B. M. Reeves Co., Inc.

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. M. Reeves Company, Inc. and Candy and Confectionary Union, Local 50, Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 92-CA-6734. July 26, 1960 DECISION AND ORDER On February 18, 1960, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only to the extent that they are consistent with the following Decision and Order: 1. We disagree with the Trial Examiner that Section 8(a) (2) was violated. It is essential at the outset to identify and confine the issues within the allegations of the General Counsel's complaint. The Gen- eral Counsel concedes that the Charging Union, Local 50, at no time material herein represented a majority of the employees in the unit, that Local 50's claim upon Respondent did not raise a question con- cerning representation. The complaint alleges in substance that Re- spondent unlawfully assisted the 'Committee i (the incumbent union for about 13 years) by prematurely reopening the existing contract and granting contract and other benefits with the purpose and intent to counteract and forestall Local 50's organizational campaign and cement the Committee's position as bargaining representative 2 The Section 8 (a) (2) issue, thus narrowly circumscribed, turns the legality of Respondent's conduct on Respondent's intent in rendering the alleged assistance to the incumbent Committee. As found by the Trial Examiner, the essential facts are briefly as follows : Between July 8 and 13, 1959, some of the female employees asked the Committee to meet with Respondent for the purpose of stopping allegedly insulting conduct directed toward them by adherents of 1 Variously called the Collective Bargaining Committee or Council of the Employees -Also included in the context of the Section 8(a) (2) complaint is the allegation that Respondent laid off certain of the newer employees to discourage membership in Local 50 and solidify the Committee's position, an issue which coincides with that involved in the alleged Section 8(a) (3) aspect of the case and will therefore be considered under that heading infra 128 NLRB No. 41. B. M. REEVES COMPANY, INC. 321 Local 50, and to renegotiate the contract. From July 13 to 15, sepa- rate meetings were held on company premises between the Committee and the employees and between the Committee and Respondent. Re- spondent progressively offered wage increases and additional benefits which offers were in turn transmitted to the employees by the Com- mittee. On July 15, at a committee meeting, the employees voted 35 to 30 to accept the contract.3 Nevertheless, Respondent increased its offer by agreeing to supply additional uniforms for the employees on the suggestion of the Committee, as the vote to accept the contract ap- peared close. The Committee also suggested that the employees' sig- natures be obtained on the contract; during working hours on July 16 the Committee solicited 60 employee signatures and 5 more in the next 3 weeks, of the approximately 80 to 100 employees in the plant. Re- spondent laid off two or three employees on July 7, discharged em- ployee Finnegan on July 8, and on July 13 laid off nine employees (of whom only Shea, Wilkins, Burns, and Warren, plus Finnegan, are complainants in the Section 8 (a) (3) complaint). On the strength of these general circumstances, the Trial Examiner found that an "implied condition" of the contract benefits which Re- spondent promised and granted to the employees was that they reject Local,50 and adhere to the Committee.' Essentially this latter finding formed the basis for the Trial Examiner's adoption of the General Counsel's theory of the complaint that Respondent's intent to forestall Local 50 established the alleged Section 8(a) (2) violation.' The case authorities relied on by the Trial Examiner clearly fail to support his conclusions. Unlike the present situation, those cases involved an employer's acts of assistance rendered to a minority union and recog- nition of one of the contending unions at a time when, as ultimately decided by the Board, a real question concerning representation existed. Assuming that the evidence established Respondent's intent, as found by the Trial Examiner, we believe that a proven element of intent does not operate to convert the described conduct of Respondent in dealing with the incumbent bargaining agent,' otherwise lawful„ into an unfair labor practice. In every case in which an employer recognizes and contracts with one of the contending unions making- conflicting representation claims upon it, the employer necessarily-' 3 The contract finally consummated extended the expiration of the existing contract from December 31, 1959, until December 31, 1960. 4 It was not alleged or found that any "express condition" was attached 8 The Trial Examiner enumerated his findings of unlawful assistance as embracing the premature extension of the contract; promises and grants of contract benefits; grants of time and property to hold committee meetings ; permission to the Committee to solicit employees' signatures during working hours , and the layoffs on July 13 There is no contention that the incumbent Committee, which had represented Respond- ent's employees for about 13 years, was not the majority agent when the new contract was negotiated, executed, and ratified by the employees. Local 50, on the scene, con- cededly did not represent a majority. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renders assistance to the recognized union to the exclusion and detri- ment of the rival. Conceivably, in some instances, it may be inferrable from the circumstances that the employer-under pressure from the recognized union or otherwise-has granted contractural concessions with the intent of opposing or forestalling a rival union. But the element of intent or motive in such situations is immaterial.7 The em- ployer's conduct is illegal only if the recognition and contract were accorded a minority union or accorded the union at a time when a real question concerning representation existed. Absent a question concerning representation or an effective challenge of the status of the contracting union as a bona fide representative of the majority of the employees in the unit, the reciprocal concessions reflected in the con- tract must be taken as the result of proper collective bargaining. The Midwest Piping doctrine,8 as clarified in William Penn Broad- casting Co.,' defines the extent the Board has reached in finding a violation under Section 8 (a) (2) in the context of the contending union situation presented here. In the William Penn case, the doctrine was explicated to hold that Section 8(a) (2) is not violated by an em- ployer's execution of a contract with the incumbent union unless there existed at the time a real question concerning representation as ulti- mately decided by the Board on the basis of the same criteria uni- formly applied in determining whether such a question exists before proceeding to an election under Section 9(a). The Board stated that, in the interest of industrial stability, the employer may continue to deal with the incumbent so as not to deprive the employees of the benefits of uninterrupted collective bargaining whenever a clearly un- supportable or specious rival claim is made on the employer.10 It was reasoned that, in the absence of a real question concerning represen- tation, if the employer's contract with the incumbent has any tendency to encourage employees to become or remain members of the incum- bent, the result is merely a possible and natural advantage which inheres in the position of every lawful bargaining agent and con- stitutes no interference with the employee's free choice of representa- tive under the Act. Here, the absence of a question concerning representation is con- ceded and there is no dispute as to the bona fide character of the incumbent union as the free representative of the employees. We find Respondent's continued recognition of the Committee and its grant of 7 Section 8 ( a) (2) contains no provision that intent or motive he shown And see, e g., Northeastern Engineering, Inc, 112 NLRB 743, 744 s The doctrine derived its name from the case entitled Midwest Piping d Supply Co., 63 NLRB 1060 9 93 NLRB 1104. See also Shea Chemical Corporation, 121 NLRB 1027, Novak Logging Company, 119 NLRB 1573 is The Board pointed out, however, that the employer acted at its peril in the event the Board ultimately determined that a real question of representation existed B. M. REEVES COMPANY, INC. 323 contract benefits, regardless of Respondent's intent, did not violate Section 8 (a) (2) because no question concerning representation existed. In the circumstances, we likewise find no violation in Respondent's allowing the use of company time and property for the Committee to meet and to solicit employee signatures in approval of the contract." 2. Concerning the July 13 layoff by Respondent of employees Shea, Wilkins, Burns, and Warren,12 we cannot find in the evidence the necessary support for the Trial Examiner's conclusion that Respond- ent violated Section 8(a) (3) and (1), as alleged. The Trial Exami- ner placed exclusive reliance upon a general inference of discrimina- tory motivation in that the July 13 layoff "on the heels of Local 50's demand for recognition fitted plainly into the pattern of Respondent's conduct to discourage membership in," and assist the Committee in combating, Local 50. He therefore made no finding as to whether Respondent knew which or how many of the newer employees had joined or assisted Local 50, or whether Respondent selected the four complainants for layoff because of their individual union activities. The implication of the Intermediate Report is that the selections for layoff were made from among the newer employees as a class because the newer employees grouped themselves at the committee meetings with those who spoke up for Local 50 and for rejection of Respondent's contract offers. However, the evidence is vague and indefinite in character concerning the manner in which the newer em- ployees conducted themselves at the committee meetings,13 and it was not shown how Respondent was made aware of the sentiments of the newer employees or other members at these meetings. Wilkins, Burns, and Warren had been employed by Respondent for less than 60 days and Shea for less than 70 days, and all were the most recent hires. Their selection for layoff conformed with the existing con- tract requirement that seniority govern the order of layoff. Further, as the Trial Examiner found, only in the case of Shea can actual knowledge of union activity be imputed to Respondent. Nor, in light of support in the evidence, can Respondent's defense be ignored that a seasonal decline in business necessitated the layoffs. Among other things it appears that from the date of the layoffs on July 13 until the close of the hearing on November 12, no replacements had been hired for the laid-off employees nor were any new employees taken on.14 11 See , e g, Coppus Engineering Corp v NLRB , 240 F 2d 504, 570 (C A. 1) ; NLRB v Valentine Sugars, Inc., and Vahte Corp, 211 F. 2d 317, 320 (CA 5) 11 No exception was filed to the Trial Examiner's dismissal of the Section 8(a) (3) allegation as to Finnegan 's discharge on July 8 13 The testimony indicated that the "timeworkers" were also in the grouping with the newer employees at the committee meetings. 14 Although Respondent s economic defense is impliedly rejected in the Trial Examiner's finding of the violation, it is apparently accepted in his recommended remedial order which conditions reinstatement and backpay on future availability of positions for the complainants 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record, in our opinion, does not permit the general inference of unlawful motivation drawn by the Trial Examiner, nor does it permit a reasonable inference that the complainants were laid off or chosen for layoff on account of their union activities, individually or as a class. Accordingly, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBERS BEAN and JENKINS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in New York, New York, on November 9 to 12, 1959, pursuant to due notice and with all parties represented by counsel. The complaint, issued on August 31, 1959, by the General Counsel of the National Labor Relations Board and based on charges duly filed and served, alleged in substance that in July 1959, Respondent engaged in unfair labor practices pro- scribed by Section 8(a)(1), (2), and (3) of the Act by: (a) discriminatorily discharging and refusing to reinstate five employees on July 8 and 13 because they joined and assisted Local 50 (the Charging Union) and because they failed to join and assist the Council of the Employees, and (b) rendering unlawful assistance and contributing financial support to the Council by a premature extension of contiact, by the aforesaid discharges, and by a series of other specified acts of assistance, which were also alleged to constitute interference, restraint, and coercion. Respondent answered, denying the unfair labor practices as alleged. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED I find on facts alleged in the complaint (i e , extrastate purchases and sales in ex- cess of $500,000 each) and not denied by Respondent's answer (see Rules and Regulations, NLRB, Series 8, Section 102.20) that Respondent is engaged in com- merce within the meaning of the Act, and that Local 50 and the Council of the Employees are both labor organizations within the meaning of Section 2(5) of the Act. II. THE ISSUES The principal issues in the case are whether the layoff or discharge of five em- ployees on July 8 and 13, 1959, was motivated by intent to restrain and discourage membership in Local 50 and to assist the Council; whether the extension of a con- tract with the Council on July 16 was premature and was similarly motivated; whether various benefits offered by Respondent during the negotiations and included in the contract were conditioned on the employees' refraining from joining or assisting Local 50; and whether the giving of those benefits and the assistance to the Council in the holding of meetings with the employees on Company time was un- lawful assistance under the Act. III. THE UNFAIR LABOR PRACTICES A. The facts The Collective Bargaining Committee, also known as the Council of the Employees (and herein called both Council and Committee ), has represented Respondent's employees some 13 or 14 years in collective bargaining , during which time it en- tered into a series of contracts , customarily on an annual basis . The usual custom was that negotiations would begin in late November and the new contracts would be signed in late December . The last such contract , dated December 24, 1956, to expire December 31, 1957, was extended (with additions ) to December 31, 1959. B. M. REEVES COMPANY, INC. 325 In late June 1959, Local 50 began an organizational campaign by contacting Respondent's employees in front of a restaurant across the street from the plant as they went to and from work. Knowledge of the activities reached Respondent promptly, for Mike Cortegiano, plant superintendent, admitted knowing by the end of June that union activities were going on and an attempt was being made to organize the shop by an outside union, and that he learned around July 6 that the union was Local 50. In the meantime, Respondent ran, up to July 3, a series of daily newspaper ads seeking new employees. On July 7 Respondent laid off two or three employees, and on July 8, having learned of the layoff, Frank Scida and Valentine Zorros, president and business agent of Local 50, respectively, called at Respondent's office and were referred to Louis Snyder, office manager, to whom they protested the "discharge" of Frank Starace and Arnold Leichman and demanded reinstatement at once.' Snyder re- plied that the layoff was due to lack of work, that there was already a union in the plant, and that they could do what they wanted? There was no further contact by Local 50, except that on July 13 it wired Respondent a formal claim of majority representation and a request to bargain. A copy of the wire, received without objection, indicated that it was sent at 1.40 p.m. and was delivered by telephone at 1.43 p m. In the meantime, on or about July 8, some of the female employees complained to Millie Musso, a member of the Committee, that they were being molested or called vile names by the organizers, and they requested that the Committee meet with management to put a stop to it. Cortegiano met with the full committee (of eight members) around July 8 or 9, and was informed of the employee complaints by Musso, who inquired what the Company would do to "combat" Local 50 and stop the molesting of the employees. The Council also inquired if the contract could be opened up because it felt that a majority of the employees at that time were definitely against the Union. Cortegiano replied that he would have to take it up with Reeves, who was soon to leave for Europe. A series of meetings followed on July 13, 14, and 15 between the Committee and management and the Committee and the employees, all on company time and property. The first meeting was held from 10:30 a.m. to 12.05 p.m. on the 13th, between the Committee and Reeves, Cortegiano, and Rubin Hackmeyer, vice presi- dent. Though the Committee had requested that the contract be reopened, it went into the meeting with no demands whatever and without any attempt to formulate demands in a meeting with the employees. Reeves offered an increase in the minimum wage rate from $1 to $1.15 an hour through the first three brackets, and there was also discussion of items such as insurance, holidays, and uniforms, which the Committee injected. Musso again mentioned the fact that some of the girls were being annoyed by Local 50 The Council then sought and obtained permission to hold a meeting with the employees, and such a meeting was held at 1:30 for about 30 minutes, with all plant operations shut down. This and the later meetings between the Council and the employees were noisy and (to some employees) confusing, with sharp and loud division between prounion and antiunion factions around the central issue whether the employees wanted the outside Union or wanted to reject the outside Union by accepting Reeves' offer. Harry Wilkins and Joseph Shea (two of the 8(a) (3)'s) gave undenied testimony that there were in fact two separate groupings, with the girls on the antiunion side of the room and the timeworkers (including the new employees) on the other Joseph Burns, another 8(a)(3) and also a new employee, testified that when he spoke up for the Union, some one questioned his interest since he had been there such a short time. As Frank Lamadora, a committee member, framed the issue in i Though Scida erroneously understood that Snyder was vice president, there is no question concerning Snyder's authority, since President Benjamin Al. Reeves had directed him to handle the matter The complaint did not allege Leiclitman's discharge to be discriminatory and the General 'Counsel dismissed as to Starace at the hearing 2 The foregoing represents a reconciliation of the credited testimony of the three wit- nesses The testimony of Scida and Zorros (denied by Snyder) that they also made a demand to bargain on the basis of a claim of majority is not credited, nor is their testi- mony credited that Snyder threatened that any employee who was caught talking for the Union would be discharged Snyder's testimony (denied by Scida and Zorros) that the latter threatened to call a strike immediately if the reinstatements were not made is similarly not credited, particularly in view of the fact that Snyder admittedly did not report the alleged threat to Reeves 577684-61-vol 128-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presenting Reeves' offer, "You are sure of getting it, whereas the union will have to come in and fight for whatever they are promising." Another committee member argued that the employees were getting along very nicely, but "now the union is coming in and we have an awful lot of trouble." Testimony by Burns, Wilkins, and Shea that Lamadora and/or Musso expressly conditioned the benefits and the new contract on rejection of the Union is not credited. Reeves' offer was rejected, and the Council then held another meeting with man- agement representatives and endeavored to bargain for increased benefits. (In the meantime, around 1:43 p.m. Local 50 made its telegraphic majority claim and request to bargain ) Hackmeyer stated in part that business was slow and that Respondent was thinking about a layoff in the near future if there was no pickup, but Lamadora testified that such assertions were common during contract talks. The meeting ended around 4 p.m., with Respondent extending its offer through four, rather than three, brackets, but without agreement being reached. Though Hack- meyer had not informed the Council that a layoff was imminent, Cortegiano laid off nine employees at 4:10 p.m. See "The Discharge or Layoff," infra. The Council held another meeting with the employees in the lunchroom at noon on the 14th and reported Reeves' offer. There was again the same sharp division of opinion between the prounion and antiunion factions, and the offer was again rejected. The Council held a further meeting with management at 2 p.m., and Reeves offered, in addition to 15 cents an hour for the first four brackets, a 10-cent increase for the rest of the shop and a $1,000 life insurance policy. Ryan, a committee member, referred to union claims that the contract was no good, and inquired if a rider could be attached to the contract for employee signatures, so as to make the contract "a little more legal." Reeves agreed. The Council met again with the employees at noon on July 15, reported Reeves' new offer, and took a vote. On the first vote more ballots were cast than the number of employees present, but on a second vote the result was for accepting the contract, 35 to 30. The Council then met with management, informed Reeves that the majority was so close it did not feel safe in signing a contract, and suggested that if Reeves would give additional uniforms, the employees would be more satisfied and would sign more readily. Reeves agreed, and agreed further that the Committee would cir- culate the new contract the next day and solicit signatures on the rider The entire Committee engaged in the solicitation of signatures on the morning of July 16 from 9 to 11 a in At Cortegiano's direction, they used a foreman's desk on the fourth floor and called the employees up there to sign. Approximately 60 signatures were obtained the first day, and ultimately a total of 65 were obtained during the 3 weeks of overall solicitation. The later solicitations were made at the express direction of Cortegiano after certain employees returned from their vacations. On the afternoon of the 16th, the Council was called into the office and signed the contract along with management We revert briefly to the evidence which relates directly to the discharge or layoff. The Discharge or Layoff The complaint alleged a discriminatory discharge of John Finnegan on July 8, and of Joseph Shea, Joseph Burns James E. Warren, and Harry Wilkins on July 13. The only evidence concerning Finnegan's discharge was Finnegan's testimony as follows- When he reported on the morning of the 8th, after being out sick the day before his "main supervisor," Irving, asked why he was out, and he explained. Irving told him his work was not satisfactory because it did not meet Irving's qualifications, and that if he was out again, not to bother to return. Irving returned shortly and told Finnegan to pick up his pay. Finnegan testified that he had signed a membership card for Local 50 on the street corner a week before his discliprge at a time when another of his supervisors, Vinme, was crossing the street some 50 feet away Considerable question wps c^st on the reliability of that testimony on cross-examination concerning his membership card, which bore the date July 6 Burns, Shea. Warren, and Wilkins were informed that they were laid off because of lack of work or because business was slow Though they had not been recalled up to the time of the hearing, Respondent's evidence showed that no new employees had been hired as replacements or otherwise. The circumstances thus require a finding of a layoff, not a discharge Burns signed a union card on July 10 at the union office some four blocks from the factory. There was no direct evidence of company knowledge. Wilkins testi- fied that he signed a union card after July 4 at a sidewalk table in front of the B. M. REEVES COMPANY, INC. 327 restaurant across the street and that he saw Supervisor Irving going by in his car at the time. Shea testified that he signed a card around June 28, while he was inside the restaurant, but that he solicited some four signatures inside the plant, and that on one occasion Irving watched him do so. Warren died before the hearing. The General Counsel offered Warren's affidavit, given during the Board's investigation of the charges, but admitted that the weight of authority, as recognized by Wigmore, is against reception of such evidence. The offer was rejected. Cf. Tidelands Marine Service, Inc., 126 NLRB 261, where, in a Ra-Rich situation (121 NLRB 700), the Board struck the testimony of a deceased witness because he would not be available for cross-examination at the reopened hearing which the Board ordered. Respondent's records showed that all of the laid-off employees were new em- ployees who had been hired on various dates after May 6, and that three of them (Arnold Leichtman, Joseph Burns, and Raphael Roman, were hired as late as July 2. The existing contract with the Council provided that, "In case of layoffs, the newest employee shall be laid off first." However, another provision on which Respondent relied, i.e., for a trial period of 60 working days, was not applicable since it related only to qualifying for holiday pay. B. Concluding findings Despite Local 50's claim of majority and demand for recognition, the General Counsel makes no claim that it in fact had a majority and concedes that its request for recognition raised no question of representation . Accordingly, he concedes further that Respondent could have reopened and modified its contract with the Council, prematurely as it did, unless it did so with purpose and intent to counteract and forestall Local 50's organizational campaign and to assist and support the Council by cementing its position as the representative of the employees. And, contending that the evidence established such unlawful motivation, the General Counsel, without claiming that Respondent 's offers of increased benefits in the new contract were necessarily made on the express condition that the employees reject or renounce Local 50, argues that the evidence established in any case that such was the implied condition. Thus, under the General Counsel's contentions, the legality of Respondent's conduct turns on the intent with which it acted. As the following resume shows, the facts plainly support the General Counsel's contentions. With knowledge of Local 50's campaign, Respondent gave receptive ear to the Committee's suggestion that it do something to "combat" Local 50 and that it reopen the contract, since the Council felt that it had a majority at that time (July 8 or 9). The issues and the discussions in the employee meetings were phrased in prounion and antiunion terms, and Respondent 's offers, successively increasing wages and other benefits, were twice rejected, plainly indicating that the Council was failing to muster majority support vis-a-vis the outside Union. Finally, after Respondent "sweetened" its offer sufficiently to procure acceptance by a close vote, and the Council expressed to Respondent its fear that it would still be unable to muster a majority, Respondent immediately agreed to give the additional benefits which the Council suggested as necessary to insure majority acceptance, and the Council there- upon proceeded, with Respondent's full support, to solicit employee signatures on company time and property. Respondent's premature and hasty action , in the face of Local 50's campaign and its recognition claim, is to be compared , of course, with its previous regular and leisurely course of bargaining for annual contracts, with negotiations beginning in late November and ending in late December. It is plain from the record that nothing except Local 50's drive for representative status accounted for the pre- cipitate action which Respondent and Council took to combat that outside Union, the possibility of whose advent was openly discussed and whose majority claims were given color by the repeated rejection of Respondent's offers. The precipitate layoff on July 13, on the heels of Local 50's demand for recog- nifon, fitted plainly into the pattern of Respondent's conduct to discourage mem- bership in the outside Union and to assist the Council in combating that Union Despite the claim of slow business, Respondent had continued to advertise for and to hire new emp'oyees until 10 days before, and also despite that claim, Respondent offered new and 'ncreased benefits, though the existing contract had nearly 6 months to run Not only do the circumstances establish that Respondent was intent gen- er"llv on restr'ining the nroeress of Local 50's drive, but the layoff was also plainly calculated directly to affect its claimed maiority status by removing at least some of its support and therebv to insure the ultimate acceptance of Respondent's ever- increasing offers of benefits and to solidify the Council's representative position. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The fact that the contract provided that the newest employees should be laid off first and that those who were laid off were newer employees does not, under the circum- stances here, preclude a finding of unlawful motivation, for the newer employees grouped themselves with those who spoke up for the Union and for rejection of Respondent's offers. We come now to the question whether the evidence will support a finding of dis- crimination as to the individual employees whose layoff on July 13 was litigated by the General Counsel. Because Respondent's motivation was to discourage mem- bership in a labor organization-within the literal language of Section 8(a)(3)-it is not material whether Respondent knew which or how many of the newer employ- ees had actually joined or assisted Local 50,3 and it is unnecessary to find that Respondent selected certain employees because of their individual union activities. Wagner Iron Works, a corporation, 104 NLRB 445, 448. The discrimination which the Act forbids resulted from the plainly calculated discouragement of membership in Local 50. For the foregoing reasons the unavailability of the decedent, Warren, is also not fatal to the General Counsel's case.4 The foregoing conclusions are, of course, wholly inapplicable to Finnegan's dis- charge on July 8. Finnegan s testimony will not support a finding of company knowledge of his union membership, and Local 50's support by new employees did not become apparent until the committee meeting with the employees on July 13. Furthermore, the evidence as a whole does not refute the genuineness of the cause assigned, as testified to by Finnegan himself. Respondent's brief advances no arguments and cites no cases which require different findings or conclusions Indeed, its argument on the law is wide of the mark, for it relies largely on Coppus Engineering Corp. v. N.L.R.B., 240 F. 2d 564 (C.A. 1), denying enforcement to 115 NLRB 1387, and on other court cases which cite and follow it, arguing that as the Board was reversed in Coppus, and as most of the cases which the General Counsel relied upon antedated Coppus, the latter decision "represents not only a more recent but more authoritative pronouncement on the principles applicable to the instant proceeding " Respondent overlooks the fact that the Board has not announced acquiescence in Coppus and that Board decisions constitute precedents which are binding on its Trial Examiners, despite court dis- approval. Insurance Agents' International Union AFL-CIO (The Prudential In- si=rance Company of America), 119 NLRB 768, 773; Novak Logging Company, 119 NLRB 1573, 1575, Scherer & Davisson Logging Company, 119 NLRB 1587, 1589. But aside from that, the Coppus case is plainly distinguishable from the facts of the present case, in which the crucial issues concern the intent and purpose with which Respondent acted. Furthermore, this case meets the language of the court in Coppus that, "To constitute such evidence [of support or domination] hasty recog- nition of one labor organization would have to be coupled with some nonprivileged discrimination against a rival labor organization .. . ' The evidence which the court found lacking there was plainly supplied here. Respondent also relies upon Cleaver Brooks Mfg. Corporation v N.L.R B , 264 F. 2d 637 (C A. 7), denying enforcement of 120 NLRB 1135, but that case is inapposite for the same reasons as Coppus, and is similarly distinguishable on its facts There, as the court pointed out, the inside union demonstrated as majority of employees by signatures on its charter. Here the majority which signed the contract was one which Respondent had unlawfully assisted the Council in mustering, in the face of Local 50's demand for recognition, by promising and granting increased benefits on the implied condition that the employees reject Local 50 and adhere to the Council, by the granting of company time and property for the holding of meetings with employees and for the solicitation of signatures, and by the discriminatory layoff for the purpose of restraining and discouraging Local 50's campaign. Though some of the cases which the General Counsel cited are also inapposite as Respondent points out, the following cases support the conclusions reached herein: Harrison Sheet Steel Co, 94 NLRB 81, 93-94; and see particularly the opinion of the court, ordering enforcement, 194 F. 2d 407, 410 (C A. 7), and cases there cited; Sunbeam Corporation, 99 NLRB 546, 550; Summers Fertilizer Company, Inc., 117 NLRB 243, 244. And see Sterling Cabinet Corp., 109 NLRB 6, 7-8, for miscel- laneous assistance found violative of Section 8(a)(1). See also Lundy Manufac- 8 A finding of actual knowledge can be made only in the case of Shea. 6 Since the evidence established that Respondent neither hired nor recalled employees since July 13, no basis exists for a backpay recommendation or other affirmative remedy as to Warren. B. M. REEVES COMPANY, INC . 329 luring Corporation, 125 NLRB 1188, where the Board adopted the Trial Examiner's report which found in part that the respondent there had recognized a union which represented a majority, if at all, by reason of the active sponsorship and assistance of respondent, who assisted the union through use of its time, property, and per- sonnel in securing and insuring the Union's status as bargaining agent. It is therefore concluded and found on the entire evidence that by prematurely extending the existing contract to forestall and hinder Local 50's organizational campaign, by promising and granting increased benefits on the implied condition that the employees reject Local 50 and adhere to the Council, by shutting down its operations and by granting company time and property for the holding of meetings between the Committee and the employees, by permitting and directing the Com- mittee to solicit employees' signatures during working hours in ratification of its new contract with the Committee, and by laying off Joseph Burns, Joseph Shea, James E. Warren, and Harry Wilkins on July 13, to discourage membership in Local 50 and to solidify the Committee's position as representative of the employees, Re- spondent rendered unlawful assistance and support to the Committee and also interfered with, restrained, and coerced employees in the exercise of rights guaran- teed by Section 7 of the Act. ft is also concluded and found that by laying off Burns, Shea, Warren, and Wilkins on July 13, Respondent discriminated in regard to the hire or tenure of employment to discourage membership in Local 50 and to encourage membership in and ad- herence to the Council. Respondent did not, however, discriminatorily discharge John F. Finnegan. The above findings of unlawful assistance to the Committee are not based in any part on the fact that the meetings between the Committee and management were on company time and property. See the proviso to Section 8(a)(2). IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases, which I find necessary to remedy, and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. I shall recommend among other things that Respondent withdraw and withhold further recognition from the Committee and/or Council of the Employees, and that it cease performing or giving effect to its contract dated July 16, 1959, with said Committee, provided that nothing herein shall be construed to require Respondent to vary any substantive provision of said contract or to prejudice the assertion by its employees of any rights they may have thereunder. For reasons which are stated in Consolidated Industries Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist order. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 50 and the Council are both labor organizations within the meaning of Section 2(5) of the Act. 2. By assisting and contributing support to the Council, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 3. By discriminating in regard to the hire and tenure of employees to discourage membership in Local 50 and to encourage membership in the Council, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices having occurred in connection with the operations of Respondent's business as set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication ]