the bargaining relationship, one final point
must be mentioned. Introduced by the General Counsel was a
document, signed in 1989, whereby Respondent agreed, inter
alia, “that the union is supported by a majority of the employ-
ees of [Respondent] presently working within the territorial and
occupational jurisdiction of the union.” Left unexplained was
the significance of that document, if any, to the events arising 6
years later.
As set forth in subsection B, the complaint alleges that Re-
spondent is “an employer engaged in the building and construc-
tion industry,” and the complaint further alleges that, with re-
spect to the events at issue here, and the 1994–1997 collective-
bargaining contract, Respondent had “granted recognition to
the Union . . . without regard to whether the majority status of
the Union had ever been established under the provisions of
Section 9(a) of the Act.” In other words, the complaint alleges
that the bargaining relationship which existed here is one which
is governed under Section 8(f) of the Act.
To be sure, Respondent denied the above-quoted allegations.
Nevertheless, a complaint, no less than an answer, constitutes
“a ‘judicial’ admission that is binding on the party making that
admission.” (Citation omitted.) D. A. Collins Refractories, 272
NLRB 931, 932 (1984). The General Counsel never moved to
amend the complaint. The significance of the 1989 document is
left unexplained and unconnected to events which occurred
when the 1994–1997 contract had been signed and, also, to the
events of 1995. Therefore, I conclude that the more current
bargaining relationship between Respondent and the Union had
been governed under the principles of Section 8(f) of the Act.

D. Respondent’s Expressions About the Union as the
Project Progressed
As pointed out in subsection B, Respondent prevailed over
several other bidders in securing the project of rehabilitating the
Keokuk Dam icebreaker structure. To become the successful
bidder, McKenzie testified that Respondent had “bid the job
hard price.” He further testified that, “I bid that job at
$936,000.00 and there were a bunch of guys bidding against
me. I was just barely low bidder on that thing and so you have
to—you’ve got to have a fast rate of production or else you’re
going to go under.” He agreed that the margin had been very
“short” on that project, that he had been concerned from the
beginning about how much he had been paying employees who
worked on it, and that he also had been concerned about, “The
type, the quality and the efficiency of the construction.”
As the progress progressed from spring though summer and
into fall, Respondent encountered not always anticipated prob-
lems. Delays resulted from equipment malfunctions and
weather. For example, McKenzie testified that October “cer-
tainly was a wet month” and that, as of November 1, “we were
going to have a lot of bad weather days left in the year.” In fact,
he testified, “It rains a lot around here. That’s what makes the
corn grow.” Beyond equipment and weather, while the coffer
dams were being fabricated the crew demanded, and eventually
received, the 65-cent-per-hour premium specified in article XII
of the 1994–1997 collective-bargaining contract for piledrivers.
And, at the Union’s behest, one of the carpenters was appointed
foreman. That meant that, under article XII of the contract, he
received 60 cents per hour above the journeyman’s pay rate.
Business Representative Decker testified that, ever since
meeting McKenzie during the early 90s, the latter had com-
plained about Respondent’s competitive disadvantage with
nonunion firms doing the same work and, further, had warned
that “some of these days I’m going to take a hard look at that
myself and I’ll, probably, have to go that way someday my-
self.” Thereafter, testified Decker, “on occasions he would
bring it up” again, complaining about the rates of nonunion
competitors, particularly those of the Nelson Company.
“On several occasions” as the icebreaker structure restoration
project continued, Decker testified, McKenzie had pointed to
“an outfit that was working on top of the dam” and had said
that he was competing against “these nonunion outfits” and
“just felt as though he was going to have to go that direction
one of these days.” Nor did McKenzie direct such remarks only
to the Union’s business agent.
Carpenter Don Patterson testified that since beginning work
for Respondent on the icebreaker during May, McKenzie had
regularly, about “once a week,” complained that “the guys
down at the other end of the dam” were “[d]oing the same kind
of work” as Respondent’s carpenters, but were “only working
for eight bucks an hour” and “were working for a lot less
money than us.”4 According to Patterson, McKenzie also said
that “the [u]nions have outlasted themselves,” and “that he’d
have to go non-[u]nion and the [u]nions were on their way out.”
Carpenter Fred Arnold also testified that, after beginning
work for Respondent on the icebreaker on October 2, he had
heard McKenzie “talk[ ] at different times about going non-
[u]nion.” So, too, did carpenter Mark Spiekermeier overhear
such a remark. He testified that, about 2 weeks prior to Novem-
ber 1, as he had been working in the coffer dam, he had heard
McKenzie, speaking with someone on the top of the dam, men-
tion another crew working on the dam and say “if they won’t
work in the rain I’m going to have to go non-[u]nion,” or
“Something like that[.]”
McKenzie never denied specifically having made any of
those statements. To the contrary, he conceded, during cross-
examination, having made remarks to Decker about what non-
union firms were paying their employees: “Yes. I talked to Jim
a lot about Carl Nelson’s people and Osage Bridge’s people
and his people.” He also acknowledged that, during such con-
versations, he had compared their work to that of carpenters
dispatched by the Union. When asked if he had commented to
Decker about the nonunion firms making more money, how-
ever, McKenzie gave a somewhat internally contradictory an-
swer: “No. Not really. We basically talked, you know, it’s a

4 Under art. XII of the collective-bargaining contract, Respondent
then was obliged to pay its journeymen $17.65 an hour in wages, plus
$1.75 an hour as pension contribution and 12 cents an hour for appren-
ticeship program—a total of $19.52 per hour.

MCKENZIE ENGINEERING CO. 481
competitive world. Do you agree? And, and we were talking
about being competitive.”
He initially agreed that, during his discussions with Decker,
he had compared whether or not the nonunion people would
work during a rainy day. But, McKenzie then reversed direction
when asked the followup question about whether he believed
that employees in the Union would not work in the rain, while
nonunion people would do so: “Not at all. That’s false.” Yet, if
that was “false,” McKenzie never explained what comparison
he admittedly had discussed with Decker during conversations
which he initially agreed had taken place.
There also is testimony showing that, eventually, McKenzie
went beyond merely complaining about the competitive disad-
vantage Respondent suffered as a result of being unionized—
testimony showing that McKenzie took action to undermine
employee support for the Union. As pointed out in subsection
C, the 1994–1997 contract’s article I, section 4 “recognizes that
there are separate agreements covering . . . Divers.” So far as
the record shows, Respondent is not party to such an agree-
ment. But, Respondent does employ divers. McKenzie testified
that they are “critical” in marine operations, since they conduct
preliminary explorations underwater “to determine the shape
and size” of underwater structures and obstructions that must be
removed and, also, perform whatever underwater work is
needed as a water project progresses. “There is a limited num-
ber of people that dive,” testified McKenzie, and Respondent
ordinarily hires them directly, as opposed to securing divers
through the Union’s hiring hall.
During September, Respondent’s diver for the icebreaker
project, Rich Parker, was injured and had to be replaced. Vern
Pascal was hired as the replacement diver. He testified that
when he first had been contacted by McKenzie, on September 8
or 9, he had asked about the pay. According to Pascal, McKen-
zie responded “that, I believe, the union scale, $17.65, but, if I
decided not to join the [U]nion, he would pay me $2.00 more.”
The General Counsel alleges that McKenzie’s response violated
Section 8(a)(1) of the Act.
McKenzie agreed that he had mentioned “around two bucks”
during his initial conversation with Pascal. However, he testi-
fied that when Pascal had asked about the pay, “I said, I’ll pay
you the, the same that I am paying Rich [Parker], which is the
carpenter’s scale. And he said, I said, I don’t remember exactly
what the retirement package is, but it’s somewhere around two
bucks. And I said, I’ll pay that, too.”
Pascal reported for work with Respondent on Monday, Sep-
tember 11. He testified that on the following Wednesday, Sep-
tember 13, he was approached by McKenzie, accompanied by
Business Representative Decker. Following an introduction, a
conversation ensued between Pascal and Decker. During that
conversation, Pascal testified, “Me and Jim Decker were facing
each other and Bob [McKenzie] was standing, maybe, a step
behind” Decker. According to Pascal, “Jim Decker asked me if
I would be interested in joining the [U]nion and, when he did
that, Bob was behind him, shaking his head no, and I had told
him [Decker] that I didn’t know enough about the [U]nion, that
I’d have to find out and I’d think it over and let him know
later.” The complaint alleges that McKenzie’s negative head-
shaking constituted an unlawful effort to urge an employee not
to join the Union.
McKenzie denied that he had ever urged Pascal not to join
the Union, but he did acknowledge having “urge[d] him to
stand back a little bit, examine the situation. You know, he had
never been around an organized union employment situation
before.” However, it is not disputed that Pascal had not worked
for Respondent for approximately 3 years and, when he had
done so during 1992, that he had worked only 2 days for Re-
spondent. Given that undisputed fact, McKenzie never ex-
plained how he supposedly had known that Pascal “had never
been around an organized union employment situation before.”
To be sure, Pascal had said to Decker that he “didn’t know
enough about the [U]nion[.]” Even so, the Union is not the only
labor organization in Southeastern Iowa, as the Heavy and
Highway Construction Agreement, alone, reveals. So, Pascal’s
unfamiliarity with the Union would not mean that he had
“never been around an organized union employment situation
before,” as McKenzie asserted. In the end, McKenzie never did
explain how he supposedly had known what experience Pascal
may have had with unions.
McKenzie agreed that he had shaken his head negatively
while Pascal had been speaking with Decker. But, he denied
that, by having done so, he had been urging Pascal not to join
the Union: “Oh, absolutely not. No.” Yet, his testimony as to
why he had been shaking his head in the negative was not con-
sistent.
During direct examination, he claimed that, as Pascal and
Decker had been talking, “I am standing about, oh, ten, twelve,
fifteen feet away from them. They are just having their own
little private conversation. And I sort of know what the conver-
sation is. God, I have been around this long enough.” Specifi-
cally, with regard to his headshaking, McKenzie testified:

I was just shaking my head, you know, just like I am shaking
my head right now, just, I said, golly, here I find Vern. I find
the diver. You know, and I know it’s happening. I know Jim
is up there, you know, talking to him about either joining the
[U]nion or going to put him on permit or we call the Dobby,
you know, so he gets a fee out of the guy. And I think, geez,
this really isn’t what America is really all about.

However, McKenzie would not adhere to that explanation that
he had shaken his head negatively in the course of thinking how
unfair it was that the Union would collect at least a fee from an
employee whom Respondent had located.
During cross-examination, he appeared to renew, instead, his
above-described concern that Decker probably had been trying
to take advantage of Pascal. “I have seen this situation many
times in my life where the business agent comes up to the diver
and he either wants to collect what we call a dobby or monthly
payments or a work permit or else to collect the full fee to join
the union, which can be a standard $250 fee,” McKenzie testi-
fied. He continued, “So that’s why I just started shaking my
head like this and saying, oh, God, here it’s going on again.
And I really don’t approve of that.” As it turned out, that expla-
nation would cause some difficulty for McKenzie.
Asked what a “dobby” is, he testified, “A dobby is to . . . col-
lect. The business agent will come up to a fellow and say, you
know, pay us 20 bucks a month and I’ll let you work this job.
That’s what a dobby is.” Later, McKenzie testified, “A dobby,
that gives the man a permit,” so that employee will be able “to
work for a specific length of time, usually a week or a month.”
Yet, Respondent presented no evidence showing specific past
situations when McKenzie had seen Decker, or any other agent
of the Union, trying to collect a dobby, or any other form of
monthly payment, from a diver, nor from any other employee
working on one of Respondent’s projects. And Respondent

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
presented no evidence that McKenzie had ever seen an agent of
any other union make such an effort. To the contrary, he con-
ceded that, during the “six, seven years” that he had known
Decker, McKenzie had no knowledge of Decker using the term
“dobby,” had never seen Decker sell someone a permit, and had
never heard Decker asking for a dobby or for permit money.
Still, McKenzie asserted generally about business agents, “I
have never seen the time when they don’t want some of your
money, if that’s what you are asking.” But, he never specified a
single past instance when he had seen or heard Decker doing
so, even assuming that his general assertion had been accurate.
It should not pass unnoticed that McKenzie’s concern about
the Union collecting forced payment from Pascal—to “let you
work this job”—is not altogether consistent with its overall
position that the 1994–1997 collective-bargaining contract did
not apply to Union Electric’s icebreaker rehabilitation project.
If that contract did not apply to that project, then Decker would
have had no basis for insisting that Pascal pay a dobby or per-
mit fee to work on that project.
In any event, even had McKenzie truly not intended his
headshaking as a signal to Pascal, the fact that it occurred in a
context where Decker had been speaking to Pascal about join-
ing the Union, and where McKenzie knew or at least suspected
as much, would naturally leave Pascal believing that his em-
ployer did not want him to join the Union. Indeed, that is pre-
cisely what Pascal testified that he had believed. Accordingly,
Respondent is responsible for the effect on an employee of
McKenzie’s conduct, regardless of the latter’s true intent. See,
e.g., Cook Family Foods, 323 NLRB 413, 414 fn. 5 (1997).
That belief, as to McKenzie’s purpose for shaking his head in
the negative, would only be reinforced by what occurred there-
after.
About a week later, as the crew was on the Iowa bank pre-
paring to get onto the boat to leave the dock, Pascal testified,
McKenzie “walked up to me and asked if I was planning on
joining the [U]nion.” According to Pascal, he had replied that
he “had been thinking about it” and, at his age, the opportunity
to participate in the pension plan available through the Union
left joining it “looking pretty good to me[.]” Pascal testified
that McKenzie “told me once again that he would pay $2.00
more per hour if I didn’t join the [U]nion.” As with the earlier
similar remark which Pascal attributed to McKenzie, the com-
plaint alleges that his remarks to Pascal on this day also consti-
tuted an unlawful promise to pay an employee not to join the
Union.
McKenzie denied generally that he had ever urged Pascal not
to join the Union. However, when he was asked if he ever had a
conversation during which he had offered Pascal $2 an hour
above union scale if Pascal did not join the Union, McKenzie
really never answered that question. Instead, he launched into
an explanation of what he had said to Pascal, during their initial
conversation about the “around two bucks” to cover the Un-
ion’s “retirement package,” as quoted above. Accordingly,
McKenzie never actually did deny with specificity that he had
offered $2 an hour above union scale if Pascal would refrain
from joining the Union. And he never denied having partici-
pated in the dock conversation with Pascal, about a week after
the latter had been spoken to by Decker about joining the Un-
ion.
Ultimately, Pascal did choose to join the Union and did so on
approximately October 10. He paid an initiation fee of $250
and apparently signed a dues-checkoff authorization. Thereaf-
ter, dues, pension contributions, and vacation pay were de-
ducted from his paychecks. Even so, as discussed in subsection
F, infra, Pascal testified that McKenzie renewed his effort to
persuade Pascal not to be a union member, following the termi-
nations of November 1.
E. The Events of November 1
Throughout their testimony, Respondent’s two principal wit-
nesses—McKenzie and Terrance “Sonny” Little, one of Re-
spondent’s two superintendents5 on the icebreaker project—
complained about the carpenters whom the Union had dis-
patched to the Union Electric project and about various aspects
of their performance while working there. However, neither
McKenzie nor any other witness testified that there had been a
decision prior to November 1 to discharge any of the carpen-
ters, nor to discontinue recognizing the Union and honoring the
1994–1997 contract with it. Rather, McKenzie made those
decisions on the basis of asserted events which, he testified, had
occurred on November 1. Accordingly, it is events of that day
which are the significant consideration in evaluating Respon-
dent’s motivations for McKenzie’s actions that day.

There is some dispute about certain events which occurred
on that date. However, there also are several facts which are
either uncontested or as to which there are agreement. Sched-
uled to be performed on November 1 was essentially the work
described in subsection B as work which occurred on the third
day of a cycle of restoring a beam portion of the icebreaker:
setting the gang forms, putting the ten tie rods across, and se-
curing the bulkheads, preparatory to pouring concrete which
was would occur on the following day. A seven-member crew
was scheduled to perform that work: Superintendents Little and
Dennison, Carpenter Foreman Don Patterson, journeymen car-
penters Mark Spiekermeier and Fred Arnold Jr., apprentice
carpenter Steven Perry, and diver Pascal.
Spiekermeier and Arnold had worked for Respondent in the
past without, so far as the evidence shows, being discharged or
otherwise disciplined. Patterson first worked for Respondent on
the icebreaker project. He had begun doing so in May and,
when Respondent selected a carpenter foreman, had been the
carpenter chosen to be appointed foreman. McKenzie charac-
terized Perry as “a very good worker,” and testified, “I liked
him.” Indeed, McKenzie acknowledged that, while working on
the icebreaker project, Perry had received a pay raise from,
“Seven dollars to eight dollars and eighty three cents an hour,”
a not insignificant amount.
There had been rain at the project during, at least, Monday,
October 30. That led to work being stopped during the day.
Possibly there had also been rain there on Tuesday, October 31,
although it appears that work had continued throughout that
workday. On Wednesday, November 1 there also was precipita-
tion. But, as discussed further below, the degree of it is dis-
puted.
The crew was scheduled to report to the Yacht Club dock, to
be portaged to the project, at 7 a.m. Neither Arnold nor Perry
reported then or at any other time during that day. Admittedly,
Arnold had said on Monday that he did not intend to report on
Tuesday or Wednesday if it was raining where he lived. It was
and he reported on neither day. As to Perry, the electricity had

5 There is no allegation that Little or the other superintendent, Larry
Dennison, had been statutory supervisors or agents of Respondent.

MCKENZIE ENGINEERING CO. 483
gone off for a period while he slept at home. By the time his
alarm awakened him, it was too late to arrive at the dock by 7
a.m. So, he did not report. Nor did he attempt to contact Re-
spondent to report that he would not be coming in. Nonetheless,
it does not appear that McKenzie truly had intended to dis-
charge Perry for not reporting and for not having called in,
since at one point McKenzie admitted, “I fired Steve Perry
because the other three [carpenters] had been fired.” However,
at other points McKenzie contradicted himself concerning his
reason for terminating Perry.
During the day of November 1, there were two conversation
between McKenzie and Decker about the job. During the inter-
val between those conversations work stopped for the day on
the project. McKenzie had not been at the project when work
stopped and the carpenters, accompanied by Pascal, left. Upon
discovering that they had done so, McKenzie fired all four car-
penters, but not Pascal, and withdrew recognition from the
Union, thereafter not honoring its contract with Respondent.
The General Counsel alleges that those actions violated the Act.
Respondent contends that McKenzie had been motivated by the
events of November 1 which represented the capstone to a
course of unsatisfactory performance by both the Union and its
carpenters throughout the project’s duration to then.
Inasmuch as McKenzie made all of the allegedly unlawful
decisions, it is his motivation which is of necessity the “pivotal
factor” or “focal point” of analysis not only as to the allegations
of discrimination, see discussion, Schaeff, Inc., 321 NLRB 202,
210 (1996), enfd. 113 F.3d 264 (D.C. Cir. 1997), but also be-
cause the terminations were an integral component of Respon-
dent’s asserted motivation for withdrawing recognition from
the Union and for refusing thereafter to honor its collective-
bargaining contract with the Union.
The fact is that McKenzie gave testimony about the sequence
of events on November 1 which was sometimes internally con-
tradictory, other times inconsistent with Respondent’s other
evidence and with objective considerations, and on occasion
uncorroborated by Superintendent Little, Respondent’s other
principal witness, in material respects. Little also gave testi-
mony which was often not reliable. Those objective considera-
tions, illustrated during the discussion which follows, support
my impression, formed as they testified, that they were not
being candid and that their testimony cannot be relied upon.
Probably the best starting point in that respect is the testi-
mony given by each on direct examination during Respondent’s
case-in-chief when, presumably, Respondent was presenting
the facts in a posture most favorable to its defense. McKenzie
testified that, “I was at the Yacht Club at 6:30” on November 1
and,

I waited around for the crew. You know, our leaving time is
7:00. You know, we might have waited around a couple of
more minutes for Steve [Perry] and Fred [Arnold]. They
didn’t show and the, the pontoon boat goes out to the jobsite.
And I hang around maybe another five minutes with my car.

Then, testified McKenzie, he had driven “around to the Hamil-
ton [Illinois] side [of the dam] and, and come across the dam. I
want to make sure that we get those end bulkheads in so we can
pour the following day.”
According to McKenzie, “I would be out to the jobsite at
about quarter to 8:00, say.” After arriving, he testified, the fol-
lowing events transpired:

I see Mark Spiekermeier there. And Larry Dennison is
running the crane and he is passing something over to him.
It’s not a big thing. I even forget what it was. But, it might
have weighed a couple hundred pounds, with the crane.
And he dropped it, oh, you know, in front of Mark maybe
a foot or two. That, I’m not saying it happens all the time,
but it sure happens a lot. And Mark yelled like mad at
Larry, you know, by God, watch what you are doing.
Don’t you know how to run the crane and that kind of
stuff. And I could see that Mark was pretty huffy. And so,
you know, after that happened, you know, Mark is down
in the coffer dam with Don [Patterson] and says, you
know, all we got to do is set these four end forms. You got
the top tie rods on because the day before, I knew that we
had all the gang forms set. All we had to do from the pre-
vious, I knew that all we had to do was put the Dywidag
top rods across. I think there is about ten of them you put
across. That takes, you know, a half hour to do. So all we
had to do was put in those four bulkheads that day. We can
make a pour the next day. And we have always been able
to put those bulkheads in in about four hours. And so
Mark is down there with Don. And I send Larry down
there to help him. You know, they are two guys short. And
Mark turns around to me and says, hey, we are not work-
ing with these guys. You know, they are not carpenters.
Larry is not a carpenter. And I said, you know, bullshit. I
said, your guys don’t show up. You know, I got a contract
to do. You got a responsibility to perform and let’s get
those bulkheads in. They said, no way. We are going to do
it ourselves.

Confronted with that situation, testified McKenzie, “I got mad-
der than hell and read them the riot act,” after which, “I said, I
am going to go back, I said, I am going to go back and talk to
your business agent, Jim Decker, right now. We are going to
get this straightened out. Cause I was hot.”
McKenzie testified that there had been no arrangements
made prior to November 1 for him to meet with Decker that
day and, moreover, that there had been nothing other than his
firsthand observation of what had occurred that morning which
had led him to meet with Decker. Upon arriving at Decker’s
office, testified McKenzie,

[T]he first thing I did, I, you know, explained to him, I said, I
am really unhappy. I said, you know, you got, two of your
guys didn’t show up today. I said, Fred didn’t show up and
Steve didn’t show up. And I said, boy, it’s hard to run a con-
tract when you are short handed like that. And I told him, I
said, you know, I have heard from Mark Spiekermeier that
Fred isn’t going to show up on rainy days. And, you know, it
might be a rainy day and the guy doesn’t show up. So then I
get into the fact, I said, you know, I have got a work stoppage
out there. And I, I said, I was out there this morning, you
know. And all we have to do is set those four end forms and
we can make our pour tomorrow. An easy thing to do, we
have done it before. It takes a four hour operation. And I said,
I also told him about the incident of Mark Spiekermeier where
he claimed that Larry dropped the load on in front of him. I
said, you know, that happens, but it’s just no big deal. And I
have been in construction 35 years and we have never had an
accident. I am the only contractor I know that hasn’t had an
accident.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
According to McKenzie, Decker “was surprised the two guys
didn’t show up,” and said he could not go to the site immedi-
ately, because of a conflicting appointment, but would go there
later during the day.
At that point, testified McKenzie, “I told him . . . . I sent
Larry down to help Mark and, and Don get those end pieces in.
And, you know, Mark reads the riot act to me saying, you
know, Larry is not a carpenter. He is an operator. We are not
going to work with him.” According to McKenzie, he repeated
for Decker that,

I told Mark, I said, look, you guys are short. Two of your guys
don’t show up. I got a contract with Union Electric. We got to
produce. You got to produce. And you are not going to do it. I
said, you guys are doing a work stoppage on me. So I was
just, I mean, I was so mad, you might assume I sound mad
now. I was twice as mad.

McKenzie testified that he left Decker’s office, “ran up to my
office, which is about a mile away and I checked in to see if I
had any telephone calls,” and, then, “head[ed] back to the job-
site.”
Upon arriving there, testified McKenzie, he discovered that
“Mark and Don were gone” and Little “tells me what’s hap-
pened and I said, well, did you guys get the bulkheads in? He
said, no. I said, hey, it’s not raining very much, is it? He said,
no, it’s just a little sprinkle.” So, “I said, I am going to go back
and see Decker. I am really madder than hell.”
When he arrived at Decker’s office, McKenzie testified, “Jim
was at his desk and in front of his desk, he had two chairs. And
Mark and Don were sitting there drinking a beer talking to
Jim.” When he asked the two carpenters why they were not
working and why the other two carpenters had not shown up for
work, according to McKenzie, “they just sat there and sort of
mumbled. I think Don said, do you want a beer?” McKenzie
denied expressly that either carpenter had said anything to the
effect that Little had called off the job. So, McKenzie testified,
“I said, you know, loyalty is a two-way street. I said, you know,
I have tried to be loyal to you guys and you guys got to be loyal
to me. And, you know, if it doesn’t work out, you know, we are
going to end this damn thing.” He testified that he also said,
“[Y]ou guys have basically stopped working. I said, I am just
going to go out in the street. I am going to go down to the Job
Services file, the unemployment office and I am going to see if
I can find some guys that want to work.”
It was then, testified McKenzie, that he had made the deci-
sion to terminate the four carpenters. As to his reasons, at that
point McKenzie testified, “Mr. Arnold and Mr. Perry weren’t
there. So they, you know, no shows deserve to be fired.” As to
Patterson and Spiekermeier, he testified that he had made the
decision to fire them, “[b]ecause of the work stoppage. They
wouldn’t work with Larry and we weren’t getting anything
done. You know, we had a history of that for, and it wasn’t just
today. It’s been going on for a long time.” Further, when called
earlier as a witness by the General Counsel, McKenzie ac-
knowledged having told Decker “if your people do not perform
I have no other choice than to” go my way and you go your
way.
As must be obvious from the foregoing description, McKen-
zie was not able to testify with firsthand knowledge as to what
had occurred at the project between his conversations with
Decker on November 1. Respondent’s evidence as to that
subject was supplied by Superintendent Little. During direct
examination, when appearing on behalf of Respondent, Little
testified that, “we were working up ‘til eleven o’clock,” when,

[E]verybody went in the shack [located in the coffer dam], as
I recall. The people that were there went in the shack. It was
more of—It was kind of a drizzly day and other things went
on. I walked in that shack and I said are we going to work to-
day or are we going to stand in the shack, probably, is what I
said, and I don’t even know what was said, but I went out of
the shack and then I walked around, just picked up tools, like
electric stuff laying out there, maybe, getting wet, I don’t re-
call. But I did go back in the shack again and I asked them if
they was going to work and, if they wasn’t, I said I can’t see
paying you for standing in this shack.
. . . .
And then I went out and I talked to the other superintendent.
He’s—He was up there at the time. And I said, Larry, if these
men aren’t going to work, we might as well shut down. Now
I, probably, did that because, being a boilermaker and a union
man, you start to work, you get paid four hours. So I thought,
well, we’ve got four hours, hopefully, made, let’s don’t get
paid for standing in the shack and not being productive.
That’s, probably, where I came from. Well, they wasn’t in-
tending on going out, anyway. So we went over and Larry
went in there and we looked at them. I don’t think anything
was said.

Asked if the crew had indicated to him that they were not going
to work, Little answered, “No, they didn’t intend to work. I
mean, when I went in the shack the second time, they was pick-
ing up their lunch box and that and, when everybody come out,
we started locking up the equipment.”
Obviously, an employer is free under the Act to discharge
employees who do not show up for work when they are sup-
posed to report. And, so too, is an employer free to discharge
employees who are refusing to continue work, so long as they
cannot be fairly concluded to have been engaging in a strike.
Even so, however, an employer cannot prevail on the issue of
motivation simply by showing existence of “a legitimate reason
for its action[.]” Roure Bertrand Dupont, Inc., 271 NLRB 443,
443 (1984). See also Monroe Mfg., 323 NLRB 8 (1997). For,
“the mere existence of a valid ground for discharge is no de-
fense to an unfair labor practice charge if such ground was a
pretext and not the moving cause.” NLRB v. Yale Mfg. Co., 356
F.2d 69, 74 (1st Cir. 1966).
Beyond that, “when a respondent’s stated motive for its ac-
tions are found to be false, the circumstances may warrant an
inference that the true motive is an unlawful one that the re-
spondent desires to conceal.” (Footnote omitted.) Fluor Daniel,
Inc., 304 NLRB 970, 970 (1991). See also Shattuck Denn Min-
ing Co. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Here,
while it has been shown that Arnold and Perry had failed to
report for work on November 1, there has been no credible
evidence that their failure to report that day had been the actual
reason for their discharges. Moreover, analysis of McKenzie’s
and Little’s testimony shows that it cannot be relied upon to
show any legitimate reason for the terminations of Patterson
and Spiekermeier, either.
At the first stage of November 1’s events, when the crew re-
ported to the Yacht Club dock for work on November 1, it is
accurate that neither Arnold nor Perry had been present and
neither of them reported for work later that day. Even so,
McKenzie’s sometime effort to portray himself as having been

MCKENZIE ENGINEERING CO. 485
unaware of why Arnold had not reported is contradicted by
other testimony which he gave.
By way of explanation, as pointed out above, there had been
precipitation during that workweek. Because of it, the project
had been shut down early on Monday, October 30. On that day,
Arnold testified, “The forecast was for rain to be all week,” and
so, “I more or less told them that if it was raining I wouldn’t be
in because it was just a waste of my time and their time and
their money for everybody to come in and stand around for two
hours and then go home.” He further testified that in Fort Madi-
son, where he lived, “Tuesday and Wednesday morning it was
raining at my place when I go up[.]” So, he did not report for
work on either day. On its fact, of course, such an attitude ap-
pears a somewhat arrogant usurpation of a prerogative belong-
ing to Respondent. Yet, there is more to Arnold’s situation.
In fact, Little had been made aware of Arnold’s no-show in-
tention. Arnold testified that he had informed Little about his
intention not to report on Tuesday or Wednesday if it were
raining. Little agreed, at least up to a point, with that testimony.
For, he testified, “Fred said, Sonny, if it’s raining tomorrow, I
probably won’t be in.” Little further testified that he had re-
sponded merely, “Fred, you do what you got to do. That’s my
favorite line.”
To be sure, as pointed out above, there is no allegation in the
complaint that Little had been a statutory supervisor. Neverthe-
less, McKenzie conceded that Little had possessed authority to
approve time off. In fact, a pre-November 1 illustration of that
approval authority was provided by McKenzie, when ques-
tioned about Perry’s early departure for work during October
for a court appearance:

A. He explained to the superintendent and I found out
later that he’d, I believe he had to go to Court in Burling-
ton.
Q. So he did not leave without permission, is that
right?
A. No.

Little never testified specifically that he had related to
McKenzie what Arnold had said. Still, if McKenzie had been
asking on the dock about Arnold at 7 a.m. on November 1, it
seems unlikely—or, at least, odd—that Little would not have
informed his employer about what Arnold had said. Yet, even if
Little had not done so, McKenzie gave testimony which shows
that he had been aware on November 1 of Arnold’s intention.
As quoted above, McKenzie testified that, during their first
conversation that day, he had said to Decker, “I have heard
from Mark Spiekermeier that Fred isn’t going to show up on
rainy days.” Moreover, McKenzie also testified that, even prior
to November 1, he had told Decker that, “Mark Spiekermeier
told me that Fred Arnold was going to work on good weather
days only. And . . . I said, your contract doesn’t read like that at
all. He, if he is a carpenter, he better show up. Period,” and
Decker “agreed with me.” Accordingly, McKenzie’s own tes-
timony refutes his assertion of unawareness on November 1 as
to why Arnold had not reported for work.
As to Perry, in a letter submitted during the investigation of
the charge underlying this proceeding, then-counsel for Re-
spondent stated that Perry “had failed to report for work on
several occasions in the past.”6 After questioning about those
supposed “several occasions,” however, McKenzie—who ini-
tially portrayed Perry as having “missed two days”—eventually
conceded, when shown Respondent’s attendance records, that
Perry only had missed “three hours” 1 day for the above-
mentioned court appearance, about which he had told Little in
advance, and a half day on October 30 because Respondent had
sent its entire crew home early due to rain. In other words, prior
to November 1 Perry had reported for all or most of every work
day and, conversely, had not “failed to report for work on sev-
eral occasions,” as Respondent had claimed during the investi-
gation.

6 Lest there be continued doubt about the subject, letters of counsel
submitted during the investigative phase of a proceeding are admissible
during the hearing phase. See Optica Lee Borinquen, Inc., 307 NLRB
705 fn. 4 (1992); Massillon Community Hospital, 282 NLRB 675 fn. 5
(1987); Bond Press, Inc., 254 NLRB 1227 fn. 1 (1981). For, “state-
ments made by attorneys in a representational capacity” are excluded
from the definition of hearsay. Lightning Lube, Inc. v. Witco Corp., 4
F.3d 1153, 1198 (3d Cir. 1993).
Indeed, McKenzie followed a similar course, about atten-
dance, when testifying initially about Arnold’s past attendance
while working on the icebreaker structure. McKenzie testified,
“Well, Fred Arnold I think, had worked like fifteen days for us
and he’d missed three or four days.” But, Respondent’s records
showed that, since beginning work for Respondent on October
2 on Union Electric’s project, Arnold had missed only 1 day,
during the week of October 9. Of course, he also had missed
work on October 31. As discussed above, however, that had
been an absence which he had reported in advance to Little. So,
presumably, it had been one, like Perry’s missed hours for a
court appearance, that Respondent did not regard as having
been without permission, since Little admittedly had not ob-
jected to what Arnold had said about missing work if it rained.
As additional support for Respondent’s decision to discharge
Perry, McKenzie testified generally that “[e]verybody was
informed” to call Respondent’s office to report whenever they
would be absent, either to McKenzie or to Diane Ford, the per-
son who performed Respondent’s office work. If neither were
there, the caller could record a message on the answering ma-
chine. Perry admitted that he had never tried to call Respon-
dent’s office upon awakening on November 1 and discovering
that his alarm had not gone off. However, he denied that he
ever had been told what to do whenever he intended not to
report for work. And neither McKenzie nor any other witness
for Respondent testified with particularity about having specifi-
cally told Perry what course to follow to report whenever he
would be absent.
As a practical matter, in fact, it would hardly have advanced
Respondent’s situation on November 1 had Perry called the
office. Perry testified that he had awakened at approximately
6:50 a.m. By that time McKenzie was already at the Yacht Club
dock. Ford testified that she does not usually report for work
until 7:30 a.m. McKenzie gave no testimony that, upon discov-
ering that Perry was not at the dock, he had called Respon-
dent’s office to ascertain if there were any messages on the
answering machine. In fact, his own above-quoted testimony
shows that not until after his first conversation with Decker had
he “checked in to see if I had any telephone calls with Diane.”
As a result, even had Perry called when he awoke on November
1, and recorded a message about his situation on the answering
machine, McKenzie would not have learned about it until well
after work had started that day.
Finally, in connection with the point at which the crew re-
ported for work on November 1, McKenzie sometimes testified

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486
that Perry and Arnold had been terminated for having failed to
report that day. Thus, he testified initially that Perry “was ter-
minated for not showing up,” and, so too, had been Arnold:
“When he doesn’t show up I say he terminates himself.” Later,
McKenzie renewed that testimony: “Mr. Arnold and Mr. Perry
wasn’t there. So they, you know, no shows deserve to be fired.”
No doubt, failure to report for work, when scheduled to do
so, is a legitimate reason to discharge employees. Even so,
however, as pointed out above the issue here is Respondent’s—
more specifically, McKenzie’s—actual motivation for
discharging Arnold and Perry. The fact that a legitimate reason
for discharge may exist does nor serve as a valid defense if it is
not the true motivation for discharge or is no more than a
pretext for another reason.
As pointed out above, McKenzie also testified that, “I fired
Steve Perry because the other three had been fired.” There can
be no doubt that McKenzie meant that testimony—that he mis-
spoke or that his testimony is being taken out of context. For,
he answered, “Yeah,” when asked if Perry had been fired, “For
no other reason than because you fired these other people,” and
then testified, “Well, if you have three of them gone you might
as well have the fourth one gone.” But, if the decision to fire
Perry had not been made until the decision to fire the entire
crew had been made later during November 1, it would follow
that McKenzie never had intended to discharge Perry, for fail-
ing to report, upon discovering that he had not reported and
during the time that McKenzie first had spoken with Decker.
In fact, McKenzie never contended specifically that he had
decided to discharge either Perry or Arnold upon ascertaining
that the two carpenters would not be reporting for work on
November 1. True, when he first spoke with Decker, McKenzie
had complained about the two carpenters’ nonappearance for
work that day. But, he never testified that he had told Decker
that Respondent was firing Perry and Arnold as it seems that he
would have done if he actually had intended at that point to
discharge them for failing to report for work.
Then, McKenzie testified that he had gone to his office “to
see if I had any telephone calls with Diane.” However, McKen-
zie never testified that he had said anything to her about
preparing final paychecks for Arnold and Perry, nor about tak-
ing any other steps to terminate those two carpenters. In fact,
Ford testified that she did not think that it had been before 11
a.m. when she had been directed to prepare final paychecks
and, at that, for all of the carpenters, not merely for Perry and
Arnold.
In sum, however upset McKenzie may have been that Perry
and Arnold had not reported for work on November 1, his ac-
knowledged conduct in the immediate wake of ascertaining that
they had not reported refutes any contention that he had de-
cided to fire either man solely for missing work on November
1. Rather, the evidence leads to a conclusion that, prior to dis-
covering later in the day that the entire project had shut down, it
appears that McKenzie had condoned their absences on No-
vember 1; “to ‘wipe the slate clean,’ and to . . . continue the
employment relationship as though no misconduct had oc-
curred.” (Footnote omitted.) White Oak Coal Co., 295 NLRB
567, 570 (1989). See also Jones & McKnight, Inc. v. NLRB,
445 F.2d 97 (7th Cir. 1971). Only later, after McKenzie had
decided to fire the entire carpenter crew, in conjunction with his
decision to sever relations with the Union, did he seize upon the
failure of Arnold and Perry to have reported on November 1, as
an afterthought to justify his decision to fire those particular
two carpenters.
The second phase of McKenzie’s narration about his No-
vember 1 activities concerned his claim that, after having
waited at the dock for a few minutes, he had gone out to the
project, where he had observed Spiekermeier becoming angry
about Dennison dropping the load; had heard Spiekermeier, and
possibly Patterson as well, refusing to work with Dennison, and
perhaps with Little, as well, performing carpenters’ work; and,
had chastised the crew for their refusal to work with the two
superintendents. However, there were several problems with
that recitation of asserted events.
Both Spiekermeier and Patterson denied that there had been
any discussion on November 1 about other crafts doing carpen-
ters’ work, denied having refused to work if Little or Dennison
performed carpenters’ work, and denied having refused to per-
form work that day for any reason. Now, it would have been
highly unusual for either Spiekermeier or Patterson to have
refused to work with Little or Dennison. McKenzie conceded
that “many, many times” in the past Dennison had assisted the
carpenters in their work and, further, that he had done so on
occasions when Patterson and Spiekermeier had been present.
Indeed, testified McKenzie, between May and November 1 on
the icebreaker structure rehabilitation project, it had been “just
about every day that when Larry wasn’t milling concrete, he
was, he was in there helping” the carpenters. Similarly,
McKenzie admitted that Little also had been “out there help-
ing” the carpenters with their work.
The only reason suggested by the record for a sudden refusal
on November 1 by Patterson and Spiekermeier to refuse to
work with the superintendents had been Spiekermeier’s as-
serted anger at having material dropped immediately in front of
him by Dennison, while the latter had been operating the crane.
McKenzie testified that, “Spiekermeier on occasion, especially
when the weather was hot and he was a little hot himself, would
complain to me about . . . this is our work. This is carpenters’
work and I don’t want Larry helping me and I don’t want
Sonny doing our work.”
Spiekermeier agreed that there had been an incident where
Dennison, while operating the crane, had dropped materials
near him. But, he testified that he did not “remember it being”
on November 1. Patterson acknowledged that Spiekermeier
“might have said something about Sonny” that day, inasmuch
as “Sonny always dropped stuff with the crane, so any time
Sonny was working in the crane somebody usually had some-
thing to say about it.” Nevertheless, McKenzie admitted that,
despite Spiekermeier’s complaints in the past, he “wouldn’t”
refuse to do his work on prior occasions with Little and Denni-
son. And, as pointed out above, both Spiekermeier and Patter-
son denied having refused to do so on November 1.
Significantly, diver Pascal, who also had been working as
part of the crew on November 1, corroborated those denials by
Patterson and Spiekermeier. In contrast, while McKenzie ac-
knowledged that Dennison remained employed by Respondent
at the time of the hearing, Dennison was never called by Re-
spondent to corroborate McKenzie’s testimony about Dennison
dropping material from the crane near Spiekermeier and about
the refusal of Spiekermeier and Patterson to work on November
1 with Little and Dennison.
Obviously, as the superintendent who supposedly had been
operating the crane when Spiekermeier became angry and,
more importantly, as the superintendent who supposedly had

MCKENZIE ENGINEERING CO. 487
been told to work with the carpenters in the coffer dam, Denni-
son had been a central figure in McKenzie’s recitation of those
purported events. After all, Dennison’s assignment had been
the event which supposedly had touched off the refusal to work
by Spiekermeier and Patterson. Certainly, as a superintendent
for Respondent, there is no basis for assuming that Dennison
would not be favorably disposed to Respondent’s interests, just
as Superintendent Little demonstrated that he was so disposed.
There was no evidence, nor representation, that Dennison was
not available for Respondent to call as a corroborating witness.
In consequence, Respondent’s failure to call Dennison, to cor-
roborate McKenzie’s testimony about the events of November
1, warrants an inference adverse to Respondent “regarding any
factual question on which [Dennison] is likely to have knowl-
edge.” (Citations omitted.) International Automated Machines,
285 NLRB 1122, 1123 (1987), enfd. mem. 861 F.2d 720 (6th
Cir. 1988). See also Rockingham Machine-Lunax Co. v. NLRB,
665 F.2d 303, 305 (8th Cir. 1981), cert. denied 457 U.S. 1107
(1982).
Of course, Little did appear as a witness for Respondent.
But, he gave no corroborative testimony for McKenzie’s de-
scriptions of the asserted material-dropping in front of
Spiekermeier and of the purported refusal of Spiekermeier and
Patterson to work with the two superintendents, or either of
them, on November 1. Little did claim generally that, “[s]ome
men did. Some men didn’t” work that day. Yet, given the fact
that there only had been three crew members, aside from the
superintendents, working that day, Little’s followup testimony
was rather bizarre: “A couple of them would work good. A
couple of them wouldn’t,” and, “A couple people were walking
around. Then, when they would commence to quit walking,
another man would.” The carpenters and the diver had names.
Little knew who they were. These vague descriptions appeared
to be nothing more than an illustration of what seemed to be
Little’s effort, as he testified, to tailor his testimony so that it
would be most favorable to Respondent.
Perhaps the most significant aspect of Little’s testimony was
his failure to corroborate even McKenzie’s testimony that
McKenzie had gone to the project on November 1, before hav-
ing first spoken with Decker and before the crew had left work
that day. Prior to Little’s appearance as a witness for Respon-
dent, both Spiekermeier and Patterson had each denied having
seen McKenzie on the project that day. So, also, had diver Pas-
cal. Asked if he had seen McKenzie on the job after having left
the dock around 7 a.m., Little testified guardedly, “I can’t really
remember if I saw him or did not see him between then and the
time that I did see him later on in the morning,” when, “I saw
him coming to the job and the carpenters had left.”
Indeed, Little’s description of how McKenzie ordinarily
managed projects left an inherent doubt that, despite McKen-
zie’s testimony to the contrary, McKenzie likely would have
come from the dock to the project when the crew first arrived
there: “He gets there very early in the morning and he usually
gets out there long before we do and he looks the job over,”
after which, “he comes back to the Yacht Club where we meet
and visit.” Indeed, McKenzie did testify that he had arrived in
Keokuk at 6:30 a.m. on November 1. So, it is quite likely that if
he did follow his ordinary procedure, described by Little,
McKenzie never even went to the project after the crew left for
it on the boat that day. That certainly would explain why
neither Dennison nor Little corroborated McKenzie’s disputed
testimony about the dropped materials and about Spiekermeier
Spiekermeier and Patterson’s asserted refusal to work that day
with the superintendents.
Turning to the next stage of McKenzie’s testimony of events
on November 1, there is no disagreement about the fact that he
and Decker had participated in a conversation. There is a dis-
pute as to where it occurred and, also, a dispute as to how it
came to have occurred. There also are discrepancies in the two
accounts of what had been said. Yet, in the final analysis, these
disputed matters are not significant to resolution of McKenzie’s
credibility, nor to the issues presented for resolution by the
complaint. The only truly significant aspect of the conversation
is absence of anything arising during it which can be said to
disclose an intention by McKenzie to terminate Arnold and
Perry for not having reported that day, as discussed above.
More significant is the testimony about what was occurring at
the project.
McKenzie testified that, having left his office, he went to the
project where he discovered that the crew had left. He testified
that Little told “me what’s happened,” and “I said, well, did
you guys get the bulkheads in? He said, no,” after which, “I
said, hey, it’s not raining very much, is it? He said, no, it’s just
a little sprinkle.” The latter question is a rather odd one, given
the fact that seemingly McKenzie was as capable as Little of
determining the degree of rain which was occurring. Moreover,
other than testifying that Little had reported “what’s happened,”
McKenzie never testified with particularity what precisely Lit-
tle had said. Presumably, Respondent appears to intend that it
should be inferred that Little had reported to McKenzie the
events as Little described them when testifying. Yet, there were
a number of problems with that testimony by Little.
First, his testimony was internally contradictory as to
whether or not he had been the one who had shut down the job
on November 1. Initially he testified, “No, I never gave them
any [instructions] to shut the job down,” and, “That was their
[the carpenters’] decision, not mine” that the crew should go
home. Yet, in his own above-quoted description of what assert-
edly had occurred at the site on November 1, Little admitted,
“And I said, Larry, if these men aren’t going to work, we might
as well shut down.” (Emphasis added.) Little further testified
that he had said to Dennison, “We’ve got four hours in, if it’s
going to continue to rain, we’re not going to get any produc-
tion, let’s shut down now, if that’s what they want to do.” (Em-
phasis added.) To be sure, Little blamed the decision on the
supposed unwillingness of the crew to work more that day. But,
his own description of what assertedly had occurred that day
leaves no doubt that, contrary to his express denials, he, and
perhaps Dennison as well, had made the actual decision to shut
down on November 1.
Second, both McKenzie and Little gave internally contradic-
tory testimony regarding whether or not it had been raining that
day. Little testified, “[I]t was not raining that day” and, more-
over, “It wasn’t raining. It was drizzling.” Yet, in his above-
quoted description Little testified that he had said that day, “if
it’s going to continue to rain, we’re not going to get any pro-
duction[.]”
McKenzie also testified inconsistently about the weather that
day. He claimed that it had been “drizzling”—what he called
“old Scottish mist.” But, when he described what had been said
during his first conversation with Decker that day, as quoted
above, he testified that he had said, inter alia, “it might be a
rainy day.” In fact, when called as an adverse witness by the
General Counsel—before having heard the employee-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488
witnesses’ descriptions of the weather on November 1 and its
affects on their ability to continue working that day—
McKenzie was asked is it was not true that it had rained on
November 1. He answered, “Yes, it did.” He also testified,
during that examination, “When I got to the jobsite the crew
had been rained out.”
Third, even the rain would not ordinarily have stopped work
for the day unless it was somewhat heavy, as had been the fact
the preceding Monday, October 30. For, neither McKenzie nor
Little contradicted Patterson’s testimony that usually the crew
would wait in the coffer dam shack for the rain to stop. So, it
should not have been surprising for Little to have discovered
them there on November 1, while it was ``continu[ing] to rain.”
In that regard, Little made two rather interesting statements:
“[I]f it’s raining, this man [McKenzie] will pay them for sitting
in that shack all day long,” and, “I leave it up to their discre-
tion. If they want to go out and work, we have rain gear.” Now,
if it is left to the discretion of the carpenters to decide whether
or not to work while it rains, as Little admitted, and if Respon-
dent is willing to pay them to stay in the shack while waiting
out the rain, as Little also admitted, then left unexplained is
why Little would have decided on November 1 to shut down
simply because it was raining and the crew was in the shack.
Assuming it was only drizzling, the crew was doing nothing
out of the ordinary by waiting in the shack for it to clear. It
would have made no sense for Little to conclude that, “I can’t
see paying you for standing in this shack.” But, if it was raining
more heavily than McKenzie and Little were sometimes willing
to concede, then, as on October 30, it would have made sense
for Little to send the crew home, since they would not be able
to complete their work during the remainder of the day, given
the weather. In any event, contrary to Little’s testimony, the
fact that the crew was in the shack did not constitute any indi-
cation that they did not intend to work further that day. After
all, admitted Little, McKenzie had been willing to “pay them
for sitting in that shack all day long[.]”
Fourth, in his above-quoted description, during direct exami-
nation, Little testified that when he had asked, “[A]re we going
to work today or are we going to stand in the shack,” he did not
“even know what was said” in response. In fact, at no point
during that particular description did Little attribute any remark
to any of the three men in the shack. During cross-examination
Little initially renewed his assertion as to the crew’s possible
response to his question: “The exact words I don’t know,”
pointing out, “I’m a little bit hard [of] hearing and so I left the
shack.”
As cross-examination progressed, however, it seemed to
dawn on Little that inability to describe what one or more of the
crew might have said, in response to his asserted question that
day, was not so helpful to Respondent’s positio—that nonre-
sponse might not truly demonstrate that “they weren’t going to
go to work” and that perhaps an unheard response might leave
an impression that it had not been the crew who was responsi-
ble for the November 1 shutdown, as Respondent is contending.
So Little abruptly reversed field, testifying suddenly that,
“They said to me we’re not working in the rain.” Thereafter, he
maintained that he had been told that by the crew, never bother-
ing to explain how he now was able to overcome his hearing
problem and testify that, yes, he did “know what was said[.]”
In the final analysis, even that altered answer does not
change the inconsistency between the crew saying it was not
working in the rain and Little’s above-quoted testimony that he
ordinarily left it “up to their discretion” whether or not to do so,
since McKenzie was willing to “pay them for sitting in that
shack all day long” while waiting out rain.
Significantly, Patterson and Spiekermeier testified that there
only had remained that day an hour or an hour-and-a-half’s
work to be finished when they had left the icebreaker on No-
vember 1. Patterson explained that only “the three remaining
bulkheads” were left to be installed, after which concrete could
be poured, as McKenzie testified had been scheduled for the
following day. Little never challenged that testimony. Nor did
he dispute Patterson’s testimony that, “[t]here had to be a break
in the rain sometime during the day when we could get that
finished and pour it the next day.” According to Patterson,
when that was brought to Little’s attention, the latter had re-
torted only, “we’re going home.”
Obviously, as is true of McKenzie’s testimony about the
purported earlier events that day, Dennison seemingly could
have corroborated Little’s accounts of the events leading to
termination of work on November 1. But, Respondent never
called Dennison. As a result, Little’s testimony remains uncor-
roborated by Dennison. No less is an adverse inference is al-
lowable in the context of Little’s testimony than was the fact, as
discussed above, in connection with the testimony of McKen-
zie.
The foregoing discussion provides but some examples of the
internally contradictory, inconsistent, and uncorroborated tes-
timony advanced by McKenzie and by Little. They serve to
illustrate the impression which I formed that the testimony of
neither man was being advanced reliably and, consequently, I
do not credit McKenzie and Little.
F. McKenzie’s Remaining Conversations with Pascal
Respondent did discharge Patterson, Spiekermeier, Arnold
and Perry on November 1. It set out to locate, and did hire new
employees to complete the project before its winter shutdown
in 1995 and, also, continued the project during 1996 with em-
ployees whom it hired directly, rather than through the Union.
In addition, it withdrew recognition from the Union on Novem-
ber 1 and repudiated the 1994–1997 collective-bargaining con-
tract to which it was a party with the Union. Respondent did
not, however, fire diver Pascal on November 1, even though he
also had been one of the crew members who had left the project
early on November 1.
On that date, Pascal was in his motel room when he learned
that McKenzie had fired the carpenters. He went to Respon-
dent’s office and inquired if he also had been fired. McKenzie
answered that he had not and would be expected to continue
working. However, dues and pension and vacation contribu-
tions ceased being deducted from his paycheck after November
8. Further, by check dated November 15, Respondent paid Pas-
cal $100.66. Printed on the bottom left portion of that check is
the legend, “REFUND OF UNION DUES & VACATION
WITHHELD 11/1–11/8.”
Upon receiving that check, Pascal testified, he approached
McKenzie and inquired about it:

I asked him why my union dues and vacation pay and pension
plan wasn’t[ ] being taken from my check and he said that I
didn’t need the [U]nion and that in five years there wouldn’t
be any union and I’d lose my pension, anyway, which then I
told him that I had paid $250.00 initiation fee to get into the
[U]nion and that I’d prefer to stay in the [U]nion and he had

MCKENZIE ENGINEERING CO. 489
told me that, if I was to quit the [U]nion, he would give me
the $250.00 back.

“I said I didn’t know, I’d think about it,” testified Pascal. The
General Counsel alleges that McKenzie’s statements violated
Section 8(a)(1) of the Act. McKenzie denied generally having
ever promised to give Pascal $250 if the latter would quit the
Union.
“It could have been the next day or a few days later,” Pascal
testified, that “I told Bob that I would prefer to stay in the
[U]nion and that I wanted him to continue to take my dues and
union pension plan and vacation out.” Respondent resumed
doing so, but not without further discussion of the subject by
McKenzie with Pascal.
Pascal testified that on November 21 he was approached by
McKenzie who was holding a “tablet of paper.” According to
Pascal, “Bob told me that he wanted to show me his insurance
as it compared to the union insurance,” and, “He described the
paper and it showed me what his insurance cost and his benefits
with his insurance and the [U]nion’s insurance and he had told
me . . . to look it over and see what I thought about it and that
next year his company was going to have medical insurance
and that he would like to do away with the [U]nion.”
Pascal identified a document shown to him as the one given
to him by McKenzie. Nothing on that document lists the bene-
fits provided by the Union. However, McKenzie agreed that, “I
handed Vern a piece of paper and it had written on the, the
health plan that I personally have for myself.” He testified that
he had explained what he, personally, paid for the coverage
provided to him, as well as the deductible amount. Moreover,
McKenzie agreed that, while showing that calculation to Pas-
cal, he had pointed out that the Union “doesn’t have a health
policy. And then I showed him where the local up in the Quad
Cities has a health policy, a health and welfare policy,” and,
further, “I deducted the cost that [the Union] has just for re-
tirement. So that left, I think, about $3.50 an hour that could go
into . . . a health, you know, fund.”
McKenzie denied expressly having said that he wanted to do
away with the Union: “Not at all. I said . . . if I were Jim
Decker, I would . . . get the same policy I have. It’s a good
deal.”
II. DISCUSSION
From an overall perspective, what emerges from review of a
preponderance of the credible evidence set forth in section I is a
situation where an employer had been complaining for some
time about its situation in the face of competition which was
not unionized. The employer warned of its intention to some-
day become nonunion. Then, it successfully underbid the com-
petition on a particular project, but its low bid left it with a
relatively narrow profit margin for that project. As the project
progressed, delays and seemingly unanticipated labor costs,
such as having to pay wages at the dredging level for part of the
work and appointing a foreman, naturally narrowed that margin
even further. In the face of those circumstances, eventually the
day did arrive when the employer did decide to go nonunion. It
repudiated its collective-bargaining contract, withdrew recogni-
tion from the incumbent union and fired all but one of the em-
ployees who were members of that union. By these actions, in
that employer’s view, it succeeded in leveling the playing field
with its nonunion competition.
Turning to the specific allegations made in the complaint, I
conclude that McKenzie did make the various statements at-
tributed to him by diver Pascal and, on one occasion, by car-
penter Spiekermeier. As to the latter, McKenzie admitted that
he had made statements about going nonunion. He did not deny
with specificity having made one such statement approximately
2 weeks prior to November 1. To be sure, the statement had not
been made to Spiekermeier; the latter merely had overheard it.
However, the fact that it had been overheard does not lessen the
inherently coercive impact of such a remark upon the employee
who overheard it. See Frontier Hotel & Casino, 323 NLRB 815
(1997), and cases cited therein.
Pascal was a credible witness. As a diver, he was not neces-
sarily included in the contractual bargaining unit described in
section I,C, supra, but the parties were free under the Act to
agree to add and subtract from that unit. As discussed in that
subsection, they obviously had done so with regard to the ice-
breaker restoration project, at least. Were Pascal to join the
Union, that would strengthen the latter’s support among the
icebreaker rehabilitation crew. Obviously, from his various
admitted remarks about going nonunion, that was not a conse-
quence desired by McKenzie.
Of course, a crew member who also was a member of the
Union was a result even less desired once Respondent had
withdrawn recognition from the Union. At that point, Respon-
dent was confronted with somewhat of a sticky wicket. It
needed a diver. But, divers were not readily obtainable for the
Keokuk area. As a result, it was desirable to retain Pascal for
diving. But it was not desirable to continue employing a mem-
ber of the Union after having withdrawn recognition from it.
Accordingly, there would have been an inherent logic to re-
newed efforts to persuade Pascal to refrain from remaining a
member of the Union. Which is what Pascal’s credible testi-
mony shows happened.
In sum, not only was Pascal a credible witness, but his ac-
counts of McKenzie’s remarks and action corresponds with
objective circumstances surrounding Pascal’s descriptions of
those remarks and actions. Therefore, a preponderance of the
credible evidence establishes that Respondent did offer an em-
ployee $2 above union scale to refrain from joining the Union,
did urge him through McKenzie’s negative headshaking not to
join the Union in response to Decker’s overtures to do so, did
offer him $250 to quit the Union, and did produce an alterna-
tive insurance plan to the one made available through the Union
while saying that Respondent would like to “do away with the
Union.” In addition, as concluded above, McKenzie also was
overheard by an employee saying that Respondent was going
nonunion. By each of these remarks and by the negative head-
shaking, Respondent interfered with employees’ statutory rights
to join and to assist, by remaining a member, a labor organiza-
tion, in violation of Section 8(a)(1) of the Act.
Turning to the four November 1 discharges discussed in sec-
tion I,E, supra, Respondent’s testimony about its motivation for
those discharges was not advanced credibly. Of course, that
does not “necessarily compel” a conclusion “that the Respon-
dent’s true motive . . . was discriminatory within the meaning
of the Act.” Precision Industries, 320 NLRB 661, 661 (1996).
Still, the fact that an employer advances false of pretextual
reasons for discharging employees is relevant when making a
determination concerning the actual or true motivation for al-
legedly discriminatory actions. See Property Resources Corp.
v. NLRB, 863 F.2d 964, 967 (D.C. Cir. 1988); NLRB v. Dillon
Stores, 643 F.2d 687, 693 (10th Cir. 1981).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490
For some time McKenzie had been warning that the day
would come when Respondent would abandon its relationship
with the Union. Such statements continued to be made, perhaps
with some increase, as the icebreaker restoration project pro-
gressed. In fact, as concluded above, Respondent resorted to
unfair labor practices in an effort to deter one newly hired em-
ployee from becoming a member of the Union. Respondent’s
specific concern about continued relations with the Union had
been affects of the cost of its collective-bargaining contracts on
Respondent’s ability to compete with nonunion firms in the
same industry. With specific regard to the icebreaker restora-
tion project, Respondent’s anticipated profit margin had been
narrow from inception of the project. It became even more so
as a result of delays and seemingly unanticipated labor costs
occurring as the project progressed through its first season.
Confronted on November 1 with yet another delay, occasioned
by inclement weather which forced a superintendent to shut
down for the day, Respondent abruptly severed its relations
with the Union, as it had long promised to do, and discharged
all carpenters whom the Union represented.
The totality of those circumstances supply evidence suffi-
cient to support a showing that Respondent’s termination of
Patterson, Spiekermeier, Arnold and Perry had been motivated
by its overall intention to withdraw recognition from the Union
and, thereafter, operate on a nonunion basis as its competitors
were doing. In the face of that showing, the burden shifts to
Respondent to credibly show that, regardless of its attitude
toward continued relations with the Union, those four employ-
ees would have been discharged for lawful reasons, in any
event. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). In view of the discussion set forth in section I,E, supra,
Respondent has failed to satisfy that burden.
True, both Arnold and Perry failed to report for work on No-
vember 1 and, when he spoke with Decker during their first
conversation that day, McKenzie expressed dissatisfaction over
their nonappearance. Yet, his later assertions that he had termi-
nated them for that reason are contradicted by other testimony
which he gave, such as his testimony that he “fired Steve Perry
because the other three had been fired,” and by the absence of
any evidence that McKenzie either had said or had taken any
action to fire either Perry or Arnold until he made the ultimate
decision to withdraw recognition from the Union and discharge
all carpenters whom it represented.
It also is accurate that work on November 1 had stopped
early. However, the evidence seems clear that, despite his
sometimes denial of the fact, it had been Superintendent Little
who had made the decision to shut down for the day. Although
Little claimed that he had done so because the reduced crew
was refusing to work any more, that testimony was not credibly
advanced, was not corroborated even by Dennison, and was
based upon a description of supposed events which was objec-
tively inconsistent with his claim that the crew had been refus-
ing to work. The credible evidence is that it had been raining at
the time Little shut down for the day. The crew may have been
in the shack, but Little acknowledged that Respondent’s prac-
tice had been to allow them to do so until rain stopped. Little
never challenged the testimony that Patterson had pointed out,
in response to Little’s announcement of the shutdown, that
there had to be a break in the weather that would allow the crew
to complete their scheduled work before the ordinary end of the
workday.
McKenzie and Little both claimed that Patterson and
Spiekermeier had been refusing to work on November 1. But,
the two carpenters denied that they had been refusing to work
on that or on any other day. Superintendent Dennison was
never called by Respondent to corroborate the accounts of
McKenzie and Little, even though Dennison had been a central
figure in the descriptions advanced by McKenzie and Little.
Given the employees’ uncontroverted testimony that only an
hour to an hour-and-a-half’s work remained to be completed
when Little shut down the project for the day, it would appear
that the work scheduled for November 1 could have been com-
pleted during the remainder of the normal workday, had Little
not chosen to shut down early. Moreover, it should not be over-
looked that McKenzie testified that only 4 hours of work would
be needed to complete the tasks scheduled for November 1.
Obviously, if only an hour to an hour-and-a-half’s work re-
mained when the crew had been sent home, a considerable
amount of the scheduled work already had been completed.
There is no reason to conclude that the crew would not have
continued performing that work, but for the rain and, then, but
for Little’s decision.
It appears that it had been McKenzie’s discovery of the shut-
down which precipitated his decision to sever relations with the
Union and to terminate the carpenters. As pointed out above,
that had been Little’s decision, not that of the crew. But, the
important fact is that the shutdown that day resulted in yet an-
other delay on the project, just as the midday shutdown on the
preceding Monday, October 30, had occasioned a delay. By
then, it was obvious to McKenzie that his costs had been rising,
both as a result of delays and of unanticipated labor costs, and,
concomitantly, narrowing his profit margin even further than
initially expected under his successful bid for the project. As a
result, he seized upon that shutdown and implemented his long-
contemplated plan to withdraw recognition from the Union.
Termination of Spiekermeier, Patterson, Arnold and Perry
was an integral component of Respondent’s withdrawal of rec-
ognition. Each was a member of the Union. Neither Superin-
tendent Dennison nor Superintendent Little was terminated,
even though the latter had made the actual decision to shut-
down and, from Little’s description, Dennison had concurred in
it.
Significantly, diver Pascal, who also had left the site early on
November 1, was not fired. To be sure, he was a member of the
Union by then. However, he was not necessarily encompassed
by the literal contractual unit description. He performed a task
for which it would be difficult to locate a replacement. And
McKenzie then made efforts to wean Pascal away from contin-
ued membership in the Union. Thus, Pascal’s retention is both
inconsistent with any contention that Respondent had dis-
charged the crew for leaving early on November 1 and consis-
tent with the evidence showing that Respondent’s true motive
for the discharges had been as an integral part of its overall
intent to terminate further relations with the Union.
In sum, the General Counsel has shown that the terminations
of Spiekermeier, Patterson, Arnold and Perry on November 1
had been unlawfully motivated. Respondent has failed to credi-
bly show that their discharges had been for a legitimate reason
and that it had actually relied upon that reason as the motive for
discharging those four employees. At best, Respondent’s de-
fense is pretext. At worst, it is completely false. Viewing the

MCKENZIE ENGINEERING CO. 491
evidence in its totality, I conclude that the General Counsel has
established by a preponderance of the credible evidence that
Respondent discharged the four carpenters on November 1 to
implement its overall plan of withdrawing recognition from the
Union—more specifically, to eliminate those members of the
Union whom it could readily replace, thereby depriving the
Union of any claim to representation of a majority of the em-
ployees who, thereafter, would be working on the icebreaker
rehabilitation project. Therefore, the discharges constituted
violations of Section 8(a)(3) and (1) of the Act.
As to the alleged bargaining violations, Respondent con-
cedes that it withdrew recognition from the Union, admits that
it repudiated its 1994–1997 contract and its terms, and ac-
knowledges that, thereafter, it directly hired carpenters and
established the employment terms under which those employ-
ees would work. No trust fund contributions were made on
behalf of employees working on the icebreaker after November
1. No dues-deduction authorizations were made available to
them.
Under the proviso to Section 8(d) of the Act, both employers
and labor organizations are obliged to refrain from making
midterm modifications of collective-bargaining contracts, with-
out the agreement to those changes by the other party to the
contract, and are obliged to honor collective-bargaining con-
tracts for the duration of their term. That statutory obligation is
one expression of “the federal labor policy that parties to a
collective-bargaining agreement must have reasonable assur-
ance that their contract will be honored.” (Citation omitted.) W.
R. Grace & Co. v. Rubber Workers Local 759, 461 U.S. 757,
771 (1983). In turn, that Federal labor policy is rooted in the
general tradition of Anglo-American jurisprudence that one
must perform as his/her contract is written. See E.G. & G.
Rocky Flats, 314 NLRB 489, 490 (1994). Accordingly, an em-
ployer violates Section 8(a)(5) and (1), and Section 8(d), of the
Act whenever it fails to continue honoring its collective-
bargaining contract and its terms. See, e.g., Ortiz Funeral
Home Corp., 250 NLRB 730 (1980).
That obligation exists even where, as the complaint specifies
is the situation here, the collective-bargaining relationship, and
the contract bred by it, is one which has arisen under Section
8(f) of the Act, rather than under Section 9(a) of the Act. See
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988),
cert. denied 488 U.S. 889 (1988). An employer is not free under
the Act to simply repudiate the contract and go its own way
thereafter.
Respondent contends that the Union had been failing to per-
form its own obligations under the 1994–1997 contract in con-
nection with the icebreaker project. In doing so, of course, it
relies upon the testimony of witness whom I have not credited.
But, even were that so, the Act does not countenance forms of
vigilantism whereby parties to collective-bargaining contracts
are free to simply abandon altogether those contracts, and the
entire bargaining relationships which have given rise to them,
and ride off into an unrepresented sunset, merely because of
unsatisfactory performance under those contracts by the other
side.
To allow that type of conduct would lead to industrial anar-
chy which is hardly contemplated and condoned under the poli-
cies of Section 1 of the Act. Article XX of Respondent’s 1994–
1997 contract with the Union sets forth a grievance procedure
for resolving disputes between the parties over performance
under the contract. Section 8(b)(3) of the Act provides a basis
for employers to file unfair labor practice charges should they
feel that labor organizations with whom those employers have
contracts are not honoring those contracts. Those are the appro-
priate avenues for employers to pursue whenever they believe
that their employees’ bargaining agents are failing to honor
collective-bargaining contracts. Self-help which terminates
altogether bargaining relationships is an unlawful course, under
the Act, when confronting such situations.
In sum, Respondent withdrew recognition from the Union
and repudiated the parties’ collective-bargaining contract on
November 1. Thereafter, Respondent directly hired carpenters
for, at least, the Union Electric project and applied to those
employees’ employment terms which Respondent formulated,
without notifying the Union of them. Respondent also ceased
making trust fund deductions and dues’ remittances, as required
under the 1994–1997 contract. By each of these actions, Re-
spondent violated Sections 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
McKenzie Engineering Co. has committed unfair labor prac-
tices affecting commerce by withdrawing recognition from
Carpenters Local Union 410, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO, a statutory labor organiza-
tion, during the term of a collective-bargaining contract be-
tween those parties, by repudiating that contract during its term,
by ceasing to make trust fund contributions required by that
contract, and by thereafter directly hiring employees and
imposing employment terms for them without regard to the
terms set forth in that contract, in violation of Section 8(a)(5)
and (1) of the Act; by discharging Donald Patterson, Mark
Spiekermeier, Fred Arnold Jr., and Steven Perry on November
1, 1995, because they were members of the above-named labor
organization and as part of the overall plan to terminate further
recognition of that labor organization, in violation of Section
8(a)(3) and (1) of the Act; and, by offering to pay an employee
$2 above scale if that employee refrained from joining the
above-named labor organization, by gestures which urged an
employee not to join the above-named labor organization; by
offering an employee $250 to withdraw from the above-named
labor organization, by stating that McKenzie Engineering Co.
was going to have to go nonunion, and by presenting an em-
ployee with an alternative insurance plan to the one provided
by the above-named labor organization and saying that
McKenzie Engineering Co. would like to do away with the
above-named labor organization, in violation of Section 8(a)(1)
of the Act.
REMEDY
Having concluded that McKenzie Engineering Co. has en-
gaged in unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and, further, that it be
ordered to take certain affirmative actions to effectuate the
policies of the Act. With respect to the latter, it shall be ordered
to, within 14 days from the date of this Order, offer Donald
Patterson, Mark Spiekermeier, Steven Perry, and Fred Arnold
Jr. full reinstatement, dismissing, if necessary, anyone who may
have been hired or assigned to perform their jobs, or if the jobs
of one or more of them no longer exists, to substantially
equivalent employment, without prejudice to seniority or any
other rights or privileges. In addition, within 14 days from the
date of this Order, it shall remove from its files any references
to their unlawful discharges on November 1, 1995, and, within

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492
3 days thereafter, notify each one of those four employees that
this has been done and that his discharge will not be used
against him in any way. Further, it shall be ordered to make
Patterson, Spiekermeier, Perry, and Arnold whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination directed against them, with backpay to be com-
puted on a quarterly basis, making deductions for interim earn-
ings, F. W. Woolworth Co., 90 NLRB 289 (1950), and with
interest to be paid on amounts owing, as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
McKenzie Engineering Co. also shall be ordered to recog-
nize and bargain with Carpenters Local Union 410, United
Brotherhood of Carpenters and Joiners of America, AFL–CIO
for the remainder to the term of the 1994–1997 collective-
bargaining contract and any automatic renewal or extension of
it. McKenzie Engineering Co. shall be ordered, to the extent
requested to do so by that labor organization, to rescind
changes in employment terms made on and after November 1,
1995, restoring those employment terms to levels which existed
prior to that date; to make whole all employees who worked for
it on and after that date for lost wages, calculated in accordance
with Ogle Protection Service, 183 NLRB 682, 683 (1970), and,
with regard to fringe benefits, to remit any payments it may
owe to those funds, determined in the manner prescribed in
Merryweather Optical Co., 240 NLRB 1213 (1979), and to
reimburse employees for any losses or expenses they may have
incurred because of its failure to make payments to those funds,
in the manner prescribed in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1991), with interest on any money owing, to be computed in the
manner prescribed in New Horizons for the Retarded, supra.
See generally Our Lady of Lourdes Health Center, 306 NLRB
337 (1992), and Excel Fire Protection Co., 308 NLRB 241, 248
(1992).
[Recommended Order omitted from publication.]