N.D. Peters & Co.

National Labor Relations Board - Board Decisions

Mar 19, 1999

327 N.L.R.B. 922 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
N.D. Peters & Company, Inc. and Teamsters, Chauf-
feurs, Warehousemen & Helpers, Local Union
182, AFL–CIO. Case 3–CA–20211
March 19, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
On June 4, 1998, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, N.D. Peters & Company,
Inc., Utica, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

Robert Ellison, Esq., for the General Counsel.
Armond Festine, Esq., of Utica, New York, for the Respondent.
John Amodio, Vice President and Business Agent, Local 182,
of Utica, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed by Teamsters, Chauffeurs, Warehousemen &
Helpers, Local Union 182, AFL–CIO (the Union) on August 1,
1996, and an amended charge filed by the Union on October 3,
1996, a complaint was issued on November 27, 1996, against
N.D. Peters & Company, Inc. (Respondent).
The complaint alleges, essentially, that on about April 1,
1996, Respondent unlawfully failed and refused to recall from
layoff its employee Charles Piccione (Piccione) because of his
union membership and activities and by doing so, it failed to
abide by the seniority provision in its expired collective-
bargaining agreement. The complaint further alleges that the
seniority provision in the contract is a mandatory subject of
bargaining, and that by failing to recall Piccione, and by failing
to abide by such provision, Respondent did not afford the Un-
ion an opportunity to bargain with it concerning such conduct
and the effects of such conduct.

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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard 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.
In adopting the judge, Member Brame notes that the judge did not
determine whether Charles Piccone would have returned to work if he
had been recalled by the Respondent.
The complaint alleges that Respondent’s conduct in failing
to recall Piccione and in failing to abide by the seniority provi-
sion violated Section 8(a)(1), (3), and (5) of the Act.
Respondent’s answer denied the material allegations of the
complaint, and asserted affirmative defenses that (a) the issue
of Piccione’s alleged failure to be recalled should be deferred to
arbitration and (b) Piccione “voluntarily avoided employment”
with Respondent due to his unwillingness to work under the
terms and conditions of employment implemented by Respon-
dent pursuant to an impasse in negotiations. On May 28, 1997,
a hearing was held before me in Albany, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a New York corporation, having its principal
office and place of business at 840 Broad Street, Utica, New
York, is engaged in business as a ready-mix concrete supplier.
The complaint alleges that during the past 12 months, Re-
spondent sold and shipped goods and materials valued in excess
of $50,000 from its Utica facility to other enterprises directly
engaged in interstate commerce. The complaint further alleges
that at all material times, Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The complaint also alleges that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Respondent’s answer denies knowledge or information suffi-
cient to support a belief as to the truth of the allegations con-
cerning jurisdiction and the labor organization status of the
Union.
On August 16, 1996, the Board issued an order in N.D. Pe-
ters & Co., 321 NLRB 927 (1996), in which, pursuant to a
stipulation of facts submitted by the parties, the Board found
that during the 12-month period ending March 19, 1996, Re-
spondent sold and shipped goods and materials valued in excess
of $50,000 from its Utica facility to other enterprises directly
engaged in interstate commerce, and that Respondent has been
an employer engaged in commerce within the meaning of the
Act. On July 9, 1996, Respondent filed an RM petition, implic-
itly asserting that the Board has jurisdiction over it in order to
exercise its authority in processing the petition.
The order also found that, pursuant to the parties’ stipulation,
the Union is a labor organization within the meaning of the Act.
Inasmuch as Respondent has not presented any evidence to
contravene its previous stipulations, and since its denial as to
jurisdiction was as to knowledge which was specifically within
its grasp, I find that no basis exists which would serve to deny
the assertion of jurisdiction herein. Superior Industries Interna-
tional, 295 NLRB 320, 321 (1989).
With further reference to the Union’s status, the complaint
alleges and Respondent admits that since about 1975 the Union
has been the exclusive collective-bargaining representative of
Respondent’s unit employees and has been recognized as such
by Respondent in successive collective-bargaining agreements.
I accordingly find and conclude that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
327 NLRB No. 167
N.D. PETERS & CO. 923
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The collective-bargaining agreement
Since about 1975, the Union has been the exclusive collec-
tive-bargaining representative of a unit of Respondent’s em-
ployees consisting of “all drivers, power-driven concrete block
machine operators, concrete block plant mixer men, yardmen,
batch men, mill men, truck helpers and mechanics.” The Union
has been recognized as such representative by Respondent, and
they have been parties to successive collective-bargaining
agreements, the most recent of which was effective from March
1, 1992, to February 28, 1995.
That collective-bargaining agreement contains a seniority
provision, which sets forth, in relevant part:

A. The principle of seniority shall prevail at all times.
B. . . . Lay-off due to seasonable reasons shall not ter-
minate the employees’ seniority.
. . . .
E. An employee who has been laid off shall be given at
least three working days to report to the job when he is
called back to work, without loss of benefits or rights. In
the event the employee fails to report within the specified
time, he shall lose any benefits and rights he may have
with the employer and a new employee may be hired.

The Respondent and the Union were unable to agree to the
terms of a new collective-bargaining agreement at the time it
expired on February 28, 1995, but nevertheless continued to
bargain after its expiration.
On October 13, 1995, Respondent wrote to the Union, de-
claring that an impasse existed. The letter noted that, in order to
effectively compete with other companies in the industry which
“pay substantially less to their employees,” it was imperative
that wage and benefit levels be reduced.
The letter further advised that Respondent was taking “uni-
lateral action” including (a) freezing wages at current levels; (b)
terminating its participation in the Union Health and Hospital
Plan, and instead offering Blue Cross, Blue Shield as alternate
health coverage, with 50 percent being paid by Respondent
only during those periods of time that the employee is actually
employed; and (c) not providing further pension benefits.
The letter also stated that “all other contract, terms and con-
ditions to the extent enumerated and/or established by past
practice including but not limited to recognition, scope of bar-
gaining unit, grievances and arbitration procedure, etc., to re-
main the same.” Respondent’s president, Ralph Ventura, testi-
fied that according to that letter, seniority was to remain in
effect.
On April 16, 1996, at the start of the 1996 season, Respon-
dent wrote to the Union, in which it advised, inter alia, that “a
majority of employees . . . do not desire representation . . . or
membership” in the Union, and that it “no longer recognizes”
the Union, and that “accordingly, all terms and conditions of
the expired collective-bargaining agreement are now moot and
future terms and conditions of employment are solely as agreed
between employer and employees, subject only to applicable
law and regulations.”
Thereafter, the Union filed a charge in Case 3–CA–20050, as
a result of which a settlement agreement was executed and
approved by the Regional Director on July 5, 1996, in which
Respondent agreed to recognize the Union. However, there has
been no bargaining since that time. As set forth above, on July
9, 1996, Respondent filed an RM petition.
2. The alleged failure to recall Piccione
Piccione became employed by Respondent in June 1986. He
worked as a cement mixer driver, a dump truckdriver, and a
yardman. Piccione was a member of the Union, and was paid
the wages and benefits provided in the contract.
Respondent’s business is seasonal, depending upon the ex-
tent of construction work available, and weather conditions.
Generally, the employees are employed from mid-April to late
October. According to the credited testimony of Piccione and
Aquilino DeCarolis, a former employee, seniority prevailed in
layoffs at the end of the season, and in recalls at the beginning
of the season.
Piccione worked the entire season of 1995. He testified that
when he was laid off in October 1995, he was told by Respon-
dent’s president and sole owner, Ralph Ventura, that he could
not afford to pay the Union’s pension and benefits any longer.
Ventura also told him that if he wanted to continue work, he
would have to “drop out of the Union.” Ventura further ad-
vised that Respondent would pay one half his medical premi-
ums while he was working, but that during his layoff he was
responsible for the entire premium. Ventura gave Piccione cer-
tain forms to be completed for registration in Managed Physical
Network, Inc., its health care provider. Piccione stated that
Ventura told him to complete the forms, and return it the next
season and that “I would come back to work if I was inter-
ested.”
Piccione took the forms, but did not complete them and did
not return them to Respondent.
Piccione testified that in late March 1996, he called Ventura
twice in order to learn when he could report to work for the
start of the 1996 season. He asked Ventura whether there was
any work yet, and whether Respondent was getting busy. Each
time, Ventura said that there was no work, and that he would
call when work picks up.
In early April, Piccione visited the shop to purchase some
lime, and saw employees Raymond Bronson, Raffaelle Cap-
pelli, and Jose Rivera working in the yard performing the same
tasks he did when he was working. Ventura denied that Bron-
son and Rivera were part of the bargaining unit, but testified
that they both did driving work, which was a covered classifica-
tion in the expired contract. In fact, Rivera had been a member
of the Union in 1989 but resigned thereafter. Cappelli did yard
work, which Piccione also performed. It should be noted that
the contract specifically covers “yardmen.”
Shortly after his visit, Piccione called Ventura, asking
whether anything was “going on,” and telling him that he saw
men working, and asked why he was not working. Ventura
replied that Respondent was not busy then, and would call Pic-
cione “back as soon as it gets busy.”
The parties stipulated that at the beginning of the 1996 sea-
son, Piccione was first in seniority, and Ventura testified that he
was aware that under the expired contract, seniority was the
criteria for layoffs and recalls.
On May 6, Piccione filed a grievance which asserted that as
the second highest in seniority, with the number one person,
Aquilino DeCarolis, out of work due to an injury, he was im-
properly not called back to work 2 weeks before, notwithstand-
ing that two nonunion workers, Bronson and Rivera, were
working.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
On May 13, Respondent’s attorney advised the Union that
the grievance was received, but was denied since (a) the Union
is not recognized as the employee representative; (b) the ex-
pired contract is “moot with respect to all terms and conditions,
including those pertaining to seniority and grievance proce-
dure”; and (c) there is no agreement between the parties to
arbitrate.
On May 13, Piccione began an “informational picket line”
advising that employees were working who should not be
working.1 He picketed for about 3 weeks, during working
hours, and during which he observed employees Bronson and
Rivera working full time, and Cappelli and Burrows working
part time. Their tasks included driving concrete trucks, working
in the yard, and waiting on customers, duties he had performed.
Respondent has not offered Piccione employment since the
time he was laid off in October 1995.
3. Respondent’s employment of union members
Respondent employs persons who perform bargaining unit
work, but who are not union members, and for whom it does
not pay contractual wages and benefits. Thus, there was testi-
mony that Rivera was a union member following his hire in
1989, but resigned from it, and was not thereafter paid union
wages or benefits. Rivera was a truckdriver, and also did yard
work. Similarly, Bronson and Russell Burrows performed unit
work but did not receive union wages or benefits. In fact, their
wages were substantially lower than that received by union
member Piccione.
Union Vice President and Business Agent John Amodio tes-
tified that he has attempted to enforce the contract as to those
individuals, but his attempts have been ignored by Respondent.
There was evidence that issues concerning those individuals
and the Union’s funds were litigated at the Board and in other
forums, and have been settled.
4. Respondent’s defenses
Ventura testified that following the expiration of the collec-
tive-bargaining agreement in February 1995, he was forced by
economic necessity due to competition with a local ready-mix
plant that was nonunion, to propose termination of coverage by
the Union’s health and pension funds.
Ventura stated that he told Piccione in October 1995, that his
wages would remain the same, and Respondent would pay only
one half the premium for health coverage while he was work-
ing. Ventura denied telling Piccione that he must resign from
the Union.
Ventura insisted that he intended to call Piccione back to
work for the 1996 season, supporting that contention by noting
that he gave Piccione health coverage forms to complete, and
asking him to participate in drug and alcohol testing in March
1996, which was given to all employees, and in which Piccione
participated.
Ventura noted that Piccione always had called in the past be-
fore the start of the season to learn when he could return to
work, but that he did not do so before the start of the 1996 sea-
son. It is not Respondent’s practice to send recall letters or
formally recall employees to work.
Based upon Piccione’s alleged failure to contact Respondent,
Ventura assumed that he did not want to return to work because
of the change in the terms and conditions of employment. No
direct communication between Piccione and Ventura has been

1 There was no evidence as to the language of the picket sign.
set forth to support Ventura’s belief that Piccione did not want
to return to work.
Rather, there was testimony of Rivera who stated that at the
end of the 1995 season, Piccione told him that he would not
return to work if Respondent did not sign the contract, and that
he would not work for $10 per hour. Piccione earned the con-
tractual rate of $12.50 per hour at that time. There was also
testimony by James Watson, a former employee who visits
Respondent’s premises often, that Piccione told him on the
picket line that he would not work for $9 or $10 per hour and
no contract.
Piccione denied both conversations. In any event, there is no
evidence that Respondent knew of those alleged conversations
at the time they occurred, or when a decision was made by
Respondent not to recall Piccione.
Piccione testified that when Ventura told him the conditions
of work in October 1995 that would prevail at the start of the
1996 season, he did not want to work under those conditions
and did not agree to them, but did not tell Ventura that he ob-
jected to such conditions or would not work under such terms.
He further testified that he was not going to return to work
unless he received the same benefit package he had in the 1995
season, adding that “I guess I made a voluntary choice not to
work . . . under the terms and conditions of the impasse.”
Nevertheless, Piccione also testified that if he was offered
employment at the start of the 1996 season he would have re-
turned to work if the Union told him to do so, adding that the
Union did not tell him not to accept employment with Respon-
dent.
5. The employee complement in April 1996
Bronson was the first worker to return to work in the week
ending March 23. He worked 40 hours that week, and 4 hours
overtime, earning $10 per hour. He again worked 40 hours in
the week ending March 30, and 6 hours overtime. In the week
ending April 6, he and Rivera each worked 40 hours, with
Bronson working 9-1/2 hours overtime, and Rivera working 4
hours overtime. Rivera earned $8 per hour. In the week ending
April 13, Bronson and Rivera each worked 40 hours, with
Bronson working 8 hours overtime. In the week ending April
20, Bronson and Rivera each worked 40 hours with Bronson
working 9 hours overtime. In the week ending April 27, Bron-
son and Rivera each worked 40 hours, with Bronson working
10 hours overtime. In the week ending May 4, Bronson and
Rivera each worked 40 hours, with Bronson working 13 hours
overtime. This pattern continued through the end of May, with
the addition of Russell Barrows, who returned to work in the
week ending May 18, and who worked 8 hours that week, and
part time in certain weeks thereafter. Also, a new employee,
Harold Crouch, became employed in the week ending June 29,
but who had an accident on July 2, and did not return to work
until September. Raffaelle Cappelli began work in the week
ending July 27, and consistently worked 40 hours per week
thereafter.
For the remainder of the 1996 season, Bronson consistently
worked full time with overtime hours each week, Rivera
worked full time nearly every week, Cappelli worked full time
every week, and Watson and Crouch worked part time.
In his affidavit dated in August 27, 1996, Ventura stated that
Piccione had not been recalled for the 1996 season because
“there is insufficient work to guarantee him full time work.” He
testified that he could not guarantee anything at the start of the
N.D. PETERS & CO. 925
season as business was slow then. Ventura further stated that he
knew that Piccione did not want to work part time, and that
Bronson and Rivera have not been working full time.
Respondent’s payroll records reveal however, that from the
week ending March 23 through September 1996, Bronson
worked full time each week, except the week ending July 6,
when he worked 32 hours regular time, and 29-1/2 hours over-
time.
Ventura stated that although he was aware that the expired
contract provided for the application of seniority in recalls, and
that he knew that Piccione was first at the start of the 1996
season, he could not guarantee him any work since he did not
know what kind of season Respondent would have, and busi-
ness was slow at the start of the season.
B. Analysis and Discussion
1. The deferral to arbitration
Respondent argues that its alleged failure to recall Piccione
should have been deferred to the grievance-arbitration provi-
sions of the expired collective-bargaining contract.
In October 1996, Respondent notified the Board agent that it
“has offered to continue the terms of the expired agreement and
give Mr. Piccione a forum in which to air his grievance over
seniority.” Apparently, the Union’s attorney rejected the offer,
and at hearing, Union Official Amodio denied direct knowledge
that such an offer had been made. The contract contains a broad
grievance and arbitration clause, defining a grievance as “any
controversy, complaint, misunderstanding, or dispute.”
The General Counsel argues that deferral is not appropriate. I
agree.
Deferral is inappropriate because there is “no contract in ex-
istence under which the parties are mutually bound by an
agreed-upon grievance-arbitration procedure,” and such a con-
tract had not been in existence for more than 1 year at the time
of the failure to recall Piccione. Arizona Portland Cement Co.,
281 NLRB 304 fn. 2 (1986), cited with approval, August A.
Busch & Co., 309 NLRB 714, 715 (1992); Pioneer Press, 297
NLRB 972, 987 (1990).
In addition, in determining whether to defer to arbitration,
the Board will consider whether there is a claim of employer
animosity to the employees’ exercise of protected rights. E. I.
du Pont & Co., 293 NLRB 896, 897 (1989). In this case, there
is such a claim—that Respondent demanded that Piccione drop
out of the Union in order to continue to be employed, and I
find, infra, that that claim has merit. Kenosha Auto Transport
Corp., 302 NLRB 888 fn. 2 (1991).
I accordingly conclude that deferral to arbitration is not ap-
propriate.
2. The failure to recall Piccione
I credit Piccione’s testimony concerning his discussion with
Ventura when he was laid off in October 1995. Thus, Ventura
told him that he would have to drop out of the Union in order to
continue to work for Respondent. This is consistent with Ven-
tura’s practice not to pay contractual wages and benefits to
certain employees who are performing unit work.
I further credit Piccione’s testimony with respect to his call-
ing Ventura in March to learn when to report to work. I cannot
credit Ventura’s testimony that Piccione did not call him asking
to be recalled. Piccione utilized the calling procedure which
was used in the past, even according to Ventura, and it was
unlikely that Piccione would depart from it this year. Moreover,
Piccione’s testimony is more believable since he filed a griev-
ance shortly after the start of the season, claiming that he had
not been recalled. If Ventura did not believe that Piccione
wanted his job back, his grievance, which Respondent received,
clearly informed Respondent that Piccione wanted to return to
work.
Moreover, the reasons given to Piccione by Ventura when he
called in March and April, that Respondent was not busy, and
there was no work then, are consistent with Ventura’s pretrial
affidavit that he did not recall Piccione because business was
slow, and there was “insufficient work.” Therefore, it is entirely
believable that Piccione requested recall in March and April,
and was denied recall at those times.
In addition, there is no evidence that Piccione told Ventura
that he did not wish to return to work under the new terms and
conditions of employment. The fact that he did not return the
health forms is not dispositive of the issue. In his grievance
protesting the failure to recall him, Piccione did not mention
anything about the newly implemented terms.
I cannot credit Ventura’s testimony where it conflicted with
that of Piccione. Ventura was not a reliable witness. Thus, he
denied that Bronson worked full time when the Company’s
records clearly showed otherwise, and showed not only that
Bronson worked full time, but that he worked extensive
amounts of overtime hours. Further, his testimony that he could
not guarantee Piccione full-time work is not to the point. There
was no evidence that Piccione sought such a guarantee—he had
worked for the previous 10 years apparently without such a
guarantee—and indeed inasmuch as Bronson immediately be-
gan working full time at the start of the 1996 season, Piccione,
who was first in seniority, could have done so.
It is therefore clear that Ventura did not believe he had to re-
call Piccione since Respondent had declared an impasse, im-
plemented new terms, and had withdrawn recognition from the
Union. Respondent acted at its peril in making those assump-
tions.
As to Piccione’s testimony that he would not have returned
to work under the conditions imposed at impasse, I do not be-
lieve that that testimony bars him from an offer of recall. Thus,
Piccione (a) requested recall in March and April; (b) filed a
grievance seeking recall; and (c) participated in drug and alco-
hol testing prior to the start of the 1996 season, and there is no
evidence that Ventura was informed that Piccione would not
return to work.
I accordingly find and conclude that Piccione was refused
recall because of his union membership, and because Respon-
dent improperly believed that, in ridding itself of the Union it
could also rid itself of Piccione. In making these findings, I find
that the General Counsel has made a showing that Piccione’s
union membership was a motivating factor in Respondent’s
failure to recall him, and that Respondent has not proven that it
would have taken the same action even in the absence of his
union activities. Wright Line, 251 NLRB 1083 (1980).
3. The unilateral change in the seniority provision of
the contract
The complaint alleges that Respondent violated Section
8(a)(5) of the Act by failing to abide by the seniority provision
of the collective-bargaining agreement, and by not affording the
Union an opportunity to bargain with it concerning such con-
duct and the effects of such conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
Seniority is a mandatory subject of collective bargaining. By
ignoring the seniority provisions of the expired collective-
bargaining agreement, and by refusing to apply them by not
recalling Piccione, Respondent unilaterally changed its expired
agreement and in so doing violated Section 8(a)(5) of the Act.
L & L Wine & Liquor Corp., 323 NLRB 848 (1997).
Respondent lawfully implemented its final offer pursuant to
an impasse which has not been challenged here. However, the
implemented changes “must not be substantially different . . .
than that which the employer proposed during negotiations with
the Union.” Alachua Nursing Center, 318 NLRB 1020, 1029
(1995); Chas. P. Young Houston, 299 NLRB 958 (1990). Thus,
even if a valid impasse was reached, a unilateral change cannot
be made unless it is reasonably encompassed within the em-
ployer’s preimpasse proposal. Facet Enterprises, 290 NLRB
152, 178–179 (1988).
Here, the seniority provision remained in effect at all times,
and accordingly, Respondent was obligated to apply it even
where the contract had expired. By unilaterally failing to apply
the seniority provision to the recall of Piccione, and by not
affording the Union an opportunity to bargain about that man-
datory subject, Respondent violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, N.D. Peters & Company, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen & Helpers, Local
Union 182, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for collective-bargaining
purposes:

All drivers, power-driven concrete block machine operators,
concrete block plant mixer men, yardmen, batch men, mill
men, truck helpers and mechanics.

4. By failing and refusing to recall from layoff its employee
Charles Piccione, Respondent violated Section 8(a)(1) and (3)
of the Act.
5. By failing to abide by the seniority provision in its expired
collective-bargaining agreement, and by not affording the Un-
ion an opportunity to bargain with it concerning that matter,
and by failing and refusing to recall Charles Piccione, Respon-
dent violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily refused to recall
Charles Piccione, it must offer to recall him, and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of his failure to be recalled,
April 1, 1996, to the date of a proper offer of recall, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
ORDER
The Respondent, N.D. Peters & Company, Inc., Utica, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recall from layoff its employee
Charles Piccione.
(b) Failing to abide by the seniority provision in its expired
collective-bargaining agreement, and not affording the Union
an opportunity to bargain with it concerning that matter.
(c) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, recall Charles
Piccione to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority or any other rights or privileges previously enjoyed.
(b) Make Charles Piccione whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful failure to recall, and
within 3 days thereafter notify the employee in writing that this
has been done and that the failure to recall will not be used
against him in any way.
(d) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning the seniority provision of its expired collective-
bargaining agreement, and, if an understanding is reached, em-
body the understanding in a signed agreement:

All drivers, power-driven concrete block machine operators,
concrete block plant mixer men, yardmen, batch men, mill
men, truck helpers and mechanics.

(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its fa-
cility in Utica, New York, copies of the attached notice marked
“Appendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, 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 facility in-

Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 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.”
N.D. PETERS & CO. 927
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 1, 1996.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting 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 violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT fail or refuse to recall you or otherwise dis-
criminate against any of you for supporting Teamsters, Chauf-
feurs, Warehousemen & Helpers, Local Union 182, AFL–CIO
or any other union.
WE WILL NOT fail or refuse to recall from layoff our em-
ployee Charles Piccione.
WE WILL NOT fail to abide by the seniority provision in
our expired collective-bargaining agreement, or not afford the
Union an opportunity to bargain with us concerning that matter.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL within 14 days from the date of this Order, recall
Charles Piccione to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously en-
joyed.
WE WILL make Charles Piccione whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against him.
WE WILL within 14 days from the date of this Order, re-
move from our files any reference to the unlawful failure to
recall Charles Piccione, and within 3 days thereafter notify him
in writing that this has been done and that the failure to recall
will not be used against him in any way.
WE WILL on request, bargain with the Union as the exclu-
sive representative of the employees in the following appropri-
ate unit concerning the seniority provision of our expired col-
lective-bargaining agreement, and, if an understanding is
reached, embody the understanding in a signed agreement:

All drivers, power-driven concrete block machine operators,
concrete block plant mixer men, yardmen, batch men, mill
men, truck helpers and mechanics.

N.D. PETERS & COMPANY, INC.