SCC Contracting

National Labor Relations Board - Board Decisions

Jul 27, 1992

307 N.L.R.B. 1519 (N.L.R.B. 1992)

1519
307 NLRB No. 229
SCC CONTRACTING
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We do not, however, rely
on the judge’s finding that Michael Elia gave contradictory testi-
mony regarding his January 29, 1990 discussions with the Union
about manning disputes.
Additionally, the Respondent asserts that the judge’s findings are
a result of bias. After a careful examination of the entire record, we
are satisfied that this allegation is without merit. In this regard, the
Respondent contends, inter alia, that the judge attributed to it legal
positions that it never advanced. Specifically, the Respondent con-
tends that it never maintained that its dissatisfaction with the 1990
negotiations between the Union and the Associated General Contrac-
tors authorized it to cancel its contract with the Union; that it never
argued that its contract with the Union was not effective until Feb-
ruary 1, 1990; and that it never contended that McCarthy’s alleged
statements at the January 29, 1990 meeting, standing alone, per-
mitted it to alter the language of the contract’s termination clause.
Even assuming that the judge mischaracterized certain of the Re-
spondent’s legal positions, we find that his interpretations did not
evidence a bias on the judge’s part against the Respondent’s posi-
tion. We further find that any misinterpretations did not affect his
conclusion that the Respondent unlawfully repudiated its automati-
cally renewed collective-bargaining agreement.
We correct certain errors made by the judge. We note initially that
in sec. II,A, the final sentence in the fourth paragraph should read,
‘‘At the time, however, SCC had no relationship with the Union.’’
In sec. II,B, the first sentence in the eighth paragraph should read,
‘‘It was also noted at the meeting that the contract SCC was being
asked to sign would expire on March 31, 1990.’’ Also regarding sec.
II,B, we note that the Respondent and the Union met on January 29,
1990, rather than on January 19, and that the Respondent signed the
agreement opposite the date of January 31, 1990. Finally, in his
‘‘Analysis and Conclusion,’’ the judge, in citing John Deklewa &
Sons, 282 NLRB 1375 (1987), inadvertently referred to ‘‘an 8(g)
agreement,’’ rather than an 8(f) agreement.
We find it unnecessary to pass on the judge’s characterization of
Lifetime Shingle Co., 203 NLRB 688 (1973).
2 We amend the remedy section of the judge’s decision to rely on
Ogle Protection Service, 183 NLRB 682 (1970), for the computation
of lost wages or benefits, and Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), for the
computation of any expenses ensuing from a failure to make fund
contributions.
SCC Contracting, Inc. and International Union of
Operating Engineers, Local Union No. 17,
AFL–CIO. Case 3–CA–15671
July 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 18, 1991, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and an
erratum, and the General Counsel and the Charging
Party each filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, SCC Contracting, Inc., Ni-
agara Falls, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Ronald Scott, Esq., for the General Counsel.
Patrick J. Berrigan, Esq., of Niagara Falls, New York, for
the Respondent.
Robert J. Reden, Esq. (Lipsitz, Green, Fahringer, Roll, Salis-
bury & Cambria, Esqs.), for the Charging Union.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was heard by me on November 1, 1990, in Buffalo, New
York. The complaint alleges that SCC Contracting, Inc.
(SCC or Respondent) repudiated and failed to enforce an
automatically renewed collective-bargaining agreement with
the Charging Union, International Union of Operating Engi-
neers, Local Union No. 17, AFL–CIO (Local 17 or the
Union) in violation of Section 8(a)(1) and (5) of the Act. Re-
spondent filed an answer denying that it violated the Act or
that the agreement had automatically renewed.
All the parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. General Counsel
and Respondent have each filed posthearing briefs which
have been carefully considered. On the entire record in the
case, including my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a corporation, with an office and place of
business in Niagara Falls, New York, has been engaged in
construction, excavation, and road building operations. Annu-
ally, Respondent, in the course and conduct of its business
operations, purchases and receives at its Niagara Falls, New
York facility products, goods, and materials valued in excess
of $50,000 directly from points outside the State of New
York. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Respondent admits, and I find, that
the Charging Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
1520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The AGC/Local 17 Negotiations Forestalling
Automatic Renewal of Their Agreement
The Respondent is not, and has not been a member of the
Labor Relations Division, Western New York Region, Asso-
ciated General Contractors of America, New York State
Chapter, Inc. (AGC). Neither has Respondent authorized the
AGC to represent it in collective-bargaining with any labor
organization. Respondent has been and continues to be a
member of the AGC, but not of its Labor Relations Division
which acts as collective-bargaining agent with Local 17 for
these members who so authorize it. The AGC and Local 17
were parties to a prehire collective-bargaining agreement
within the meaning of Section 8(f) of the Act, effective from
April 1, 1987, to March 31, 1990, concerning heavy and/or
highway construction and building site work performed in
the Counties of Erie, Wyoming, Cattaraugus, Chautauqua,
Orleans, and the western part of Genesee, New York, by
AGC members. The contractual bargaining unit includes all
engineers, apprentice engineers, assistant engineers, mainte-
nance engineers (also referred to as mechanics), firemen, me-
chanic’s helpers, maintenance welders, maintenance welders’
helpers, maintenance burners, master mechanics, assistant
master mechanics, and all other skills and crafts when within
the jurisdiction of the union.
The 1987–1990 agreement contained an automatic renewal
clause which reads as follows:
ARTICLE XVIII
Termination
1. This Agreement shall continue in effect from the lst
day of April, 1987, until and including the 31st day of
March, 1990, and during each calendar year thereafter,
unless on or before the 31st day of January, 1990, or
any year thereafter, written notice of proposed changes
in this Agreement shall be served by either party on the
other party. In the event that such written notice shall
have been served and changes in this Agreement have
been agreed upon, a new Agreement embodying such
changes shall be drawn up and signed.
By certified letter dated December 20, 1989, Leo Hopkins,
Local 17 business manager, notified the AGC that it was
Local 17’s desire to make changes in wages, conditions, and
other terms of the 1987–1990 agreement. There is a sharp
difference between Local 17 and SCC as to whether SCC re-
ceived notice of this letter which forestalled automatic re-
newal of the AGC–Local 17 agreement. Local 17 Business
Manager Leo Hopkins swore that a copy was not sent to
SCC with which it had no contractual relationship and which
employer was not a member of the AGC. Local 17 Business
Representative David Patrick Harrigan swore that the letter
went only to the employers named on a list attached to cop-
ies of letters sent to the New York State Mediation Board
and Federal Mediation Board dated December 21, 1989, in-
forming both agencies that Local 17’s contract with the at-
tached list of contractors expired on March 31, 1990. That
list apparently contains names of the members of the AGC
as well as independent contractors who had adopted the
1987–1990 agreement. Respondent’s name does not appear
on the list.
Yet, two principals of Respondent, Michael A. Elia, an of-
ficer and his brother Lawrence A. Elia, vice president in
charge of labor relations, swore that Respondent received a
copy of the December 20 letter. However, the letter was
never produced, Michael claiming he gave it to Lawrence
without reading it and Lawrence stating he discarded it after
reading it as it was a routine notification like others he re-
ceived from time to time from other unions like the Car-
penters and Laborers with which SCC had contractual rela-
tionships. At the time, however, SCC had no relationship
with SCC.
It is likely that Respondent did receive a copy of the letter.
The list to which the union representatives alluded was a list
of Local 17’s current contracting employers. It is not alto-
gether clear that Local 17 would not have forwarded a copy
of its letter seeking to modify the AGC contract to employers
with whom it had past relationships such as SCC. See infra.
In any event, it is apparent that Respondent was certainly
aware of the fact that the AGC–Local 17 agreement was not
automatically renewing by the time of their face-to-face
meeting held on January 29, 1990. See infra.
By letter dated May 2, 1990, from Hopkins of Local 17
directed to contractors, this time admittedly including SCC,
the contractors were requested to sign and return an enclosed
copy of an interim agreement covering the period of April
1, 1990, through March 31, 1993, which provided for the
adoption of a memorandum of agreement, also enclosed,
made on March 29, 1990, between the AGC and Local 17,
which continued unchanged all terms and conditions of the
1987–1990 agreement except for 10 changes and additions to
the prior agreement which were spelled out in the memo-
randum. SCC did not sign the interim agreement nor other-
wise adopt the memorandum of agreement.
B. The Events Leading to the Parties’ Execution of
Their Collective-Bargaining Agreement
Sometime in the past, apparently to 1987, Respondent had
a collective-bargaining relationship with Local 17. However,
some disagreements between the parties, among them SCC
objections to manning requirements, excessive manning or
so-called featherbedding, had led to a breaking off of the re-
lationship. By 1987 when Local 17 negotiated the agreement
with the AGC it no longer had any bargaining relationship
with SCC.
Gene McCarthy, business manager of International Union
of Operating Engineers, Local Union No. 463, in Niagara
County, sister local to Local 17, until his retirement on May
1, 1990, had known the Elia family for many years. Local
463 had a lengthy history of contractual relationships with
SCC, its predecessor, and related companies operated by the
Elias, in Niagara County. McCarthy had good relations with
SCC as a contractual employer, and with Local 17 as a sister
local. Acting in the self-described role as a mediator, McCar-
thy sought to bring about a renewal of a collective-bargain-
ing relationship between SCC and Local 17. In furtherance
of this aim McCarthy arranged a meeting between the two
parties on January 29 at the Holiday Inn in Niagara Falls.
According to McCarthy those attending were himself and
Local 463 Business Agent George McCollum, Michael Elia,
Laurence Elia, and their father, Arthur Elia, also a principal
1521SCC CONTRACTING
in SCC, for Respondent, and Leo Hopkins, Pat Harrigan, and
another business agent, Bert Pritchard, for Local 17. McCar-
thy in substance asked if it was possible that they could bury
the hatchet, and see if they could come to terms so far as
entering again into a contractual relationship which they had
enjoyed prior to 1987. Hopkins and Michael Elia then en-
gaged in a conversation, touching first on some of the prob-
lems which had led to the dissolution of the relationship in
the past, and then going on to noting that times were favor-
able to reentering a contractual relation. It was McCarthy’s
understanding from what he heard that the parties were ame-
nable to burying their past differences and entering into a
contractual situation again.
McCarthy could not recall any specific jobs or projects
having been discussed. He was not sure whether contractual
booklets were passed around or whether that occurred after
the meeting broke up.
Under cross-examination, McCarthy agreed that in his dis-
cussions prior to the meeting the Elias had expressed dis-
satisfaction with Hopkins as a business agent, in particular,
his or the Union’s requirement of unnecessary personnel on
a job, so-called featherbedding.
In discussing with the Elias their attendance at a meeting
with Local 17 representatives, McCarthy also suggested that
the terms was relatively short, this being the end of the con-
tract cycle, indicating that certain bargaining processes take
place. McCarthy explained that with a limited amount of
time left in the contract, other avenues were open to the
Elias, including renegotiations or continuation of the agree-
ment. As McCarthy stated it to them, the contract allows cer-
tain options, and they’re an experienced contractor, they
would know what those options would be, and McCarthy in-
dicated to the Elias that they knew that, and they agreed that
they did know that there were options available to them.
At the meeting, Michael Elia did raise concerns about so-
called featherbedding, making the statement that they
wouldn’t tolerate it, and the Union’s response was that they
didn’t engage in the practice. The participants also com-
mitted themselves to resolving complaints and problems of
either party as they arose.
It was also noted at the meeting that the contract SCC was
being asked to sign would expire on March 31, 1990,
McCarthy himself may have said it.
McCarthy also recalled a request made at the meeting by
SCC to have a single business agent, probably Harrigan,
cover all of their jobs. When the meeting broke up, it was
McCarthy’s understanding that the resolution of the problem
between the parties would take place, and there would be a
renewal of their bargaining relationship.
During McCarthy’s later examination by Charging Party
counsel be clarified that the agreement of which mention was
made at the meeting of January 29, that it would be expiring
shortly, was the AGC–Local 17 agreement which SCC rep-
resentatives were being asked to sign as a nonmember of
AGC.
McCarthy also noted that in preliminary discussions with
Local 17 representatives leading up to the convening of the
January 29 meeting, these representatives expressed the view
that they wanted to resume an ongoing contractual relation-
ship with SCC which would extend well beyond the 2
months remaining in the life of the Local 17–AGC agree-
ment.
Local 17 Business Manager Leo Hopkins testified to his
participation in the January 29 meeting and/certain followup
events. He understood the purpose of the meeting to be reso-
lution of past problems with the Elia family and reinstitution
of a working relationship with SCC.
At the meeting SCC brought up the problems they had in
the past, looked forward to having peace and a fruitful rela-
tionship. Hopkins sought to learn what jobs or projects in its
geographic jurisdiction SCC was seeking. The only project
mentioned was a swimming pool on Sheridan Drive in the
Town of Tonawanda. No mention was made of a so-called
Skyway project in Erie County which will be discussed,
infra.
Hopkins recalled providing Mike Elia with two copies of
the 1987–1990 AGC–Local 17 booklet agreement at the
meeting. Elia’s response was that the Company would like
to look over the contract and they would mail it back to the
Union.
Hopkins denied that any discussion took place on January
19 as to the termination clause in the AGC contract he pro-
vided. Michael Elia did ask at one point about the status of
the Union’s negotiations with the AGC and Hopkins in-
formed him that they were rolling along and it was too early
to tell. When Elia then started getting into articles in the
agreement, Hopkins told him that if he, Elia, was interested,
he felt the AGC would be happy to have him join and be
on their negotiating committee, to which Elia replied that he
had tried that before but wasn’t successful in making any
great changes and so wouldn’t bother with that anymore.
Hopkins was emphatic in denying that Local 17 had any
practice or intention of signing labor contracts for single jobs
or projects or for a time period as short as 2 months. In Hop-
kins’ estimation such a contract would serve no real purpose
unless the contractor was from out of the area and had come
into the Union’s territory for a small job that would take a
week or two to complete. The Union’s intention in this case
was to enter a long-term relation with the Elia Company
(SCC). No purpose would be served by entering a 2-month
agreement in the middle of winter.
The AGC–Local 17 booklet agreement entered in evidence
contains the signature of Michael Elia for the employer, op-
posite the date of January 1990, and the signature of Leo
Hopkins for Local 17, with the date of February 1, 1990.
Elia signed the agreement after it was reviewed back at the
SCC offices the day following the January 29 meeting, and
Hopkins signed on receiving the agreement through the mails
a day later. Both parties signed at the place in the agreement
where nonlabor relations division employers were asked to
execute. It follows a stated agreement in which the employer
nonassociation member first acknowledged having read the
agreement, and agrees to be bound by each and all of the
terms, conditions, and provisions thereof, and the interpreta-
tions and enforcement of the agreement, and next waives the
right to name or participate in the selection of any manage-
ment trustee to any jointly trusted funds provided therein,
agrees to accept the trustees named as his designated trust-
ees, and to be bound by the provisions of the trust indentures
creating the funds.
At no time following execution of the agreement did SCC
employ any Local 17 members.
Hopkins became aware that as to the swimming pool
project, SCC was not the low bidder and was not awarded
1522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Michael Elia later explained that his father’s reference to the
ATV was an allusion to a grievance that Local 17 had once filed
on a job in Salamanca, New York, involving the installation of fence
posts with a post hole digger which protested, inter alia, the Com-
pany’s operation of an all terrain vehicle (ATV) unmanned by a
Local 17 operator.
the contract for the job. However, sometime later in 1990,
on a review of a particular Dodge Report, Hopkins learned
that SCC had been successful low bidder on a New York
State Department of Transportation heavy construction
project located in Erie County, the so-called Skyway project.
After receiving a complaint, Hopkins dispatched Harrigan to
check the worksite and received information that SCC had
started the job on the Skyway and had a piece of equipment,
a compressor, that was not being manned as bargaining unit
work by an operating engineer in accordance with AGC–
Local 17 agreement.
By letter dated May 9, 1990, Hopkins filed a grievance
against SCC with the AGC, claiming that on the job de-
scribed SCC had run an air compressor unattended by a
Local 17 operating engineer from May 8 to 16 and asking
that a meeting be set up as soon as possible. It was and is
Local 17’s position that SCC continue as party to a collec-
tive-bargaining contract with Local 17 after March 31, 1990,
for at least 1 year by virtue of its automatic renewal. By let-
ter dated May 15, 1990, Laurence Elia, as vice president on
behalf of SCC responded to the AGC’s forwarding of Local
17’s grievance with the statement that Local 17 harbored a
mistaken belief that SCC was signatory to the 1990–1993
agreement between Local 17 and LRD/AGC. Elia asserted
that since no agreement exists, there is no basis for Local
17’s grievance or the grievance meeting Local 17 requested
in its letter. Elia closed by requesting that the AGC advise
Local 17 of SCC’s position and that any issue Local 17
wishes to raise concerning SCC should be addressed directly
to SCC.
Under cross-examination, Hopkins denied being privy to
any discussion or hearing anyone, either from SCC’s side, or
McCarthy, or his agent, at the January 19 meeting, discuss
the topic of the Association contract expiring in a short pe-
riod of time. Hopkins further noted that while there was no
mention at the meeting that this contract is only good for 2
months or any other set period of time, there were questions
posed by SCC representatives as to the status of Local 17’s
bargaining with the AGC. Hopkins acknowledged that there
couldn’t have been ongoing negotiations at the time with the
AGC unless either Local 17 or the AGC had triggered the
termination clause of article XVIII of the agreement, thereby
forestalling its automatic renewal. Hopkins also agreed that
SCC representatives at least by virtue of the talk of the state
of negotiations, had to know by the January 29 meeting that
this was the case.
Later examination by Charging Party counsel established
that at the January 29 meeting the Elias were interested in
coming back into the area and establishing a good, long-term
relation with Local 17. Thus, in the course of discussions the
Elias asked Hopkins if the Union had a young fellow who
was a good operator and a good mechanic that they could
utilize as a master mechanic for the future, someone who
could grow with the Company. Hopkins said he did have
one, but then asked what was wrong with the master me-
chanic they had had in previous years, a Robert Blount, who
still had 8 to 10 years before retirement. The Elias said they
could take Blount back again.
Harrigan corroborated Hopkins that none of the SCC rep-
resentatives at the January 29 meeting made any reference to
the termination clause in the AGC–Local 17 agreement, al-
though he couldn’t recall if copies of the agreement were
brought to the meeting or later mailed to the Company. Nei-
ther did Harrigan McCarthy make any reference to the agree-
ment being of 2-month duration during an attempt to calm
down Arthur Elia. Harrigan was emphatic in his denial.
As did Hopkins, Harrigan recalled the Elias saying they
would look over the agreement and he left the meeting with
the understanding they would be participants (in collective
bargaining).
Under cross-examination, Harrigan agreed that it was usual
for Local 17 to set up protocols for a job of the magnitude
of the Skyway job which the Union had learned about in
February through the Dodge report. However, it was the re-
sponsibility of the employer, in this case SCC, to call the
union hall to set up a prejob meeting. Harrigan said the
Union took no initiative to arrange one when SCC did not
because the Union didn’t have any problem with SCC and
didn’t want one.
Harrigan also explained in later examination that when
SCC failed to return a signed copy of the interim successor
agreement which it was forwarded in May 1990, the Union
considered the earlier AGC agreement it had signed as an
independent as still in effect.
Harrigan also agreed that the renewal of SCC’s relation-
ship with Local 17 ripened into an agreement as of February
1, 1990, when Hopkins signed the AGC–Local 17 1987–
1990 agreement, although the agreement by its terms re-
quired notice of termination to be submitted by a contracting
party by January 31, a day before the contract came into
being. Harrigan later claimed that Hopkins signed on January
31, although neither Hopkins nor the date of February 1,
1990, next to his signature support that conclusion, and I re-
ject it.
Respondent produced two witnesses to the meeting leading
to the execution of the AGC agreement.
Michael Elia testified that he served as the spokesman for
SCC at the meeting. At one point he interrupted McCarthy
who had opened with a long review of his relationship with
his father, Arthur Elia, the Elia family, and Local 17, and
told Hopkins that the firm was considering doing heavy
highway and building work in the Buffalo region, wanted to
discuss the possibility of entering an agreement, but did not
want to have the difficulties they had in the past. Michael
Elia went into detailed specifics of grievances that had arisen
over the years, involving alleged over manning incidents. At
this point, according to Michael, his father, Arthur, became
a little agitated, said something about the ATV1 and Gene
McCarthy said ‘‘Arthur, settle down, this agreement is only
for two-months, its going to expire in a couple of months,
settle down, don’t worry about it.’’ Michael told his father
to settle down, we can come to terms with this. Michael also
did not know what, if anything Hopkins said at this point be-
cause he was concentrating on his father.
Michael Elia denied that he was given any contract at the
meeting. However, he noted that the meeting had gone well
and it was understood that SCC was going to return a signed
1523SCC CONTRACTING
agreement to the Union after it received it from Local 1.
That agreement had an expiration date of March 1990.
When Michael Elia signed the agreement on January 31,
Hopkins had not yet signed.
Subsequently, SCC bid on the Skyway job in February
1990, was awarded the job, and started work at the beginning
of May. Between April 1 and May 1, he had no communica-
tion with Local 17 about the job because his agreement with
the Union had expired at the end of March.
When questioned closely as to why he would enter a 2-
month agreement when he had anticipated having no work
within Local 17’s area during that period, Michael Elia re-
plied that it was a good-faith effort to show that SCC was
going to begin work with Local 17. The Company knew the
Union was negotiating with the AGC and they wanted to see
what came out of the negotiations and if SCC was satisfied
that it would continue, it would sign the new agreement.
Michael Elia also further explained that it was Gene
McCarthy’s persistence, and his personal friendship with his
father, Arthur Elia, which persuaded him to make a good-
faith gesture to both unions and sign the 2-month agreement.
Michael Elia then explained that information he received
regarding the negotiations then underway between the AGC
and Local 17 on the 1990 successor agreement convinced
him not to enter further negotiations with Local 17 leading
to an agreement after March 31. Elia referred here to Local
17’s pursuit of a significant wage increase as well as knowl-
edge gleaned from members of the AGC negotiating com-
mittee that with respect to manning requirements on certain
pieces of equipment Local 17 was not flexible and was going
to require that the machines be, in Elia’s words, double-
manned.
When questioned as to what discussions had taken place
at the January 29 meeting regarding manning requirements,
Michael Elia said the matter had been discussed generally,
without reference to particular equipment, contradicting in
this regard his earlier testimony that he had gone into de-
tailed specifics regarding alleged over-manning incidents.
Elia then immediately referred to the ATV, the post hole dig-
ger and things of that nature as to which manning disputes
had become very disruptive, describing them for the second
time as ‘‘chicken shit’’ type of things. Yet, in spite of these
rehashings on January 29, Elia left that meeting with an un-
derstanding that they—SCC and Local 17—could work to-
gether and would attempt to keep things at a low key at job
level without getting into upper management grievance-type
proceedings. Hopkins did deny Elia’s request that Pat Har-
rigan be assigned to SCC to work as a go-between, Harrigan
having worked with SCC to good effect in the 1970s and
early 1980s, but this was apparently not troubling to Elia
since Hopkins repeated the promise that the parties would
work together to solve problems early.
As to the Skyway job, Elia bid on the job based on SCC’s
estimate that certain pieces of equipment to be utilized on the
project would be manned and certain pieces would not be
manned (by Local 17). Michael Elia next indicated that he
was unsure whether the terms incorporated in the newly pro-
posed AGC–Local 17 agreement would preclude SCC from
operating as it planned on the Skyway job. It was Elia’s in-
tention to employ a subcontractor out of Texas who would
supply its own high-pressure water blaster for the removal of
the concrete off the piers holding up the bridge (the Skyway)
as well as its own trained operator to man the equipment.
Apparently, on inquiry of the AGC, Elia learned that under
the new agreement Local 17 would also be manning the
equipment. Elia considered this an unacceptable double man-
ning. This advice was one of the reasons SCC refused to ex-
tend a contractual relationship with Local 17 beyond the
March 31 expiration date.
Under cross-examination, Elia agreed that McCarthy never
represented to him that he was an agent of Local 17. Neither
did he ever represent that Local 17 would agree to enter a
2-month contract. Neither did Elia ever explain to Local 17
at the January 29 meeting that his intention to enter into a
short-term contract was a gesture of good faith. When it was
further suggested to Elia by counsel for General Counsel that
if he did not approve of any of the manning or other terms
of the newly negotiated AGC agreement he could have
sought his own modifications in an independent agreement,
at first he aspired that Local 17 in his experience news nego-
tiated any ‘‘sweetheart’’ terms, but finally answered that he
had no idea if he could do so.
Under union counsel cross-examination, Elia acknowl-
edged that on January 29 he was personally unaware that the
1987–1990 AGC/Local 17 agreement had been canceled
since he, himself, had not read the December 20 letter Local
17 had forwarded to SCC.
Elia also testified that when McCarthy at the January 29
meeting told his father to quiet down, it’s a 2-month agree-
ment, he, Michael Elia, had no idea whether any of the rep-
resentatives present from Local 17 heard it. Furthermore, the
only reference to a 2-month agreement made at the meeting
was made by McCarthy to Arthur Elia, his father. However,
later questioning of Michael Elia by SCC counsel brought
out that when McCarthy spoke to calm down Michael’s fa-
ther, McCarthy walked over to Arthur Elia and put his hand
on Arthur’s shoulder. At that time Hopkins was roughly 4
feet away, apparently on the other side of the table.
Finally, Michael Elia noted that, although, he had not read
and was not familiar with article XVIII of the AGC agree-
ment, among other terms, that Local 17 submitted to him—
the article dealing with termination of the agreement or its
automatic renewal, see supra—he signed the agreement and
agreed to abide by all of its terms, including article XVIII.
And SCC had never sent notice of cancellation or proposed
changes in the agreement to Local 17 pursuant to that article.
Later colloquy between myself and counsel for the parties
brought into focus the issue as to whether SCC ever had the
opportunity to forestall automatic renewal by January 31
when Local 17 did not sign the agreement until February 1
at the earliest. See Tr. 186-188. Charging union counsel ar-
gued that the agreement was effective by January 31 since
the Union had already indicated that it would sign the con-
tract, and thus SCC’s execution was, in effect, an acceptance
of Local 17’s offer. Local 17 counsel’s promise to deal with
this matter in its posthearing brief was not fulfilled, the
Union not having filed a brief, but the matter was dealt with
by General Counsel and will be discussed in the following
section of this decision.
Laurence Elia, Michael’s brother and SCC vice president
in charge of labor relations, corroborated Michael Elia as to
McCarthy’s comments when their father raised the ATV
grievance. McCarthy told Arthur Elia just settle down, and
not to worry, that this was a matter of a couple of months.
1524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hopkins was then across table about 4 or 5 feet away and
there were no noises in the room to interfere with normal
hearing.
Laurence Elia disclosed a continued communication with
McCarthy at the point in early May 1990 that SCC com-
menced operations on the Skyway job without a Local 17
operator. In his, Laurence’s presence Michael Elia wrote
down some three items for McCarthy to take back to Local
17 after McCarthy asked what was bothering SCC about a
continued relationship with Local 17.
In earlier discussions with McCarthy preceding the Janu-
ary 29 meeting, McCarthy had said to him ‘‘what are you
worried about; it’s only for a couple of months.’’ McCarthy,
in fact, mentioned that the agreement expires on January 31.
But McCarthy made no mention of automatic renewal in
these discussions.
Laurence Elia also confirmed, as had his brother earlier,
that in February and March 1990 SCC had no projects going
on within the jurisdiction of Local 17. And yet SCC entered
into a 2-month contract with Local 17 due to expire on
March 31.
Respondent counsel represented for the record that Arthur
Elia would have testified in support of Respondent’s defense
but for the fact of his having had a serious health problem
of a continuing nature which prevented his appearance on the
hearing date.
Hopkins testified in rebuttal that he did not hear McCarthy
saying anything to Arthur Elia in the nature of ‘‘settle down,
it’s only a two-month contract.’’ He did recall Arthur Elia
having mentioned some items on past jobs that SCC was not
happy with.
Hopkins recalled a contact from McCarthy probably in
May 1990 regarding certain manning requirements on equip-
ment that SCC did not agree with, in accordance with their
agreement. But this contact took place after Local 17 had
filed its grievance, and Hopkins was unwilling to relieve
SCC from manning requirements contained in the agreement.
Analysis and Conclusion
As to the credibility of the Elia brothers attribution of cer-
tain remarks to McCarthy after their father’s outburst at the
January 29 meeting, I am inclined to find that McCarthy did
not make the remarks attributed to him, or that, even if he
did, neither Hopkins nor Harrigan heard them. While McCar-
thy admits he may have referred at some point during the
meeting to the agreement being of short duration, he was
clearly making reference to the AGC agreement. And as to
that agreement McCarthy asserted that in his view the offi-
cials of SCC were well aware by their own prior statements
to him of their options regarding its termination, one of
which by its terms included automatic renewal for each year
after March 31, 1990, unless notice of proposed changes was
timely served, given McCarthy’s explanations on the record
during his cross-examination especially of the nature of his
remarks regarding termination, I find it highly unlikely that
he would have sought to soothe an upset Elia family member
with reference to the agreement’s early termination, when,
based on the parties’ general discussions and their under-
standing of the purpose of the meeting, they were both seek-
ing an accommodation in order to resume a long-term rela-
tionship. I am also troubled by Respondent counsel’s unwill-
ingness to confront McCarthy with the allegation prior to his
release as a witness. Fairness required that the one who was
claimed to have made the statement at issue be confronted
with it, so that he could either deny, or admit it, or offer
some explanation regarding it. This Respondent failed to do.
As I have noted, even if the remark was made by McCar-
thy, I am unable to find that the Local 17 representatives
heard it. Michael Elia could not so testify, even though they
were then across the table. Both Local 17 representatives of-
fered credible denials. I am inclined to find that had either
Hopkins or Harrigan heard McCarthy’s comments either
would have responded as Hopkins forcefully stated on the
record, that Local 17 was not interested in and would not
enter a 2-month agreement, especially with a local employer
who had no work available for that period in what is tradi-
tionally the slow winter months.
In any event, McCarthy was clearly not Local 17’s agent
in either arranging or participating in the meeting. SCC ad-
mits as much. I conclude that if SCC seeks to rely on a
spontaneous remark by a mediator directed to soothing an
upset representative of one party, which remained
unacknowledged by the other party and was not, thereafter
referred to, discussed, or clarified by either party, to establish
either an understanding regarding the agreement’s term or,
alternatively, to demonstrate a failure of the parties to agree
on the term, its reliance is misplaced. I am unwilling to sup-
port a finding of this nature on so slender and inadequate an
underpining.
Much more was required before one could reasonably con-
clude that the termination clause of the AGC agreement was
intended by the parties to receive an interpretation or mean-
ing other than that manifested by its words. Indeed, the
meaning of the language contained in article XVIII was plain
and unambiguous. If Respondent wanted to change or modify
the provision it should have said so instead of leaving its os-
tensible contrary intention unexpressed either at the meeting
or on any other occasion.
I use the word ostensible advisedly, because the reasonable
interpretation of the partie’s conduct at the January 29 meet-
ing was that they had reached an understanding which en-
compassed at least the following points: (1) they had agreed
on the adoption by SCC as an independent of the 1987–1990
AGC industrywide agreement; (2) they were going to seek
to overcome their past differences; and (3) they intended to
resume a collective-bargaining relationship of indefinite dura-
tion. No other conclusion can be drawn from their expressed
willingness to move on beyond their past disputes on the job,
and seek to resolve future ones at the honest level on the job,
SCC’s interest in securing the services of a young qualified
master mechanic who could grow with the Company on
heavy and highway jobs within the Union’s greater Buffalo
jurisdiction, and SCC’s understanding to execute the AGC
agreement on its receipt and review. Whether copies of the
agreement were delivered at the meeting, or whether as SCC
claimed, it received them shortly thereafter, the fact remains
that SCC adopted the agreement without change by January
31, 1990.
SCC, nonetheless, asserts that its subsequent receipt of in-
formation regarding the manning provisions contained in the
newly negotiated AGC–Local 17 agreement and the AGC’s
interpretation of them as applied to SCC’s Skyway job con-
vinced it that Local 17 did not intend to comply with its un-
derstanding of the agreement it executed on January 31, and
1525SCC CONTRACTING
therefore permitted it to cancel the agreement on March 31.
This argument is disingenuous. SCC failed to express any
objection to the manning provisions either on January 29, 30,
or 31 although it rehashed past manning disputes on January
21, but then agreed to move on. Rather, it signed the agree-
ment without modification, an agreement which also con-
tained a zipper clause in article XXXII, pursuant to which
the parties agreed ‘‘this Agreement is the complete Agree-
ment . . . and there are no other agreements expressed or
implied.’’ SCC never sought to negotiate any modification of
the extensive manning provisions contained in articles V, IX,
and X which might have had some impact on its later desire
to avoid a Local 17 operator on the specialized equipment
it utilized under a subcontracting arrangement on its Skyway
job. Even if the record evidence could support an interpreta-
tion that the parties orally varied the terms of the written
agreement Respondent later executed—a conclusion I have
rejected—the Board has concluded that attempts to vary the
terms of a written collective-bargaining agreement valid on
its face by parole testimony is unavailing. See NDK Corp.,
278 NLRB 1035 (1986).
Finally, on this point, it was incredible for SCC to con-
clude as it apparently did, that the Union agreed on January
29 to an arrangement pursuant to which its members would
perform no services and which was subject to being discon-
tinued on the unilateral initiative of one party before the oc-
casion ever arose for the agreement to become operative.
Respondent asserts other defenses to the effectiveness of
the parties’ agreement extending beyond March 31 by virtue
of the application of the automatic renewal language con-
tained in the termination clause. Respondent claims that since
the agreement was not effective until February 1, 1990, when
Hopkins signed on behalf of the Union. SCC had no oppor-
tunity to seek to forestall automatic renewal, which required
notice of modification or cancellation by January 31. The
short answer is that the agreement became effective on Janu-
ary 31, 1990, when Michael Elia adopted it for SCC, a date
still timely for SCC to have sought to notify Local 17 of pro-
posed changes, thereby forestalling automatic renewal. The
agreement became effective on January 31, because on that
date SCC accepted Local 17’s offer of the AGC agreement.
The principle of labor law is well-established that
‘‘[T]echnical rules of contract law do not necessarily control
regarding the making of collective-bargaining agreements.’’
Curtin-Matheson Scientific, 287 NLRB 350, 354 (1987).
Local 17’s later execution of the agreement did not add to
an understanding which had already been achieved and
which the Board has routinely concluded, even absent any
signed writing, may be enforced as a refusal to execute and
implement an agreed-upon contract. See Section 8(d) of the
Act which expressly requires ‘‘the execution of a written
contract incorporating any agreement reached’’ and H. J.
Heinz v. NLRB, 311 U.S. 51 (1941), in which even prior to
its enactment, the Supreme Court held such a failure to sign
a written memorandum to be an independent refusal to bar-
gain.
Respondent can also hardly claim unfamiliarity with the
language of the termination and automatic renewal clause of
the AGC agreement which in the words of Gene McCarthy
is fairly standard in heavy and highway contracts negotiated
by the AGC and the unions with which it bargains. That
being so, and given SCC’s past adoption of AGC agreements
in bargaining with Local 17, among other unions, SCC must
be charged with knowledge of the effect of the clause when
it agreed, orally, to adopt the agreement on January 31 when
it adopted the agreement in writing.
Respondent nonetheless seeks to avoid responsibility for
its adoption of the agreement including its automatic renewal
language because it received notice in writing from Local 17
even before its negotiation session, that automatic renewal of
the AGC agreement—the very one it signed—had been fore-
stalled. Thus, argues Respondent, the cases on which General
Counsel relies to establish its liability here, are distinguish-
able because none of them involved prior notice to the em-
ployer that the multiemployer agreement it adopted had not
automatically renewed.
These cases, relied on by the General Counsel to establish
the viability of the automatic renewal clause in the multiem-
ployer agreement adopted by an independent employer are
Victor Block, Inc., 276 NLRB 676 (1985); C.E.K. Industrial
Mechanical Contractors, 295 NLRB 635 (1989), and Fortney
& Weygandt, Inc., 298 NLRB 69 (1990). Taken together, and
putting aside certain differences among them, not relevant for
the disposition of the instant case, these cases stand for the
propositions that an independent employer who adopts a
multiemployer association agreement is a ‘‘party’’ under the
terms of that agreement, in particular, the termination and
automatic renewal clause, so that, in the absence of timely
notice pursuant to that clause by either the independent em-
ployer or the union to the other, the independent employer
is bound under the renewed agreement, at least for the year
following automatic renewal if the clause so provides, and
further automatic renewal is left for compliance to determine.
In the course of making these determinations the Board re-
jected the defense that the Union’s later request, untimely to
forestall automatic renewal, to the independent to sign the re-
newed multiemployer agreement was inconsistent with or a
waiver of its position that the prior independently adopted
contract, automatically renewed. The Board also concluded
in these cases that nothing in John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988), pre-
cluded a finding that an 8(g) agreement, such as the one at
issue in the instant proceeding, may, in appropriate cir-
cumstances, automatically renew.
The Board further concluded in these cases that the
Union’s or the multiemployer association’s timely notice to
the other of intent to negotiate agreement did not preclude
the effectiveness of the automatic renewal clause as to the
independent employer respondent because the independent
had never delegated bargaining authority to the employer as-
sociation.
In each of these three cases, the independent employer
adopted the association agreement prior to timely notice of
cancellation having been filed by either the Union or Asso-
ciation to the other under the multiemployer agreement. In
none of the three cases was there evidence that either the
Union or Association advised the independent of this notice
to terminate.
I conclude, contrary to the argument of Respondent, that
these factual differences here are insignificant on the record
before me to warrant a departure from the legal conclusions
reached in the line of cases relied on by General Counsel.
At the time that SCC received notice of the timely can-
cellation of the AGC agreement it was not a party to any
1526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I shall leave to compliance whether the contract renewed again
in 1991. C.E.K., supra at fn. 3.
3 As noted by counsel for General Counsel in its brief, for the pur-
pose of the make-whole remedy, Respondent’s employees will be
treated as union members under the union-security clause of the
agreement with Local 17 and it was not and had no intention
of becoming a member of the AGC’s labor relations division.
Thus, notice to it even if only by way of receipt of a cour-
tesy copy of the Union’s notice to the AGC, could have had
no effect on its later adoption of the AGC agreement as an
independent party who had not delegated any bargaining au-
thority to the AGC. In adopting the terms of the AGC agree-
ment as its own, SCC was binding itself to a provision,
among others, which required it to serve timely notice on
Local 17 or Local 17 to serve timely notice on it as a con-
tracting party if it wished to prevent an automatic renewal
at least to March 31, 1991. This was never done. Incorpora-
tion of the December 20, 1989 notice into the independent
agreement SCC adopted on January 31 was never proposed.
Since SCC was not a party to the AGC agreement and the
agreement SCC signed contained no reference to that notice
but contained only the termination article XVIII requiring
notice of changes to be served by January 31, the parties’
knowledge of the outstanding union notice to the AGC could
not operate to vary the terms of their agreement, particularly
since under the complete agreement language of article
XXXII no other agreements, either express or implied, could
serve to vary its terms.
In reaching this result I am not unmindful of the language
used by the Board in Lifetime Shingle Co., 203 NLRB 688
(1973), a division cited with approval in C.E.K. Industrial
Mechanical Contractors, supra, to support its conclusion that
the association’s notice to the union of a desire to change the
contract did not operate to preclude the effectiveness of the
automatic renewal as to C.E.K. In Lifetime Shingle Co., the
Board noted that ‘‘the fact that Respondent may have be-
come aware of the Union’s notice to the Association does
not affect this result [that the Respondent was bound by his
own contract in absence of timely notice to prevent auto-
matic renewal], particularly since the evidence does not show
that this occurred in timely position, at least 60 days prior
to August 31, 1971 [the termination date of the initial con-
tract].’’ To the extent the Board would appear in that case
to be implying that the independent employer’s receipt of
timely knowledge of the notice by either party to the multi-
employer association agreement may preclude automatic re-
newal of the independent employer’s own contract, it should
be appropriately limited to those situations where at the time
such notice is received the independent employer is contrac-
tually bound to a contract containing such termination and
automatic renewal language. Certainly, given the language of
the agreement at issue here, knowledge of that notice alone,
without its incorporation into the parties’ later agreement by
at least some writing recognizing its import, should not serve
to limit the agreement to a 2-month period during which its
terms never became effective or operational. Accordingly, I
conclude that SCC was bound for 1 year2 by the automatic
renewal clause of the 1987–1990 contract agreement.
For all the foregoing reasons I conclude that Respondent’s
repudiation of its agreement with Local 17, on and after
March 31, 1990; it failure to apply the terms of the agree-
ment, including but not limited to the grievance and arbitra-
tion provisions, to its Skyway job which commenced in May
1990, constitutes a continuing refusal to bargain with Local
17 in violation of Section 8(a)(5) and (1) of the Act. East
Kentucky Paving Corp., 293 NLRB 1132 (1989);
Hydrologics, Inc., 293 NLRB 1060 (1989).
CONCLUSIONS OF LAW
1. The Respondent, SCC Contracting, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union of Operating Engineers, Local
Union No. 17, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All engineers, maintenance engineers, assistant engi-
neers, maintenance maintenance welders, maintenance
welders’ helpers, maintenance burners, master mechan-
ics, assistant master mechanics, and all other skills and
crafts when within the jurisdiction of the union.
4. By virtue of the principles established by the Board in
John Deklewa & Sons, 282 NLRB 1335 (1987), the Union
at all times material has been and is the limited exclusive
collective-bargaining representative for the employees in the
unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment.
5. The Respondent was bound by the automatic renewal
clause of the 1987–1990 collective-bargaining agreement be-
tween the Associated General Contractors of America, New
York State Chapter, Inc., Labor Relations Division Western
New York and the Union.
6. By repudiating the Union as the limited exclusive rep-
resentative of its employees in the aforesaid appropriate unit
and by failing to continue in full force and effect all of the
terms and conditions of the automatically renewed 1987–
1990 agreement, by failing to abide by or apply such provi-
sions of the agreement, among others, as the grievance and
arbitration and welfare and pension fund contributions arti-
cles, Respondent has refused to bargain with the Union as
the limited exclusive collective-bargaining representative of
the employees in the aforesaid appropriate unit in violation
of Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that Respondent has violated the Act, I shall
recommend that it be ordered to cease and desist and to take
certain affirmative action designed to effectuate the purposes
of the Act. Specifically, I shall recommend that Respondent
be ordered to make whole employees for any losses they
may have suffered as a result of the Respondent’s failure to
honor the automatically renewed 1987–1990 Associated Gen-
eral Contractors agreement, including contributions the Union
would have received, with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), and Merryweather Optical Co., 240
NLRB 1213 (1979).3 I shall also recommend that Respond-
1527SCC CONTRACTING
agreement, from the inception of their employment. Furthermore, as
noted by the Board, e.g., in Wayne Electric, 226 NLRB 409 fn. 3
(1976), this recommended Order encompasses all employees who
would have been referred to Respondent for employment but for Re-
spondent’s refusal to abide by its automatically renewed collective-
bargaining agreement with Local 17.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
ent be ordered to process the grievance filed by the Union
with the Associated General Contractors on May 9, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, SCC Contracting, Inc., Niagara Falls,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating the Union as the limited exclusive rep-
resentative of its employees, and failing to apply the terms
and conditions of its 1987–1990 Associated General Contrac-
tors of America, New York State Chapter, Inc., Labor Rela-
tions Division Western New York contract with International
Union of Operating Engineers, Local Union No. 17, AFL–
CIO, to its employees, in the following appropriate unit:
All engineers, maintenance engineers, assistant engi-
neers, maintenance engineers (also referred to as me-
chanics), firemen, mechanic’s helpers, maintenance
welders, maintenance welders’ helpers, maintenance
burners, master mechanics, assistant master mechanics,
and all other skills and crafts when within the jurisdic-
tion of the union.
(b) Refusing to process the grievance filed by the Union
with the Associated General Contractors on May 9, 1990.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole employees for any losses suffered as a re-
sult of Respondent’s failure to honor the automatically re-
newed 1987–1990 contract, including contributions the Union
would have received, in the manner set forth in the remedy
section of this decision.
(b) On request, process the grievance the Union filed with
the Associated General Contractors on May 9, 1990.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its office and place of business in Niagara
Falls, New York, and jobsites in Erie, Wyoming,
Cattaraugus, Chautaqua, Orleans, and the western part of
Genesee, New York, copies of the attached notice marked
‘‘Appendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 3, 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT repudiate the Union as exclusive representa-
tive of our employees, or fail to apply the terms and condi-
tions of the 1987–1990 Associated General Contractors of
America, New York State Chapter, Inc., Labor Relations Di-
vision Western New York, contract with our employees, in
the following appropriate unit:
All engineers, maintenance engineers, assistant engi-
neers, maintenance engineers (also referred to as me-
chanics), firemen, mechanic’s helpers, maintenance
welders, maintenance welders’ helpers, maintenance
burners, master mechanics, assistant master mechanics,
and all other skills and crafts when within the jurisdic-
tion of the union.
WE WILL NOT refuse to process the grievance filed by the
Union with the Associated General Contractors on May 19,
1990.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make whole employees for any losses suffered
as a result of our failure to honor the automatically renewed
1987–1990 contract, including contributions the Union would
have received, plus interest.
WE WILL, on the Union’s request, process the grievance it
filed with the Associated General Contractors on May 9,
1990.
SCC CONTRACTING, INC.