National Electronic Manufacturing Corp.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer's own employees who were not members of that labor organi- sation. MEMBERS RoDGERS and LEEDOM took no part in the consideration of the above Order Granting Motion and Remanding for Further Hearing. National Electronic Manufacturing Corporation and Mylsher Realty Corporation and International Union of Electrical Radio and Machine Workers, CIO and Amalgamated Workers Union, Local 130, AFL. Case No. 1-CA 1667. August 15, 1955 DECISION AND ORDER On October 27, 1954, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief.' The Board 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 Intermedi- ate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the exceptions, modifications, and additions noted below. 1. We find in agreement with the Trial Examiner and our, col- leagues that the Respondents, National and Mylsher, should be con- sidered as constituting a single employer, particularly in light of the fact that: (a) The ownership and control of both Companies is.sub- stantially identical; (b) when National decided to leave New York and relocate in Manchester, New Hampshire, Mylsher acquired the premises into which it moved with National; (c) the nature of the op- erations of National and Mylsher are related-Mylsher functions much like a department of National; (d) more than half of the Myl- sher employees, upon termination of their services with that Com- pany, received employment with National; and (e) the same individ- ual is operating head and in charge of the labor relations policies of both Companies .2 I The Respondents' request for oral argument is hereby denied as the record and the exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. a San,tary Mattress Company, Rest Line of California , Inc., 109 NLRB 1010 ; Oregon Frozen Foods Co. and Ore-Ida Potato Products, Inc., 108 NLRB 1668 ; F. Hilgemeier c€ Bro., Inc., 108 NLRB 352 ; Rushville Metal Products, Inc., 107 NLRB 1146. 113 NLRB No. 73. NATIONAL ELECTRONIC MANUFACTURING CORPORATION 621 2. The Trial Examiner found that the Respondents violated Sec- tion 8 (a) (1) and (2) of the Act by : (a) Informing employees that there was a union-shop contract between National and the Amalgam- ated Workers Union, Local 130, AFL, hereinafter referred to as the AFL, at the Manchester plant and securing checkoff authorizations from employers under such circumstances; (b) advising employee Gauthier that signing an AFL dues checkoff authorization card was compulsory; (c) permitting the AFL to hold meetings on company premises at which the employees were told that the AFL had a union- shop contract with National; and, (d) recognizing the AFL and exe- cuting a supplemental contract with it covering the Manchester em- ployees of the Respondents. Chairman Farmer and Member Rodgers agree with the Trial Examiner, for the reasons fully stated in the In- termediate Report, that the Respondents unlawfully assisted the AFL by engaging in each of the foregoing acts. Member Peterson agrees with Chairman Farmer and Member Rodgers-but for reasons which are explicated in his separate opinion-that the Respondents' conduct in (d), above, violated Section 8 (a) (1) and (2) of the Act. However, he disagrees with them and the Trial Examiner that the other con- duct of the Respondents heretofore mentioned likewise constituted un- lawful assistance to the AFL. Therefore, the only violation of Sec- tion 8 (a) (1) and (2) which a majority of the Board, consisting of Chairman Farmer and Members Peterson and Rodgers, find is with respect to the recognition by the Respondents of the AFL as majority representative of the Manchester employees and the execution of the supplemental contract of January 25, 1954. 3. The Trial Examiner found, and we agree, as do our colleagues, that the Respondents violated Section 8 (a) (1) and (3) of the Act by discriminatorily discharging Lionel Laventure. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, National Elec- tronic Manufacturing Corporation and Mylsher Realty Corporation, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Assisting or contributing support to Amalgamated Workers Union, Local 130, AFL, or any other labor organization. (b) Discouraging or encouraging membership in any labor organi- zation by discrimination in regard to hire or tenure of employment, or other conditions of employment. (c) Recognizing and contracting with Amalgamated Workers Union, Local 130, AFL, as the bargaining representative of any of their Manchester, New Hampshire, employees unless and until said 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization shall have been certified as such by the National Labor Relations Board. (d) Performing and giving effect to National's May 14, 1953, con- tract and the supplemental contract of January 25, 1954, with the AFL, or any renewal, extension, modification, or supplement thereof. (e) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights to self- organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Amalgamated Workers Union, Local 130, AFL, as the collective-bargaining repre- sentative of any of Respondents' Manchester, New Hampshire, em- ployees unless and until said labor organization has been certified as such by the Board. (b) Make whole Lionel Laventure for any loss of pay he may have suffered by reason of the Respondents' discrimination against him, in the manner provided in the section of the Intermediate Report entitled "The Remedy." (c) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Order. (d) Post at their plant in Manchester, New Hampshire, copies of the notice attached to the Intermediate Report.' Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondents' representative, be posted by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees 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 ma- terial. (e) Notify the Regional Director for the First Region in writing, 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted 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." NATIONAL ELECTRONIC MANUFACTURING CORPORATION 623 within ten (10) days from the date of this Order, what steps the Re- spondents have taken to comply herewith. MEMBER PETERSON, concurring and dissenting : I agree with Chairman Farmer and Member Rodgers, but for some- what different reasons, that the Respondents violated Section 8 (a) (1) and (2) of the Act by recognizing the AFL as majority represent- ative of their Manchester employees and by executing the supple- mental contract of January 25, 1954. However, I do not agree with them that any of the other conduct found by the Trial Examiner to have constituted unlawful assistance was similarly violative of the Act. In light of the AFL's status as the statutory representative of National's New York employees and the expressed intention of a majority of those employees to move to Manchester, in my opinion, it was proper for the parties to agree to apply their current New York contract to the Manchester plant. Indeed, it is well settled that under such circumstances, as the Respondents discontinued the operation of their New York plant, the existing contract would have been a bar to an election in a representation proceeding if a majority of the New York employees had actually moved to Manchester .4 For, the opera- tion at Manchester would have been considered the same as the opera- tion at New York with the sole difference being one of geographical location. I believe that it was likewise proper-because it was not then ap- parent that a majority of the New York employees were not going to move to Manchester and no question had been raised regarding the AFL's status as bargaining representative-for the Respondents' per- sonnel director, in conformity with the terms of the New York con- tract, to advise employees whom he hired in Manchester that National had a union-shop contract with the AFL requiring union membership after 60 days' employment, to give the employees dues checkoff au- thorization cards, and to suggest that they sign them. Similarly, because in any event the employees would have had to pay union dues after 60 days, I am not disposed to view as violative of the Act the isolated statement by the personnel director's secretary to employee Gauthier that signing an authorization card was compulsory. Nor would I find under the circumstances that it was improper for the Respondents to permit the AFL to hold two meetings on company premises. With respect to the first meeting on January 18, 1954, it was held at a time when the New York contract was still applicable to the Manchester plant. Regarding the second meeting on February 10, 1954, although it was held after the question concerning representa- tion raised by the Respondents had been resolved by them and after a The Mennen Co., 105 NLRB 677; Places Poultry, Inc., 100 NLRB 64; Corning Glass Works, 93 NLRB 775; Yale Rubber Mfg Co, 85 NLRB 131. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had executed the supplemental contract with the AFL, I am unwilling to find a violation of the Act because there is no evidence that the meeting was held on company time and no rival union was then claiming to represent the Respondents' employees at Manchester. Having dealt with those aspects of the Respondents' conduct which I do not consider violative of Section 8 (a) (2), I shall now treat with the conduct which I find constituted unlawful assistance to the AFL. When AFL President Davidoff asked National's president, Samuel Spector, in January 1954 for a supplemental contract covering the Manchester plant, Spector replied that he would sign such an agree- ment, if the AFL represented a majority of the Manchester employees. It is clear therefore that even at this early date Spector must have had serious doubts regarding the AFL's status as bargaining repre- sentative of the Manchester employees. Spector attempted to ascer- tain for himself the answer to the question he had raised as to the AFL's status at Manchester. In so doing, he checked the authoriza- tion cards which the personnel director had obtained earlier from the Manchester employees against National's payroll. Absent a valid applicable contract it would have been unlawful for the personnel director to have secured the checkoff cards in the first instance.5 How- ever, I have said that because of the particular situation at that time I do not believe that the personnel director's conduct violated Section 8 (a) (2). But I cannot likewise exculpate Spector. Thus, the cards were secured on the representation by the Respondents' personnel direc- tor that National had a contract with the AFL requiring union mem- bership-and the consequent necessity for payment of union dues and initiation fees-as a condition of employment after 60 days. Spector must be presumed to have known the manner in which the cards were obtained by his personnel director, especially since he was aware that they had been secured at a time when he had agreed with the AFL that the New York contract which provided for a union shop and checkoff of dues should be applied to Manchester. Spector also must have known therefore that the cards did not establish that the Man- chester employees were thereby voluntarily designating the AFL as their bargaining representative. Where employees are told that their employer has a union-shop contract, albeit a valid one, under which union membership is compulsory, it cannot be said that their execution of checkoff authorizations at their employer's suggestion represent their freely expressed desires regarding a bargaining agent. Yet Spector chose to resolve the question concerning representation which he had raised by using authorization cards which he knew was ques- tionable proof of the AFL's majority. On that basis he recognized the AFL as the bargaining representative of the Manchester employees, despite his knowledge to the contrary, and executed the supplemental a See BayZy Mfg. Co., 103 NLRB 1337; Jack Smith Beverage, Inc., 94 NLRB 1401. NATIONAL ELECTRONIC MANUFACTURING CORPORATION 625 contract with the AFL. I find such conduct violative of Section 8 (a) (2) of the Act. I am impressed by the fact that in general the Respondents appear to have acted in good faith in their dealings with the AFL and their employees. Indeed, it is for this very reason that I disagree with Chairman Farmer and Member Rodgers that the Trial Examiner's other findings of unlawful assistance should be sustained. However, I am also conscious of the Board's obligation under Section 7 of the Act to protect the right of employees to bargain collectively through representatives of their own choosing. In my opinion, the Respond- ents by executing the supplemental contract, under the circumstances involved here, deprived their employees of that right and unlawfully assisted in the imposition upon them of a bargaining representative which they had not selected. The Respondents had a readily available course of action open to them which, if adopted, would have protected them against any charge of unlawful assistance to the AFL. They could have refrained from recognizing the AFL and executing the supplemental contract until a majority of the New York employees had actually moved to Manchester or until the AFL supplied less assailable proof that it represented a majority of the Manchester employees. But in my view the Respondents could not settle the issue themselves as to the AFL's status by relying upon cards which they knew did not represent the voluntary expression of their employees' desires or prove that the AFL had been chosen by them. Nor could they under these circumstances execute a contract with the AFL and thereby foist upon their employees an undesignated bargaining repre- sentative without, in my opinion,, violating Section 8 ( a) (2). I am in agreement with respect to all other findings of my colleagues. MEMBERS MURDOCK and LEEDOM, dissenting in part : We agree with Member Peterson, for the reasons given by him in his separate opinion, to the extent that he would not find that the Respondents violated Section 8 (a) (1) and (2) of the Act. How- ever, we disagree with the position of Chairman Farmer and Mem- bers Peterson and Rodgers that the recognition by the Respondents of the AFL as majority representative of the Manchester employees and the execution of the supplemental contract of January 25, 1954, constituted unlawful assistance to the AFL. In considering the conduct of the Respondents which is alleged to be violative of Section 8 (a) (2), one factor stands out as incon- testable and irrefutable, to wit, there is not a scintilla of evidence that the Respondents at any time acted in bad faith. We note that the singular lack of such evidence has even had a certain amount of impact upon Member Peterson's opinion. Thus, he refers to its ab- sence as a principal basis for his refusal to find that the Respondents 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in unlawful assistance by applying the New York contract to Manchester, obtaining the checkoff authorization cards, allowing the AFL to hold meetings on their premises, and telling employee Gauthier that signing a checkoff card was compulsory. However, this factor seems to be dwarfed into insignificance when he deals with the issue regarding the use by the Respondents of the authorization, cards as proof of the' AFL's majority status and the execution of the supplemental contract. Apparently he considers it effectively counterbalanced by his conclusion that this conduct of the Respond- ents resulted in the imposition upon the employees of an undesignated bargaining representative. We believe that such a position is un- tenable. Assuming, arguendo, that by executing the supplemental contract under the particular circumstances involved the Respondents deprived their employees of rights guaranteed them under Section 7, Member Peterson does not explicate why the same is not likewise true with respect to the other conduct of the Respondents which he finds did not violate Section 8 (a) (2). Surely it can be said with equal force that by applying the New York contract to Manchester at a time when a majority of the New York employees had not moved and by securing the checkoff authorization cards from the Manchester em- ployees on the representation that the Respondents had a union shop with the AFL, the Respondents were thereby foisting upon the Man- chester employees an unselected bargaining representative. In our opinion, this inherent inconsistency in the view expressed by Member Peterson stems from the questionable premise of Chairman Farmer and Members Peterson and Rodgers that the use by the Respondents of the checkoff authorization cards as proof of the AFL's majority so_ affected the resultant recognition of the AFL and execution of the sup- plemental contract as to constitute a violation of Section 8 (a) (2). It is one thing to be critical of the probative value of the checkoff cards that the Respondents utilized to assure themselves that the AFL's status as statutory representative of their employees had not changed; however, it is quite another thing to hold, as our majority colleagues do, that by using the cards the Respondents violated the Act. For, it has been, and remains, our understanding of the law applicable to a situation such as is involved here that, absent evidence of bad faith by the employer, before a violation can be found it must be established that the union did not in fact represent a majority of the employees.' But the most that can be said is that the checkoff cards did not prove that the AFL represented a majority of the Manchester employees. By no stretch of the imagination can the cards be said to constitute proof of the AFL's lack of majority status, particularly in light of the organizing activities engaged in by the AFL at Manchester and e International Metal Products Company, 104 NLRB 1076. NATIONAL ELECTRONIC MANUFACTURING CORPORATION 627 the fact that the AFL's request for the supplemental agreement re- sulted from its desire to satisfy the demands of the Manchester em- ployees made at meetings with the AFL's representative. We believe that the effect of what our colleagues are doing here is to shift the burden of proving lack of majority by the AFL from the General Counsel to the Respondents.. The AFL 'asked National's president, Spector, for the supplemental contract. Spector replied that he would sign such an agreement if the AFL represented a major- ity of the Manchester employees. However, there is no justification for the inference drawn by our colleagues that Spector conditioned entering into the supplemental agreement upon proof to be supplied by the AFL that it represented a majority of the Manchester em- ployees. Spector made no such request of the AFL. On the contrary, he sought information as to the AFL's status only from his own per- sonnel director. If Spector had signed the agreement based upon a statement from the AFL that it represented a majority of the Man- chester employees and his knowledge that the AFL had been organiz- ing there or upon an inquiry of his personnel director regarding the AFL's status and a reply from the director that it appeared to him that the AFL had been successful in organizing a majority of the employees, it is clear that an 8 (a) (2) violation would not have been found, unless a prima facie case was established by the General Coun- sel that the AFL did not represent a majority of the employees of the Respondents at the time the agreement was executed? We see no reason for the application of a different rule because the General Counsel presented evidence that Spector attempted to determine the AFL's status by use of the checkoff cards procured in Manchester. Such evidence did not relieve the General Counsel of his burden of affirmatively proving that the' AFL actually did not represent a ma- jority of the Manchester employees when the supplemental contract was executed. As the General Counsel failed to establish his prima facie case, there is no basis for finding that the Respondents violated Section 8 (a) (2) or for holding that the Respondents at any time .imposed a bargaining representative upon the Manchester employees -which those employees had not designated. In conclusion, we cannot refrain from expressing our concern about ,one specific inference which may be drawn from the decision our -majority colleagues have reached today. An employer, who antici- pates moving his plant, is now on the horns of a dilemma. If he re- fuses to bargain with the incumbent union he is in serious jeopardy ,of violating Section 8 (a) (5) of the Act. If he does bargain with the union acting in good faith he may be found, as in this case, in violation of Section 8 (a) (2). In the past this Board has made it ,clear-and rightly so-that where an employer contemplates removal -7 See footnote 6, supra. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his plant to another area for economic reasons, as here, he subjects himself to a finding of an 8 (a) (5) violation if he refuses to give the statutory representative o_f his employees the opportunity to bargain with respect thereto as it affects the employment status of employees represented by the union.' In the instant case, we have an Employer who recognized his obligation to deal with the statutory representative of his employees. Yet, a Board majority now finds that he violated Section 8 (a) (2). 'We do not believe that the Act was designed to create such an anomalous situation. In view of the foregoing, we would not find that any of the conduct of the Respondents constituted unlawful assistance to the AFL and we would dismiss the 8 (a) (1) and (2) allegations of the complaint. However, we agree with the opinions of Chairman Farmer and Mem- bers Peterson and Rodgers in all other respects. 8 See Brown Truck and Trailer Manufacturing Company, Inc., et at., 106 NLRB 999 ; Mount Hope Finishing Company, et at., 106 NLRB 480. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act (61 Stat. 136), was heard in Manchester, New Hampshire, June 7, 8, and 9, 1954, pursuant to due notice, upon charges duly filed by International Union of Electrical, Radio and Machine Workers, CIO, and upon complaint issued.by the General Counsel on April 30, 1954. As subsequently amended the complaint alleged, in substance, that the Respondents, National Electronic Manufacturing Corporation and Mylsher Realty Corporation, constituted a single employer; that beginning in November 1953 the Respondents by various alleged conduct spon- sored, promoted, and contributed to the support of Amalgamated Workers Union, Local 130, AFL; interfered with employee selection of representatives by threats of reprisal and by other action for failure to support the AFL or for supporting the IUE; and about February 11, 1954, discharged Lionel Laventure because of his adherence to the CIO and his failure to adhere to the AFL. This conduct is asserted to constitute violations of Section 8 (a) (1), (2), and (3) of the Act. By answer duly filed these allegations were denied. All parties were represented at the hearing by counsel or otherwise and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. A brief was filed by the Respondents and a memo- randum of law by the General Counsel. A motion by the Respondents to dismiss the complaint, taken under advisement at the hearing, is now denied on the basis of the following findings and conclusions. Following the hearing the Respondents and the General Counsel filed motions to correct the transcript. These motions are granted and the transcript is ordered corrected in accordance therewith. Upon the entire record in the case, and from my observation of the witnesses, I make the following: . FINDINGS OF FACT 1. LABOR ORGANIZATIONS International Union of Electrical, Radio and Machine Workers, CIO, and Amal- gamated Workers Union, Local 130, AFL, are each labor organizations within the meaning of Section 2 '(5) of the Act. II. COMMERCE The General Counsel contends that National Electronic Manufacturing Corpora- tion and Mylsher Realty Corporation constitute one single employer. The Re- NATIONAL ELECTRONIC MANUFACTURING CORPORATION 629 spondents' joint answer admits that National uses substantial quantities of mate- rials from interstate sources and ships substantial quantities of finished products to interstate destinations. However, the Respondents deny that National and Mylsher constitute a single employer. They affirmatively assert that the two Companies are separate and independent employers; and further, they contend that Mylsher's operations do not affect commerce within the meaning of the Act. The issue is material for the reason that Laventure, the alleged discriminatee, was on the pay- roll of Mylsher. National Electronic Manufacturing Corporation is a New York corporation with its.piincipal.office and plant in Manchester, New Hampshire, at 186 Granite Street. It is there engaged in the manufacture of radio antennas and radio parts. Na- tional's-annual sales exceed $1,000,000, over $100,000 of which represents sales outside the State of New Hampshire. • Mylsher is also a New York corporation. Its principal office at the time of hearing was in Long Island City, New York; but it maintains an office at 186 Granite Street in Manchester. Eventually its New York office will be transferred to the Manchester address. Mylsher's business consists of the ownership, rental, and maintenance of several parcels of real estate more specifically described hereinafter. Samuel J. Spector is president and chairman of the board of directors of both Na- tional and Mylsher and sets the labor policies of both. The other officers of National are Secretary-Treasurer A. S. Spector (wife of Samuel Spector), Vice- President Max Shovner (brother-in-law of Samuel Spector), and Vice-President Edward J. Cohen (no relation). The officers are also the directors of National. ll N ti l ld k i t i h f S ows: a are o nteres n ona e as toc Shares Samuel J.Spector --------------- ------------------------------------ 20 Edward J . Cohen------------------------------------------- ------- 5 Samuel Myerson---------------------------------------------------- 9^/a Leo Myerson------------------------------------------------------- 9V2 E. M. Sheidler----------------------------------------------------- 6 None of the stockholders is related to Samuel J. Spector. The officers of Mylsher are: president, Samuel J. Spector; secretary-treasurer, A. S. Spector; and vice president, B. L. Cohen (son-in-law of Samuel Spector). As in the case of National, the officers of Mylsher are also its directors. Samuel Spector is chairman of the board. The directors of Mylsher are also its stockholders. Samuel J. Spector and A. S. Spector, his wife, control the stock majority with equal holdings-but in what proportion is not disclosed. National was incorporated in 1943; Mylsher in 1946. The operations of Na- tional and Mylsher in Manchester date from November 1953. Prior to November 1953 both corporations were located exclusively in the New York City area. Na- tional at that time operated a plant at 42-08 Vernon Boulevard in Long Island City, New York, under lease. Mylsher's business then consisted of the ownership, rental, and maintenance of two buildings in Long Island City: one at 3637 Pierce Avenue and the other at 36-02 35th Avenue. The Pierce Avenue property was recently acquired by the United States Government in condemnation proceedings. The 35th Avenue holding is leased by Mylsher to and occupied by Insulin Corporation of America. Mylsher's New York office is in this building, which is described in Insu- lin's catalogue as the "Insuline Building." Insuline is a New York corporation engaged in the manufacture of radio, electronic, and television parts and related equipment and supplies. Its officers are Samuel J. Spector, president; Myles Spector, vice president; and A. S. Spector, secretary- treasurer. Myles Spector is the son of Samuel J. Spector. He is also manager of National's Manchester plant. The directors of Insuline are the three officers, plus I. N. Blackman and S. H. Scheier. Samuel Spector is chairman of the board. Insuline Corporation of America is not a party to the present proceedings. No assertion is made that it is a joint employer with National and/or Mylsher. Mylsher acquired the premises at 186 Granite Street in Manchester, consisting of of land and a four-floor building, in November 1953. It then leased the building to Insuline Corporation, which in turn subleased 2 of the 4 floors to National. These are the quarters now occupied by National and, in part, by Mylsher. After sub- leasing, National began -to' transfer its operations from Long Island City to Man- chester-a move which was in process from early November 1953 to early March 1954. By the latter month the transfer was completed and all National's operations in Long Island City ceased. National now operates only in Manchester. As has been seen, two floors of the building are as yet uncommitted by Insuline. • 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record does not disclose that Mylsher owns, manages, or maintains any real estate at the present time other than the 35th Avenue property in Long Island City leased to Insuline and occupied by Insuline and Mylsher; and the Manchester build- ing leased to Insuline, subleased in part to National and occupied in part by National and Mylsher. National and Mylsher maintain separate books of account, and each pays its own bills. They employ the same firm of accountants and retain the same law firm. National has its 'own clerical staff. Mylsher's clerical work is performed by Mrs. Spector. At the present time both corporations occupy office in common in the Manchester building in the portion leased by Insuline to National. However, sep- arate office quarters in the building are contemplated in the future. As has been seen, Mylsher took possession of the Manchester building in early November 1953. It immediately began repairing and renovating the building for occupancy by National. At the same time National was simultaneously moving its equipment and machinery into the building. Two officials or representatives were transferred from Long Island City to carry out these operations. They were Myles Spector, manager of the National plant, and Frank Lahecki, a supervisor of mainte- nance for National. About the third week in November Emanuel Friedlander, a personnel official of National in Long Island City, was also transferred to Man- chester as personnel director. To ready the building for occupancy Mylsher hired employees locally. At its peak it employed some 44 persons. At the time of hearing the renovation was substan- tially completed.. Except for four building guards, all employees hired by Mylsher for the renovation have now either been laid off or have been hired by National. The guards are permanent employees. All Mylsher's employees at Manchester were hired either by Myles Spector or by Emanuel Friedlander. Neither of them are employees, officers, or stockholders of Mylsher. National also hired employees in Manchester. These two were hired either by Myles Spector or by Friedlander. Discharges on behalf of both firms were also handled by Myles Spector and Friedlander. In sum, Myles Spector and Friedlander directed and supervised the operation of both Mylsher and National at Manchester in the setting up and operation of the plant. So far as the record discloses, no other official or representative of Mylsher was on the premises at all except on occasions- apparently infrequent-when Samuel J. Spector came from New York, or until Mrs. Spector arrived in Manchester.' As to Mrs. Spector the evidence does not indicate the date of her arrival in Manchester, nor does it indicate that she at any time handled or directed any personnel actions of Mylsher at Manchester. The testimony reflects confusion in the minds of both employees and management as to the lines of demarcation between Mylsher and National. Thus, some Mylsher employees; though paid by Mylsher checks, were given National pay slips. National checked off dues of its employees pursuant to a contract with the AFL. Mylsher was not a party to that contract and not intended to be covered by it. Nevertheless Michael Theodoro and Robert Picard, both Mylsher employees, were given checkoff authorization cards to sign, signed them, and Theodoro actually had his-dues checked off (General Counsel's Exhibit No. 6). Chet Robinson is National's chief of maintenance. Under him is Frank Lahecki, a supervisor. Robinson and Lahecki supervised Mylsher's crew in setting up the plant. One of the crew was Raymond Borghi, presently a steward for the AFL. As a witness, however, Personnel Director Friedlander was unable to say, without con- siderable hesitation, whether Robinson was an employee of National or ofMylsher.a As to Borghi, Friedlander was unable to say at all. National's payroll of'January 25, 1954, carries Borghi as an employee of that Company. Yet in February he was performing renovation work for Mylsher and directing Mylsher employees in a supervisory capacity, as more fully described hereinafter. Some 25 or 26 Mylsher employees, upon the termination of their services with that Corporation, received employment from National. Upon the above facts, I am of the opinion that, for the purpose of determining jurisdiction in this proceeding, Mylsher and National should be considered as one employer. 1 As late as March 12, 1954, Samuel J. Spector was apparently residing in New York City. In a representation hearing held in Boston on that date he gave his residence as 127 W. 79th Street, New York City. On June 7, testifying in the instant proceeding, he gave his residence as Medford (Bedford?), New Hampshire. O National Manager Myles Spector later testified that Robinson was first employed by Mylsher and then transferred to National. Labecki was apparently at all times a National employee. NATIONAL ELECTRONIC MANUFACTURING CORPORATION 631 As has been seen, the employment and labor relations policies of National and Mylsher are established by Samuel J. Spector, president and board chairman of both concerns. Samuel Spector and his wife, A. S. Spector, are officers in both companies. Samuel Spector has the largest single block of stock in National, and he and his wife between them own the controlling shares of Mylsher. Though a separate corporation ostensibly engaged in a different type of business, Mylsher appears to me to be merely an adjunct of the manufacturing operations carried on by National and Insuline. Its only business at the present time is that of holding title to and maintaining properties housing National and Insuline. It is thus conducting an operation-the providing of quarters-necessary to the carry- ing out of National's function, which is that of manufacturing. Mylsher's function is one that National would ordinarily perform for itself, or contract for from a stranger. It is true that, were Mylsher an entity totally unrelated to National, the result would be different. Where, however, the labor policies of component parts of an enterprise are directly and actively controlled by a single or common author- ity, the various components constitute a single employer for the purposes of this Act-even though they may be corporately separated. This is not to say that separate corporations or entities constitute a single em- ployer merely because they may be owned or controlled by the same interests-as for example, a manufacturing plant and an investment firm. See Lisowitz Enter- prises, 108 NLRB 1479 (a corporation engaged in scrap business and a partnership engaged in managing real estate unconnected with the scrap operation do not con- stitute a single employer, even though both are controlled by the same individuals). Nor is it the same as saying that separate corporations owned or controlled by the same interests are necessarily a single employer, even though both may be engaged in the same general line of business. The test is whether or not they ac- tually constitute one integrated enterprise. In the instant case Mylsher apparently exists only to serve National and Insulin. The intimacy of the arrangement may be gauged from the fact that when National decided to move Mylsher came with it, or vice versa. In the context of fact pre- sented, Mylsher is much like a department of National. It is consequently found that National and Mylsher constitute one integrated en- terprise and, at least for the purpose of this proceeding, are to be considered a single employer. Irwin-Lyons Lumber Co., 87 NLRB 54; Rushville Metal Products, Inc., 107 NLRB 1146. III. THE UNFAIR- LABOR PRACTICES On May 14, 1953, National and the AFL entered into a collective-bargaining con- tract covering National's production and maintenance employees. There is no sug- gestion that a transfer of operations was then contemplated. The expiration date of this agreement was April 30, 1955. Thus, at the time the move to Manchester began, the contract was less than a year old, and still had more than a year to run. Inter alia the contract contained provision'for a union shop, that is, compulsory member- ship in the AFL after 60 days of employment. The agreement further provided for checkoff of union dues and initiation,fees from wages upon written authorization by the employee. _ In October 1953, when the transfer was announced, all National employees were offered employment at the Manchester plant. National agreed to defray the mov- ing costs of any who transferred and the Union urged employees to make the move. A large majority of the employees indicated their desire to transfer. National and the AFL thereupon agreed to continue their contract in effect and to consider it as covering the Manchester operations. As it turned out, however, only some 7 of over 100 employees actually transferred; and of these 7, 5 ultimately returned to New York several weeks prior to the instant hearing. As has been seen, National began moving in November 1953. The project en- tailed the transfer of the equipment, machinery, supplies, and other paraphernalia required for a substantial manufacturing operation. The move was carried out in stages designed to cause as little disruption to manufacturing as possible. The time required to effect the transfer extended over a period of 4 months-from early No- vember to March 1, 1954. During the interim manufacturing operations were car- ried on in both locations. As of late January 1954 over a hundred employees were being carried on the payroll at each place. By March 15, 1954, when the move had been completed, total production employment had declined to 142, presumably the norm. National began hiring employees in Manchester in late November 1953 or early December. So far. as the record discloses, Personnel Director Friedlander did all the National hiring. As-or shortly after-they were hired, an indeterminate, but 379288-56-vol. 113-41 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial, number of these employees were given AFL dues checkoff authoriza- tion cards by Friedlander, who told them that National had a union-shop contract with the AFL requiring union membership after 60 days' employment. He spoke favorably about the AFL. Friedlander further said that the authorizations would not be effective for 60 days. It is clear, and found, that-at the least-Friedlander suggested to the employees that they sign the cards. Under these circumstances most employees signed, though not all did. Personnel Director Friedlander testified that he distributed these cards and spoke to employees about them and the AFL as a "favor" to AFL Representative Neuman-pending Neuman's arrival in Manchester.3 Early in January 1954 AFL President Davidoff called National President Samuel Spector and asked-to have a supplemental contract executed specifically covering the Manchester plant. Spector told Davidoff in reply that he would sign such an agree- ment if the AFL represented a majority of the employees at Manchester. In this conversation Davidoff said that, inasmuch as a majority of the employees had not transferred to Manchester, he was sending AFL Organizer Neuman to Manchester "to talk to the people and to get them organized." About January 18, 1954, a meeting of the production and maintenance employees at Manchester was held in the plant. There is dispute, unnecessary to resolve, as to whether the assembly was held on company time. At this meeting Personnel Di- rector Friedlander introduced AFL Representative Neuman, and then left the meet- ing. Neuman then addressed the employees, telling them that there was a union- shop contract between National and the AFL. The contract and union dues were discussed and temporary stewards selected to represent the employees in grievance meetings. Some employees voiced objection to the amount of the dues: $2.50 per month. Neuman responded that he would see what could be done about it. Several weeks later Neuman informed the employees that the dues had been reduced to $2: There is no evidence that any employee at the meeting objected to being represented by'the AFL. The stewards thereafter functioned and negotiated grievances on be- half of the employees? At around the same time AFL Representative Neuman told Plant Manager Myles Spector that the AFL wished some changes in the terms of the bargaining contract. Myles Spector told Neuman that he would have to take that question up with Samuel Spector in New York. On January 21, 1954, pursuant to further calls from the AFL, and after consulting his attorney in New York, President Samuel Spector telephoned Personnel Director Friedlander and asked him whether the AFL represented a majority of the Man- chester employees. Friedlander replied that, based upon the checkoff cards in his possession, he thought that it did. President Spector then directed Friedlander to bring the cards to New York. On January 23, 1954, Friedlander brought to New York over 90 authorization cards signed by Manchester employees. At that time there were 119 employees on the Manchester payroll and, according to the testimony of Manager Myles Spector, over 100 in New York. The signed cards were checked against National's payroll. President Spector then discussed the matter with his attorney, who advised that the AFL had a majority, and that Spector could enter into a supplemental agreement with it covering Manchester. On January 23 and 25 President Spector and his attorney, AFL President Davidoff, and AFL Secretary Gordon met and negotiated. As a result, a memorandum agree- ment was signed on January 25, 1954, formally recognizing the AFL as the represent- ative of the Manchester employees, and making some changes, more fully described hereinafter, in the substantive terms of the contract. Except as thus modified the s The complaint also alleges, and a number of employees testified, that Friedlander or his secretary told them that signing of the authorization cards was a condition of employ- nmerit. In the case of employee Irene Gauthier I find, in accordance with her undenied and credited testimony, that Friedlander's secretary told her, in effect, that signing of the card was compulsory I do not credit the denied testimony of other General Counsel wit- nesses who testified to similar statements by Friedlander. However, in my view of the problem, discussed hereinafter, those findings do not materially affect the disposition of the case " Employee Yvette Healey testified to a meeting addressed solely by Personnel Director Friedlander, at which Friedlander told the employees that the plant was "a union shop for the AFL." Friedlander denied that there was any such meeting. In this respect Friedlander's testimony is accepted. No other employee testified to such a meeting. It seems clear that Healey either confused Friedlander with Neuman ; or confused this meet- ing with one addressed by Manager Myles Spector late in February 1954 (referred to hereinafter). NATIONAL ELECTRONIC MANUFACTURING CORPORATION 633 May 14, 1953, agreement was continued in full force and effect, with the same expira- ,tion date (April 30, 1955), and with the same requirement for union membership .after 60 days of employment. On Tuesday, February 10, 1954, another meeting of employees was held in the plant at which AFL Representative Neuman explained the terms of the supplemental contract. Also present-at least during some of the time, though it is not clear for how long-was Supervisor Frank Lahecki and other asserted minor supervisors. The supplemental contract provided for a $.021/2 per hour wage increase after 4 months of employment, and an additional $.021/2 per hour every 4 months thereafter up to 24 months. The announcement of this fact by Neuman at the February 10 meeting evoked expressions of dissatisfaction from employees present. Lionel Laventure, the alleged discriminatee, who had been hired by Mylsher on the previous Saturday, told Neuman, "You insult my intelligence," and added, "I give my kids more than $.021/2 to go to the store to buy an ice cream." There was further discussion about the contract. Neuman said that he would pro- vide copies of the contract for the employees, and would attempt to get terms satis- factory to them. Laventure questioned Neuman's ability to represent employees properly. The discussion degenerated into an argument between Neuman and Laventure with Neuman finally challenging Laventure to get better representation if he could and Laventure responding that he would. That evening Laventure went to the headquarters of the Textile Workers Union of America, CIO, and secured blank designation cards which he proceeded to dis- tribute among the employees. This is the first suggestion in the record of any activity among the employees for any union other than the AFL. Sometime on February 11 employees Robert Picard and Michael Theodoro secured blank designation cards from the IUE which they proceeded to distribute. On February 18, 1954, a letter was received at 186 Granite Street from the IUE and addressed to Insuline Corporation "attention Mr. Friedlander." In this letter the IUE claimed to represent the "overwhelming majority of your employees in the plant," and asked for recognition. As has been seen, Insuline had no employees in Manchester up to the time of the instant hearing. On February 18 the IUE also filed a petition for certification as the bargaining rep- resentative of Insuline's employees; amending it on February 25 to include National and Mylsher as employers. A hearing was held on that petition in Boston on March 12, 1954. On March 17, 1954, the IUE filed a charge against the Respondents alleging that Laventure had been discriminatorily discharged on February 11, and on April 27 the IUE filed an amended charge alleging that the Respondents had also violated Section 8 (a) (2) of the Act (domination, support, and interference with labor organization). On February 19 or 20, 1954, Manager Myles Spector spoke to the assembled em- ployees in the plant cafeteria at the end of the afternoon rest period. Spector told the employees that he did not care what union the employees chose, or what they did off the job, that he was solely interested in production and-he did not want pro duction interfered with by union activities on company time. He further said that, until the Company was advised differently, it was proceeding upon the assumption that its contract with the AFL was valid. The move from Long Island City to Manchester was effected by trailer trucks. During the course of his address, in commenting on the loss of productive time, Spector said something to the effect that there would be no point in dispatching trailers from New York if they piled up in Manchester. One employee asked Spector if he meant that the plant would close or move if the employees chose the CIO. Spector disavowed any such implication.5 6 The above findings are based on the testimony-insofar as I find it credible-of Man. ager Myles Spector, and former employees Michael Theodoro and Ernest W. Badger Some of Theodore's and Badger's testimony is not credited, such as Theodoro' s assertion that Spector stated that the Company had stopped all further departures of trailers from New York "until this thing was settled." Nor do I accept Badger's testimony to the effect that Spector said that there were trailer trucks loaded in New York ready to come to Manchester and unless this thing was settled, the trucks would stay in New York, and so would Insuline Company, or Badger's further testimony to the effect that Spector could "move out of [Manchester] just as well as he moved into it." I do not find strikingly persuasive the supposition that, after having committed a substantial investment in an expensive transfer from New York, the Respondents should promptly threaten to move out again because of a representation dispute. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not find any threats of reprisal in Spector's speech. Among the stewards ' for the AFL is Raymond Borghi, a plumber whom the Gen- eral Counsel asserts is a supervisor , and whom the Respondent describes as a lead- man or strawboss at the time of the involved events. Borghi was hired by Mylsher in connection with the renovation . He is now em- ployed by National, whose payroll of January 25, 1954, lists him as an employee of that concern . While the renovation was going on, at least three employees worked under Borghi : an assistant described in the record as Blackie , Lionel Laventure, the alleged discriminatee, and Albert Berthiume. The latter two, hired by Mylsher during the first week of February, were temporary employees . Laventure's and Ber- thiume's undenied testimony is that Borghi did no manual work and was their "boss." Before hiring Laventure and Berthiume, Personnel Director Friedlander referred them to Borghi for interview and approval. Friedlander's testimony is to the effect that he relied on reports from Borghi as to Laventure's performance before discharging him. On the basis of those facts, it is found that, at least through February 11 , 1954, Borghi performed supervisory functions . The Respondent's testimony is, however, that Mylsher's renovation work is now completed. The record does not disclose that Borghi exercises any supervisory authority at the present time as an employee of National , or is anything more than a journeyman plumber. Nor does the record precisely disclose the date or time when he became an AFL steward-whether it was while he was performing supervisory duties or whether it was later. In these circumstances I find that the evidence does not establish with reasonable certainty that Borghi was an AFL steward at a time when he was occupying a supervisory position with the Respondents. A. Conclusions as to AFL support The basic contention of the General Counsel appears to be that the transfer of the Respondents' plant to Manchester gave them no right to carry along the bar- gaining contract covering the operation. This, even though the contract had over a year to run, the type of operation carried on was identical at both locations, and even though it may have been originally contemplated that a majority of the em- ployees would transfer. I do not think it by any means clear that it would have been unlawful for the Respondents to have continued to recognize the AFL as the bargaining representa- tive in the appropriate unit and to have continued to treat the 1953 contract as a binding agreement for its duration, despite the change in location. Under such cir- cumstances the contract might not have been constituted a bar to an election at Manchester (Richard Alan Button Co., 94 NLRB 1429); and the Respondents might not have been required to recognize the AFL for the Manchester employees (Brown Truck and Trailer Manufacturing Company, Inc., et al., 106 NLRB 999; and see also Mount Hope Finishing Company, et al., 106 NLRB 480; Bickford Shoes, Inc., 109 NLRB 1346). But it does not necessarily follow therefrom that it is unlawful, absent a conflicting claim to representation, for an employer, moving his plant to another location and being under a valid and existing contract with a bona fide majority union, to agree to continue to recognize the union and the contract, and to hold the contract applicable to the new site, particularly where substantial personnel transfers are anticipated. A business enterprise does not cease to function when it changes its location: its labor relations go on. Its personnel problems do not disappear; on the con- trary they are likely to be intensified. The need for an orderly system of working out the problems of employee relations resulting from the dislocation is likely at such time to be more imperative than ever. Abandonment of legitimate contract rights and obligations, and of a freely chosen and unrepudiated bargaining representa- tive, and of a settled and satisfactory procedure for resolving employee problems, is not necessarily the equivalent of employee freedom. The right of self-organiza- tion is not a right to disorder. However, it is unnecessary to decide the correctness of the General Counsel's proposition here, for the reason that the Respondents and the AFL did not, despite their apparent earlier decision to do so, continue to treat the May 1953 contract as covering the Manchester plant. Nor did the Respondents continue to regard the AFL as the legal bargaining representative at Manchester pursuant to the contract. In the first place National and the AFL opened up the contract in January and negotiated new 'terms and conditions of employment. That action constituted, in effect, a mutual setting aside of the contractual rights and obligations. A contract which the parties themselves abandon can scarcely be urged by them as a continuing bar to the rights of other persons. If it is not binding as between the contractors, NATIONAL ELECTRONIC MANUFACTURING CORPORATION 635 it is not as to others. When National and the AFL entered into the supplemental agreement of January 25, 1954, with its substitution of new terms for those sup- posedly permanently established by the May 1953 document, they made a new and different contract. Though the May 1953 agreement had a provision permitting one reopening for wage renegotiation prior to April 30, 1954 , there was no provision therein for reopening as to other subjects .6 Nevertheless the supplemental agreement changed the May 1953 contract in the following respects: (1) It added timekeepers, time-study men, laboratory employees, and experimental employees to the groups of employees excluded from its coverage; (2) it changed the union-shop clause so as to make it inapplicable to any employee until 60 days after January 25, 1954; 7 (3) it changed the wage scales; (4) it added a provision for two 10-minute rest periods, 1 in the morning, 1 in the afternoon; (5) it eliminated a provision in the 1953 contract requiring employer contributions to a union sick and welfare fund; and (6) reenacted the clause providing for one wage reopening upon 90 days' notice prior to April 30, 1954.8 Thus, without warrant in the contract to do so, the parties set aside basic provisions of the May 1953 contract and substituted new agreements therefor. In my judgment that action constituted a mutual abandonment of the contract. That other terms of the 1953 agreement were allowed to stand does not change the legal effect of the parties' conduct. Having chosen not to regard the contract as binding upon them- selves, they can hardly assert that it is or was binding upon the employees. But apart from the fact that the parties themselves voluntarily set aside the 1953 contract, there is an additional reason why the AFL's status as the recognized bar- gaining representative did not continue , either as a matter of law or as a matter of fact. That reason is that in January National, according to its own contention and the testimony of President Spector, withheld recognition from the AFL as the bar- gaining representative of the Manchester employees until it was satisfied that the AFL had been designated as such by a majority of them. More specifically, President Spector testified that he conditioned entering into a supplemental agreement upon proof of this fact by the AFL. That action cannot be reconciled with the assertion that the Respondents concluded that the AFL was, by operation of the contract, the bargaining representative . For if it was, continued recognition of the AFL was oblig- atory upon National. The Respondents had the option to question the AFL's major- ity at Manchester, and they chose to exercise it. Thus the Respondents raised a question of representation. As a condition of recognition of the AFL at Manchester they required the AFL to present evidence, upon which the Respondents purported to act, of majority designation among the employees there. Having thus raised and resolved the question of representation , the only issue now can be whether the Re- spondents resolved it correctly, or reasonably believed that they were doing so. Did the evidence in the possession of the Respondents at the time the supplemental agreement was executed establish , or could it reasonably justify, the conclusion that the AFL represented a majority of the Manchester employees? In my opinion, both questions must be answered in the negative. As has been seen, the evidence upon which the Respondents relied was the checkoff authorization cards signed by a numerical majority of the Manchester employees. So far as the record discloses, these cards were signed by employees at the solicita- e The clause respecting reopening read in part as follows The parties agree that this agreement may be reopened respecting renegotiation of hourly rates of pay only, by either party, giving the other written notice by registered mail, return receipt requested at least ninety (90) days prior to April 30th, 1954, of its intention to do so, and in the event any hourly rates of pay adjustments are agreed to, the since shall be effective for the year from May 18t, 1954, through April .40th, 1955. (Emphasis supplied I 4 The original clause provided, in part, as follows All employees shall upon completion of their sixty (60) day employment period, from the effective date of this agreement or from beginning of date of employment, whichever is later, loin the Union and shall thereafter remain members of the Union in good standing as a term and condition of employriient The January 25 agreement added the,phiase "as modified herein," after "this agreement" The effect of the addition was to relieve old employees of any obligation to join or main- tain nreinbei ship in the AFL until March 25, 1954. 6 The significance of this provision is that the original agreement provided that any adjustments arrived at thiough the reopening clause should be effective for the remainder of the contract Thus even the wage changes were not consonant with the terms of the original contract - 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the Respondents. There is no evidence that any were secured by the AFL.9 They were secured, moreover, on the representation that National had a contract with the AFL requiring union membership-and the consequent payment of union dues and initiation fees-as a condition of employment after 60 days. Under such circumstances the signing of an authorization to check off union dues and fees is of dubious probative value in establishing that the employee was thereby voluntarily designating the AFL as his bargaining representative. If the Respondents had cir- culated AFL membership cards among the employees and requested them to sign- either with or without an accompanying declaration that membership in the AFL was compulsory-there would be little doubt that such action would constitute unlaw- ful assistance to the AFL. I see little difference between that situation and the one where the employer uses checkoff authorizations instead of membership applications and then treats the authorizations as evidence of representative designation. Under circumstances where union membership is compulsory, execution of a checkoff authorization is, by itself, reliably indicative of nothing more than a willingness to have one's dues checked off one's wages. Since the dues are obligatory, the employee's signature may merely represent a preference for one method of payment over another. For these reasons, the instant checkoff authorization cards cannot be accepted as probative evidence of designation of the AFL as bargaining representative, and the Respondents could not reasonably have relied upon them as such. .It is therefore found that, having chosen not to rely upon the contract, having raised a question of representation as to the Manchester employees, and having con- ditioned negotiation with the AFL as bargaining representative upon evidence that a majority of the employees desired representation by the AFL, it was an unfair labor practice in violation of Section 8 (a) (1) and (2) of the Act for the Respondents to inform employees that National had a union-shop contract with the AFL recog- nizing the AFL as bargaining representative, and to secure dues checkoff authoriza- tions from employees under such circumstances. It necessarily follows, then, that the evidence in the possession of the Respondents could not, under the circumstances, have led them reasonably to conclude that the AFL was the freely designated bargain- ing representative of a majority of the employees at Manchester. The execution of the agreement of January 25, 1954, was consequently also an unfair labor practice. I do not wish to be understood as holding that the result would necessarily be the same had the Respondents continued to recognize'the 1953 contract as a binding document effective until its termination and applicable to the Manchester operation, if the Respondent had not themselves questioned the authority of the AFL to repre- sent the Manchester employees and required the AFL to provide evidence of actual designation by those employees. As I have indicated, the Respondents' actions pre- clude a consideration of the case upon such a basis, and I therefore find it unneces- sary to express an opinion on that question. It is consequently found that by informing employees that there was a union-shop contract between National and the AFL covering Manchester employees, at a time when the Respondents were not in fact recognizing the AFL as the representative of such employees, and by securing checkoff authorization from employees under such circumstances, and by thereafter recognizing and executing a union-shop contract with the AFL on January 25, 1954, without reasonable evidence that the AFL represented the Manchester employees, by permitting the AFL to hold meet- ings on company premises at which AFL stewards were selected and the employees told that the AFL had a union-shop contract with the Respondents, and by telling employee Gauthier that signing an AFL dues checkoff authorization card was com- pulsory, the Respondents assisted and contributed support to the AFL in violation of Section 8 (a) (2) of the Act and interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act: B. The discharge of Laventure In early February 1954 Mylsher had two employees doing plumbing work in connection with setting up the plant: Raymond Borghi and an assistant referred to in the record as Blackie. It has been found that during that period Borghi was exercising supervisory functions. About the first week in February, needing additional plumbing help, Mylsher sent a request to the State employment agency, asking for an "experienced plumber's 9Though Personnel Director Friedlander testified that lie did not request as many as 50 employees to sign the cards, he was vague as to the exact, or even approximate, number. All the signatures as to which there is evidence were procured at the solicitation of repre- sentatives of the Respondents. The evidence does not indicate when or how the other signatures were secured. NATIONAL ELECTRONIC MANUFACTURING CORPORATION 637 helper to assist maintenance men with the installation of pipes and setting up of facilities prior to production of new department. Job to last several weeks." The agency sent out Laventure about Wednesday, February 3, or Thursday, February 4, and he was interviewed successively by Personnel Director Friedlander's assistant, by Friedlander himself, and by Borghi. On looking over Laventure's application the assistant noted that Laventure had held a number of jobs during the previous 2 years. He asked Laventure whether he would remain with the Company. Laventure asked what "promises" the Company "was making"; and on being told, in effect, "none," declined to make any commitment himself: a position he reiterated to Friedlander in a later interview with the personnel director. However, Laventure's coyness in this respect apparently did not disturb Friedlander, for, after a further interview with Borghi (to whom Friedlander sent Laventure for approval) Laventure was hired. Actually two men were hired for the project: Laventure and Albert Berthiume. The record is confused as to how this came about, but a resolution of the confusion does not seem necessary.lo Both Laventure and Berthiume were told when hired that the job was temporary. Presumably either because they were on Mylsher's payroll or because they were temporary employees, or for both reasons, nothing was said about the AFL to either Laventure or Berthiume when they were hired. Laventure went to work on Saturday, February 6. On the following Wednesday, February 10, Laventure attended the AFL meeting which Neuman conducted in the plant. As has been seen, Laventure took a prominent part in the discussion, was critical of Neuman's representation, and accepted Neuman's challenge to get other representation. Laventure's undenied testimony as to what occurred thereafter is as follows. On the evening of the AFL meeting he went to the office of the Textile Workers Union of America, CIO, and got authorization cards to distribute among the em- ployees. He distributed some that night at a neighboring cafe and the next morning on the bus, in front of the plant, and in the plant. As he came in to work Thurs- day morning, the day following the Neuman meeting, Supervisor Lahecki, Borghi, and Blackie were standing 30 to 40 feet away from the time clock. Laventure punched in and then went into the cafeteria, where he handed out CIO cards and talked to some women employees on behalf of the CIO. At that time Borghi and Blackie were approximately 40 feet away looking in Laventure's direction. After completing his activities in the cafeteria, Laventure started downstairs to his work place. On the way he met someone on the staircase to whom he apparently talked about the CIO or to whom he gave a card, or both. The record does not disclose how far away Borghi and Blackie were at that time. Laventure passed out cards all day in the plant. On one occasion during the day he and employee Picard met and had a "general baloney": a general conversation. While they were talking Personnel Director Friedlander came along and told them to get to work. Several minutes later Friedlander returned and asked the two what their names were. Near the end of the day Borghi gave Laventure his pay and told him that he would not be needed any longer, saying "We thought we were going to have a lot of work, but we cancelled it." Laventure then went to see Friedlander. On the way Laventure met Lahecki, who told him that he could not understand why he had been fired. When Laventure saw Friedlander the latter gave him the same explanation as Borghi: work had been cancelled. That evening in a cafe one Lavalli, an employee, called Borghi on the telephone, Laventure listening in on the ear piece. Lavelli asked Borghi why Laventure had been fired. Borghi responded that he did not know why. 30 Friedlandcr's testimony as to the matter is as follows He told Laventure to get a physical examination from the Respondents' local doctor and to report to work on Friday However, Laventure did not appear for work on Friday Friedlander then had the em- ployment office send up Berthiume, who was hired on Friday and agreed to report on Monday But on Saturday Laventure appeared for work When Friedlander told him that another man had been hired in his place, Laventure asked, in effect, "What's a man with three kids supposed to do in this town?" Friedlander then let him go to work Laventure denied that he missed a day. His testimony is that he took his physical examination either on the day of the interview or on the following day, and that on the day following the examination he reported to work The General Counsel suggests that Friedlander confused Laventure with Berthiume, who was asked when hired to report to work on Saturday but declined, preferring to start on Monday Certain testimony of Man- ager Myles Spector suggests coiroboration of that thesis However, it does not seem necessary to unravel the matter since, whatever the reason, both Laventure and Berthiume were hired and went to work ; Laventure beginning on Saturday, February 6, and Berthiume on Monday, February 8. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borghi further said that Laventure was a good man and a good worker. This is Laventure's testimony. None of it is denied. Two weeks later, about February 26, 1954, Berthiume was also laid off. Fried- lander explained to Berthiume that Berthiume's work was satisfactory, but that they were "caught up with the work." Friedlander further told Berthiume that when the "trouble" was settled he might call Berthiume back as a machine operator, or as a plumber if there was such work available. Friedlander further said that Laventure had been in that week asking for a job and, Friedlander told Berthiume, Laventure had been hired before Berthiume. There is no evidence that Berthiume engaged in any union activity nor allegation that his layoff was discriminatory. Personnel Director Friedlander testified on two occasions in the hearing as to the Respondents' reasons for discharging Laventure: -first as a witness for the General Counsel, the second time as a witness for the Respondents. In the presentation of his own case, and prior to putting Laventure on the stand, the General Counsel called Friedlander as a witness and asked him the reason for Laventure's termination. At that time Friedlander testified that after Laventure had been employed 3 or 4 days he decided to discharge him because Borghi and Blackie had reported that Laventure was "no good as a plumber." However, Friedlander further said, he waited 2 days until the end of the pay period (Thurs- day) to effect the discharge in order to avoid confusion in the payroll. Then questioned as to whether he had not told a Board investigator that Laventure had been let go because he was "superfluous," Friedlander testified that it "could be" that he had both reasons. His testimony in this respect is as follows: Q. (By Mr. Kowal.) Didn't you once tell a Field Investigator of ours that you had decided to let Laventure go because he had become superfluous? A. When the job was finished, he was superfluous. Q. So that you let him go because the job was finished, not because he was a bad plumber. A. Let's put it both ways. Q. I take it then you had two reasons, then, for letting Laventure go, is that right? A. Could be. Q. Well, is it or isn't it, Mr. Friedlander? A. You are questioning a memory that has to go back six months. Q. All right, do you have two reasons, or how many reasons do you have? A. I don't recall, sir, whether I had two reasons for letting him go or not. Friedlander further testified on that occasion that because Laventure and Berthiume were temporary employees he did not follow a seniority policy in laying them off; an assertion seemingly at variance with the purport of his statement to Berthiume at the time the latter was terminated. After this testimony by Friedlander, Laventure was called as a witness and testi- fied in part as previously related. Friedlander was present in the courtroom and head Laventure's testimony. On the following day Friedlander testified as a witness for the Respondents. This time, on direct examination, his testimony was that Laventure was off the job and talked to employees. However, on cross-examination he gave both incom- petency and cancellation of work as the ground for the discharge. The significant portions of his testimony on direct examination are as follows: Q. How was [Laventure's] work during the time he was there? A. Not too satisfactory. Q. In what respect? A. In the respect that he wasn't on the job at all times. Q. . . What do you mean by he wasn't on the job at all times? A. Well, I was going through the plant quite frequently. I didn't do person- nel work from a desk. I did it in the factory, and I knew all of these men. I was responsible for the unloading of the trucks up here. That was our prime reason for being here, unloading the trucks and getting the plant started for actual production, and when I found a man supposed to be working talking in a corner, to us that meant that two of them were not working, and it hap- pened in more than one instance. Q. There were occasions when you saw Mr. Laventure just talking with people? A. That is right. NATIONAL ELECTRONIC MANUFACTURING CORPORATION 639 Q. Were you aware, Mr. Friedlander, at any time that Mr. Laventure was doing any union agitating or organizing there? A. No, sir, I did not. Q. Did you have any discussions with Mr. Borghi about his general per- formance? A. Yes, sir, I did. Q. What was the reaction? A. Borghi didn't think he was doing the job either. It will be noted that nowhere in that examination is there any direct assertion by Friedlander as to why he discharged Laventure. If, however, his answers were intended as a declaration that Laventure was terminated for talking with employees, it was promptly cancelled out by his testimony on cross-examination. Thus, on cross-examination he testified first and uncertainly that Laventure was discharged for incompetency; then that Laventure was not discharged for "baloney- ing"; then that he (Friedlander) must have discharged Laventure for some rea- son other than that the job was finished; and, finally, that the discharge was because, the job Laventure was working on (installing toilets) was cancelled. The significant portions of Friedlander's testimony on cross-examination are as follows: A. As far as Laventure, I believe I discharged him for incompetency. I am trying to refresh my memory. I believe in his case he was incompetent. After listening to his testimony yesterday, he admitted once or twice that he was baloneying around the place, and undoubtedly that he had a lot of that that he didn't admit that I might have seen, and when the time was up, that was that. [ Sic. ] Q. After listening to his testimony, you say that you must have discharged him for some other reason than the job being finished, is that right? A. Yes. Q. And you say that you have in mind this baloney business, is that right, when you discharged him? A. Well, what he said yesterday may have refreshed my memory as well as at the time when I testified to you yesterday, I believe I told you that he was incompetent, did I not? Q. . . . You are now saying that added to the fact that he was incompetent, added to the fact that the job was finished, was the fact that he was spending a lot of time conversing with other people on the job, is that what you are testi- fying to? A. No, I did not say that. There was quite a bit of baloneying off, never where he should be. Q. Are you saying that one of the reasons why you fired him was that? A. I don't recall. I will put it this way, that at that time undoubtedly I fired him, as I said, for incompetency. I will stay with that story. Q. So you didn't fire him, then, because he was engaging in these baloney conversations that you heard him testify to yesterday? A. No, I didn't. Shortly thereafter, however, Friedlander testified that he had discharged Laventure because the job he was doing had been cancelled. Thus, questioned as to whether the decision not to proceed with the installation of the extra toilet facilities might have been made the day after Laventure's discharge, Friedlander said: if it happened the day after, I would'nt have discharged him the day be- fore. Q. Oh, so you discharged him because the work on which he was working had been cancelled, is that right? A. That is right. Some moments later, asked whether his most recent answer did not exclude in- competency as the ground for discharge, Friedlander returned to that reason. Thus, Q. . . . If Laventure was discharged because you changed your plans and therefore there was no longer any need of him, you did not discharge him then for the reason that he was incompetent, is that right? A. Let's see if I can clear this up. Laventure was discharged for incom- petency. In addition to that, the change of plans also took place. Q. I see. A. But he was discharged for incompetency. This was Friedlander's final testimony as to the grounds for the action. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Undoubtedly in a situation as administratively disordered as the Respondents' evi- dence suggests its plant was at that time, a certain amount of hesitation , doubt, and failure of recollection on the part of a responsible management official as to past events is understandable-perhaps even expectable. However, even after making all possible allowances I cannot ascertain from Friedlander's testimony, doubt-rid- den, contradictory , and uncertain as it is, any reason , which he did not repudiate, as to why he discharged Laventure. The impression of elusiveness and equivocation evident from the written record was even more pronounced in Friedlander 's demeanor on the witness stand . In sum, at the hearing I was not, and I am not now after care- ful perusal of the record, able to give credence to Friedlander's testimony as reliably reflecting the true reasons for Laventure's discharge. C. Conclusions as to the discharge of Laventure As has been seen , Laventure began to work on Saturday , worked 5 days, and was discharged. Before and during the time of his employment the Respondent was actively assisting the AFL to secure the allegiance of the employees, and in fact had installed the AFL as the employees' bargaining representative . On the Wednes- day following his hiring Laventure , at the AFL meeting which the Respondent allowed to be held in the plant, was openly critical of AFL Representative Neuman and the AFL's representation . Laventure was challenged by Neuman to secure better repre- sentation if he could , and Laventure accepted the challenge . That evening Laventure secured CIO cards , which he immediately proceeded to distribute among the em- ployees. This distribution took place , in part, in the plant and in the presence of supervisors, on the day following the altercation with Neuman . At the end of that day, Thursday, Laventure was discharged . That same evening his immediate super- visor, stated that Laventure was a good worker . The grounds advanced by the Re- spondents as causing the discharge do not stand up under analysis. If, as Friedlander first testified , the decision to discharge Laventure was made prior to Thursday, February 11, then Laventure 's "baloney" with Picard was not a ground for the discharge. In fact, Friedlander later testified specifically that it was not a ground. Moreover the assertion that the decision was made early in the week con- tradicts Friedlander's later testimony that Laventure was discharged because work had been cancelled . The decision to cancel the work to which Friedlander had ref- erence was not made, according to Friedlander, until Thursday afternoon . Laventure could thus not have been "superfluous" labor at the time, early in the week, when Friedlander assertedly decided to discharge him. There is no probative evidence that Laventure was an incompetent workman . Friedlander did not claim to have personal knowledge of Laventure's work; he merely related what Borghi and Blackie had supposedly told him. Neither Borghi nor Blackie testified. The comments which Friedlander attributes to Borghi contradict what it is undenied Borghi told Lavelli concerning Laventure 's competence. In his first appearance on the witness stand Friedlander gave incompetence as the ground for the discharge . Then questioned as to whether he had not previously assigned finishing of the job as the reason, he at first equivocated and then ended by declaring that he could not recall whether he let Laventure go for 1 reason or 2. But after Laventure had testified and related the "baloney" incident , Friedlander's testimony for the first time refers to Laventure as having been off the job and talking to employees , but at the same time denying that he knew that Laventure was doing any union "agitating" or "organizing." Asserted declarations by Borghi to the effect that Laventure was not doing the job are also related . In his direct testimony on that occasion Friedlander makes no reference to incompetency, to cancellation of work, or to finishing the job as grounds for the discharge . Then on cross-examina- tion he definitely stated that "baloneying" was not the ground for discharge; then that the discharge must have been for some reason other than that the job was finished. Thus is left only incompetency ; a charge promptly obliterated by Fried- lander's later assertion that the job Laventure was working on had been cancelled and the discharge was for that reason. Shortly thereafter, however, Friedlander rein- stated incompetency and eliminated the job cancellation, with his final testimony that incompetency was the cause. Thus, each succeeding ground which Friedlander offered to explain the discharge was successively repudiated , some several times, during the course of his testimony. The fact that Friedlander asked Laventure and Picard for their names at the time of the "baloneying" incident does not negative discriminatory motivation in the dis- charge. It merely underlines the fact that Friedlander had no personal acquaintance with Laventure or his work ; and belies the intimation in his testimony that he fre- NATIONAL, ELECTRONIC MANUFACTURING CORPORATION 641 quently saw Laventure away from his work talking. Nor, is the inference of dis- criminatory motivation negatived by Friedlander's statement to Berthiume-at the time the latter was laid off-in which Friedlander suggested that Laventure had priority over Berthiume for reemployment because he was the first hired. For,that declaration, if taken at face value, establishes that Laventure's layoff was irregular in the first place and not for incompetency. The temporary character of Laventure's employment has bearing (and I have so considered it) on the possibility that the Respondents could have been actuated by nondiscriminatory motives in discharging him. However, the mere fact that a person is a, temporary employee does not take him out of the operation of the Act. The statute does not confer any special privileges on a temporary employee; it does not operate to provide him with a,permanent or longer job when the employer has no need for him. But he has the same right as any other employee to complete his full term of employment without discrimination because of his union views. Under the circumstances, the only reasonable conclusion that can be drawn from the evidence is that Laventure was discharged because of his opposition to the AFL, as manifested in the February 10 meeting in the plant, his announced determination to attempt to secure other representation for the employees, and his activities in that direction on behalf of the CIO on the day of his discharge. In view of the lengths to which the Respondents had already gone to insure the installation of the AFL as the bargaining representative at Manchester: Informing the employees that they and the Respondents were bound by a union-shop contract with the AFL, securing from the employees checkoff authorizations providing color of voluntary designation of the AFL, executing the supplemental contract, and providing the AFL with premises and a forum in the plant for AFL meetings designed to sell the AFL to the employees, the conclusion seems fully warranted that Laventure's discharge-within 24 hours of his first expression of opposition to the AFL and on the very heels of his activity on behalf of the CIO-was motivated by,that dissidence When to these factors of circumstance and timing are added the additional fact that no credible legitimate explanation has been adduced for the discharge, no other reasonable conclusion seems possible on the evidence. It is consequently found that the Respondents discharged Laventure because of his opposition to the AFL and his activity on behalf of the CIO. It is further found that the Respondents thereby unlawfully assisted the AFL and discriminated against Laventure, thus-encouraging membership in the AFL and discouraging membership in the CIO; thereby interfering with, restraining, and coercing employees in the exer- cise of rights guaranteed in Section 7 of the Act. D. Other allegations of support and interference The complaint contains other allegations of assistance and support to the AFL, and interference with employee rights . As to these I find the evidence insufficient to establish them, and no useful purpose to be served by lengthy discussion of them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section 111, above, occurring in con- nection with their operations heretofore described in section II, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have committed unfair labor practices it will be recommended that they cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. It will be specifically recommended that the Respondents set aside National's con- tract with the AFL and withdraw and withhold all recognition from said Union as bargaining representative of any of Respondents' Manchester employees unless and until the AFL is certified by the Board as such representative. Nothing in these recommendations shall be construed to require that the Respond- ents vary or abandon any existing term or condition of employment other than those related to union recognition and membership. There remains the question of what remedy is to be recommended in the case of Laventure. As has been seen, Laventure was a temporary employee. His em- ployment in all likelihood would not have lasted longer than February 26, the-date 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Berthiume was released. The possibility that, had he not been discharged, Laventure would have been offered employment with National is speculative. Berthiume was not offered such employment. Mylsher's temporary complement of 44 employees was reduced by March to 4 permanent building guards. Of that 44, 25 or 26 are now working for National. The remainder were dropped. It is therefore found that Laventure's employment by Mylsher would have ended in any event by February 26, 1954, and that there was no reasonable prospect to conclude that he would probably have been hired by National. It will consequently not be recommended that he be reinstated to any position or offered other employment. As to back pay, it will be recommended that he be awarded back pay for the period from the date of his discharge to and including February 26, 1954. Upon the basis of the foregoing findings of fact, and upon the entire record in' the case, I make the following: CONCLUSIONS OF LAW 1. International Union of Electrical, Radio, and Machine Workers, CIO, and Amalgamated Workers Union, Local 130, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By contributing support to the AFL the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. ' 3. By discharging Lionel Laventure because of his union activities the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondents have engaged in-and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT recognize Amalgamated Workers Union, Local 130, AFL, as the bargaining representative of any of our Manchester, New Hampshire, employees unless and until said organization has been certified as such by the National Labor Relations Board. WE WILL NOT assist or support Amalgamated Workers Union, Local 130, AFL, or any other labor organization. - WE WILL NOT encourage membership in said AFL or discourage member- ship in International Union of Electrical, Radio and Machine Workers, CIO, or any other labor organization, by discriminating in regard to the hire or tenure of employees. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist any labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective or other mutual aid or protection; or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in -a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL reimburse Lionel Laventure , for any loss of pay incurred as a result of his discharge. WE WILL withdraw and withhold all recognition from Amalgamated Work- ers Union, Local 130, AFL, as collective-bargaining representative of any of our Manchester, New Hampshire, employees, unless and until said organization has been certified as such by the National Labor Relations Board. All our employees are free to become or remain members of the above-named or any other labor organization. We will not discriminate in regard to hire or KENOSHA AUTO TRANSPORT CORPORATION 643 tenure of employment because of an employee 's membership in or activity on be- half of any labor organization. NATIONAL ELECTRONIC MANUFACTURING CORPORATION, Employer. Dated---------------- By---------------------------------------------- (Representative ) ( Title) MYLSHER REALTY CORPORATION, Employer. Dated---------------- By----------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Kenosha Auto Transport Corporation and Ivan Hazel International Brotherhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America, AFL, Local 604 and Ivan Hazel. Cases Nos. 14-CA-1164 and 14-CB-230. August 15,1955 DECISION AND ORDER On August 9, 1954, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceedings, finding that Respondents, Kenosha Auto Transport Corporation, her called the Respondent Company, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, Local 604, herein called Respondent Union, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Ex- aminer also found that Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dis- missed in that respect. Thereafter, Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : We find, in agreement with the Trial Examiner, that the Respondent Company and the Respondent Union violated Section 8 (a) (3) and (1) and Section 8 (b) (1) (A) and (2) of the Act, respectively, by maintaining an agreement or understanding delegating to the Re- spondent Union the authority finally to determine controversies relat- ing, to seniority. In addition, we find that the Respondents also vio- 113 NLRB No. 69.