Local 404, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. $01 CoNCLusIoNs of LAw 1. American Federation of Radio Artists, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent has not violated Section 8 (a) (5) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L. and INTERNA- TIONAL ASSOCIATION QF MACHINISTS, A. F. L. Case No. 1-CB-140. August 26,19592 Decision and Order On February 7,1952, Trial Examiner George Bokat issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommend- ations of the Trial Examiner, with the following additions.2 1. The original charge filed on January 9, 1951, alleged that the Respondent "prior to, or about, December 5, 1950" had violated Sec- tion 8 (b) (1) and (2) of the Act by coercing certain employees into paying initiation fees and dues under threat of discharge. This charge contained no list of employees alleged to have been so coerced. On June 4, 1951, the charge was amended to allege that "since on or 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Houston and Murdock] 2 The Intermediate Report contains a number of typographical errors which are cor- rected as follows : (a) In footnote 4, the citation for Graham Ship Repair Co , should be 63 NLRB 842; ( b) in footnote 6, the citation for Eclipse Lumber Company, Inc., should be 95 NLRB 464. 100 NLRB No. 135. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about October 19, 1950," the Respondent had attempted to cause and did cause the Employer to discriminate against certain named employees by forcing them to join and to pay initiation-fees and dues to the Respondent in violation of Section 8 (a) (3). On June 21, 1951, the charge was further amended by deleting several names attached to the previous charge. The Respondent argues that the Act makes no provision for amend- ing charges and that an amended charge has only the status of an original charge. As the acts complained of occured more than 6 months before the filing of this second amended charge, the Respond- ent urgeskthat no complaint should have been issued. The Respond- ent's major premise is not valid. The courts as well as the Board have impliedly recognized that the power to amend a charge exists.g An amendment does not constitute a withdrawal of the original charge.4 Consequently, it is the date of the filing of the original charge which determines the cut-off period for the running-of the 6- month statute of limitations,5 particularly where, as here, the amend- ments merely amplify or particularize the original charge.6 2. The Respondent alleges that no complaint should have been issued because the dispute is between two unions affiliated with the same federation. We find no basis in the Act for excusing statutory violations because of the affiliation of the labor organizations involved. 3. The Respondent contends that the Board improperly delegated to employees the decision on the appropriate unit. We find this contention to be without merit.' The Respondent also attacks the Board's unit determination in the representation case." We perceive no reason for changing that determination. 4. The Respondent Union contends that the employees should re- mit to it the increase in pay received as the result of the Respondent's bargaining efforts, in order that the status quo be restored. We do not believe that it would effectuate the policies of the Act to require such restoration as a condition to compelling the Respondent to return to the employees initiation fees and dues unlawfully collected. Moreover, if these employees had not been compelled to join the Re- spondent, they might have been able to arrange as good or better terms either bargaining individually or through another labor organization. N. L R B, v Kobritz, et al., 193 F. 2d 8 (C. A. 1) ; Cusano v. N. L. R. B., 190 F 2d 898 (C. A 3). 4 N L R B. v Kobritz, et al., supra. 5 N. L. R. B v. Kobritz, et al, 8apra; Kansas Milling Co. v. N L R. B , 185 F. 2d 413 (C A 10). For the Board's general principles in applying the 6-month statute of limi- tations see Cathey Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5), set aside on other grounds, 189 F 2d 428 (C. A. 5) - Kansas Milling Co. v. N L R B .supra 7 N L R B v Underwood Machinery Co., 179 F. 2d 118 (C. A 1). 8 Brown Equipment A Manufacturing Co, Inc, 93 NLRB 1278. LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 803 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the' National Labor Relations Act, the National Labor Relations Board hereby orders that Local 404, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Brown Equipment and Manu- facturing Co., Inc., its officers, agents, successors, or assigns, to dis- criminate against its employees in violation of Section 8 (a) (3) of the Act. (h) Extending or applying the union-security provisions of the collective-bargaining contract with Brown Equipment and Manu- facturing Co., Inc., covering employees at that Company's West Springfield, Massachusetts, plant, to employees of the Company's Bradley Field, Windsor Locks, Connecticut, plant, except as author- ized in Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of Brown Equipment and Manufacturing Co., Inc., its successors or assigns, in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Reimburse the Bradley Field employees named in the appen- dix attached hereto for the initiation fees and dues each of them paid to the Respondent between October 2, 1950, and May 8, 1951. (b) Post in its offices in Springfield, Massachusetts, copies of the notice attached hereto as an appendix.9 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the First Region signed copies of the notice attached hereto as an appendix, for posting, Brown Equipment and Manufacturing Co., Inc., willing, at the lat- ter's office and place of business in Windsor Locks, Connecticut, in places where notices to employees are customarily posted. Copies of I In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 2 2 7 2 00-5 3-v o f 100--52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice, to be furnished by the Regional Director for the First Region, shall, after being signed by the Respondent's representative, be forthwith returned to the Regional Director for such posting, , (d) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, of the steps taken to comply herewith. Appendix NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF THE BRADLEY FIELD PLANT OF BROWN EQUIPMENT AND MANUFACTURING CO., INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members and Bradley Field employees of Brown Equipment and Manufacturing Co., Inc., that: WE WILL NOT cause or attempt to cause BROWN EQUIPMENT AND MANUFACTURING Co., INC.) its officers, agents, successors, or as- signs to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT extend or apply the, union-security -provisions of our collective-bargaining contracts with BROWN EQUIPMENT AND MANUFACTURING Co., INC., covering employees at that company's West Springfield, Massachusetts, plant, to the employees of the company's Bradley Field, Windsor Locks, Connecticut, plant, except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of BROWN EQUIPMENT AND MANUFACTURING CO., INC., Windsor Locks, Connecticut, in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL reimburse the employees named below for the initia- ation fees and dues unlawfully collected from them. Emmett J. Lyman, Jr. Paul V. Russell Alton Kunkel Wesley F. Rivard A. D. Viens Andrew Barga James E. Faulks Clinton Johnson Norman S. Robinson Gerald Karaghousian Nicholas T. Serdechny John Modzolewski Fred Rube Russell Strubell Charles D. Lowery, Jr. Anthony M. Farinella George J. Guadanskas Palmiero Napol Joseph LaBucque George R. Yurewitch John Kolasinski Francis J. Ciacchero Floyd L. Strain Eugene J. Morin LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 805 Leon H. Baker Joseph C. DeMaio Clifford R. Watkins Leslie C. Gedding John C. Young Maurice Roeit Howard Griffin LOCAL 404, INTERNATIONAL BROTHERHOOD or TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, A. F. L., Labor Organization. By ---------------------------------------- (Representative) (Title) Dated-------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed by the International Association of Machin- ists, A. F. L., herein called the Machinists, and upon complaint and notice of hearing issued and served by the General Counsel, and an answer having been filed, a hearing upon due notice was held at Springfield, Massachusetts, before the undersigned Trial Examiner on August 1 and 2, 1951, involving allegations of unfair labor practices in violation of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by Local 404, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, A. F. L., herein called the Teamsters and at times the Respondent. The allegations in substance are that the Teamsters violated Section 8 (b) (2) of the Act by: (a) The execution of an agreement with the Brown Equipment and Manufacturing Co., Inc., herein called the Company, which requires as a condition of employment membership in the Teamsters, which agreement had not been authorized pursuant to Section 9 (e) of the Act; (b) requiring, as a condition of employment, the payment of initiation fees and monthly dues to the Teamsters by the employees of the Company. The complaint also alleged that the Teamsters violated Section 8 (b) (1) (A) of the Act by: (a) Threatening reprisals to employees of the Company if they did not join the Respondent; (b) executing the agreement with the Company requiring membership in the Teamsters as a condition of employment as heretofore mentioned. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs, proposed findings of fact, and conclusions of law. The Teamsters filed a brief with the undersigned. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Brown Equipment and Manufacturing Co., Inc., is a North Carolina corpora- tion having its principal office in New York, New York, and plants at Charlotte, North Carolina ; Syracuse, New York ; Baltimore, Maryland ; Westfield, Massa- chusetts ; West Springfield, Massachusetts ; and Windsor Locks, Connecticut. The 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company is a wholly owned subsidiary of Associated Transport, Inc., a truck- ing concern operating a fleet of approximately 3,000 trucks in and through the States along the entire eastern seaboard. The Company is engaged in the manufacture, service, and repair of trucks, trailers, and other automotive equipment, making annual purchases of materials and sales of finished products to, a value in excess of $3,000,000; more than 50 percent of said purchases and sales is made across State lines. At its Windsor Locks plant, also known as the Bradley Field plant, the one involved in this proceeding, the Company is engaged in production, under Gov- ernment contracts , amounting in value to more than $300,000, for the defense effort. The equipment and materials used at Windsor Locks for the period beginning October 1950 and ending July ' 1951 amounted in value to more than $100,000, and more than 50 percent of said materials originated outside the State of Connecticut. The Company 's finished products for said period amounted in value to more than $300,000, and more than 50 percent of said products was shipped to points outside the State of Connecticut. The Respondent concedes and I find that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists and Local 404, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are both labor organizations within the meaning of the Act, affiliated with the American Federation of Labor , admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Summary of events There is no dispute as to the essential facts. The events giving rise to the alleged violations of the Act stem primarily from a jurisdictional dispute between the Machinists and the Teamsters . Since 1946 the Machinists has been the con- tractual bargaining representative of the Company's employees at all of its plants "coming within the work jurisdiction of the International Association of Machinists, in all of the shops of the Company, wherever located," with the exception of the Company's plant at West Springfield, Massachusetts. The Teamsters has represented the employees at the Company's West Springfield plant continuously since 1945, and during this period has entered into successive annual collective-bargaining agreements for such employees . The earlier agree- ments defined the scope of the bargaining unit as including the employees at West Springfield "and adjacent area." Until the fall of 1950, the Company operated no other plant-in the area adjacent to West Springfield . However in 1950 the Company leased the Bradley Field plant, which is located approximately 13 miles from its West Springfield plant, and commenced operations there on October 2, 1950. The Company initially was of the opinion that its master agreement with the Machinists would cover the new plant and informally notified a Machinists' representative to this effect . The Company also asked the Machinists for assist- ance in staffing the new plant where it planned to employ about 65 mechanics. However, the Company later changed its position and came to the conclusion that the operations of the West Springfield and Bradley Field plants were so closely integrated that the Teamsters' West Springfield contract should right- fully apply to the Bradley Field installation. LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 807 Prior to the opening of the Bradley Field plant on October 2, the Company and the Teamsters were negotiating a renewal of their agreement which was due to expire on November 1, 1950. The Teamsters took the position that the expiring contract and the new one being negotiated should also cover the employees at the new plant. Sometime during the latter part of September the Company finally agreed with the Teamsters' view. As a result, when the new plant opened for operation on October 2, the Teamsters, with the permission of the Company, posted a copy of the contract then in effect at the West Springfield plant on the bulletin board at Bradley Field. Above the contract the Teamsters placed the following : NOTICE TO EMPLOYEES THIS IS A COPY OF THE UNION AGREEMENT IN EFFECT IN THIS SHOP The union-shop clause of this agreement provides that "the Employer will not retain in its employ any person who fails to become a member of the Local Union within thirty days after being hired or who fails to remain a member in good standing of the Local Union." The day after the posting of the contract the 'eamsters also posted the following : NOTICE Employees working for Brown Equipment & Manufacturing Company at Bradley Field are part of the unit of the West Springfield Plant and are covered by the Union Shop Agreement in effect between the Company and this Local Union. The Union Shop provision is duly covered by certification from the National Labor Relations Board. Under the provisions of the agreement, all employees in the classifications of work listed are on a trial basis for thirty days. After the thirty days trial they are entitled to seniority and are required to become members of the Local Union. At some time prior to the expiration of your thirty days trial period you will be approached by a representative of the Local Union, who will make arrangements to enter your application. On October 3, Edmund Peresluha, a representative of the Machinists, visited the plant and saw the notice and contract that had been posted by the Teamsters on the Company's bulletin board. Peresluha vehemently protested to various officials of the Company about the posting of the Teamsters' agreement. He asked that it be removed because his union also had a contract with the Company covering any new plant with as much right he claimed to be posted as the Teamsters' contract. Besides, he said, the Machinists was organizing the new employees. The Company then and later refused the Machinists' request. The position taken by the Company is perhaps best summarized in a letter dated October 20, 1950, addressed to the Teamsters : As a result of our conversation here in the office, this is to advise you that the company's establishment at Bradley Field (Windsor Locks, Conn.) is, as far as we now contemplate, a temporary arrangement and such arrange- ment is for the purpose of performing emergency work beyond the present capacity of our Springfield shop. It would appear to me then that the employees of Bradley Field are more or less part of the bargaining unit recognized and established in West Springfield and adjacent area which would coincide with the preamble to the contract now in effect between Brown Equipment and Manufacturing Company and Local 404. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If my observations are correct, all shop personnel employed at the new Windsor Locks establishment will be governed by the terms and working conditions specified in our current arrangement with your Union. Over the period of the next few weeks after the plant opened , and during which the Company reached its full complement of workers , both Unions solicited the newly hired employees . Despite the advantage of the Teamsters in being able to point out to the employees that under the terms of the prevailing contract they had to become members of its organization within 30 days after being hired, nevertheless , the Machinists secured sufficient signatures so that by October 23 it was able to file a representation petition with the Board , after notifying the Company that it represented a majority of its Bradley Field employees. The Machinists contended that the production and maintenance employees at the Bradley Field plant constituted an appropriate unit for the purpose of a Board election. With the knowledge of the pendency of this petition the Company and the Teamsters continued to negotiate a renewal of their contract and finally consummated an agreement on November 7, 1950 , the agreement to be retroactive to November 1. It provides that its terms shall govern "'the hours , wages and working conditions of employees engaged in the building , maintenance , repair and rebuilding of motor trucks and motor truck equipment, as classified herein, in the Employer's plant at West Springfield , Massachusetts, and adjacent area, including employees at Bradley Field , Connecticut." It also provides for recog- nition of the Teamsters as "the sole bargaining agency for all employees engaged in the work covered by this agreement," and contains a union-security clause identical with the prior agreement . The new contract was placed on the bulletin board in place of the one that had expired. Despite the 30-day requirement to join the Teamsters set forth in both con- tracts, a substantial number of the employees still refused to join the Teamsters even though the requirements of the union-security clause were called to their attention by the Teamsters. No doubt many of them heeded the advice of the Machinists not to join the Teamsters. Indeed, on several occasions the Machin- ists complained to the Company that the employees were being "pressured" and "coerced" by the Teamsters to join. The following quotation from a letter the Machinists sent to the Company on October 28, 1950, reflects the position taken by the Machinists : I have discussed this matter personally with you and with Mr. Gearwar, Vice President of the Company, and have repeatedly admonished the above practices are in violation of our Federal statutes. The above practices are still continuing despite the fact that I have written you advising that the International Association of Machinists represents a majority of the em- ployees for collective bargaining, and despite the fact that the Company has been notified by the NLRB that a question of Representation exists. You are hereby notified that the continuation of the practices I have mentioned above will be at the Company 's own peril. The International Association of Machinists has advised your employees of their rights under the existing laws, and has promised them the fullest protection before the National Labor Relations Board. Under the existing circumstances no employee may be discharged for his support of the International Association of Machinists, or for his failure and refusal to join the Teamsters' Union . Any such discharge will be fully prosecuted before the NLRB with claims for all wages lost from the date of the discharge. I am sure you are aware that the law provides for such restitution. LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 809 I earnestly hope the Company will take immediate steps to correct the practices mentioned above and that it will not be necessary to prefer charges of unfair labor practices before the NLRB. The failure of so many of the employees to join the Teamsters despite the Teamsters' advice to the Company that unless the employees complied with the terms of the contract the Teamsters would take whatever steps were necessary to enforce it, finally caused the Teamsters to engage in a work stoppage at the Springfield plant on December 1, 1950. The Teamsters informed the Company that unless it made "the employees under 30 days tenure at Bradley Field" join the Teamsters that the Compony would be abrogating their agreement. As a result, on December 6, the Company summoned the approximately 65 employees at Bradley Field to a meeting in the locker room. There, in the presence of several high officials of the Company, in addition to 2 representatives of the Teamsters, the employees were advised by the Company that the Springfield employees had "walked out" because the Bradley Field employees had not joined the Teamsters and that under the terms of the agreement the Company "had to insist" they join or be replaced. About 30 or 40 employees who had previously refused to join the Teamsters received permission to discuss the matter among themselves. They did so and all but 7 agreed to join the Teamsters. After an arrangement was made with the Teamsters' representative that the $25 initiation fee could be paid off at a rate of $5 a week, the timekeeper called off the name of each employee on the payroll, most of whom announced a willingness to join the Teamsters but "under protest." Seven of them, however, still refused to join. At about this time, Peresluha, the representative of the Machinists, arrived at the plant pursuant to a telephone call made earlier by one of the employees. The Company advised Peresluha of what had taken place and of the refusal of the seven men to join the Teamsters. Peresluha threatened to file charges with the Board if the men were discharged but agreed to talk with them. "I advised the men to join the Teamsters' Union in order to hold their jobs, because if they were fired it might take some time before their case was processed by the Board . . . and our organization would be weakened by their loss, if they were out of the plant," testified Peresluha. The seven men finally agreed to join under protest. The following day, December 7, the employees at Springfield returned to work. The Board hearing arising out of the representation petition filed by the Machinists took place on December 8. On April 9, 1951, the Board issued its Decision and Direction of Election. After reviewing the facts the Board found: While factors present in this case such as the interrelation of operations of both plants indicate the appropriateness of a two-plant unit, they are not so compelling as to require our holding that no other unit is appropriate. The Board normally permits new employees at a new plant a voice in the determination of whether or not they shall be separately represented apart from the employees at other plants of their employer. We believe there- fore that, upon the record in this case, including the geographical separation between the two plants, the lack of interchange of personnel between the plants, and the fact that there is no history of bargaining on a multiplant basis, the proposed bargaining unit of employees at the Bradley Field plant may also be appropriate, depending upon the results of the election here- inafter directed. Accordingly, we shall direct an election in the following voting group : All persons employed in repairing, servicing, and maintaining equipment at the Employer's Bradley Field, Windsor Locks, Connecticut, plant, exclud- 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing executives, office and clerical employees, guards, professional employees, and supervisors as defined in the Act. If a majority of the employees select the Petitioner as their representative, they will be taken to have indicated their desire to be represented in a separate unit; if a majority select the Intervenor, they will be taken to have indicated their desire to be included with the employees at the West Springfield plant in a two-plant unit. The election was held on April 30, the Machinists receiving 30 votes and the Teamsters 12 out of a total of approximately 48 eligible voters. Following is- suance of the Board's formal certification on May 8, the Machinists and the Company executed a collective-bargaining agreement. Upon the winning of the election by the Machinists those employees that favored that union ceased paying dues to the Teamsters and the Teamsters made no further effort to collect them or to further insist on the application of its Springfield plant contract to the Bradley Field employees. B. The issues and conclusions It is the General Counsel's contention that, under the facts found above, the Teamsters violated Section 8 (b) (2) of the Act by: (1) Causing or attempting to cause the Company to discriminate against its Bradley Field employees by applying the November 1949 contract to these employees and similarly, by executing and applying the November 1950 agreement as to them, and (2) by requiring, as a condition of employment , the payment of initiation fees and monthly dues by the Bradley Field employees. The Teamsters contends that both it and the Company acted in entire good faith under a bona fide belief that a combined unit of the Company's employees at the Springfield and Bradley Field plants was the appropriate bargaining unit and therefore that the extensions of the union -security agreements in question were valid extensions of valid labor agreements.' In reaching a conclusion I must interpret the unit requirement In the proviso to Section 8 (a) (3) ' in accord with the statutory policy concerning units found in Section 9. As we have seen, the Board , in the representation case arising out of the Machinists' petition, followed its usual policy of fashioning a unit de- termination which accorded to the employees "the fullest freedom in exercis- ing the rights guaranteed by" the Act. In implementing this statutory pronounce- ment it is the Board's policy not to sanction the inclusion of a distinct group of' employees, at least where their community of interest is such that they might alone constitute a separate appropriate bargaining unit, in a larger bargaining group in which they will be a minority, without some expression of their prefer- ence. Where, as here, a distinct, new group was concerned-and there was, as to them, no bargaining history with its implications of acquiescence in the unit-the Board afforded the new group an opportunity to decide by the vote of their own separate majority whether or not they wished to become a part i At the hearing, the General Counsel conceded that the agreements , so far as they .applied to the Springfield plant only, were valid union-security agreements. 2 "Sec . 8 (a) It shall be an unfair labor practice for an employer . . . ( 3) by dis- crimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization ( not established , maintained , or assisted by any action deflned'in section 8 ( a) of this Act as an unfair labor practice ) to require as a condition of employ- ment membership therein . . . ( i) if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective -bargaining unit cov- ered by such agreement when made ; . . [ Italics supplied ] LOCAL 404, INTERN.-_,ONAL BROTHERHOOD OF TEAMSTERS, ETC. 811 of the larger group. And by their vote they made clear their wish not to become a part of the larger group.' Under these circumstances, the attempt by the Teamsters and the Company to make the Bradley Field group a part of the existing Springfield unit was repugnant to the basic statutory policy. The agreement to extend the Novem- ber 1949 contract to the Bradley Field plant and the specific inclusion of that plant in the November 1950 agreement were both invalid when executed because the two-plant unit "covered by such agreement when made" could not then be before the employees had the opportunity of exercising their choice-and as it turned out was not-the appropriate bargaining unit as specified in Section 8 (a) (3) (i) of the Act.4 This is particularly true, where, as here, both the Teamsters and the Company were on notice that the Machinists claimed to represent a majority of the Bradley Field employees at the time the November 1950 contract was executed. In the face of the Machinists' representation claim both the Teamsters and the Company acted at their peril. A union has no more right than an employer to attempt to arrogate to itself a responsibility that Congress has delegated to the Board.' Where an employer is caught in the cross-fire of conflicting union claims to bargaining rights it is the Board in the final analysis that makes the definitive resolution and not the employer or the competing unions. Here, the employer and one of the competing unions in the face of a representation petition decided to determine the question of representation them- selves. The Board having determined that there was a real question of repre- sentation raised by the petition, the Teamsters, the only respondent named in the complaint, must accept the consequences of its action. And this is true re= gardless of the good or bad faith of the Teamsters. The Board has consistently held that the mere execution of an invalid union-shop contract, no less its en- forcement, constitutes a violation of the Act. The real test is whether conduct has been engaged in which, it may reasonably be said, tends to interfere with the free exercise of rights guaranteed by the Act. I find that by urging and agreeing with the Company to apply the union- security terms of the November 1949 contract to the Bradley Field employees and by executing and enforcing the November 1950 agreement, including the require- ment of paying initiation fees and dues at least until the Board election sometime in April 1951 insofar as it pertained to the aforesaid employees, the Teamsters joined with the Company in creating conditions which would result in discrimi- nation and the Teamsters thereby attempted to cause the Company to discrimi- nate against its employees in violation of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2), and likewise restrained and coerced these employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (b) (1) (A). There is also undenied evidence in the record that the Teamsters informed a number of the Bradley Field employees that under the terms of the respective agreements in question that they had to join the Teamsters as a condition of employment. One employee was told "Join up, or else" ; another, that if he did not join the Teamsters within 30 days that he would be laid off. I find these statements constituted independent violations of Section 8 (b) (1) (A) of the Act. s Cf. Chicago Freight Car & Parts Co , 83 NLRB 1163. 4 See Graham Ship Repair Co., 60 NLRB 842, and Albert Love Enterprises and Foote & Davies, 66 NLRB 416, 422 5 See Midwest Piping & Supply Co , 63 NLRB 1060 , and cases of similar import decided since developing what has become known as the Midwest Piping doctrine. 812 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Teamsters set forth in section III, above, occurring in connection with the operations of the Company described in section 1, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Teamsters has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Proof was adduced at the hearing that 31 named employees joined the Team- sters under protest as a result of the coercion of the Teamsters and paid initiation fees and also dues until the Machinists won the Board election in April 1951. The General Counsel urges that these 31 employees be afforded restitution for the initiation fees and dues each of them paid to the Teamsters. The Respond- ent urges , that even if a violation of the Act be found, that all "of the things done by the Respondent were in good faith and in the honest belief that it was acting properly and within its rights, and not in violation of any law" and that since it secured a wage increase for these employees when it negotiated the November 1950 contract and thereafter impartially and effectively represented them in various grievance matters, that it would not effectuate the policies of the Act to order the restitution of the initiation fees and dues. While I do not doubt that the Teamsters acted in the honest belief that the employees at the Springfield and Bradley Field plants constituted an appropriate two-plant unit and that the contracts in question could therefore be validly ap- plied to the Bradley Field employees, nevertheless, it has been found that the Teamsters did resort to conduct unlawful under the Act, conduct that will remain unremedied unless the 31 employees are made whole and the status quo restored. Since I believe, as urged by the General Counsel, that it will effectuate the poli- cies of the Act, I will recommend that the Teamsters reimburse the 31 employees named in the appendix for the actual initiation fees and dues each paid to the Teamsters." Upon the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Brown Equipment and Manufacturing Co., Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Association of Machinists and Local 404, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, both affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By agreeing with the Brown Equipment and Manufacturing Co., Inc., to extend and apply the terms and provisions of the collective-bargaining contract of November 1949 in force and effect at Springfield to the Company's employees at Bradley Field, and by executing and enforcing the terms and conditions of the renewal agreement of November 1950 to the aforesaid Bradley Field em- ployees, including the requirement that these employees pay initiation fees and 6 Cf. Eclipse Lumber Company, lam, 95 NLRB 952. FORD MOTOR COMPANY 813 dues to the Teamsters, the Teamsters has, at least until April 30, 1951 , caused and attempted to cause the Company to discriminate against its Bradley Field employees in violation of Section 8 (a) (3) of the Act, and has restrained and coerced such employees in the- exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (2) and (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 ( 6) and ( 7) of the Act. [Recommendations omitted from publication in this volume.] FORD MOTOR COMPANY and INTERNATIONAL UNION, UNITED AUToMo- BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER FORD MOTOR COMPANY and INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS , LOCAL No. 38, AFL, PETITIONER FORD MOTOR COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 589, AFL, PETITIONER FORD MOTOR COMPANY-CLEVELAND ENGINE PLANT AND CLEVELAND FOUNDRY and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES & CANADA, PIPEFITTERs LOCAL UNION No. 120, AFL, PETITIONER FORD MOTOR COMPANY and PIPEFITTERS LOCAL UNION No. 120, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, PETITIONER FORD MOTOR COMPANY and SHEET METAL WORKERS , INTERNATIONAL ASSOCIATION, LOCAL No. 65, AFL, PETITIONER. Cases Nos. 8-RC- 1519, 8-RC-1526, 8-RC-1540, 8-RC-15543, 8-RC-1590, and 8-RC- 1599. August 27,1952 Decision, Direction of Elections, and Order Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, consolidated hearings were held on February 5, 6, and 7, 1952, in Cases Nos. 8-RC-1519, 1526, 1540, and 1543,1 and on March 6, 1952, in Cases Nos. 8-RC-1590 and 1599, be- fore Carroll L. Martin, hearing officer .2 The hearing officer's rulings 'The petition in Case No. 8-RC-1543, filed by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Pipefitters Local Union No. 120, AFL, herein called the Plpefltters, was withdrawn with- out prejudice during the hearing. ' At the second hearing, the Employer moved that the two groups of cases be consoli- dated. The motion, which was referred by the hearing officer to the Board, is hereby granted. 100 NLRB No. 133.