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Kushnir was not expected to return, and the question of his replacement was left open.

His temporary replacement was a non-union employee from the gravel pit, Bruce Hunchard.

The Board charged respondents West and Wrentham with violations of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U. The Board, affirming and adopting the opinion of an administrative law judge, determined that respondents had committed the unfair labor practices as charged and entered a Section 8(a)(5) bargaining order against the two companies. The ALJ could find no evidence the NLRB ever certified the union at either location or that any union election official or unofficial was ever held.

§§ 158(a)(1), (a)(5),1 on the ground each respondent unlawfully withdrew recognition from and refused to bargain with Local 4 of the International Union of Operating Engineers during and after the term of a collective bargaining agreement between the company and the union. International Ladies Garment Workers' Union (Bernhard-Altmann Texas Corp.) v. (The drivers of these trucks are represented by another union and are not relevant to this case.) Continuous relations with Local 4 have existed since the 1950's at Lorusso's West plant, and since the 1960's at its Wrentham plant.

His non-union replacement was Paul Zahner, the brother of John Zahner who worked at West.

WEST SAND AND GRAVEL COMPANY, and Wrentham Sand and Gravel Company, Divisions of S. Finally, in the spring of 1977, the plant operator at Wrentham, Ken Hickerson, was killed in a motorcycle accident.

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The National Labor Relations Act imposes on an employer a duty to bargain collectively with a union selected by a majority of the employees in a unit appropriate for such purposes. The record does show, however, a series of collective bargaining agreements between the union and West and the union and Wrentham dating back at least to 1967. Although the parties strenuously dispute the scope of these unit descriptions, it is agreed they do not cover, and were never intended to cover, employees at Norfolk Sand and Gravel Company or at any of Lorusso & Sons' other operations not herein described. The description in contracts between the union and West Sand read as follows: "This agreement covers only engineers of West Sand and Gravel Company operating power shovels, cranes, shovel-dozers, bulldozers, front end loaders, other power loading equipment and plant operators, mechanics and welders in its crushed stone quarries." Except for the words "Wrentham Sand and Gravel Company," the unit description in the Wrentham contracts was the same. Because of the coordination required between the extraction of stone and gravel at the source and the processing operation, and because of the seasonal nature of the business, the ALJ found that: "the Company adopted a policy of shifting employees around, bringing workers from the Quarry or the Pit to West or Wrentham to operate equipment when demand was high, and moving employees from the Union's bargaining units at West and Wrentham from one unit to the other and even into the non-union operations at the Pit or the Quarry." In addition to these "casual and sporadic" transfers, as the ALJ termed them, at times non-union personnel were assigned to do bargaining unit work at either West or Wrentham on a more permanent basis as replacements for union members. The ALJ found that, in practice, employee assignments were not always maintained within the organizational boundaries described above.

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