Rocket Hill, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 29, 2006

29-CA-026844 (N.L.R.B. Sep. 29, 2006)

JD(NY)–45–06
Hicksville, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ROCKET HILL, INC.
and Case No. 29-CA-26844
LOCAL 7, EMPIRE STATE REGIONAL
COUNCIL OF CARPENTERS
ROCKET HILL, INC.
and Case No. 29-CA-26861

GENERAL BUILDING LABORERS’
LOCAL UNION NO. 66, L.I.U.N.A., AFL-CIO
Nancy Lipin, Esq., Brooklyn, New York, Counsel
for the General Counsel
Richard Ziskin, Esq., (The Ziskin Law Firm)
Commack, New York, for the Respondent
Anthony Lumia, Esq., (Meyer, Suozzi, English
& Klein, P.C.) Mineola, New York for
Charging Party Local 7 Carpenters
Haluk Savci, Esq., New York, New York
for Charging Party Local 66 Laborers’
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charges and amended charges
filed by Local 7, Empire State Regional Council of Carpenters (herein called Local 7 or
Carpenters) and General Building Laborers’ Local Union No. 66 L.I.U.N.A., AFL-CIO (herein
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called Local 66 or Laborers),1 the Director issued an Order Consolidating Cases, Complaint and
Notice of Hearing on June 29, 2005,2 alleging that Rocket Hill, Inc., herein called Respondent
violated Sections 8(a)(1), (3) and (5) of the Act, by repudiating its collective bargaining
agreements with the Laborers and the Carpenters, and by discharging three employees
because of their affiliation with the above Unions.
The trial with respect to the allegations raised by said Complaint was held before me in
Brooklyn, New York on March 27, 28 and 29, 2006. Briefs have been filed by Counsel for the
General Counsel, Respondent and the Laborers, and have been carefully considered. Based
on the entire record, including my observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation with its principal place of business at the Broadway Mall, in
Hicksville, New York, where it has been engaged in the business of building, preparing to
operate and operating a Johnny Rockets franchise restaurant. During the past year,
Respondent purchased and received in the course and conduct of its operations, goods and
supplies valued in excess of $50,000 from enterprises located within the State of New York
which enterprises purchased said good and supplies from outside the State of New York.
It is admitted by Respondent, and I so find that it is and has been at all material times,
an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
It is also admitted and I so find that the Carpenters and the Laborers are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE MOTION FOR SUMMARY JUDGMENT
On July 19, Respondent filed a Motion for Summary Judgment and or dismissal of the
Complaint. The basis for the motion was the fact that the Region had issued on April 25, 2005,
10(k) notices of hearing in Case Nos. 29-CD-576 and 577, involving work performed by
employees of A.J. International (herein A.J.) in connection with the construction of a Johnny
Rockets restaurant at the Broadway Mall in Hicksville, New York.
On August 1, General Counsel filed an opposition to Respondent’s Motion, asserting
among other arguments, that the 10(k) hearings had been postponed indefinitely on July 27
pending resolution of the instant complaint.
On September 21, the Board issued an Order denying Respondent’s motion, since
“there are genuine factual issues with respect to whether a jurisdictional dispute exists and legal
issues with respect to whether the existence of such a dispute would preclude Section (a)
proceedings.” The Order further stated that its ruling was without prejudice to the Respondent
raising these issues before the Administrative Law Judge, and that the parties “may litigate the
issue of whether a jurisdictional dispute exists.”

1 The Carpenters filed a charge in case No. 29-CA-26844 on March 18, 2005. The Laborers
filed a charge in case No. 29-CA-26861 on March 28, 2005, and an amended charge on May
19, 2005.
2 All dates hereinafter referred to are in 2005, unless otherwise indicated.
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On November 22, Respondent filed a motion for enforcement of the “Order Denying
Motion,” and for Partial Summary Judgment and or dismissal of Complaint.
On December 22, the Director issued an Order withdrawing the 10(k) Notices of Hearing
in cases 29-CD-576 and 577, based upon further investigation of the facts. The Regional
Director concluded that the evidence was insufficient to establish reasonable cause that Section
8(b)(4)(D) was violated, and even if there was such evidence, it would not effectuate the Act to
proceed to a 10(k) hearing. However the Director added, “Rocket Hill is free to raise any
argument and issues it may have raised in the 10(k) hearing at the unfair labor practice hearing
in Case Nos. 29-CA-26844 and 29-CA-26861.”
On January 25, 2006, the Board issued an Order denying Respondent’s motion,
principally because the Director had dismissed the CD cases and withdrawn the 10(k) notices of
hearing. However, the Board reiterated what the Director had stated in his dismissal letter, that
the “Respondent is free to raise, in the Section 8(a) proceedings, the question of whether the
parties’ conduct raised a Jurisdictional issue, even though no Section 10(k) determination has
been made by the Board.”
On March 13, 2006, the General Counsel denied Respondent’s appeal of the CD cases
substantially for the reasons set forth in the Director’s letters. Moreover, the General Counsel
noted the Board’s Order, that the Respondent is “free to raise the question of whether the
Unions’ conduct raised a Jurisdictional issue before an Administrative Law Judge during the
Section 8(a) proceedings.”
III. FACTS
A. RESPONDENT’S OPERATIONS IN NOVEMBER AND DECEMBER OF 2004
Respondent owns the franchise rights for Johnny Rockets Restaurant for Nassau and
Suffolk County. The shareholders and officers of Respondent are Michael Randazzo, Mary
Randazzo, Anthony Randazzo, James Raymond and José Badillo. Respondent had no
business office, but used the home address of Mary Randazzo in North Massapequa, New York
as its address for the receipt of mail. None of Respondent’s shareholders or officers had any
experience, degrees or expertise in construction or in running or operating a construction
business.
Michael Randazzo (herein Randazzo) and Badillo are both licensed pharmacists, and
are employed full time in that capacity.3 Raymond is employed as a New York City fireman.
Although as noted Respondent is the franchisee for Johnny Rockets in Nassau and
Suffolk County, the restaurant at the Broadway Mall is the only one that it has opened.
Respondent’s only source of revenue is earned through the restaurant.
In connection with its operation of the restaurant at the Broadway Mall, Responodent
was responsible for the building and construction of the facility. It therefore entered into a lease
agreement with GG&A Broadway Partners, the owners of the Broadway Mall in Hicksville, New
York. The lease which was dated March 31, 2004 and runs until January 31, 2015, provides as
follows in Article 305.b:

3 Randazzo is the owner of a pharmacy in Bellerose Queens, and Badillo is employed by St.
Francis Hospital.
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Tenant shall perform Tennant’s Work in a manner so as to avoid any labor
dispute which is likely to cause stoppage or impairment of work or delivery service or
any other services in the Center. In the event there is any such stoppage or impairment
as a result of any labor dispute, Tenant shall take all actions reasonably necessary to
eliminate the dispute, including without limitation, removing the disputants from the job
site until the dispute is over.
Respondent retained Weidersen Associates as the architect for the project. That firm
designed the restaurant, prepared the plans and periodically reviewed the construction work to
ensure that the work was performed and completed in accordance with the architectural
drawings.
The corporate office of Johnny Rockets referred Respondent to A.J. who had built the
Johnny Rockets restaurant in Forest Hills, New York.4 Respondent inspected that store, liked
the way it looked, and then contracted with A.J. to be the General Contractor and Construction
Manager for the project. A.J. , after some negotiations with Respondent’s representatives
submitted a bid, dated October 7, 2004, which included performing various types of work,
including, carpentry, labor and electrical work, plus $24,000.00 for “Construction Management.”
Randazzo credibly testified that Respondent needed A.J. to perform “construction
management”, because “we needed somebody who knew what they were doing to run the job.”
Respondent and A.J. entered into a contract for the performance of such work, dated
November 8, 2004, with work to commence on November 12, 2004. The contract refers to
Respondent as the “owner” and A.J. as the contractor.
Although A.J. was referred to as the General Contractor by Respondent, as well as by
officials at the mall, and even by Union representatives, there is no evidence that A.J. entered
into any subcontracting or other agreements with other contractors at the site. On the contrary,
the record reflects that Respondent itself directly entered into agreements with several
contractors to perform work at the site.
Thus on November 8, 2004, Respondent entered into contract with Sakowich Plumbing
and Heating Corp. (Sakowich) and Botto Mechanical5 (Botto) to perform plumbing and HVAC
work respectively at the site.
Respondent decided to contract with Botto to perform the HVAC work on the site, based
on a recommendation from Tom Faas, the operations manager for the Mall, who informed
Randazzo that Botto had done HVAC at the Mall directly for the landlord, were familiar with “the
in’s and out’s of the town,” and suggested that Respondent use Botto. Randazzo then checked
with A.J. and A.J. representatives stated that it had no problem with Respondent using Botto for
the HVAC work.
Prior to Respondent contracting with A.J., Randazzo spoke with a friend of his, Reed
Sakowich, who is an owner of Sakowich Plumbing, about Sakowich performing plumbing work
on the site. Randazzo knew that Sakowich was a company that had experience in performing
plumbing work on big jobs. Thus Randazzo asked Sakowich if his company would be interested
and Sakowich agreed to do the work. After A.J. was retained, Randazzo obtained A.J.’s
approval and contracted with Sakowich to perform the plumbing contracting at the site.

4 Forest Hills is not within Respondent’s territory as a franchisee.
5 HVAC is an abbreviation for heating, ventilation and air conditioning work.
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Respondent also hired a company called Edward Dunn for the purchase and installation
of kitchen equipment, because Edward Dunn install’s kitchen equipment for all Johnny Rockets
franchises.
Just prior to the start of construction work, a pre-construction meeting was held at the
site. Present were Faas, Benny Yuen and Jeff Lynn6 or Lim, representatives of A.J., Randazzo,
Will Carmack, who was to be Respondent’s representative at the site, and representative from
Weidersen, Sakowich and Botto. Faas went over the rules and regulations and procedures of
the property. A.J. was introduced as the General Contractor and, who would be providing
employees for a couple of trades on the project.7
Construction began in mid-November of 2004. During November and December,
employees of A.J. were the only one performing work, primarily carpentry and Laborers’
functions. Will Carmack was at the jobsite on a regular basis, as a representative of
Respondent. Carmack was the brother in law of Badillo, who had asked Carmack to serve as a
manager for Respondent, when the restaurant opened. Carmack previously had experience
working in the restaurant industry for over 6 years. Carmack had no experience in the
construction industry. Carmack agreed to accept the managers position, after going through the
training program for Johnny Rockets in September of 2004.
At the time he began working for Respondent in November of 2004, Carmack was a
Real Estate broker, with a real estate license. Carmack began his employment with
Respondent in as the “contact person”,8 for Respondent while the renovations were being
completed. Carmack received a salary from Respondent while he was at the site, although the
salary was significantly less than his salary as a General Manager. Carmack conceded that he
was the “liaison”9 between Respondent and its sub-contactors and vendors. However, the
record reveals that his primary responsibility was to open the site, let the workers in, and make
sure they showed up.
A.J. as the General Contractor, drafted a calendar for the project, detailing the work to
be performed, and Carmack would let the owners know if someone failed to come in. During
this period of time, since Carmack had little to do, he had his computer with him at the jobsite,
which he would use to perform work relating to his real estate business, play games, or plan
family activities.
There were no other employees of Respondent at the site, other than Carmack.
Moreover, Respondent had no plans to hire any other employees to become involved with any
construction functions.
B. THE APPEARANCE OF THE UNIONS
In early November of 2004 Robert English, a Business Agent for the Laborers, while
visiting the Broadway Mall for another project, noticed that demolition had taken place at the

6 Jeff’s last name is unclear from the record. He will be referred to as Jeff.
7 Faas testified that this is not your ”normal set up”, where the General Contractor is “in
charge of the whole contract.”
8 Since all of the principals of Respondent had full time jobs, it was necessary to have a
representative from Respondent at the site.
9 Raymond and Badillo testified that Carmack was the “eyes and ears” of Respondent on
the jobsite.
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Johnny Rockets space. Shortly thereafter, English returned to the site, and saw someone going
onto the site. He observed a group of people around the table. English introduced himself and
stated that he was there to see if he could get representation on the site. One person
responded and told English that he was going to be the General Contractor and gave English a
business card with the name A.J. on it, and told English to get in touch the next week. English
tried several times to call the number of the business card that he had received, but never
received a return call. On December 6, 2004, English received a call from a shop steward on
the site, who informed English that a barricade had been put up on the Johnny Rockets site.
English went to the site and observed the barricade. English could not enter the site, because
of the barricade, but he could see that work had been performed.
English at that point decided to speak with Ron Craddock, General Manager of the Mall.
English confirmed with Craddock that A.J. was the General Contractor at the Johnny Rockets
site. English informed Craddock that A.J. does not have a Collective Bargaining Agreement
with the Laborers. English asked Craddock if the Union “was going to have problems getting
representation on the site.” According to English, he discussed the matter with Craddock
because “they” owned the building and could “explain how they wanted it built.”10
English asked Craddock if he could “reach out to A.J. or Rocket Hill and get this matter
taken care of.” Craddock replied “sure” and added that he “would do the best he can.”
Craddock, on the same day of his conversation with English,11 sent a letter to Respondent
reading as follows:
Please be advised that your employment of non-union workers in connection with
work being performed at the above reference space has resulted in a labor dispute
which is impairing work and delivery of services to Broadway Mall. In accordance with
Section 3.05(b) of the above-referenced lease, the tenant is required to take action to
eliminate this dispute. Inasmuch as any delay will only serve to exacerbate this
situation, your immediate attention to and favorable resolution of this matter is hereby
demanded.
Craddock testified that he caused this letter to be sent to Respondent because, “we
were having an issue with the harmony of labor at the Mall.”
A few days later, English was Christmas shopping at the Mall, and noticed work being
performed at the Johnny Rockets space. English entered the site, and was able to speak with
Jeff. English asked A.J. to sign an agreement with the Union for “representation on the site.”
Jeff responded that he thought “we could definitely work something out.” Jeff asked English to
call next week.
On December 16, 2004, a meeting was held at the Starbuck’s restaurant at the Mall.
Present were English, Chris Fusco, Business Agent for the Carpenters, Jeff, and Dave _______

10 English also testified that he believed that all lease agreements with the Mall required that
only Union labor be used. He added that other contractors at the Mall had complained to him
that they had to use Union labor, but Johnny Rockets did not. These contractors showed
English a document that reflected that labor at the site had to be performed by members of the
Nassau Suffolk Building Trades Association. However, it appears that this document applied
only to work performed directly for the Mall, and not to work performed for other parties on the
site.
11 December 6, 2004.
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another representative of A.J. English and Fusco explained to Jeff and Dave that their Unions’
wanted representation on the site, and discussed options of A.J. The options were either
signing a full agreement, which binds A.J. for all work in Nassau County, or a one job
agreement, which would bind A.J. to Union contracts only for work at the Johnny Rockets site.
English informed Jeff that the contract would bring A.J. ’s employees into the local Unions. Jeff
responded that A.J. would be interested in a job site agreement, and would not need to have its
employees in the Union, since A.J. would use members from the Union’s to perform the work.
Jeff told Fusco and English that A.J. would agree to sign a jobsite agreement with both Unions,
and asked the Business Agents to fax him copies of the agreements to sign. Jeff also agreed
during this meeting that no work would be done at the site until “this was resolved.”
Both Fusco and English faxed copies of a jobsite agreement to Jeff. About a week later,
both Unions received from Jeff copies of the Agreement. The Agreements were signed, but the
signatures were illegible and listed the firm name as Fortune Building Company. The
Agreements were incomplete for other reasons, such as missing the address, phone number
and tax ID number of the Employer. English subsequently called Jeff on the phone, and told
him that the signed contract was incomplete, and asked about Fortune Building. Jeff replied
that Fortune is “A.J. International,” and it was signed by A.J. English insisted that it could not be
accepted since it was not complete, and not signed by A.J. Jeff continued to insist that ‘the
contract was signed by us. It’s good.” English stated that it could not be accepted as is, and
asked Jeff to sent another signed copy, fully completed. Jeff agreed to send another copy,
properly completed and signed.
Neither A.J. nor Jeff ever returned properly signed copies of the Agreements to either
Union. English, between December 16 and December 30, 2004, made several visits to the site,
in an attempt to contact Jeff, as well as to verify whether Jeff had kept his previous promise that
no work would be performed at the site, until “the matter was resolved.” English was
unsuccessful in reaching Jeff on any of these occasions, but he did observe A.J. employees
performing both Laborers’ and Carpenters work during some of these visits. On one of the
visits, English spoke to Will Carmack at the site, and complained to Carmack that he needed to
talk to Jeff about signing a contract, and that Jeff had not signed a contract or returned English’s
calls. Carmack then called Jeff and left a message on Jeff’s voice mail, that English had come
by and stated that he had not received a contract or had a phone call returned. Carmack also
telephoned the “partners”12 to let them know what was going on.
On another occasion, also in late December of 2004, English again spoke to Carmack.
English informed Carmack that he was upset that nobody from the General Contractor had
cooperated with them, and that A.J. had not signed a contract or returned his calls. English
added that the Union was going to “picket the area,” and was “going to shut the job down.”
Carmack replied that he would relay the message. Carmack reported this conversation with
English to one of the “partners” of Respondent.13
English also spoke to Ron Craddock on December 22, 2004. English had observed two
A.J. employees performing Laborers’ work, and two performing bricklayers work. English tried
to call Jeff, but was again unsuccessful. He then decided to speak to Craddock. English
advised Craddock that non-union workers were working at the job site, and performing Laborers
work. Craddock replied that he was aware that the Laborers and A.J. had been having phone

12 Carmack did not testify which partner he called.
13 The above findings are based on the undenied and credible testimony of Carmack.
English did not deny making any of the above comments to Carmack.
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conversations, and told English that he was going to call A.J.
English and Fusco had several conversations with Tom Faas, during the period between
December 16 and December 30, 2004. They informed Faas that there were non-union trades
working at the Johnny Rockets project, and that they were trying to get together with “them” to
work out an agreement to get the project unionized. The Union officials would also tell Faas
that they were trying to “get harmony back on the property.” During one of these conversations,
one of the two Union representatives told Faas that because of the non-union employees at the
site, that the employees of other trades at the Mall “may not continue working.”14
My findings with respect to these conversations between Faas and the Union
representatives are based on the credible testimony of Faas. Although Faas appeared to me to
be a most reluctant witness, who did not wish to be involved, he impressed me as a sincere,
and truthful, and attempting as best as he can to recount the events of December of 2004.
Faas is a neutral witness, with no stake in these proceedings, and there would be no reason for
him not to testify truthfully.
Fusco and English on the other hand, are not neutral witnesses, and I found their
testimony, on rebuttal, with respect to their conversations with Faas to be vague, and
unconvincing. Fusco testified that he never told Faas or anyone form the Mall that he would
cause other employees at the Mall not to come to work, and that he did not hear English say
that to anyone. He gave no further testimony about the substance of any conversations
between himself, Faas and English.
English also denied telling Faas that he would have Union employees not report to work
because of a conflict with A.J. However, he admitted that he did discuss with Faas the
problems that the Union was having concerning an agreement with A.J., and informed Faas that
he would “take action against the site.” English denied mentioning the possibility of a pricket
line, or that other workers might not come to work.
For the reasons detailed above, I credit Faas’ version of the discussions between
himself, Fusco and English.15
C. THE PICKETING AND ITS AFTERMATH
On December 29, 2004, English went to the jobsite and observed A.J. employees
performing Carpentry and Laborers’ work. He then spoke to Fusco and informed him that
because A.J. is not a “reputable” company, and have not signed the Agreements as promised,
the Laborers would be putting up a picket line, the next day, December 30, 2004. English
advised the Nassau Suffolk Building Trades Association, as well as its affiliate members, by fax
representing various trades, that a picket line would be put up by the Laborers at 7:00 A.M. on
December 30, 2004 at the Broadway Mall.

14 At the time there were several other construction projects in progress at the Mall,
including a job next to the Johnny Rockets site where the contractor, M. Cary was using a
unionized workforce.
15 I recognize as pointed out by General Counsel, that Faas was uncertain as to whether
English or Fusco made the above comments to him. I find this to be insignificant, since both
English and Fusco were present, and it is sufficient to find which I do, that the statements were
made by either Fusco or English, and that both were present at the time.
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On December 30, 2004 the Laborers put up a picket line, consisting of eight to ten
individuals, in front of the main entrance to the Mall on a public sidewalk, between 500 feet and
500 yards from the Johnny Rockets site. All of the picketers were from the Laborers Union.
There were no Carpenters officials on the picket line.
Some of the pickets were wearing signs. The signs stated words to the effect of, to the
public Laborers Local 66. A.J. International does not have, nor do the workers enjoy a
Collective Bargaining Agreement with Local 66. There was also an inflatable rat at the picket
line. In the hands of the rat, there was also a picket sign with similar wording. The picket line
was up for about eight hours.
After the picket line was put up, employees employed by M. Cary, which as noted were
working next to the Johnny Rockets site, walked off the job.
During the day on December 30, 2004, both Faas and Craddock made visits to the
picket line to ask English to take down the picket line. English refused. Craddock then advised
Carmack that the Mall needed to shut the job down, in order to diffuse the disharmony with the
picket line and all the Union workers. Carmack advised Craddock that he had no authority to do
that and suggested that Craddock speak to the owners. Craddock spoke to Mike Randazzo,
and then later in the day Badillo came to the site. At the same time, Faas notified Respondent
that the job would be shut down for a week.
Respondent received a letter from Craddock on December 30, 2004, entitled Thirty Day
Notice of Default. It reads as follows:
As you were previously advised via correspondence dated December 6, 2004,
your employment of non-union personnel has resulted in a labor dispute caused by such
action. PLEASE TAKE NOTICE that your employment of non-union workers in
connection with the work being performed at the above-referenced premises has
resulted in a disruption to the operation of the shopping mall in default of Section 3.05(b)
of the lease and you have not taken the necessary steps to eliminate the dispute and
disruption. PLEASE TAKE FURTHER NOTICE that you are to take all necessary action
to immediately stop the disruption to the operation of the shopping mall. PLEASE TAKE
FURTHER NOTICE that if the disruption to the operation of the shopping mall continues
the landlord will take appropriate action in accordance with its rights under the lease and
at law. In addition, if conditions continue to deteriorate to the point where this labor
dispute poses a serious hazard to the viability of the shopping center and its tenants
appropriate action will be undertaken to seek an immediate remedy. Your attention to
this matter is required under the terms of your lease.
Shortly after noon, Badillo came to the jobsite, met with Craddock, and they agreed to
have a meeting to try to resolve the outstanding issues. Present at the meeting in the late
afternoon, were English, Fusco, Craddock, Faas, Jeff and Dave from A.J., Randazzo, Badillo
and Carmack. English and Fusco brought up the fact that A.J. had refused to properly sign the
contracts that it had agreed to with the Unions, and English added that A.J. International was
the “General Contractor,” and my picket line was up against A.J. International.” The Union
representatives wanted Respondent either to acknowledge that the contract was done
incorrectly, or have Benny Yuen, President of A.J. meet later to fix the contract.
Craddock and Faas stated that they wanted this disharmony resolved and the situation
to go away. Badillo offered that no work would be done in the space until the matter was
resolved. It was agreed to have another meeting, at which time Yuen would be present. In view
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of the above, which English viewed as an agreement to “negotiate the project,” English agreed
to take the picket line down.
The picket line was removed, and another meeting was held on January 4, 2005.
Present at this meeting were English, Fusco, Badillo, Randazzo, Yuen, Dave, Faas, Craddock
and Jack Kennedy from the Nassau Suffolk Building Trades Council. English and Fusco again
brought up the issue of A.J. refusing to properly sign the contracts it had agreed to with the
Unions. Yuen, on behalf of A.J. refused to sign any more agreements with the Union, while still
insisting that the previous agreement signed on behalf of Fortune was “a good Agreement.”
However, Yuen would not say who had signed the Agreement or that it binds A.J. After the
Unions continued to insist that Yuen signed new Agreements, and Yuen continued to say “No”,
the discussion became heated when English accused Yuen of failing to pay benefits on a
Laborer’s contract with A.J. in the city.16 That comment angered Yuen, who then said that he
didn’t want to have anything to do with the Unions, and would not sign any contracts.
Craddock expressed the Mall’s concerns over the labor dispute, and added that he
needed it to end. Craddock further told Randazzo that Respondent needed to work this out with
the Unions, or its store was not going to get built. Randazzo then offered to resolve the dispute
by entering into contracts directly with the Unions. Randazzo even mentioned that he had
worked as a member of the Carpenters when he was at school. Respondent agreed to sign one
job Agreements with both Unions, the same Agreements that had been agreed to with A.J. The
parties shook hands and the meeting ended, with the Unions agreeing to fax Agreements to
Respondent, which Respondent agreed to sign, after showing them to its attorney.
Subsequently, Agreements were faxed to Respondent by the Unions and eventually
signed. The Laborers’ Agreement was executed on January 7. The Agreement binds
Respondent to the terms and conditions of the “Independent Agreement,”17 for the work
performed at the Johnny Rockets jobsite at the Broadway Mall. The jobsite Agreement also
details the wages and fund payments to be paid by Respondent. The Independent Agreement
requires Respondent to employer Laborers for work governed under the Agreement, and further
states that the Employer shall “exclusively” employ Laborers to perform various types of work,
defined in detail in the Agreement.
Section’s 5(a) and 5(b) of the Independent Agreement provide as follows:
“Employer shall not contract out or sub-contract any part or portion of the work
within the jurisdiction of the union as set forth in this Agreement… unless such
contract or subcontract is let or sublet to an Employer who is a party to an
Agreement with this Union.” [Section 5(a)]
“The Employer shall not enter into a contract with any person, firm, partnership…
employing Building Laborers to perform bargaining unit work… on the same job
site, unless such person, firm, partnership, corporation or joint venture is bound
by an Agreement with the Union.” [Section 5(b)]

16 English had previously been informed that when A.J. was the General Contractor for the
Johnny Rockets project in Forest Hills, NY, A.J. had signed a contract with a Laborer’s Local,
and had failed to pay benefits due under the Agreement.
17 The Independent Agreement is the contract between the Laborers’ and Independent
Employers.
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The full Agreement also contains a hiring hall clause, requiring the use of Laborers from the
hiring hall for the first two job openings on the site, and thereafter 50% of Laborers must come
from the roster of eligible Laborers on the hiring hall list.
The Agreement signed by Respondent with the Carpenters was entitled one job
Agreement Memorandum of Agreement, and was signed on January 18. It applies to all work
performed by Respondent at the Johnny Rockets restaurant at the Broadway Mall, and
incorporates by reference the Union’s Agreement in effect within the area.
The one job Agreement also contains the following clause.
“The Employer shall not subcontract any construction work to be performed on the
above project to any contractor unless that contractor is or agrees to become a party to
a current Collective Bargaining Agreement with the Union or to this form of
Memorandum of Agreement.”
The full Agreement provides for recognition as the Collective Bargaining Agent for
Carpenters employed by the Employer, and that 50% of Carpenters employed on the job, be
referred by the Referral Hall.
The Agreement also provides that the handling of all materials pertaining to the
Carpenter work shall be done exclusively by Carpenters, and that carpentry work traditionally
done on the job site by Carpenters… shall continue to be done by such Carpenters.
D. RESPONDENT’S OPERATIONS IN 2005
Since Respondent had no intention of hiring any employees (other than Carmack) to
build the store, it was not prepared to hire the construction employees. Respondent needed to
purchase insurance, workmen’s compensation and disability insurance, before any Carpenters
or Laborers could commence working. It finally obtained liability insurance on January 18. In
order to pay the Union employees, Respondent needed to take a loan from its lending company,
since Respondent had not opened the restaurant and was not receiving any revenue.
Shortly after obtaining its insurance, in mid January, Respondent hired two Carpenters
and one Laborer. A.J., notwithstanding Respondent’s signing contracts with the Unions,
continued on the job. A.J. continued to serve as General Contractor, and run the job as well as
continuing to perform some Laborer and Carpenters work with its own employees. Randazzo
informed representative of A.J. that Respondent would be hiring two Carpenters and one
Laborer, and instructed A.J. to give them work to do, and tell them what needs to be done.
Randazzo also informed A.J. that “we had to hire these guys or else this job isn’t going
anywhere, we’re done. We’re going to lose everything and we’re finished, so let’s make it work.
We need to make it work so that we don’t lose everything.”
Even though as a result of Respondent’s decision to hire three employees directly, there
was a reduction of work for A.J. employees, no modification in Respondent’s contract with A.J.
was made, and the payment made by Respondent to A.J. was not changed. Further, there is
no evidence that any A.J. employee was laid off or discharged, as a result of Respondent hiring
three unionized employees in January.
Rather, it appears, as detailed above, that A.J. simply assigned its employees to other
work on the project, including at times work ordinarily performed by Carpenters or Laborers.
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Although Randazzo may have instructed A.J. to give the Union employees work, in fact
the record discloses that it was Carmack who assigned work to both the two Carpenters
employees and the one Laborer. However, the record also discloses that A.J. representatives
would generally decide what work was to be performed and when, and transmit these
instructions to Carmack, who would in turn inform the three Union employees of their
assignments. There were times when the employees would directly ask Carmack for guidance
on how to proceed on particular jobs. Sometimes Carmack would answer the questions of the
employees.18 If he could not answer the question, Carmack would call Jeff or Dave from A.J.,
or one of the owners for an answer.
Carmack’s primary responsibility, both before and after the Union employees were hired,
was to let people into the site, and make sure people showed up. A.J. prepared a calendar for
the project, detailing the work to be performed at particular times and by whom. Carmack would
make sure the right person or company showed up at the right time, and if not he would call one
of the owners to report the problem.
Carmack would maintain a sign in sheet for the three Union employees, and would give
them permission to take breaks. He also signed shop steward reports, that were prepared by
Mott, which verified the hours that the Carpenter employees worked. Carmack did not maintain
any sign in sheets for A.J. employees, nor did he monitor or supervise the A.J. employees in
any way.
The record discloses that there were instances where Carmack would deal directly with
contractors on the job concerning problems or issues. The plumbing contractor on one
occasion had a question, discussed it with Carmack, and they decided to put a pipe in the wall,
in a specific place. In most cases however, when a problem arose with a contractor, Carmack
would instruct the contractor to call either Jeff or Dave from A.J., or one of the owners.
Carmack would often allow the contractor to use his cell phone to make such calls.
Carmack would interact with Faas concerning various issues, such as where to put
garbage. On one occasion, Faas was walking with a building inspector and told Carmack that
debris needed to be cleaned up. Carmack called one of the owners, who in turn contacted A.J.
and arranged for the debris to be cleaned up. On other occasions, Faas would ask Carmack if
the contractors were being cooperative and how they were working out. Carmack would tell
Faas that he did not know, and suggested that Faas call Jeff from A.J.
The Carpenter employees used their own tools while on the job. However all power
tools, equipment and materials used by the Union employees were supplied by A.J.
E. RESPONDENT REPUDIATES THE CONTRACTS AND DISCHARGES THE UNIONIZED
EMPLOYEES
As detailed above, although Respondent’s contract with the Unions required it to use

18 For example, on one occasion, Carpenter Theodore Mott asked Carmack how far a wall
should extend. Carmack checked the blueprint, and told the employees that the wall had to be
double sheet rock on both sides. On another occasion, the Carpenters were uncertain where a
furring strip should end, then asked Carmack where he wanted it placed. Carmack came over,
showed the employees’ a pencil mark on the wall, and said “gentlemen you start right here, right
straight up through the barricade to the top of the building.”
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Carpenters or Laborers to perform work within their jurisdiction, A.J. continued to perform work
ordinarily performed by these Unions, throughout 2005, until the restaurant opened for business
in early June. The record discloses that some of the Carpenters and Laborers work performed
by A.J. employees was performed on the weekend or in the evenings after the unionized
employees left the site. At other times the A.J. employees would be performing this work, at the
same time that the three employees of Respondent were working. At various times between
January and March, the three employees would complain to Carmack about A.J. employees
performing Carpenters or Laborers work. Carmack would respond that he could not do anything
about it, and suggested that they speak to Tom Randazzo who comes in every Friday to
distribute pay checks to the employees.
On January 7, English was at the site, and observed four A.J. employees performing
Laborers and Carpenters work. English telephoned Tom Randazzo and complained about what
he had seen. Randazzo informed English that these A.J. employees would be leaving the site.
On January 11, English observed A.J. employees performing Laborers work, and on this
occasion complained to Mike Randazzo. Randazzo informed English that the A.J. employees
doing Laborers work would be leaving the site.
English visited the site again on February 7, and observed nine A.J. employees (seven
Carpenters and two Laborers) performing work. Tom Randazzo was at the site on that day.
English informed Randazzo that A.J. was performing Laborers work. Randazzo told English
that Respondent would finish out the week with Local 66 Laborers, and then would put the job
out to bid for another contractor, other than A.J.
On a date not disclosed in the record, between January 18 and March 4, Fusco was
informed by Mott that eight A.J. employees were working at the site, performing Carpenters
work, and that these A.J. employees had worked throughout the night. Fusco went to the site,
and observed eight to ten A.J. employers performing work, about six of whom were doing
Carpenters work. Fusco called Tom Randazzo, who came to the site. Fusco complained to
Randazzo that the Carpenters had a contract with Respondent, and these A.J. employees can’t
be doing Carpenters work. Fusco also complained that one of the A.J. employees looked to be
about 16 years old and was using a power activated Hilti gun, which Fusco viewed as unsafe.
Randazzo replied to Fusco “I’ve go to get this project done. I’m, you know, losing my shirt.”
Randazzo also told Fusco that the A.J. employees would be leaving the site, which they did
shortly after Fusco’s discussion with Randazzo.
On March 4, as a result of this incident, the Carpenter’s Union sent to Respondent a
“breach letter,” which states that Respondent has breached its Collective Bargaining Agreement
with the Carpenter’s Union. The letter requests that Respondent call Fusco “immediately to
rectify this matter to avoid further action.”
On Monday, March 7, Laborer Michael Smocer reported to work, and noticed a
construction container filled with debris in front of the jobsite that had not been there previously.
Smocer confronted Carmack about it and asked who had done the work.19 Carmack replied
that A.J. had done the work and suggested that he speak to A.J. Later in the day, Smocer
spoke to Dave about it, and Dave informed Smocer that A.J. received a violation on Sunday and
that they had to clean it up on Sunday night.

19 Smocer testified that it would take 4-5 Laborers to fill this container with the debris.
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Smocer telephoned English and reported the incident. English telephoned Tom
Randazzo to complain about it, but was unable to reach him. On March 9, the Laborers filed a
grievance against Respondent, alleging that on Sunday March 6, Respondent brought in 6 non-
union Laborers to perform work. The grievance requests as a remedy 48 hours in Wages and
Benefits, listing six named Laborers including Smocer as beneficiaries.
On March 10, Respondent distributed letters to the three employees. The letters stated
that on March 9 Respondent had filed Unfair Labor Practice charges against the Union’s by
forcing Respondent to sign a contract with the respective Unions. It continues that Respondent
has terminated the contracts with the Unions and will not abide by the terms and conditions set
forth in the Agreements. The letter also emphasizes that the employees were not being
terminated or laid off, and if they wish to continue their employment, they will receive the same
wages that they previously enjoyed.
The employees notified their respective Business Agents of the letters, and were
advised to continue working for Respondent.
On March 9. Respondent’s attorney sent a letter to Fusco, enclosing a copy of the Unfair
Labor Practice charges filed by Respondent against the Carpenters, alleging that the Union
unlawfully forced Respondent to sign a contract with the Union. In light of the above, the letter
advises that Respondent is terminating the unlawfully obtained contract retroactive to the
Agreement’s effective date. It also states that the two Carpenters working on the project are not
being terminated, but Respondent will not be purchasing benefit stamps on their behalf.
The same day March 9, Respondent’s attorney sent a similar letter to English,
terminating its alleged “unlawfully obtained” contract with the Laborers, but advising the Union
that one Laborer remaining on the job will not be terminated, although benefit stamps will not be
purchased on his behalf.
Respondent also sent letters to the Unions on March 10, responding to their previous
grievances and breach letters. It informed the Laborers that since it is Respondent’s position
that the contract is terminated and that Respondent was coerced into signing, that therefore it
has no intention of paying the grieved claims. Its letter to the Carpenter’s Union contains
essentially the same position. Respondent’s contract with the Carpenter’s has been terminated
and was unlawfully coerced, and therefore Respondent has no intention of paying the grieved
claim.
On March 11, the Laborers’ sent Respondent a Notice to Arbitrate its grievance
concerning the Laborers’ assertion that on March 6, Respondent brought in six non-union
Laborers.
On March 14, Respondent handed identical letters to all three employees, stating that
they are being laid off, due to lack of work, subject to recall if work becomes available.
Unrefuted and credited testimony was offered by employee witnesses Mott and Smocer,
as well as from the Union officials that on March 14 there was still substantial amounts of both
Carpenters and Laborers work to be performed. The credited testimony establishes that the job
was less than half completed as the date of the layoffs. Indeed Carmack conceded that after
the layoff of the employees, A.J.’s employees performed Carpenters and Laborers work until the
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construction was completed and the restaurant opened in early June.20
Randazzo furnished general and vague testimony that the decision was made to layoff
the employees, because Respondent was running out of money, and there was not enough
work for the employees to perform. No records or other evidence was presented to substantiate
Respondent’s assertion that there was insufficient work for the employees to perform.
The Laborers’ Union filed an amendment to its arbitration request on March 31, which
added allegations that Respondent had refused to pay fringe benefits and discontinued
following the contract, employed Laborers on the job without applying the contractual terms, and
discharged the Shop Steward without the Union’s consent and for discriminatory reasons.
Respondent’s attorney wrote to the Arbitrator by letter of April 4, stating that Respondent
will not be appearing at the Arbitration, which was scheduled for April 8. The letter added that
“it is unlawful for an employer that is not engaged in the construction industry to sign a
pre-hire Agreement with a Union. Inasmuch as local 66 unlawfully induced Rocket Hill
into signing an unlawful Section 8(f) pre-hire Agreement, Rocket Hill has terminated the
Collective Bargaining agreement from which the grievance arose. Rocket Hill has Unfair
Labor Practice charges pending at the National Labor Relations Board.”
On April 8 the arbitration hearing was held before Arbitrator Joseph Harris. Respondent
did not appear. Witnesses were sworn in and testimony was given. The arbitration award was
issued on July 7, 2005, in which it was concluded that Respondent terminated Shop Steward
Michael Smocer on March 14, 2005 without the Union’s consent, and ordered it to reinstate
Smocer and compensate him for the loss of wages and benefits. The Arbitrator also found that
Respondent failed to pay fringe benefits for Smocer for the period of March 7-11 and 14, days
that Smocer actually worked for Respondent.
The Arbitrator also concluded that Respondent subcontracted work in violation of the
contract to A.J. on March 6, and from March 15 to May 28. The Arbitrator ordered Respondent
to pay into the Union’s Funds in order to remedy these violations in amounts of approximately
$24,000 plus interest and the Union’s attorney fees.
Subsequently, Respondent filed a motion in Federal Court to vacate the Arbitrator’s
award. That motion was still pending as of the close of the instant hearing.
F. NAICS
The United States Census Bureau issues a document entitled North American Industry
Classification (NAICS). That document defines a full service restaurant as “establishments
primarily engaged in providing food services to patrons who order and are served food when
seated… and pay after eating.”
The NAICS defines the construction sector as “establishments primarily engaged in the
construction of buildings or engineering projects.” NAICS further provides:

20 Carmack began interviewing employees for hire at the restaurant in April, and the
interviewing and hiring process continued until the restaurant opened.
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“Force account construction is construction work performed by an enterprise primarily
engaged in some business other than construction for its own account and use, using
employees of the enterprise. This activity is not included in the construction sector
unless the construction work performed is the primary activity of a separate
establishment of the enterprise.”
IV. ANALYSIS
A. THE REPUDIATION OF THE CONTRACTS
It is undisputed that Respondent signed Collective Bargaining Agreements with the
Unions in January of 2005, at a time when Respondent employed no bargaining unit
employees. It is further undisputed that on or about March 9, Respondent sent letters to the
Unions, repudiating the Collective Bargaining Agreements that it had executed with the Unions,
withdrew recognition from the Unions, and ceased applying the terms of the contracts to its
employees.
The Complaint alleges and General Counsel and the Unions contend that the contracts
signed with the Unions were valid 8(f) agreements, which are lawful, despite Respondent having
no unit employees at the time that the contracts were signed. Therefore, General Counsel
argues that Respondent has violated Section 8(a)(1) and (5) of the Act by repudiating its
contracts with the Unions during the contracts’ terms. John Deklewa & Sons, 282 NLRB 1375,
1385, 1389 (1987).
Section 8(f) of the Act reads as follows:
It shall not be an unfair labor practice under subsections (a) and (b) of this section for an
employer engaged primarily in the building and construction industry to make an
agreement covering employees engaged (or who, upon their employment, will be
engaged) in the building and construction industry with a labor organization of which
building and construction employees are members (not established, maintained, or
assisted by an action defined in section 8(a) of this Act as an unfair labor practice)
because (1) the majority status of such labor organization has not been established
under the provisions of section 9 of this Act prior to the making of such agreement, or (2)
such agreement requires as a condition of employment, member such in such labor
organization after the seventh day following the beginning of such employment or the
effective date of the agreement, whichever is later, or (3) such agreement requires the
employer to notify such labor organization of opportunities for employment with such
employer, or gives such labor organization an opportunity to refer qualified applicants for
such employment, or (4) such agreement specifies minimum training or experience
qualification for employment or provides for priority in opportunities for employment
based upon length of service with such employer, in the industry or in the particular
geographical area: Provided, That nothing in this subsection shall set aside the final
proviso to section 8(a)(3) of this Act: Provided further, That any agreement which would
be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed
pursuant to section 9(c) or 9(e).
This Section of the Act was enacted in 1959, as part of the Labor Management and
Disclosure Act, in recognition of the unique Collective Bargaining Practices of the construction
industry, which had regularly employed a practice of signing pre-hire contracts. John Deklewa,
supra at 1380.
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Thus under 8(f), employer who is primarily engaged in the building and construction
industry is permitted to enter into a contract with a labor organization of which building and
construction employees are members, without regard to whether the Union’s majority status has
been established. Coulter’s Carpet Service, 338 NLRB 732, 733 (2002).
The reasons for the enactment of this exception to established Board Law, are detailed
in John Deklewa, supra, and other cases, quoting from the legislative history of the statute.
The Board in Deklewa explained as follows:
It had become established practice in the construction industry for employers to
recognize and enter into collective-bargaining agreement with a construction industry
union for periods ranging from 1 to 3 years even before any employees had been hired.
S.Rep., 1 Leg. Hist. 423. Such agreements often contained union-security clauses,
exclusive referral provisions, and employee training and seniority requirements.
Congress found two reasons for this:
One reason for this practice is that it is necessary for the employer to know his labor
costs before making the estimate upon which his bid will be based. A second reason is
that the employer must be able to have available a supply of skilled craftsmen ready for
quick referral. A substantial majority of the skilled employees in this industry constitute a
pool of such help centered about their appropriate craft union. S.Rep., 1 Leg. Hist. 424.
See also, H.Rep., 1 Leg. Hist.777.
Another important characteristic of the industry was sporadic employment
relationships. In construction, an employee or group of employees “typically works for
many employers and for none of them continuously. Jobs are frequently of short
duration, depending on various stages of construction.” S.Rep., 1 Leg. Hist. 423. It was
and, as indicated by the facts of this case, remains typical for an employee to be referred
from a union hiring hall to one employer for a number of days or weeks and, upon
completion of the work, to return to the hiring hall for referral to another employer.
As Congress stated, “serious problems” arose when the Board began to apply
the pre-1959 Act to these unique practices and situations. S.Rep., 1 Leg. Hist. 423;
H.Rep., 1 Leg. Hist. 777. In a series of cases, the Board had found unlawful the
bargaining, referral, hiring, and employment practices common in the industry. It also
became clear that, because of the short and sporadic periods of employment typical to
the industry, “[r]epresentational elections in a large segment or the industry are not
feasible.” S.Rep., 1 Leg. Hist. 451-452. Accordingly, when Congress considered the
1959 amendments it recognized that application of the pre-1959 Act to the construction
industry would result in substantial instability in the industry by the invalidation of
established industry practices while at the same time employees in the industry would be
deprived of both the fruits of collective-bargaining as well as the freedom to express their
desires concerning union representation. Id. at 1380, footnote omitted.
See also, Forest City/Dillon-Tecon, 209 NLRB 867, 869-870 (1974) emphasizing other
statements made in the Acts legislative history providing three reasons why Collective
Bargaining Agreements must be negotiated in the construction industry before employees are
hired. These reasons are, (1) “contractors need to know what the wage rates and conditions of
employment will be before submitting their bids on construction jobs…; (2) Many projects
involve work of such short duration that the work would be completed long before a Collective
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Bargaining Agreement could be signed; (3) It is manifestly inefficient to negotiate a separate
contract for every project, therefore the building trades Unions and Contractors follow the
practice of working out a scale of wages and other terms of employment which will be applicable
to all projects within a specified geographical area for a substantial period of time.”21
Also pertinent is NLRB v. Irvin d/b/a Irvin-McKelvy, 475 F.2d 1265, 1267 (3d Cir. 1973),
where the Court referring to legislative history, stated that pre-hire agreements were authorized
in the construction industry, because “of the dual necessities (1) that construction bidders know
in advance of bid what their labor costs would be, and (2) that construction employers have
access to an available pool of skilled craftsmen for quick reference.”
As part of the same 1959 LMRDA, Congress enacted Section 8(e) of the Act, which
bans “hot cargo clauses,”22 but added a proviso that the section does not apply to “an
agreement between a labor organization and an employer in the construction industry.”
Subsequent precedent makes clear that Congress intended there to be a significant
distinction between section 8(e) and (f) of the Act. Thus by enacting Section 8(e) of the Act,
Congress intended to preserve the status quo relating to the validity of agreements relating to
the contracting of work done at the site of the construction project, in order to minimize job site
tension. Carpenters v. Rawley-Schlimgen, 2 F.3rd 765, 767 (7th Cir. 1993); Carpenters (Rawley-
Schlimgen), 318 NLRB 714, 715 (1995). Thus resolution of the issue of whether an employer is
an employer engaged in the construction industry is dependent on the degree of control over
construction site labor relations that the employer elects to retain. Glens Falls Building and
Construction Trades Counsel (Indeck Energy), 325 NLRB 1084, 1087 (1998); Carpenters Local
743 (Longs Drug) 278 NLRB 440, 442 (1986).
Thus, by using the word “primarily” in section 8(f), Congress intended to restrict the
category of employers, whereas by the failure to use the word “primarily” in Section 8(e), it
intended to broaden the category beyond those primarily in the construction industry. Los
Angeles Bldg. Indust.(Church’s Fried Chicken) 183 NLRB 1032, 1036-37 (1970); Carpenters v.
Rowley-Schlimgen, supra., 2 F3d. at 767. Finally, whether an employer is an employer within
the meaning of Section 8(e) of the Act, is dependent upon the circumstances of each situation,
rather than on the principal business of the employer. Indeck, supra., at 1087; Rowley-
Schlimgen, supra., 318 NLRB at 715-716.
Since the instant case involves the interpretation of 8(f) and not 8(e), the emphasis must
center on the principal or primary business of Respondent. Frick Co.,141 NLRB 1204, 1208
(1963); C.M. Mechanical Co., 275 NLRB 685 (1985); Pekowski Enterprises d/b/a Expo-Group,
327 NLRB 413, 428 (1999).
The word “primarily” is defined in the dictionary as “essentially, mostly, chiefly,
principally”,23 and by the Board as “principally, chiefly or mainly.” Carpet, Linoleum and Soft
Tile Local 1247 (Indio Paint and Rug Center), 156 NLRB 951, 960 (1966). By such definition,
Respondent cannot reasonably be characterized as primarily engaged in the building and
construction business, since its main or principal business is clearly operating a restaurant.

21 Analysis of House Committee Bill at Vol. II, p. 1575 of Legislative History of LMRDA.
22 Agreements where employers agree to cease doing business with or handle products of
any other employers.
23 Random College Dictionary revised Edition copyright 1980.
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Indeed General Counsel and the Unions do not dispute this fact, but argue that at the
time that it signed its contracts with the Unions, it “sole function” was building a restaurant, and
that in that regard, it acted as its own general contractor for at least part of the job, and was
therefore “primarily” engaged in the building and construction industry for that period of time.
Zidell Explorations, 175 NLRB 887, 888-889 (1969); A. L. Adams v. Georgia Power, 733 F.2d.,
853 (11th Cir. 1984) Church’s Fried Chicken, supra.; Indio Paint and Rug, supra.; Construction
Building Materials & Miscellaneous Drivers, Local 83 (Various Employers), 243 NLRB 328 331
(1979); Freeman Decorating Co., 336 NLRB 1, 47, 49 (2001).
I disagree. Initially, I note that General Counsel’s essential position was considered and
rejected by the Board in Frick, supra. There the Employer was mainly engaged in the
manufacture and sale of refrigeration equipment. However, a small portion of its business
involved the installation of such equipment. The Employer entered into a pre-hire agreement
with a construction union, covering the work to be performed at construction sites. General
Counsel alleged that the Employer therein violated Section 8(a)(1) and (5) of the Act by
terminating its contract with the Union, and argued as does General Counsel here, that 8(f)
should not depend upon an appraisal of the employer’s entire operation, but only of the
particular work in question, which in that case was a contract for work exclusively related to
construction. The ALJ (then called the Trial Examiner), dealt with General Counsel’s contention
in this regard in language applicable to the instant case.
The General Counsel concedes in his brief that Respondent is not engaged
primarily in the construction industry, if one considers only the Respondent’s operations
“as a whole.” However, the General Counsel contends that the applicability of Section
8(f) should not depend upon an appraisal of an employer’s entire operations but only of
the particular contract in issue, which in this case was a contract for the performance of
work exclusively related to construction. However, the vice of this argument is that it
reduces to a nullity the limitation in Section 8(f) upon the type of employer covered by
that provision, for it is difficult to imagine any contract with a building trades union
“covering employees engaged (or who, upon their employment, will be engaged) in the
building and construction industry” which would not be a contract for the performance of
work primarily, if not exclusively, related to construction. Accordingly, adoption of the
General Counsel’s view would render valid under Section 8(f) any contract with a
building trades union for work to be done on a construction job regardless of the nature
of the employer’s business. It is a well settled rule of statutory construction that
Congress will not be presumed to have intended a vain act. It is also a familiar canon
that a statutory provision, which, like Section 8(f) creates an exception to the general
scheme of a statute, will be strictly construed. Both these rules militate against
acceptance of the General Counsel’s construction, and I reject it. Id. at 1208.
This view has been subsequently upheld in numerous cases. (C.J.M. Mechanical,
supra.; Expo Group, supra., at 420 (Finding that employer engaged in producing trade shows,
although its employees “performed considerable construction,” this work was “incidental to its
mission of producing trade shows.”) Here, while at the time that it signed its contracts with the
Unions, Respondent had derived no revenues as yet from its restaurant, it was still primarily
engaged in the business of operating a restaurant. It was responsible for building the
restaurant, before it could derive any revenue from it, and I conclude that the construction of the
restaurant was “incidental” to its mission of operating a restaurant. Expo, supra.
I find a close examination of the cases cited by General Counsel and the Unions, reveals
them to be not dispositive, distinguishable from the instant facts, and in some cases supportive
of my conclusion.
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The primary case relied upon by General Counsel and the Unions, as well as by
subsequent cases citing its holding is Zidell Explorations Inc., 175 NLRB 887 (1969). There an
Employer (Zidell) whose main business was shipbuilding, contracted with the U.S. Department
of Defense to dismantle a ballistic missile complex. On February 8, 1966 Zidell entered into a
letter of understanding with a Union, recognizing the Union as the bargaining representative for
all employees to be engaged in performing the contract, and agreed upon the principal terms
and conditions of employment. About the same time, Zidell entered into a subcontract with
Taylor to perform the actual dismantling work. On February 21, 1966 Taylor and the Union
executed a pre-hire contract covering Taylor’s employees who were to be engaged in such
work. Taylor began operations at the site on February 21, and continued until April 5, 1966,
when Zidell terminated the contract, and undertook to complete the project itself. On April 10,
Zidell and the Union entered into an identical pre-hire agreement to the one between Taylor and
the Union. Zidell began its own hiring or employees for the project in April and carried it on until
completion.
Based on these facts, the Trial Examiner found that Taylor was primarily engaged in the
building and construction industry, and that by executing a pre-hire contract with the Union, it
did not violate the Act. However, the Examiner found that Zidell was not primarily engaged in
the building and construction industry [within the meaning of 8(f)], and that it violated the Act by
executing a pre-hire contract with the Union.
The Board sustained the Examiner’s findings with respect to Taylor, but reversed the
conclusion as to Zidell. The General Counsel cites that portion of the Board’s opinion which
states as follows:
Plainly, Zidell’s operations at the missile site were no different from those of
Taylor during the relevant time and it would clearly be an anomalous disposition on our
part to find that Taylor in performing the same work at the same site and with
substantially the same employees was entitled to the Section 8(f) exemption and Zidell
was not. Id. at 888.
General Counsel argues that the evidence supports the conclusion that Respondent
acted as its own general Contractor, in replacing A.J., and had A.J. done what Respondent did
at the site, that entity would be entitled to the exemption. Therefore General Counsel contends
Respondent was a “primarily” engaged in the building and construction industry at the time. I
cannot agree.
While General Counsel correctly cited the above quotation from Zidell, which is
supportive of its position, it conveniently fails to cite other portions of the opinion, which
significantly do not support a finding that Respondent here is “primarily” engaged in the building
and construction industry.
The Board in Zidell relied heavily on the purposes of 8(f) as stated in the legislative
history, i.e. the need for a building contractor to know what his labor costs would be, before
making a bid for the job, and the need for an available supply of skilled labor ready for
immediate referral to the jobsite. The Board noted that Zidell had (presumably) made a bid to
the Defense Department to dismantle the site, and “no doubt estimated the labor costs required
to accomplish the dismantling, a function involving employees engaged in the building and
construction industry… and proceeded to enter into an agreement with the Union… to assure
that the required supply of the various skilled craftsmen would be available.” Id. at 889.
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That important fact emphasized by the Board in Zidell is not present here. There is no
evidence or even any implication that Respondent made a bid or any calculation of its costs for
constructing the store, based upon a desire to employ Union labor or to assure that the supply
of various skilled craftsmen would be available. To the contrary, Respondent had no intention
of contracting with Unions, or hiring any employees to perform construction work. Rather, it
intended to and did contract with A.J. to act as Respondent’s General Contractor, to run and
manage the job, and to use A.J.’s own employees to perform various work, including Carpentry
and Laborers’ tasks. This is not surprising, since neither Respondent, nor any of its owners had
any experience or expertise in construction.
In Zidell by contrast, the employer there did have experience in construction type work,
as pointed out by the Board. It was Zidell that had signed a letter of understanding with the
Union, prior to the job beginning, detailing the terms and conditions of employment on the job,
which were also included in the contract signed by Taylor and the Union. Thus when Zidell
replaced Taylor with its own employees, it was merely agreeing to the same terms and
conditions of employment that it had agreed to with the Union before the job began, and before
Taylor started performing the work in question. Thus the Legislative history which supported the
Board’s conclusion that Zidell was “primarily” engaged in the building and construction industry
does not support a similar conclusion here.
Further, and even more importantly, the Board in Zidell observed as follows:
Although the Trial Examiner found Zidell’s primary field of activity to be
shipbuilding, thereby disqualifying it from the 8(f) exemption, the record is clear that
Zidell’s entirely separate operation at the missile site was consonant with the
Congressional purposes and objective of the 8(f) exemption.
The record shows that Zidell commonly dismantles or wrecks ships, factories or
other structures to obtain salvageable materials which it then uses for construction
purposes. It has built factories and warehouses as well as barges, ships and cranes,
and has erected a complete plant for the manufacturing of steel fittings. Thus, it is clear
that Zidell has frequently engaged in transitory on-site operations in the construction
industry similar to those performed at the missile sites and has employed the skilled
craftsmen and operators normally associated with the building and construction industry
required to accomplish its objectives. Its work on this job was in all characteristics
identical to that performed in the construction industry despite the fact that some of
Zidell’s other projects not discussed here were of a type unrelated to the construction
industry. Id. at 889.
Thus the Board relied heavily on the fact that Zidell’s operations at other sites included
other construction type activities, including the use of skilled craftsmen normally associated with
the building and construction industry. Therefore Zidell can be reasonably read as being
consistent with Frick, Expo, and other cases, that it is essential to evaluate whether an employer
is primarily engaged in the building and construction industry, based on considering its entire
business, rather than the particular work involved.
Here, unlike in Zidell, there is no evidence that Respondent engaged in any other
activities remotely connected to construction functions. Indeed, Respondent is a start up
business, and the store in question is the first and only store that is being currently built.24

24 It is true that Respondent has the franchise to build additional stores in Nassau and
Continued
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Finally, Zidell is distinguishable factually for additional reasons. In Zidell the Employer
entirely replaced Taylor as General Contractor, including hiring some employees formerly hired
by Taylor, as well as some new employees. Here Respondent did not replace A.J., in fact made
no changes in its contract with A.J., and permitted A.J. employees to continue to perform both
Laborers and Carpenters work, even after Respondent hired the three unionized employees.
General Counsel asserts that A.J., although nominally the General Contractor, did not
actually function in that capacity, as evidenced by the fact that Respondent contracted directed
with other contractors. I disagree. The evidence establishes that A.J. was in charge of running
the job, both before and after Respondent signed its contracts with the Unions. A.J. decided on
which work will be performed and when, and notified Respondent through Carmack25. Indeed,
General Counsel’s own witnesses, including employees and union officials, referred to A.J. as
the General Contractor. General Counsel argues that Respondent replaced A.J. as General
Contractor, and that Carmack functioned in that capacity, once the unionized employees began
to work. Once more, I cannot agree. While Carmack did in fact supervise the employees, by
informing them of their work assignments, monitoring their time, and signing shop steward
reports, these functions do not establish that either he or Respondent acted as the General
Contractor. Indeed, the record discloses that Carmack did not decide what work was to be
performed, but was told by representative of A.J. what needed to be done at a particular time,
and merely relayed these instructions to the employees.
It is true that Respondent did contract directly with several Contractors, a function
frequently performed by a General Contractor. However, it is not unheard of for an employer to
directly contract with some contractors, while utilizing a General Contractor to manage the job,
and or to perform some work with the General Contractor’s own employees. Moreover,
Respondent selected the contractors because they were either recommended by the Mall or by
Johnny Rockets, or because of a personal friendship between one of the owners of
Respondent, and an owner of a contractor. Most importantly, in each case, Respondent sought
and received the approval of A.J. before signing contracts with these contractors, thereby
demonstrating Respondent’s reliance on the expertise of A.J. as the General Contractor.
General Counsel’s further contention that Respondent was not engaged in any other
work other than constructing the store during the period of the construction, is not correct. The
evidence discloses that during this period of time, Respondent was also engaged in other
functions in preparation for opening the store. This included training and hiring its supervisors
and rank and file employees, preparing its menu, ordering its food and beverages, and
arranging for advertising. It is of course, true as pointed out by General Counsel, that
Respondent received no revenues from the restaurant business while the store was being
built26 However, this is inconsequential, since in any start up business, generally there will be
no revenues coming in until the business is up and running. The building of the store must be
completed, as well as all the other items resolved, such as hiring, advertising and ordering food
_________________________
Suffolk County. It is conceivable that in the future, that it may build more stores, and perhaps
get involved in constructing these stores. However, since Respondent’s possible role in any
future construction is pure speculation, the record here stands unrebutted, that Respondent
engaged in no other construction or construction type activities, at any other location, unlike the
employer in Zidell.
25 A.J. also supplied all the equipment and materials used by the unionized employees on
the job.
26 Of course, Respondent received no revenues from any source, including the construction
of the store, during this time.
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and beverages, before the store can open and produce revenue. Thus, in my view, the
construction of the store is one of the many aspects of the restaurant that need to be finished,
before the store is operational. This does not change the essential character of Respondent’s
business as a restaurant, and not a construction business. I therefore reaffirm my conclusion,
which Zidell does not change, that Respondent has not been at any time “primarily” engaged in
the business of building and construction.27
Subsequent to Zidell, there have been no Board decisions that I have found, where the
Board concluded that an employer was “primarily” engaged in the building and construction
industry, based upon performing construction work on a particular project. It is true as pointed
out by General Counsel, that the Board in Various Employers, supra, did observe, in purportedly
summarizing current law on this subject, that “the exemption has also been applied to
employers whose general business is not in the industry, but who are engaged in construction
work on a specific project.” The Board cited Zidell and interestingly no other case for that
proposition. As I have explained in detail above, the facts in Zidell do not support the argument
made by General Counsel and Charging Parties, that whenever an employer engages in
construction work on a particular project, it is deemed to be “primarily” engaged in construction
for that project under 8(f). Rather, Zidell is in my view consistent with Frick, Expo Group, and
other cases, which emphasize that the overall business of the employer must be center of the
analysis of this issue.
While Zidell did find the employer therein to be engaged “primarily” in construction, while
it was involved in construction work at a particular site, the work performed was consistent with
other work performed by that employer at other sites. I therefore conclude that the statement of
the law in Various Employers, is somewhat misleading, and not precise, since it omits that
important fact in Zidell from its purported statement of the law. Further the Board in Various
Employers, found on the facts therein that the work involved at the construction sites by the
employers involved did not constitute “a significant enough portion of the employers business to
warrant a finding that the employer is primarily engaged in the construction industry.” Id. at 332.
Thus Various Employer provides little support for the position of General Counsel.
Both Counsel for General Counsel and the Laborers place heavy reliance on A. L.
Adams Construction v. Georgia Power, 733, F.2d 853, 857 (11th Cir. 1984), where a utility
company, acted as its own general contractor, in the construction of a power plant, as well as
hiring some construction employees directly for a period of time on the job. The Court found
that the Employer was entitled to the exemption of 8(f), and that it was engaged primarily in the
building and construction industry, at that site, although the major portion of its business
involves the production and sale of electricity. The Court, attempting to follow Board law, citing
both Zidell and Various Employers, found that “the Board has determined that an employer,
although largely involved in non construction industries, may take advantage of Section 8(f) if it
is sufficiently engaged in construction work at one site.” Id. at 857.

27 I also rely upon in making this conclusion, on the NAICS definition of a restaurant, as well
as the NAICS definition of construction, which precludes construction work as being included in
the construction sector, unless the construction work performed is the “primary activity of a
separate establishment of the enterprise.” See Animated Displays Co., 137 NLRB 999, 1021–
1022 (1962); Rowley-Schlimgen, supra; Indio Paint, supra, at 958, relying on similar
publications in assessing this issue.
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However, I note that this case is not a Board case, and arose in a different context than
the instant case, as well as the others cited.28 Since only Board or Supreme Court decisions
are binding precedent for my decisions, Georgia Power has little precedential value in my
evaluation of the meaning of Section 8(f). Although the Court did attempt to interpret Board law,
as I have explained above, I do not believe that either Zidell or Various Employers can be
construed as broadly as the Court concluded in Georgia Power, supra, and as argued by
General Counsel and Charging Parties here. As I have stated several times above, Zidell can
and should be reconciled with other Board precedent such as Frick and Expo Group, which
emphasize that the issue of whether an employer is “primarily” engaged in the construction
industry, must be determined by the overall nature of the Employer’s business.29
Moreover, even assuming that Georgia Power correctly interpreted Board law, it is also
factually distinguishable from the case at hand. Indeed, when the Court cited Zidell, it quoted
the portion of Zidell which concluded that “the record is clear that Zidell’s entirely separate
operation at the missile site was consonant with the Congressional purposes and objectives of
the 8(f) exemption.” 733 F.2d at 857, citing 175 NLRB at 889. The Congressional purposes
and objectives referred to in Zidell, which were equally applicable to the facts in Georgia Power,
I have detailed above. That is, the fact that the Employer in Zidell in presumably preparing its
bid to purchase the missile site, no doubt estimated the labor costs required to accomplish the
dismantling, a function involving construction employees, and proceeded to enter into an
agreement with the Union to assure that the required supply of the skilled craftsmen would be
available. Similarly, Georgia Power when it decided to act as its own General Contractor and to
for a time employ its own employees, presumably needed to and did estimate the labor costs
involved, and needed to be assured that the required supply of labor would be available. It
therefore signed pre-hire contractors with various unions.
In contrast, Respondent here, as I have observed above, had no intention of employing
any construction employees. It made no bid, and did not consider labor costs or the necessity
of ensuring skilled labor on the job, when it signed the contracts with the Unions. Whatever
calculations it may have made concerning the cost of construction was obviously factored into
its decision to use A.J. as the General Contractor on the job, to both manage the job and to
employ A.J.’s own employees to perform some work, including carpenters and laborers
functions.
Respondent’s decision to sign contracts with the Unions, had nothing to do with any
need to know labor costs or to assure the availability of skilled workers, and everything to do
with Respondent’s need to be able to continue construction of the store. Respondent signed
the contracts with the Unions because of pressure from the Mall, who had ordered Respondent
to work out the problems with the Unions, or it would not be able to continue to construct its

28 The issue in Georgia Power, was whether the agreement was exempt from anti-trust
laws, because it qualified under the construction industry proviso to Section 8(e). This decision
required an analysis of 8(f) to determine whether a “collective bargaining” relationship was
established between the unions and Georgia Power.
29 As the ALJ (affirmed by the Board) correctly points out in Expo Group, ”the analogous
problems (employment of skilled labor, requires employees for work of short duration), faced by
the construction industry and the motion picture industry, for example do not make a movie
producer a construction industry contractor entitled to the 8(f) exemption. For purposes of
Section 8(f), the movie producer remains a movie producer, and not a building contractor, even
though the producer employs many skilled craftsmen to design, construct, and wire highly
sophisticated structures and sets.” 327 NLRB at 428.
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store. Since A.J. could not be persuaded to sign the contracts with the Unions, that A.J. had
previously agreed to execute, Respondent was compelled to sign contracts with the Unions, and
to directly employ the employees performing Carpenters and Laborers’ functions. There is
nothing in the legislative history that supports the conclusion that this is the type of situation
contemplated by Congress, when it enacted Section 8(f) of the Act.
I therefore conclude that Georgia Power is not dispositive, and that my conclusion that
General Counsel and Charging Parties have not shown that Respondent was “primarily”
engaged in the building and construction industry is still valid.
Finally, General Counsel also cites Church’s Fried Chicken, supra, which is a case most
closely factually parallel to the instant matter, since it involves a restaurant engaged in the
construction of one of its stores. The Employer there, acted as the General Contractor in
building its stores, subcontracted out to various trades most of the building work, and used a
few of its own employees for a small amount of the work. An employee of the employer,
designated as its construction superintendent supervised the construction projects. General
Counsel relies upon the portion of the opinion of the Judge, affirmed by the Board, which
concluded that “it is clear that the work of building stores falls within the category of work
performed in the construction industry.” Id. at 1036. The opinion further concluded that the
Employer that acts as its own contractor in building its stores, “should be included in the
category of employers in the construction industry.” Id. at 1037.
However, Church’s Fried Chicken decided only the issue of whether the Employer was
an employer in the construction industry within the meaning of the first proviso of Section 8(e) of
the Act (emphasis supplied).
As detailed in Church’s Fried Chicken, Congress intended a distinction between 8(e) and
8(f), by inserting the word “primarily” in the statute, intending to broaden the category in 8(e)
beyond those employer’s primarily in the construction industry, and to restrict the category of
employers in Section 8(f). The Judge concluded that the key issue to be decided in assessing
8(e), is whether the Employer exercised control over labor relations at the site, concluding that
the Employer did exercise such control, the decision concluded that, it was an Employer in the
construction industry within the meaning of Section 8(e) of the Act.
While General Counsel is correct that Church’s Fried Chicken made no specific finding
as to whether the employer was “primarily” engaged in construction under 8(f), the tenor of the
opinion is clear that such Employer was not so engaged. Indeed the opinion reads as follows:
Thus, although it might be said that Church’s is primarily engaged in the business of
selling fried chicken in its retail stores, that fact would not appear to militate against
Church’s being found to be an employer in the construction industry within the meaning
of Section 8(e) of the Act, insofar as its operations in constructing stores. With respect
to Section 8(e), what Church’s primary business may be would appear to be immaterial.
Only its store construction operations are involved herein. Id. at 1037.
See also Rawley-Schlimgen, supra, 318 NLRB at 715-716, whether an employer is an
employer in the construction industry within the meaning of the first proviso to Section 8(e) is
dependent on the circumstances of each situation rather than on the principal business of the
employer.” Citing Carpenters v. Rowley-Schlimgen, 2 F.3d at 367-769.
Thus both Church’s Fried Chicken and Rowley-Schlimgen, make clear that in assessing
8(f) and the issue of whether the employer is “primarily” engaged in construction, is unlike
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deciding the applicability of the 8(e) proviso, dependent upon the principal business of the
Employer. I therefore find contrary to the position of General Counsel, that Church’s Fried
Chicken (as well as Rowley-Schlimgen), not only do not support General Counsel’s argument,
but instead my view, as detailed above, that for 8(f) purposes the primary or principal business
of the Employer is paramount. Therefore, I find that Respondent, like the Employer in Church’s
Fried Chicken, is primarily engaged in the business of selling food and beverages at its stores
and that General Counsel has not demonstrated that Respondent’s involvement in the
construction of the store, while the store was built make it “primarily” engaged in the building
and construction industry for that period of time. Frick, supra, Expo Group, supra.
However, I do agree with General Counsel that Respondent’s involvement in the labor
relations on the job, by directly supervising employees, directly contracting with several
contractors, and having a representative at the jobsite, was “an employer in the construction
industry” relating to work at the site, while its store was being built. Church’s Fried Chicken,
supra; Rowley-Schlimgen, supra.
Having found that Respondent was not primarily engaged in the construction industry, it
follows that it and the Union were not privileged, by 8(f) enter into pre-hire agreements.
However, that finding does not necessarily mean that Respondent was justified in repudiating
the contracts that it had entered into, or by withdrawing recognition from the Unions.
General Counsel has raised several arguments relative to that issue. Initially it asserts
that Section 10(b) of the Act precludes Respondent from attacking the majority status of the
Unions at the time of the recognition and or the signing of the contracts. Strand Theater of
Shreveport, 346 NLRB No. 51 ALJD, Slip op. p. 14 (2006); Sewell-Allen Big Star, 294 NLRB
312, 313-314 (1989). In that regard, it is well settled than in light of the Supreme Court’s
decision in Local Lodge 1424 IAM (Bryan MFG.), 362 U.S. 411 (1960), a Respondent may not
defend against a refusal to bargain allegation on the ground that the original recognition of the
Union was unlawful, if it occurred more than 6 months before charges had been filed in the
proceeding raising the issue. Route 22 Auto Sales d/b/a Route 22 Toyota, 337 NLRB 84, 85
(2001); North Bros. Ford Inc., 220 NLRB 1021, 1022 (1975).
General Counsel argues that in light of this precedent, Respondent cannot raise the
issue of the Union’s lack of majority status in this proceeding, because if failed to raise the issue
within 6 months of the recognition and in the case of the Laborers’ contract from the signing of
the contract. Thus according to General Counsel, Respondent did not raise the issue of the
Union’s lack of majority until its answer, which was not filed until July 9, 2005, more than six
months from the recognition of the Unions (January 4, 2005) which included an agreement by
Respondent to sign contracts with the Unions. Therefore under the above precedent, General
Counsel contends that Respondent cannot raise the defense of lack of majority status. I
disagree.
Contrary to General Counsel’s assertion, the critical date for measuring the running of
the 10(b) period, is not the date when Respondent raised its defense, but the date of the
charges alleging the refusal to bargain. Route 22 Toyota, supra; North Bros. Ford, supra.
Thus the Unions filed their charges in March of 2005, well within the 6 months from the
dates of recognition and or signing of the contracts with the Unions. Since in March of 2005, the
validity of the January 2005 recognition and contracts were still subject to attack, by a valid
8(a)(2) charge, Respondent can raise the Union’s lack of majority status, as a defense to the
March 2005 charges.
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In view of this finding, I need not and do not decide the issue, as asserted by
Respondent, that it raised the issue of the Union’s lack of majority status, along with its
assertion that it was not primarily engaged in the building and construction industry during the
investigation of the charges. I would note however in this regard, that Respondent did send a
letter dated April 4 to the arbitrator handling the arbitration filed by the Laborers, which did
specifically contend that the pre-hire agreement it signed with the Laborers was unlawful, since
it is not engaged in the construction industry.
Accordingly, I reject General Counsel’s contention that 10(b) of the Act precludes
Respondent from raising the issue of the majority status of the Unions.
General Counsel argues alternatively, that Respondent should be estopped from
claiming that the agreements with the Union were invalid. Strand Theater, supra: ALJD Slip.
Op. at 14-15. In Aloha Associates, 344 NLRB No. 95, Slip. Op at 2-3 cited (2005), cited
approvingly in Strand, supra, the Board detailed the four requisite elements of equitable
estoppel. They are (1) knowledge, (2) intent (3) mistaken belief and (4) detrimental reliance.
R.P.C. Inc., 311 NLRB 232, 233(1993); Red Coats, 320 NLRB 205, 206 (1999). Additionally,
the Board also assesses whether the party to be estopped has received a benefit as a result of
its actions. Red Coats, supra.
Here all of the above elements are present. When Respondent agreed to recognize and
sign contracts with the Unions, it knew or should have known, that there was an issue
concerning majority status. Red Coats, supra, 206 (Respondent knew from the outset that there
was an issue as the appropriateness of the unit.) Respondent knew that it had no employees,
was signing pre-hire contracts, and that it would be obtaining its employees from the Union’s
hiring halls. Respondent clearly intended to and did accept events that it later sought to
challenge, i.e. its signing of the Union contracts. Alpha Associates, supra., at p.2.
Further, Respondent’s conduct of signing and enforcing the contracts for approximately
two moths, prior to its repudiation, surely induced the Union to believe that Respondent would
forgo any subsequent challenge to the Unions’ majority status of the time of recognition. Thus,
the Unions acting in reliance on its mistaken belief as to Respondent’s intentions, relied to its
detriment on Respondent’s actions. Alpha Associates, supra, at P.3; Strand, supra, at ALJD
Slip. Op. at 15; Red Coats, supra, at 206; R.P.C., supra, at 233. Had Respondent promptly
challenged the Union’s majority status, the Unions could have attempted to establish their
majority status through the Board’s processes, including but not limited to filing 8(a)(1) and (5)
charges against A.J., for to refusing to sign contracts with the Unions’ that A.J. had agreed
upon. Alpha Associates, supra, at 3; Red Coats, supra, at 206-207; R.P.C., supra, at 233.
Finally, as a result of its conduct, Respondent has obtained the benefit of avoiding
potentially and time consuming litigation, possibly a Union organizing campaign, as well as the
continued stability of its labor relations. Alpha Associates, supra; Red Coats, supra, at 207. In
that latter regard, Respondent was able to resume construction of its store, which it would not
have been able to do , absent its resolving the labor dispute which was required by its lease
with the Mall. Under these circumstances, “the policies of the Act are not served by allowing the
Respondent to use the process of voluntary recognition to gain a benefit, only to cast off the
process when it does not achieve what it desires.” Alpha Associates, supra; citing Red Coats,
supra, at 207.
Accordingly, based on the above precedent and analysis, I conclude that Respondent,
all other things being equal would be foreclosed from belatedly contesting the majority status of
the Unions as of the time of recognition or the signing of the contracts.
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However, several of Respondent’s other defenses allege that it was unlawfully coerced
into signing its contracts by various kinds of unlawful conduct of the Unions. I shall therefore
reserve final disposition of the equitable estoppel issue to my consideration of these issues, to
be considered below.
In its answer, Respondent raised as an affirmative defense, that its conduct in
repudiating its contract with the Laborers was lawful, because a mid term repudiation of a
contract “is permissible where the bargaining unit has diminished to a single employee.”
However, I agree with General Counsel, that the Laborers unit cannot be construed as a stable
one person unit, since the evidence discloses that Laborers work was performed on several
occasions by A.J. employees, which should have been performed by Respondent’s employees
under the terms of the Laborers contract. Thus the unit should have been, had Respondent
complied with its contractual obligations, more than one employee.
Furthermore, this defense would also be rejected because of “equitable estoppel,” as I
have discussed above. As was the case with Respondent’s attempt to contest the Union’s lack
of majority status, Respondent was aware at the time of recognition that it intended to hire only
one laborer employee, and induced the Union to believe that it would not challenge the
appropriateness of the unit, by enforcing the contract for approximately two months.
Respondent by this conduct avoided litigation, stabilized labor relations on the job, and was able
to be permitted to continue building its store by the Mall. Thus Respondent is foreclosed from
belatedly contesting the propriety of the unit. Alpha Associates, supra at 3; Red Coats, supra.
Respondent also asserts that the Unions violated Section 8(b)(7)(c) of the Act, by
picketing for a pre-hire agreement, when Respondent did not employ any employees at the site.
Cleveland Building & Construction Trades Council; (Aetos Construction Co.), 297 NLRB 407
(1988); Laborers’ Local 1184, (NVE Constructors), 296 NLRB 1325, 1326-1327 (1989).
Therefore, Respondent argues that since it was unlawfully coerced into signing their
agreements with the Unions, it can therefore repudiate these contracts, and withdraw
recognition from the Unions.
I find Respondent’s defense in this regard to be without merit. While Respondent is
correct that the cited cases prohibit picketing for recognition of an Employer in a unit with no
employees, the facts here do not establish that the Laborers engaged in such picketing. Rather,
the evidence discloses that the Laborers’ picketing was directed solely against A.J., in order to
compel A.J. to sign the contract that it had orally agreed upon with the Laborers. Such picketing
is lawful, as long as it does not exceed 30 days, Aetos Construction, supra; NVE, supra, at
1330-1331, since A.J. had employees at the time of the picketing.
While it is true that Respondents decision to recognize the Laborers and to sign a
contract with the Unions, resulted in the Laborers removing the picket line, that does not
establish that an object of the picketing was recognition by Respondent. The Laborers had
never requested recognition from Respondent prior to the picketing, and indeed did not even do
so at any time. It was Respondent’s idea to recognize the Unions, when it became clear that
A.J. would not agree to sign the contracts with the Unions, that A.J. had previously agreed to
sign. Therefore, Respondent agreed to recognize the Unions, in order to resolve the labor
dispute on the job, and to enable it to resume construction of the store.
Therefore, since the picketing was not directed at Respondent, but at A.J., such
picketing did not violate Section 8(b)(7)(c) of the Act, and provides no basis for Respondent to
withdraw recognition from or repudiate its contract with the Laborers.
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Respondent also contends that the subcontracting portions of both Union contracts are
violative of Section 8(e) of the Act, and that therefore the Agreements are void and
unenforceable. Local 745 Carpenters (Longs Drug Stores), 278 NLRB 440 (1986); Local 683
Electrical Workers (Kroger Co.), 164 NLRB 516 (1967).
Respondent’s defense in this regard is absolutely without merit. Initially, I have found
above that Respondent is an employer in the construction industry. Therefore the clauses are
protected by the proviso to Section 8(e). Church’s Fried Chicken, supra; Rowley Schlimgen,
supra.
More importantly, even if the clause itself is violative of Section 8(e), that does not mean
the entire contracts are unlawful or voidable by the Respondent, particularly where as here both
contracts contain savings clauses, which state that invalidation of a particular Section of the
Agreement does not affect the remainder of the Agreement.30 W. R. Mollohan, Inc., 333 NLRB
1339, 1340 (2001); Local 274 HERE (Sheraton University City Hotel), 326 NLRB 1058, 1059
(1998).
Therefore, even if the clauses in the contracts are violative of Section 8(e) of the Act,
such finding does not permit Respondent to lawfully repudiate these contracts.
Respondent also asserts that the Unions’ violated Section 8(b)(4)(D) of the Act, by
unlawfully coercing Respondent to reassigning carpentry and laborers’ work being performed by
employees employed by A.J. Respondent argues further that since the evidence reveals that
there was reasonable cause to believe that a jurisdictional dispute existed, that the instant
complaint should be dismissed, because a 10(k) hearing31 should have been the exclusive
method of resolving the instant dispute. Brady-Hamilton Stevedore Co., 198 NLRB 147, 148
(1972); J. L. Allen Co., 199 NLRB 675 (1972); Cornell-Leach Gibson Project, 212 NLRB 495
(1974); Pipeline Dehydrators, Inc. 239 NLRB 172 (1978).
However, as Respondent itself notes, a work assignment dispute within the meaning of
Section 8(b)(4)(D) requires a choice between two competing groups, and there must be either
an attempt to take a work assignment away from another group, or to obtain the assignment
rather than have it given to the other group. Further, “a demand for recognition as bargaining
representative for employees doing a particular job, or in a particular department, does not to
the slightest degree connote a demand for the assignment of work to particular employer rather
than to others”. Local 421 Glass & Pottery Workers, (A-CMI Michigan Casting Center), 324
NLRB 670, 679 (1997); see also SSK Terminals LLC, 344 NLRB # 126 Slip. Op. at 4 (2005).
Here, I am in agreement with General Counsel that the dispute was representational and
not jurisdictional in nature. Initially, I would note that the Unions made no demands upon
Respondent to assign any work to anyone, but only to persuade A.J. to sign the contracts with
the Unions, to which A.J. had agreed. While Respondent did sign Agreements with the Unions,
in order to resolve the dispute, the evidence discloses no demands by the Unions for
Respondent to assign any work to its members, or even to sign contracts with them. To the
extent that it can be argued that a jurisdictional dispute existed, based on the Unions demands
upon A.J., I conclude that these demands by the Unions were also representational. At no time

30 The savings charge in the Laborers’ contract is contained in Article 10, and in the
Carpenter’s contract in Article XIX.
31 Respondent notes that initially the Region issued a Notice of 10(k) hearing, although it
subsequently revoked such notice, upon further investigation.
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did either Union request or demand that A.J. to take away any assignments from its employees.
The Union’s sought “representation” on the site, and requested that A.J. recognize and sign
contracts with them. Indeed, English told representatives of A.J. while discussing the issue, that
the contracts would bring A.J.’s employees into the Local Unions. It was stated by A.J.’s
representative that A.J. would use members from the Unions to perform the work. However, at
no time did the Unions’ representatives either or suggest that A.J. displace or terminate any of
its employees.
While Respondent argues that the contracts demand would have quite clearly displaced
existing employees of A.J., that assertion is not correct. The contract does contain Union
security clauses, which do not require displacement of any employees, but only that they join
the Unions or pay dues after certain time periods. While the contracts also contain hiring hall
provisions, they apply only to new hires, and not to existing employees of A.J.
Respondent argues that the failure of the Unions to speak to A.J.’s employees in an
attempt to organize them, establishes that their intent was not representational. I disagree. The
Unions are clearly construction Unions and A.J. is clearly an employer primarily engaged in the
building and construction industry. Therefore, it was permissible for the Unions to sign prehire
contracts with A.J., without representing or attempting to organize any employees.
Respondent further argues that the evidence discloses that in fact the number of A.J.’s
employees at the site was diminished by the number of employees hired by Respondent. It
relies on the vague and unsubstantiated testimony of Carmack that at the beginning of the job,
there were 10 A.J. employees, and the end it was reduced to two or three. However, Carmack
conceded that he did not know how many A.J. employees worked at the site, and admitted that
he was not there in the evenings or weekends, when uncontradicted testimony or Respondent’s
employees established that A.J. employees performed much of their work after Respondent’s
employees were hired. Further, Respondent admitted that it made no change in A.J.’s contract,
after signing the contracts with the Unions. Therefore based on the above, I conclude that
Respondent has fallen far short of establishing that any employees of A.J. were displaced, by
virtue of Respondents decision to hire three employees on its own payroll.
Finally, even if it were found that employees of A.J. were displaced, that fact would not
be conclusive or even helpful to Respondent, in its assertion that the dispute with A.J. was
jurisdictional and not representational. Since A.J. did not sign any contracts with either Union, it
is impossible to ascertain what A.J. would have done with its existing employees, had it signed
Union contracts. As noted above, the agreements on their face, did not require any employees
to be displaced, and there is no evidence that A.J. would have done so, had it signed contracts
with the Unions. Once again, it is important to emphasize that the Union’s dispute was with
A.J., and not Respondent, and that its picketing was directed solely against A.J.
Respondent further argues that since the dispute was jurisdictional, the Union’s attempt
to force Respondent to sign construction Agreements, even though it was not a construction
company is a “clear violation of Section 8(b)(4)(D) of the Act.” This assertion is wrong for three
reasons. Firstly, as detailed above, the dispute was representational, and not jurisdictional as
contended by Respondent; secondly, the Union’s picketing and other conduct was not an
attempt to cause Respondent to sign contracts or to do anything else. It was solely directed at
A.J.’s failure to sign contracts with the Unions. It was Respondent’s own idea, to sign the
contracts, that A.J. refused to execute, and thirdly, Respondent has misperceived Section
8(b)(4)(D) of the Act. There is no violation of Section 8(b)(4)(D) of the Act, unless and until a
Union violates an award of work issued by the Board, after a 10 (K) hearing. The fact that the
Board may find reasonable cause to believe that 8(b)(4)(D) was violated, sufficient for the
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holding of a 10(k) hearing is not the same as finding that a Union has violated 8(b)(4)(D) of the
Act. Thus under no possible construction of the facts here, can it be concluded, as argued by
Respondent, that the Unions’ have violated Section 8(b)(4)(D) of the Act.
Finally, Respondent argues that under Brady-Hamilton, supra, and its progeny,32the
dispute here should have been resolved through the Board’s 10(k) procedures, and that
therefore the 8(a)(5) and 8(a)(3) complaint allegations should be dismissed.33
In Brady Hamilton, the Employer, who had employees represented by two Unions,
assigned particular work to one Union’s members (Operating Engineers). As a result the other
Union (ILA) claimed this work for its members, engaged in a work stoppage in support of such
demand, and was successful in persuading the Employer to discharge the Operating Engineers
represented employees, and assigned the work to the ILA represented employees. The
Operating Engineers filed 8(b)(4)(D) charges against the ILA and Section 8(a)(3) charges
against the Employer. A 10(k) hearing was conducted, and the work was awarded to the
Operating Engineers. The ILA refused to comply with the award, resulting in an 8(b)(4)(D)
complaint against the ILA and a Board decision finding that ILA had so violated the Act.
An 8(a)(3) complaint was issued, alleging that the Employer violated the Act by
terminating the Operating Engineers represented employees because of their membership in
the Operating Engineers and their non membership in the ILA. The Trial Examiner found a
violation consistent with that theory. The Board however reversed, concluding that Congress
intended 8(b)(4)(D) and 10(k) to be an exclusive method for determining work assignment
disputes and that an 8(a)(3) violation would in effect be implementing its 10(k) decision.
Cases subsequent to Brady Hamilton such as J. L. Allen, supra; Cornell-Leach, supra
and Pipeline Dehydrators, supra, applied the principles and rationale of Brady Hamilton to
cases, where there had been no 10(k) hearing and no determination that Section 8(b)(4)(D) had
been violated. J. L. Allen, supra, applied the Brady Hamilton rationale to an 8(a)(5) allegation
that the Employer unilaterally withdrew work from unit employees, and withdrew recognition
from one of the Unions involved in the dispute. The Board concluded that the “conduct alleged
to constitute a refusal to bargain was, in fact, merely part and parcel of the bona fide
jurisdictional work dispute which existed in the case and was so inseparably intertwined with the
other conduct in the course of the jurisdictional dispute that to find and remedy any such
violation would also stand in conflict with the remedial scheme contemplate by Congress as the
exclusive means for resolution of work assignment claims between competing labor
organizations.” Id. at 676.
I find Respondent’s contention that the above described precedent mandates dismissal
of the 8(a)(5) allegations of the Complaint here, to be without merit.
Some of my reasons for that conclusion have been detailed above, and are equally
applicable to this contention by Respondent. First and foremost, I have found above that the
dispute in December of 2004 was a representational dispute between A.J. and the Unions
concerning A.J.’s refusal to recognize and sign contracts with the Unions which A.J. had
previously agreed upon. In such cases, the rationale of Brady Hamilton is inapplicable.

32 More specifically, J. L. Allen, supra; Cornell-Leach, supra; Pipeline Dehydrators, supra.
33 I will consider the applicability of Brady-Hamilton and its progeny to the 8(a)(3)
allegations, when I discuss the 8(a)(3) portion of the case below.
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Metromedia Inc., 232 NLRB 486, 488 (1970), enfd. in pert. part 586 F.2d 1182, 1189-1190 (8th
Cir. 1978).
Additionally, as I have also found above, the Unions had no dispute with Respondent
over any conceivable jurisdictional dispute issue. The Unions never requested that Respondent
hire or displace any employees. They merely requested Respondent’s help in persuading A.J.
to sign contracts with them. Thus there can be no jurisdictional dispute involving Respondent,
but at best an assertion that there was a jurisdictional dispute with A.J.34
Moreover, as I have also found above, there was no displacement of or termination of
employees either from A.J. or from Respondent in January of 2005, when Respondent signed
its contracts with the Unions. Thus the principle rationale of Brady Hamilton and it progeny, that
Employers who terminate employees in the context of a jurisdictional dispute situation are not
guilty of violating Section 8(a)(3), since 10(k), 8(b)(4)(D) is the exclusive forum for remedying
these matters, is not present. Similarly, J. L. Allen, is not dispositive, since there, the facts
revealed that employees were terminated, and the Board applied Brady Hamilton to the related
8(a)(5) allegation, because the latter was “so inseparably intertwined with the other conduct in
the course of this jurisdictional dispute.” As there are no discharges here, the 8(a)(5) allegation
is not intertwined with any other allegation, that would requite deferring to the 10(k), 8(b)(4)(D)
mechanism.
Furthermore, the 8(a)(5) violation here took place in March of 2005, over two months
after any conceivable jurisdictional dispute could be said to have occurred.
Accordingly, for the above reasons, I reject Respondent’s defenses, that rely on its
assertion that a bona fide jurisdictional dispute in 2004 motivated its decision to sign contracts
with the Unions and that therefore it is permitted to repudiate its contracts with the Unions in
March of 2005 on that basis.
Respondent also argues that the Unions violated Sections 8(b)(4)(i) and (ii)(B) of the
Act, by virtue of statements made by Union representatives to Faas and Carmack
representatives of neutral employers, and by the Unions’ unlawful picketing on December 30,
2004. Laborers’ Eastern Organizing Fund (The Ranches at Mt. Sinai), 346 NLRB #105 Slip op.
p. 2 (2006); Local 315 Teamsters (Santa Fe), 306 NLRB 616, 631 (1992).
It further argues that since the 8(b)(4)(B) conduct, unlawfully coerced Respondent into
recognizing and signing contracts with the Unions, it is free to repudiate these agreements.
Laborers’ Union 1184 (NVE Constructors) 296 NLRB 1325 (1989).
Before considering these contentions, the issue of the status of Carpenters vis á vis the
Laborers must be evaluated. The record reveals that the alleged unlawful threat made to Faas
was made by either Fusco or English, with the other Union representative present. Since both
Union officials were there, and whichever one did not make the allegedly unlawful statement,
did not disavow the comment of the other, I conclude that both Unions were responsible for the
statement made to Faas. The other alleged unlawful statement was made by English to
Carmack. Fusco was not present at that time. Similarly the allegedly unlawful picketing was
conducted solely by the Laborers supervised by English.

34 As noted above, I have found that dispute to be representational and not jurisdictional.
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I conclude that evidence supports the conclusion that the Laborers and the Carpenters,
by English and Fusco were engaged in a joint organizing campaign to organize the employees
of A.J. They appeared together several times in joint discussions with A.J., the Mall and the
Respondent, and held themselves out as acting jointly to organize A.J.’s employees. English
specifically informed Fusco of the Laborers’ Union intent to picket on December 30, 2004. In
these circumstances, I find that English on behalf of the Laborers had the apparent authority, to
act for Fusco on behalf of the Carpenters, and that the Unions were participants in a joint
venture in organizing A.J.’s employees. Local 98 Electrical Workers (MCF Services), 342 NLRB
740, 741–743 (2004); Local 190 Sheet Metal Workers, (Delcard Associates), 316 NLRB 426,
434–35 (1965), enf. denied 157 F.3d 137 (3d Cir. 1998); Seattle District Council of Carpenters
(Cisco Construction), 114 NLRB 27, 30 (1950). Therefore whatever unlawful conduct that is
found, is in my view, attributable to both Unions.
Turning to the specific allegations, I have found that in late December, English
complained to Carmack that he was upset that A.J. had not signed the contract as promised or
returned his calls. English added that the Union was going to “picket the area,” and were “going
to shut the job down.” Carmack replied that he would relay the message, and he subsequently
informed one of Respondent’s partners of English’s remarks. At the time of these comments,
Respondent was a neutral, secondary employer, with whom the Unions had no dispute. The
Unions had a primary dispute with A.J. over A.J.’s failure to sign a contract with both labor
organizations.
I find that the remarks of English constituted unlawful threats to cause a work stoppage
at the jobsite, with proscribed objectives of causing Respondent to cease doing business with
A.J., causing Respondent to pressure A.J. into signing contracts with the Unions, causing the
Mall to cease doing business with Respondent, and causing contractors working at the Mall,
such as M. Cary to cease doing business with the Mall. Operating Engineers Local 3 (Westar
Marine Services), 340 NLRB 1053, 1056–1057 (2003) (Statement by Union official that “a storm
was coming” found to be a threat to shut the job down, with an object of pressuring general
contractors to sign contract with the Union); Local 247 Teamsters (Rymco Inc.) 332 NLRB 1230,
1232–33 (2000) (statements to General Contractor that Union would strike the job, unless
General Contractor removed the subcontractor, and to subcontractor that the Union would “shut
down” the General Contractor, unless subcontractor’s employees joined the Union.) Local 27
Sheet Metal Workers, (Thomas Company), 321 NLRB 540, 547-548 (1996), (Union official
threatened secondary employer with setting up a picket line to cover all entrances); Local 917
IBT (Bush Realty Co., 307 NLRB 1419 (1993), (Threat to shut down entire complex); MCF
Services, supra., at 7 (threats by Union to picket the jobsite); Local 456 Teamsters (Peckham
Materials, Corp., 307 NLRB 612, 619 (1992) (Threat by Union representative to shut job down,
unless General Contractor told subcontractor to put one of the Union’s members on the truck.) ;
Local 27 Sheet Metal Workers (Cahill Contracting), 292 NLRB 1046 (1984) (Threat by Union to
“Form up possibly a picket and strike the mall”).
These kinds of threats are construed as threats to picket the entire job site, and any one
working there, whether connected to the primary employer or neutral persons or employers.
Local 639 Carpenters (American Modulars Co.), 203 NLRB 1112 fn. 1 (1973). It is incumbent
upon the Unions to qualify their threat, by making it clear that the Unions propose to limit their
picketing to the primary employer, and to otherwise picket in a lawful manner. MCF Services,
supra, at 749, 752, 761; Peckham, supra, at 619; Local 248 Meat & Allied Food Workers
(Milwaukee Independent Meat Packers), 230 NLRB 189 fn. 1 (1977), enfd. 571 F2d 587 (7th
Cir. 1978); Local 118 Iron Workers (Tutor Saliba Corp.), 285 NLRB 162, 166 (1987).
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Additionally, I have found that the Union representatives told Faas, a representative of
the Mall, and another neutral employer, that because of non-employees at the site, (referring to
employees of A.J.), that the employees of other trades at the Mall “may not continue working.” I
conclude, in agreement with Respondent, that these comments also constitute unlawful threats
in violation of Section 8(b)(4) of the Act. These remarks, particularly in conjunction with
English’s previous unlawful threats to picket and shut the job down, represent additional
instance of unlawful threats to cause work stoppages amongst the employees working at the
site for neutral secondary employers. Teamsters Local 50 (E. J. Dougherty Oil), 269 NLRB 170,
177 (1984) (Union official told secondary general contractor that if primary remained on the job,
(“Union people would probably walk off.”); Peckham, supra at 617 (statement by Union
representative that trucks would not be loaded, unless primary employer signed a contract with
the Union.); Thomas Co., supra. at 547 (Threats by Union official that Union would not permit a
secondary employer’s employees to install equipment of primary employer at jobsite, unless
primary signed a contract with the Union.) Local 3 IBEW (Teknion), 329 NLRB 337, 339 (1999)
(Union representative threatened that Union’s members would not install primary Employer’s
workstation, since primary Employer was “stealing” work from the Union); MCF Services, supra,
at 749 (Union representative stated that the Union “could not allow the project to forward without
an electrical contractor on the job,”; Cahill Contracting, supra., at 1048-1049 (Union threatened
to put up a picket line and…none of the other trades would cross the line); Laborers Local 469
(Lycon Inc.), 304 NLRB 544, 553 (1991) (Union warned secondary employer that Union
members would not handle concrete of primary employer); Sheet Metal Workers Local 104
(Loshi International), 297 NLRB 1078, 1083-1084 (Statement by Union representative to
neutral, that Union would not allow equipment of primary to be installed, and that “employees
would probably walk off the job.”) Tri. State Building Trade Council (Backman Sheet Metal), 272
NLRB 8, fn. 10 (1984) (Statement by Union representative that if sheet metal workers installed
steel, use iron workers would be on the job the next morning.) I further conclude that this
unlawful threat made by the Unions to the Mall, a secondary employer, had similar objectives to
the unlawful threat discussed above, made to Respondent’s representative. That is to cause
Respondent to cease doing business with A.J., the Mall to cease doing business with
Respondent, other employers such as M. Cary at the site to cease doing business with the Mall,
and to force A.J. to sign contracts with the Unions, although neither Union has been certified to
represent A.J.’s employees.
Turning to the picketing itself, the Board has recognized that ascertaining a Union’s
motivation becomes difficult in cases involving “common situs” situations, i.e. where the primary
and secondary employers are engaged in operations at the same location. Peckham, supra, at
617; Operating Engineers Local 675 (Industrial Contracting Co.), 192 NLRB 1188, 1191 (1971).
The Board has developed criteria is Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950),
to help resolve the question of whether a Union has demonstrated the proscribed motive of
enmeshing a neutral employer when it pickets at locations where both the primary and
secondary employer are present. I need not recount The Moore Dry Dock criteria here, since
there is no contention, nor does the evidence reveal that the Unions’ picketing failed to follow
these guidelines. However, the More Dry Dock guidelines are evidentiary rules only and are not
a conclusive guide for determining the legality of common situs picketing. Peckham, supra,
618; E. J. Dougherty, supra, at 175. In ascertaining the Union’s objective, the Board looks at
the totality of the Union’s conduct in order to determine the Union’s true purpose. ”Thus
picketing, though in compliance with Moore Dry Dock, and for a lawful object, may be unlawful
if there is other evidence establishing that the picketing also has an unlawful objective.”
Peckham, supra, at 618, citing Electrical Workers IBEW Local 44 (Rollins Communications),
222 NLRB 97 (1976); Electrical Workers IBEW Local 11 (L. G. Electric), 154 NLRB 766, 767-
768 (1965).
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In applying these principles here, I conclude that the evidence is more than sufficient to
establish an unlawful objective in the Union’s picketing on December 30, 2004. I have found
above, that the Unions had made two unlawful threats to two different secondary and neutral
employers, Respondent and the Mall, that it intended to cause a work stoppage at the jobsite,
for unlawful objectives as detailed above. These comments are sufficient in and among
themselves to establish the illegality of the picketing. Peckham, supra, at 618, and 619;
Ranches at Mt. Sinai, supra, Slip op. 3 fn. 6,; E. J. Dougherty, supra, at 176 (Statement by
Union representative to secondary employer that if primary wasn’t removed, “union people
would probably ‘walk off’”, sufficient to prove that an object of Union’s picketing was to force
secondary to cease doing business with primary employer in violation of 8(b)(4)(i) and (ii)(B) of
the Act.)
Furthermore, the evidence discloses that on the day of the picketing, a meeting was held
at the jobsite to try to resolve the crisis. Present were representatives from the Unions, as well
as Respondent, the Mall and A.J. The Union representatives demanded that Benny Yuen, the
president of A.J. who was not present, meet later, to properly sign the contracts with the Unions.
The Mall representatives stated that they wanted the disharmony resolved and the situation to
go away. Badillo, on behalf of Respondent offered that no work would be done in the space,
until the matter was resolved. It was agreed to have another meeting, at which time Yuen would
be present. English viewed the above developments as an agreement to “negotiate the
project,” and agreed to take the picket line down. The Union removed the picket line, and at a
subsequent meeting in January of 2005, wherein A.J. could not be persuaded to sign contracts
with the Unions, Respondent agreed to do so, in order to permit work to be resumed.
In these circumstances, I find that the Unions’ agreement to remove the picket line,
based on the agreement at the meeting to “negotiate the project,” in other words A.J. or perhaps
some other employer sign contracts with the Unions, is illustrative of an unlawful objective of the
Unions picketing. The Unions were telling the neutral employer (Respondent) that Respondent
had the power to resolve the underlying dispute by either removing A.J. or by forcing A.J. to sign
agreements with the Unions. Rollins Electric, supra, at 101; L. G. Electric, supra, at 767-768; E.
J. Dougherty, supra. See also Local 369 IBEW (Garst-Receur Construction Co.), 279 NLRB 68-
69 (1977) (Statements of Union representatives graphically illustrated the “true purpose behind
its picketing to enmesh neutral employers… in the primary dispute.” Further the fact that the
Unions removed the picket line, upon the agreement, by the parties at the meeting to “negotiate
the project,” further demonstrates that an object of the Union’s picketing was unlawful”,35 i.e., to
cause Respondent to cease doing business with A.J., to cause the other employers at the job to
cease doing business with the Mall, to cause the Mall to cease doing business with Respondent
and or to cause A.J. to sign contracts with the Unions, although the Unions were not certified to
represent A.J.’s employees.
Accordingly, I conclude that the picketing of the Unions on December 30, 2004 as well
as the unlawful threats discussed above were violative of Section 8(b)(4)(B) of the Act.
Having so concluded, the issue then becomes whether the fact that the Unions’ violated
the Act in December of 2004, warrants Respondent’s decision to repudiate in March of 2005,
the contracts that it signed with the Unions in January of 2005. In response to this contention,
both General Counsel and the Laborers argue that even if it was concluded that the Unions
engaged in unlawful 8(b)(4) conduct, that such conduct did not cause Respondent to recognize
and or sign the contracts with the Unions. They argue that the reason that Respondent did so

35 Peckham, supra, at 619; E. J. Dougherty, supra, at 176.
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was solely because of pressure applied by Mall, due to the Mall’s view that Respondent was
violating its lease by failing to ensure labor harmony on the job.
While these contentions have some surface appeal, a close analysis of all the facts,
reveal that they are not persuasive. Thus, it is correct that the Mall’s actions in threatening to
cancel its lease with Respondent, based on Respondent’s failure to comply with its lease
obligations to maintain labor peace on the job, was the proximate cause of Respondent’s
decision to recognize and sign contracts with the Unions. However, what General Counsel and
the Laborers conveniently ignore, is that the Mall’s actions in this regard were caused by the
unlawful conduct of the Unions as described above. In this regard, I have concluded above that
the Unions unlawfully threatened both Respondent and the Mall with causing work stoppages
and shutting down the job, and subsequently carried out that threat by unlawfully picketing the
site on December 30, 2004 causing employees of neutral employers, such as M. Cary to walk
off the job. Since the Mall’s decision to send the letter to Respondent declaring Respondent in
breach of the lease and ordering work to cease, unless and until the dispute is resolved, came
on the same day as the unlawful picketing, it is clear and I find, that the Mall’s actions were
motivated by the Unions’ unlawful conduct. In such circumstances, it follows, and I also
conclude that Respondent’s decision to recognize and sign contracts with the Unions was
coerced by the Union’s unlawful conduct in violation of Section 8(b)(4)(i) and (ii) of the Act.
Having so found, the next question is, whether or not that conclusion privileges
Respondent to repudiate the contracts and withdraw recognition from the Unions. I believe that
it does. Thus in Frick, supra, the Board affirmed on ALJ’s decision dismissing an 8(a)(1) and (5)
complaint against an employer, based on the fact that the recognition was unlawful, due to lack
of majority status. The ALJ concluded that since the Employer was not an 8(f) employer, and
the Union did not represent a majority of employees, the Employer owed no obligation to the
Union. Implicit in that decision, was the Judge’s conclusion that the recognition was coercive
based on the fact that Union did not represent a majority of employees at the time. Bernard-
Altmann Texas Corp., 122 NLRB 1289 (1959) enfd. sub nom; ILG v. NLRB, 280 F.2d 616,
(ADC) 1960, affd. 366 U.S. 731 (1961).36
Therefore, since where there is unlawful minority recognition, based on unlawful
coercion by the Employer and the Union, an Employer may lawfully repudiate that bargaining
relationship,37 it follows that where there is unlawful coercion under 8(b)(4) that causes the
recognition, the Employer may also lawfully withdraw from such a bargaining relationship. See
also Ryan Heating Co., 297 NLRB 619, 620 (1990). There the Board reversed an ALJ who had
found that a Union that obtained recognition based on picketing was free to withdraw
recognition, because such recognition was coerced and not voluntary under 8(f). The Board
concluded that since the picketing was conducted for only 6 days, it was not violative of 8(b)(7)
(f) of the Act, or otherwise unlawful. Therefore, it found violation of Section 8(a)(5) of the Act.
Implicit however in the Board’s decision is fact that had the Agreement been the “product of
unlawful coercion,” the ALJ’s decision would have been affirmed, and the Employer would have
been permitted to repudiate such a bargaining relationship. Since I have concluded that here
the recognition and subsequent signing of contracts with the Unions, were the “product of
unlawful coercion” I further find that Respondent did not violate the Act by repudiating these

36 In Bernard-Altmann, supra, the Board concluded, affirmed by the Supreme Court that an
Employer and a Union that agree to recognition, when the Union does not represent a majority
of employees, violate Sections 8(a)(1) and (2) and 8(b)(1)(A) of the Act respectively.
37 That conclusion follows only whereas here, the repudiation occurs within six months of
the recognition.
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contracts and withdrawing recognition from the Unions.38
I would add that my conclusion that the Unions’ 8(b)(4) conduct justifies Respondent’s
decision to repudiate its contracts with the Unions, would also be applicable, even if I had found
that Respondent was primarily engaged in construction, while its store was being built and that
therefore the agreements signed were protected by 8(f). Thus the Board has held, based in part
on the legislative history of 8(f), that an agreement entered into under 8(f) must be “voluntary”,
which the Board defined as not being caused by unlawful coercion. NVE Contractors, supra, at
1329-1330. Since I have found that the recognition of the Unions as well as the contracts
signed with the Unions, were the product of unlawful coercion (8(b)(4)(B) conduct of the
Unions), the contracts themselves cannot stand, and can be lawfully repudiated by Respondent.
Further, as I observed below, absent consideration of the issue of the alleged coercion
by the Unions in compelling Respondent to sign contracts with the Unions, I would have
concluded that the doctrine of equitable estoppel precluded Respondent from repudiating its
contracts and withdrawing recognition from the Unions, based on the Unions’ lack of majority
status at the time of recognition. Alpha Associates, supra; Strand, supra; Red Coats, supra;
R.P.C., supra. However, in view of my conclusion that the recognition of the Unions, was the
product of unlawful coercion by the Unions, I conclude that the doctrine of equitable estoppel
cannot be utilized. The very definition of the concept includes the work “equitable”, which
presupposes consideration of equitable principles in assessing whether to apply to doctrine.
The doctrine has been defined as “promoting the equity and justice of the individual case by
preventing a party from asserting its rights under a general technical rule of law, where he has
so conducted himself that it would be contrary to equity and good conscience for him to allege
and prove the truth. First Nat. Bank v. Bales, 231 Ala. 473, 165 So. 586, 592, cited in Black’s
Law Dictionary, Fourth Edition.
Therefore, here I find it inappropriate to preclude Respondent from proving the truth, i.e.
that the Unions’ did not represent a majority at the time of recognition. It would not be contrary
to equity and good conscience to permit Respondent to do so, since the fact that Respondent
was unlawfully coerced into recognizing and signing the contracts with the Unions, mandates
the finding that the equities of the situation are on Respondent’s side. Since the doctrine of
equitable estoppel under the cases cited above,39 cannot be applied, I conclude that since
Respondent is not and was not primarily engaged in building and construction, and not subject
to 8(f), that the Unions’ lack of majority status at the time of recognition, precludes any
bargaining obligation on the part of Respondent to either Union. Accordingly, this finding
provides further support for my conclusion, detailed above, that Respondent did not violate
Section 8(a)(1) and (5) of the Act by repudiating its contract with and withdrawing recognition
from the Unions in March of 2005. Frick, supra; Bernard-Altmann, supra.
B. THE DISCHARGES OF MOTT, THOMAS AND SMOCER
While I have concluded above that Respondent did not violate Section 8(a)(1) and (5) of

38 My conclusion in this regard is consistent with well settled Board principles in other
contexts that uncertainties must be resolved against the wrongdoer. Planned Building Service,
340 NLRB #64, slip op. at 5 and 6 (2006).
39 I note that in none of the cases cited where the Board applied equitable estoppel to
preclude an employer from attacking the initial recognition, was there any evidence of any
coercion unlawful or otherwise, in connection with the Employers’ decisions to recognize the
Unions.
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the Act by repudiating its contracts with the Unions, and withdrawing recognition from the
Unions, that conclusion is not dispositive of the 8(a)(3) allegations pertaining to the discharge of
its three employees. The legality of these discharges must be evaluated under Wright Line40
principles. The General Counsel must demonstrate that protected conduct was a motivating
factor in Respondent’s decision to terminate the three employees. Once General Counsel has
made such a showing, the burden then shifts to Respondent to establish that the same action
would have taken place even in the absence of the protected conduct. Wright Line, supra;
NLRB v. Transportation Management, 462 U.S. 393 (1983).
Here, General Counsel has made a strong prima facia showing that the discharges were
motivated by the employees protected conduct. The evidence reveals that although the
contracts signed by Respondent obligated it to apply the contracts to all Carpentry and Laborer
work on the job, Respondent had no intention of applying the contracts in that fashion. Rather,
since Respondent’s representative believed that it had been agreed upon by the Unions’ that
Respondent need only employ one Laborer and two Carpenters41 it decided to continue to use
A.J. Employees to perform Carpenters and Laborers work. Some of this work was performed
by A.J. employees continue to in the evenings or on weekends, when Respondent’s employees
were not there. At other times, the A.J. employees would perform work covered by both
contracts, during the day, while the unit employees were working.
This practice resulted in numerous complaints from the unit employees to Carmack and
to their respective business agents. The business agents, English and Fusco would in turn
complain to Respondent’s officials that bargaining unit work was being performed by non-unit
employees. Usually, these complaints from the business agents would result in agreements by
Respondent that the A.J. employees would be leaving the site. On one of these occasions,
after Fusco complained to Randazzo about six A.J. employees performing Carpenters work,
Randazzo replied, “I’ve got to get this project done. I’m… you know losing my shirt.”
As a result of that incident, the Carpenter’s Union sent Respondent a “breach letter”,
date March 4, accusing Respondent of breaching its collective bargaining agreement with the
Carpenters and requesting that the matter be rectified, “to avoid further action.”
On March 7, Laborer Michael Smocer noticed that Laborers work had been performed
over the weekend. Smocer complained to Carmack, as well as to Dave from A.J. about this
matter. He also notified English, who in turn filed a grievance against Respondent on March 9,
based on this incident. The very next day, March 10, Respondent notified the three employees
that it had terminated its contracts with the Unions, and would no longer be paying Union
benefits. However, the letter stated that the employees were not being terminated, and if they
wish to continue their employment, they would receive the same wages that they previously
enjoyed. The employees after consulting with their respective business agents, decided to
continue working for Respondent.
On March 11, the Laborers sent Respondent a Notice for Arbitration of its grievance
concerning the Respondent’s action on March of bringing in six non-Union Laborers.

40 251 NLRB 1083 (1980), enfd. 1022 F.2d 899 (1st Cir. 1981).
41 In fact neither Union had ever agreed to such a limitation in the contract. They did agree
to this number of employees at the beginning of the work if that is the number that Respondent
believed appropriate.
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On March 14, all three employees were terminated, by letters informing them that they
were laid off due to lack of work.
Based on the above facts, it is clear that Respondent was obviously upset over the
efforts of the employees and their respective Unions to enforce their respective contracts, and
that these efforts particularly the Carpenters breach letter of March 4 and the Laborers
Grievance filed on March 9, were motivating factors in Respondent’s decision to terminate the
employees. The employees were terminated within 10 days of the grievance and breach letters
filed by their respective Unions. This “astonishing timing provides substantial evidence of anti
Union motivation. Wild Oats Markets, 344 NLRB #86, ALJD slip op., p. 27; Fiber Products, 314
NLRB 1169, 1186 (1994); Trader Horn of New Jersey, 316 NLRB 194, 198 (1995); NLRB v.
Long Island Limousine, 968 F.2d 292, (2nd Cir. 1972). Indeed, “Timing alone may suggest anti-
union animus as a motivating factor in an employer action.” Cell Agricultural MFG. Co., 311
NLRB 1228, 1232 (1993); Trader Horn, supra; NLRB v. Rain Ware Inc., 732 F.2d 1349, 1354
(7th Cir. 1984).
Animus towards the protected conduct of the employees and the Unions is established
by Randazzo’s statement to Fusco, when Fusco complained to him about Respondent not
complying with the Carpenters contract. Randazzo’s response that “I’ve got to get this project
done. I’m losing my shirt.” This response demonstrates Respondent’s annoyance towards the
efforts of the Unions to enforce their contracts.
Furthermore, it is also clear that the reason given by Respondent to the employees for
their terminations was pretextual. The employees were informed that there has no work for
them to perform. This assertion is obviously not correct, since the overwhelming and
undisputed evidence from Union officials and the employees establish that over half the work on
the job still remained to be performed at the time of the terminations. Indeed, although
Randazzo testified that there was no work for the employees, Carmack admitted that there was
a substantial amount of work still to be performed, and that employees of A.J. completed the
job.
In fact, Respondent does not even argue in its brief, that there was no work for the
employees, and concedes that A.J. employees completed the job, by performing work that had
been, and would have been performed by the discriminatees, had they not been discharged.
Respondent’s defends its action in terminating the employees, based upon Brady
Hamilton, and its progeny . As I have detailed above in connection with my discussion of the
8(a)(5) allegations, there was no jurisdictional dispute in December of 2004, since the issue was
a representational dispute, over A.J.’s failure to sign contracts with the Unions. Therefore, for
that reason alone, Brady Hamilton has no application, and cannot be used a defense to the
8(a)(3) allegations. More importantly, Brady Hamilton and its progeny would not be applicable
for several other reasons, even if it was found that the dispute in 2004 was a jurisdictional
dispute as asserted by Respondent. The fact is that no employees of A.J. were terminated in
2004 or 2005, as a result of the alleged jurisdictional dispute. That was the case in Brady
Hamilton and its progeny, where as a direct result of a bona-fide jurisdictional dispute, the
employers therein terminated employees. The Board determined that 8(a)(3) allegations based
on these terminations must be dismissed since the 8(b)(4)(D) and the 10K hearings are the
proper forums to resolve those issues. Therefore since no A.J. employees were terminated,
Brady Hamilton is not relevant.
Furthermore, the discharges here, took place in March of 2005, several months after any
alleged jurisdictional dispute may have existed. The employees were fired because of their
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protected conduct in complaining about Respondent’s failure to follow their respective Union
contracts, as well as similar complaints and grievances by the Union to Respondent about these
issues. The fact that Respondent decided to allow A.J. employees to perform the work, does
not establish the existence of a jurisdictional dispute in March of 2005, since there was no
coercive conduct by the Unions at that time. I therefore reject Respondent’s reliance on Brady
Hamilton and its progeny as a defense to its conduct in terminating the employees.
Since Respondent has adduced absolutely no evidence that it would have terminated
the employees, absent their protected conduct, I conclude that respondent has violated
Sections 8(a)(1) and (3) of the Act by its discharge of Smocer, Mott and Thomas.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Carpenters and the Laborers are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By terminating the employment of Michael Smocer because of activities on
behalf of and membership in the Laborers Union, Respondent has violated Section 8(a) (1) and
(3) of the Act.
4. By terminating the employment of Theodore Mott and Mark Thomas because of
their activities on behalf of and membership in the Carpenters Union, Respondent has violated
Section 8(a)(1) and (3) of the Act.
5. Respondent has not violated Section 8(a)(1) and (5) of the Act by repudiating its
contracts with or withdrawing recognition from the Unions.
6. Respondent has not violated the Act in any other manner alleged in the
complaint.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed various unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action, designed to
effectuate the policies of the Act.
Since the construction phase of restaurant’s store has been completed, and there is no
evidence that Respondent either had any positions available at its restaurant that the
discriminatees might be capable of performing, I do not deem it appropriate to order that
Respondent offer reinstatement to the three discriminatees.42

42 While the record does reveal that Respondent has the franchise to build other stores in
Suffolk and Nassau County, there is no evidence in the record that Respondent had decided
when or where or whether to build another store. Moreover, there is certainly no evidence that
Respondent contemplates using its employees for this purpose. Indeed even here, it did not
Continued
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I shall however recommend that Respondent make whole Smocer, Mott and Thomas for
the discrimination against them, plus interest, as computed in F. W. Woolworth, 90 NLRB 289
(1950) and Horizons for the Retarded, 283 NLRB 1173 (1980).
Since the construction of the restaurant is complete, there are no longer any employees
performing construction work on the site for Respondent. It is therefore appropriate to
recommend that Respondent to sign and mail copies of the notices to all employees who were
employed by Respondent at the jobsite while the construction was being performed. TIC – The
Industrial Co., 320 NLRB 1122 fn. 2 (1996).
Further, Respondent is currently operating the restaurant wherein it does employ a
number of employees. While none of these employees perform work involved in either
bargaining unit, and were not involved in the unfair labor practices, they are employed by
Respondent at the same location, where the unfair labor practices took place, 43 and are entitled
to be informed of their rights. Missouri Portland Cement, 291 NLRB 1043, 1044 (1988).
(Posting ordered at facility, even though it had closed and reopened with new workforce,
unrepresented by Union. Board concludes that since Employer still has control over the facility
posting is appropriate); Eltec Corp., 286 NLRB 890, 898 (1987). (Board orders posting at plant,
even though Employer had closed the parts assembly department involved in the unfair labor
practices.) Therefore I shall recommend that Respondent post the notice at its facility at the
Mall.
Based upon the foregoing findings of fact and conclusion of law, and on the entire
record, I issue the following recommended 44
ORDER
The Respondent, Rocket Hills, Inc., Hicksville, N.Y., its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Discharging its employees because of their activities on behalf of or membership
in Local 7 Empire State Regional Council of Carpenters (Carpenters), General Building
Laborers’ Local Union No., 66, L.I.U.N.A. AFL-CIO, (Laborers) or any other labor organization.
(b) In any like or related manner, interfering with, restrain, 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.
_________________________
intend to do so, but only hired its own employees to perform some construction work, due to
unlawful coercion by the Unions.
43 Indeed Respondent asserted, and I have found that the construction at the restaurant was
merely a phase of its overall business of operating a restaurant.
44 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(a) Make Michael Smocer, Mark Thomas and Theodore Mott 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.
(b) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharges of Smocer, Thomas and Mott, and 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.
(c) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in Hicksville, N.Y.
copies of the attached notice marked “Appendix.”45 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent'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. Respondent shall also mail a
copy of the attached notice to all employees of Respondent engaged in Carpentry and Laborers
work at its Hicksville jobsite while construction work was being performed. Such notice shall be
mailed to the last known address of each of the employees above. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since March 14, 2005.
(e) 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 Respondents have taken to comply.
It is further Ordered that Respondent has not violated the Act in any other manner as alleged in
the complaint.
Dated, Washington, D.C., September 29, 2006.
_____________________
Steven Fish
Administrative Law Judge

45 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(NY)–45–06
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 Federal labor law and has ordered us to
post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge our employees because of their activities on behalf of or membership in Local
7 Empire State Regional Council of Carpenters (Carpenters), General Building Laborer’s Local Union No.
66, L.I.U.N.A. AFL-CIO, (Laborers) or any other labor organization.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL make Smocer, Mott and Thomas whole for any loss of earnings and other benefits resulting
from their discharge, 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
unlawful discharges of Smocer, Mott and Thomas, and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the discharges will not be used against them in any way.
ROCKET HILL, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
Two MetroTech Center, 100 Myrtle Avenue, 5th Floor, Brooklyn, NY 11201-4201
(718) 330-7713, Hours: 9 a.m. to 5:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE
OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (718) 330-2862.