Miller-Charles and Co.

MILLER-CHARLES AND COMPANY 405 WE WILL make whole Burt W. Stemmons for any loss of pay he may have suffered because of the discrimination against him. LOCAL 271, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Anyone having any question concerning this notice or compliance with its pro- visions may communicate directly with the Board 's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 2732. Harold Miller, Herbert Charles and Milton Charles, Co -partners, d/b/a Miller-Charles and Company and Local 463, Interna- tional Union of Electrical, Radio and Machine Workers, AFL- CIO and Employees Committee of Miller-Charles, Party in Interest. Case No. 2-CA-9436. March, 00, 1964 DECISION AND ORDER On December 2, 1963, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch 'and Mem- bers Leedom and Brown]. 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 en- tire record in this case, including the Trial Examiner's Decision, the exceptions, and the brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions. We find, in 'agreement with the Trial Examiner, that the remarks made by General Manager Stewart on two occasions to groups of employees 'assembled in the plant on working time, to the effect that if the employees chose an outside union to represent them, it would make excessive demands which would force Respondent to eliminate overtime and to close the plant within 120 days, followed by Stewart's 146 NLRB No. 39. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggestion that the employees form or support an independent union, were calculated to, and did, create the impression among employees that an outside union would inevitably make excessive demands which would inexorably lead to the elimination of overtime and the closing of the plant, and thus were coercive and in violation of Section 8(a) (1). Chairman McCulloch considers Henry I. Siegel Co., Inc., 143 NLRB 386, enfd. 328 F. 2d 25 (C.A. 2), 'distinguishable. In that case, the statement about the possible impact of unionism on costs with resultant possible effect on employment was a small part of a long and otherwise uncoercive speech on a number of topics, delivered at a social gathering at the home of a company official. It was also part of a reasoned explanation of the cost problem, unaccompanied by threats or other unlawful conduct; in fact, the speaker assured the employees that "if you vote for the union, my feelings will not change." Considered in the context of the entire speech, Chairman McCulloch believed that the statement alluded to was not coercive. The court of appeals agreed with him. Compare Texas Boot Manu- facturing Company, Inc., 143 NLRB 264, with Texas Industries, Inc., et al., 139 NLRB 365. In contrast, the Chairman believes that Stewart's statement to employees in context could not be construed otherwise than as a threat to future employment if an outside union were selected as bargaining representative. Evidently, the employees who heard the speech understood it in just this way for they im- mediately, at the suggestion of Stewart, repudiated their selection of the Union to represent them in favor of an inside committee. Unlike his colleagues, Member Leedom would find Stewart's re- marks to be predictions protected by Section 8(c) of the Act, and therefore not violative of Section 8 (a) (1). See his dissenting opin- ion in Haynes Stellite Company, Division of Union Carbide Corpora- tion, 136 NLRB 95, 96; enforcement of the Board's order was denied in Union Carbide Corp. v. N.L.R.B., 310 F. 2d 844 (C.A. 6). ORDER The Board adopts -as its Order the Recommended Order of the Trial Examiner.' 1 The 'Recommended Order is hereby amended by substituting for the first paragraph thereof the following: 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 Respondent, Harold Miller, Herbert 'Charles and Milton Charles, Co-partners, d/b/a Miller-Charles and Company, its officers, agents , successors , and assigns, shall: TRIAL EXAMINER'S DECISION The charge herein was served on Respondents on July 3, 1963 , and the complaint issued on August 19 . A hearing was held before Trial Examiner Sidney Sherman MILLER-CHARLES AND COMPANY 407 on September 9, in New York City. The issues litigated were whether the Respond- ents violated Section 8(a)(1) and (2) of the Act. After the hearing, the General Counsel and the Respondents filed briefs. Upon the entire record,' and my_ observation of the witnesses, I adopt the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Harold Miller, Herbert Charles and Milton Charles, Co-partners, d/b/a Miller- Charles and Company, herein called Respondents, are engaged at their plant in Mineola, New York, in the manufacture and sale of screw machine parts, aircraft hardware, and related products. Respondents annually ship more than $50,000 worth of products directly to out-of-State points. It is found that Respondents are engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. IT. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated at the hearing, and I find, that Local 463, International Union of Electrical, Radio and Machine Workers, AFL-CIO, hereinafter called the Union, and Employees Committee of Miller-Charles, hereinafter called the Com- mittee, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The pleadings The complaint alleges that Respondents violated Section 8(a)(1) and (2) of the Act by (i) threatening their employees with various reprisals and offering them va- rious benefits in order to induce them to select the Committee, rather than the Union, as their bargaining representative, (ii) sponsoring and encouraging the formation of the Committee, and rendering material assistance to it, and (iii) recognizing and negotiating a contract with the Committee as the exclusive representative of their employees, notwithstanding the pendency of a representation petition filed with the Board by the Union, and notwithstanding that the Committee did not represent an uncoerced majority of their employees. The answer denies all the foregoing allegations. B. Sequence of events Early in April 1963 2 the Union began to organize the Respondents' employees and, by May 31, the Union's business representative, Caputo, had in his possession union authorization cards purportedly signed by 17 of the 29 employees working in Respondents' production department. (In addition, Respondents had 13 shipping employees.) Shortly before noon on that date, Respondents' general manager, Stewart, addressed the production employees, told them that due to a decline in business it was necessary to reduce the amount of overtime work, asked them if they had any grievances, and suggested that the employees select representatives to meet with Stewart and discuss their grievances. At the same time he made some reference, which will be discussed in more detail later, to the economic demands of "outside" unions and in that context adverted to the necessity of eliminating over- time work altogether and closing the plant within 120 days. After Stewart had left, it was agreed among the employees that five of their number 3 should meet with Stewart to discuss grievances, and such a meeting was held from 3 to 5 that after- noon. Discussion centered upon the employees' demand for a general wage increase, and various fringe benefits. After the meeting, Caputo called upon Stewart, and advised him that the Union represented a majority of the employees .4 Stewart as- 'The following typographical errors in the transcript are hereby ordered corrected as follows:, I . ' Page 120, lines 14 and 15, change "made" to "paid"; page 137, line 2, change "understood" to "misunderstood" ; •page 142, line 5, change "He" to "She"; page 174, line 2, change "GC-2" to "GC-3" '; •page 183,' dine 1, change "The Witness" to "Mr. Markham". , 2 All events hereinafter related occurred in 1963, unless otherwise stated. 3Hernandez, Vega, Mendez , Andujar, and Underwood. 4 The Union at that time assumed that there were only 29 employees in the appropriate unit. The significance' of this assumption will be discussed later. ' 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serted that he did not believe .this was the case, and rejected Caputo's request for recognition. Early in the morning of June 3 (the next workday), a petition was circulated among the production employees, which, in effect, established the Committee, naming four employees (Underwood, Mendez, Mesones, and Rivera) to negotiate with man- agement and renounced representation by any "other party." This petition was signed by all the employees. Stewart was admittedly present during the circulation and signing of the petition. It had been typed by Perez, who, in addition to her regular duties as a sales employee, performed miscellaneous chores for Stewart, in- cluding secretarial work, translating, and acting as liaison between him and the em- ployees. Subsequently, about 10 a.m. that day, the four members of the newly formed Committee met with Stewart and negotiated until late that evening. The resulting contract, introduced at the hearing, provides for recognition of the Com- mittee as the representative of "the shop," for an immediate 5-cent an hour wage in- crease, for insurance benefits, and for various other fringe benefits. On June 3, the Union filed a representation petition with the Board,5 a copy of which petition was received by Stewart on June 4. He promptly contacted a Board agent, who advised hun not to execute the committee contract, in view of the pendency of the Union's petition. While Stewart complied with this advice, he nevertheless placed in effect the changes in terms of employment provided for in the contract, including the general wage increase, and has since met with the Committee to discuss grievances. When, sometime later in June, Stewart attended a conference at the Board's office in connection with the Union's petition, he learned for the first time that the Re- spondents' shipping employees were entitled to be included in the unit which the Union was seeking to represents Shortly thereafter, Stewart, as he admitted, repeated to the shipping department the same remarks he had addressed to the other employees on May 31, concerning the danger of loss of overtime and shutdown of the plant, apprising them in addition of the existence of the Committee, and of their right to be represented thereon. He also discussed some of the employee benefits in the committee contract. McCall was thereupon elected as the representative of the shipping employees on the Committee. In the latter part of June, McCall prepared a petition, addressed to the Board, reading as follows: We, the undersigned, do not desire a union to represent us. We have con- stituted a committee of five of our own members to bargain with the company. Therefore we request of the National Labor Relations Board an immediate elec- tion among the personnel of our shop and shipping department to prove to the union that we do not want them in here. McCall circulated this petition among all the employees, obtaining their signa- tures thereon. C. Discussion 1. Threats In-his brief the General Counsel contends that Respondents violated Section 8(a) (1) of the Act by Stewart's references, in his various speeches to the employees, to the dire consequences of organization of the plant by the Union. Stewart admitted that in his speech on May 31 to the production employees he stated that there was a possibility that the Respondents would not be able to "accede" to the demands of an outside union and that Respondents therefore "probably would have to cut out all overtime down to 40 hours and there was a possibility we would have to close in approximately 120 days." He admitted also that he repeated these remarks in his subsequent speech to the shipping department. Perez, who was Stewart's "girl Friday" in his dealings with the employees, testified on direct examination that on May 31 Stewart said he believed that an outside union would make such "outrageous" demands that Respondents would probably have to eliminate overtime and close within about 120 days. Under cross-examination, she amended this ,testimony, stating that Stewart said "he was positive that the [outside] union would make such outrageous -demands",that the Respondents "would be in a bad spot financially, which would cause them to close down." According to Mesones, Stewart, in the context of a reference to the likelihood of excessive union demands, "promised" that, if a union came to represent the employees, he would close the plant within 120 days. 5,Case No. 2-RC-12784. No election has been held on this petition. The petition, itself, made no specific reference to the shipping employees. MILLER-CHARLES AND COMPANY 409 According to Underwood, Stewart said an outside union's demands would be so high that "probably the shop would have to close in 120 days." Mendez testified that Stewart said that he knew that a union had been "formed," adding that if its demands were excessive, he would be forced to close within 120 (or 180) days. According to Hernandez, Stewart's statement was that a union's demands might be excessive, and the shop might have to close within 120 days? With regard to Stewart's second speech, to the shipping department, after June 3, McCall attributes to Stewart the statement that Respondent would probably not be able to meet the Union's demands and would close within 120 days. Based on a synthesis of all the testimony on this point,8 I find that at least on May 31, Stewart told the production employees, in effect, that if they chose an out- side union to represent them, such a union would make excessive demands, which would force the Respondent to eliminate overtime and close its business within 120 days. It is thus clear that Stewart portrayed excessive demands as inevitable in the case of an outside union and depicted elimination of overtime and the closing of the plant "within 120 days" as the inexorable consequences of such inevitable demands. It is manifest that the foreseeable effect of Stewart's remarks was to implant in the minds of the employees a fear of total elimination of overtime and, eventually, loss of their jobs, if they adhered to an outside union. The Respondent contends that such remarks were nevertheless lawful as they were merely predictions of the eco- nomic consequences of unionization, and were devoid of "any threat that the employer would use his economic power to make the prediction come true." Re- spondents cite Board cases finding not to be coercive statements to the effect that, because of financial stringency or competitive conditions, the employer, if required to pay union wages or meet union demands, would have to curtail his operations or shut down entirely.9 However, the Board has also found apparently similar statements to be coercive.10 Thus, in the Haynes Stellite case, supra, the Board found to be coercive statements by an employer that customers had indicated that they would curtail their orders if the plant were unionized, because of the possibility of disruption of delivery schedules by strikes. The Board majority held that the foregoing statement, "although couched in the form of a prediction, contained a clear threat of loss of employment by the employees if they selected the Union." The majority opinion continues: The statements involved herein indicate that a loss of orders, and hence of jobs, would result merely by virtue of the employees' designation of the Union. . Further, we find . that the Respondent materially misrep- resented the facts when it stated that "some of [its] customers" would seek other sources of supply, whereas only one customer had so informed the Respondent . . . . Under these circumstances, we are convinced that the Respondent was making its constant references to the withdrawal of orders for the purpose of implanting in the employees a fear that a loss of jobs would inevitably follow a Union victory. 7 Underwood, Hernandez, and Mendez fixed the date of these remarks as June 3. How ever, as all the other witnesses on this point refer only to such a speech on May 31, it would seem that these three witnesses were either mistaken as to the date or that there were similar speeches on both dates. As it would not affect the result, I do not deem it necessary to resolve this point. 8I place principal reliance on the aforequoted version given by Perez under cross- examination. In view of her apparent alignment with management (she testified for the General Counsel under subpena), it seems unlikely that she would have colored her testi- mony to aid the General Counsel. Moreover, the fact that she was required to translate to the employees Stewart's May 31 remarks, necessitated that she give more careful atten- tion to their content than was true in the case of the other employee witnesses. She impressed me, in any event, as more alert and perceptive than such other witnesses. More- over, her testimony that Stewart referred to excessive union demands as a certainty, rather than a possibility, finds confirmation in Stewart's explanation at the hearing that, in view of the alleged financial plight of the Respondents, any union demands would be excessive. See footnote 11, below. 9 E g., Bilton Insulation, Inc., 129 NLRB 1296; Chicopee Manufacturing Corporation, 107 NLRB 106; Granwood Furniture Company, 129 NLRB 1465, 1471; Neco Electrical Products Corporation, 124 NLRB 481, 482. 10Lee-Rowan Manufacturing Company, 129 NLRB 980, 982, 988 (Jones-Kelly Incident) Surprenant Mfg. Co., 144 NLRB 507; Haynes Stellite Company, 136 NLRB 95, enforce- ment denied sub nom.; Union Carbide Corp., 310 F. 2d 844 (C.A. 6) ; Transport Clearings, Inc., 133 NLRB 607, enforcement denied 311 F. 2d 519 (C.A. 5). 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here, too, there is present, as'in Haynes, the factor of'a conscious overstatement or misrepresentation of the perils of unionization. Stewart could not reasonably have thought that, if an outside union made demands which Respondents could not afford to meet, their only recourse would be to yield to such demands and eventually go out of business. The other obvious and more realistic alternatives would be rejection of the Union's demands and an attempt through negotiations to arrive at an agreement that Respondents could live with, or, if the Union struck in support of its demands, the continued operation of the plant with replacements for the strikers. Moreover, as there is no credible evidence that Stewart knew what the demands of any outside union, much less the instant Union, would be when he made his May 31 speech,ii he could not have known whether or not they would in fact be excessive, much less the precise number of days that the Respondents could operate if they granted such demands. In addition to the element of misrepresentation or had faith, the instant case resembles Haynes Stellite in that there is here, as there, an attempt to impress the employees with the inevitability of the adverse consequences of unionization. This element in the case is especially significant as it suggests a basis for distinguishing Stewart's remarks from statements like those in Bilton Insulation, Inc., supra, which the Board has held to be privileged predictions. While Stewart's statement, like that of the respondent in the Bilton case, did not contain a threat to use Re- spondents' economic power to bring to pass the dire events to which he alluded, there was implicit in his remarks the threat, not present in the Bilton case, that Respondents would not use their economic power to avert such dire consequences. For, Stewart's remarks implied that the Respondents would offer no resistance to an outside union's demands, however excessive or unreasonable, but would accept them notwithstanding their foreknowledge that, as ,a result, they would have to close their plant within 120 days! Such an avowal by an employer that he will volun- tarily elect not to resist a union's economic pressures, which will certainly close his plant, seems essentially indistinguishable from a statement that he will react to unionization by voluntarily closing his plant. If, as is clear, the latter is un- lawful as a threat of reprisal, so, it would seem, is the former. Like the latter, the former is not a statement of action that may be forced on the employer by circumstances beyond his control or by irresistible economic pressures but of action that will result from the employer's relatively free choice. I find, accordingly, that Stewart's remarks to the production employees, and subsequently to the shipping -department, equating unionization with loss of over- time and of employment violated Section 8(a)(1) of the Act.12 2. The Committee The General Counsel contends that Respondents violated Section 8(a) (2) and (1) by initiating the organization of the Committee and contributing to its support, and by recognizing the Committee while a representation question was pending. It is clear that the organization of the Committee stemmed' from circumstances attending Stewart's speech on May 31. He testified that his only reason for ad- dressing the employees on that occasion was to explain that he had been forced by the decline in Respondents' business activity to reduce the amount of overtime work. However, he admitted that, after he had made this explanation, he invited the employees to designate a "representative group" or "committee" to discuss with him any grievances the employees might have. According to Mesones' uncon- tradicted testimony, which I credit, this suggestion was made after Stewart portrayed the dire consequences of representation by an "outside" union. As already related, pursuant to Stewart's suggestion, a group of five employees met with him later the same day and discussed for several hours various improvements in working condi- 11 In fact, he denied that he was at that time even aware of the Union' s organizational efforts At the hearing, Stewart attempted to explain his reference to excessive union demands by stating that "any demands at this time would be excessive due to the financial condition of the Company." However, it is undisputed that Stewart, as will appear be low, shortly after his May 31 speech, granted a general 5-cent an hour wage increase, as well as various fringe benefits and that Respondents in addition have since that date granted individual increases to about three-fourths of the employees. 12 See The J. S. Dillon & Sons Stores Co , Inc., 144 NLRB 1235, where the Board affirmed a finding that the respondent violated Section 8 (a) (1) of the Act by-telling part- time employees' that, if the plant was unionized, they could lose existing benefits because they would not be part of 'the bargaining unit, and the respondent would , lid. powerless to prevent this.. The Trial Examiner these stressed that the respondent "portrayed the loss of . . . benefits as an inevitable consequence of union representation. MILLER-CHARLES AND COMPANY 411 tions. According to Stewart, the meeting concluded with his promise to "work out" a contract with the group on June 3, provided he was satisfied that it represented a majority of the employees, and, after he repeated this promise to the employees on June 3, a petition was circulated and signed by them, establishing the Committee, and designating four of their number to serve thereon and negotiate further with Respondents. The Committee met with Stewart later the same day and completed the draft of a contract.13 Accordingly, on the basis of Stewart's own testimony, I find that the organization of the original employee group stemmed from his suggestion that the employees designate representatives to discuss their grievances with him and the Committee was merely a continuation of that group. Moreover, it is clear from Stewart's own testimony, as amplified by the testimony of Perez and Mesones, that the June 3 petition establishing the Committee, was signed by the employees in Stewart's presence,14 and after he had assured the employees that he would negotiate a contract with such a committee. It is clear also that, in his speech to the shipping employees, Stewart assisted the Committee to extend its jurisdiction, by his explanation to the shipping employees of the function of the Committee and the benefits granted in the Committee "con- tract," and of their right to be represented on the Committee, and by repeating at the same time his remarks equating representation by an outside union with the closing of the plant "within 120 days." Further assistance was rendered to the Committee by Stewart's recognition thereof on June 3 and thereafter, which recog- nition continued to the date of the hearing herein, and by the negotiation with the Committee of improvements in terms and conditions of employment, which improve- ments were promptly instituted by the Respondents. I find, therefore, that, by suggesting and encouraging representation of the em- ployees by a committee of employees, in preference to an outside union, and by recognizing, and negotiating with, the Committee, and granting concessions to the employees as a result of such negotiations, the Respondents violated Section 8(a) (2) and (1) of the Act.is The General Counsel contends that a further violation of Section 8(a) (2) and (1) of the Act, should be found here on -the basis of the Board's Midwest Piping rule,16 which precludes an employer from recognizing one union, in the face of a valid representation claim by a rival union, until the majority status of the first union has been established under the Board's procedures. Respondents answer that there was here no valid claim by the Union because it did not intend to represent the shipping department, thereby, rendering the unit sought by it inappropriate. General Counsel concedes the inappropriateness of a unit which did not include the shipping em- ployees, and that a claim for such a unit would render inapplicable the Midwest Piping rule, but he contends that the Union did not in fact intend to exclude from the unit the shipping employees. It is true that such exclusion is suggested by the fact that the Union assumed, when it claimed majority -representation on May 31, that there were only 29 employees in the unit. In fact, there were 29 production employees and 13 shipping employees. It is also true that the Union's petition in the representation case describes the unit as comprising Respondents' production and maintenance employees, and gives the number of such employees as 29. However, Caputo testified, in effect, that he did not intend to exclude from the unit any shipping 13 As already noted, this contract, although not signed by Stewart, was adopted by him and its terms placed in effect. 14 Moreover, on the basis of Hernandez' testimony, which he obviously gave with some reluctance, and which is corroborated by Mesones, I find that Stewart personally brought the petition to the employees on June 3 Such testimony was not specifically contradicted by Stewart. 16 Guard Services, Inc., 134 NLRB 1753 ; General Finishers Corporation , 133 NTLRB 999, 1010-1011 ; Air Control Products, Inc., 139 NLRB 607, 621-623 . -1 find also that other assistance furnished the Committee in the form of Perez' services in typing and editing the employee petitions, and the holding of the May 31 and June 3 meetings and other meetings, on company time or premises , constituted unlawful support. General Finishers Corporation, supra; Air Control Products, Inc., supra. Manuela Manufacturing Co., Inc., 143 NLRB 379, cited by Respondents, is distinguishable on its facts. It was there held that the respondent did not violate the Act by granting the use of company time and facilities to a committee initiated by the employees, themselves, and where there was not, as here, a context of opposition by the employer to outside unions. The General Counsel urges a finding that Stewart was the author of the June 3 petition. While the circumstances are suspicious , I find insufficient evidence in the record to over- come Stewart's denial of such authorship. 1e Midwest Piping & Supply Co., Inc., 63 NLRB 1060. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees that Respondents might have, and the Union's petition, while specifically excluding office clericals, guards, and supervisors, contains no express exclusion of shipping employees. Under the circumstances, the inference is warranted, if, indeed, it is not required, that the Union intended to include all Respondents' employees except those specifically excluded.17 I so find. I find further that the Union's claim raised a real question concerning representation, and that Respondents' recognition of the Committee on and after June 3, in the face of such claim, violated Section 8(a)(2) and (1) of the Act, under the rule of the Midwest Piping case.ls IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with' the operations of the Respondents described in section I, 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondents violated Section 8(a)(1) and (2), of the Act, it will be recommended that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondents, in violation of Section 8(a)(2) and (1) of the Act, gave unlawful assistance to the Committee by recognizing and contracting with it. Accordingly, it will be recommended that Respondents be ordered to with- draw and withhold all recognition from the Committee, and to cease giving effect to the agreement negotiated on June 3, 1963, and adopted by Respondents, unless and until the Committee is certified by the Board as the exclusive representative of Respondents' employees. However, Respondents will not be required to vary the terms and conditions of employment established pursuant to such agreement. CONCLUSIONS OF LAW 1. By threats of reprisal and offers of benefits designed to deter their employees from adhering to the Union, the Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, and have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 2. By interfering with the formation of, and contributing support to, the Com- mittee, recognizing it as the representative of their employees during the pendency of a question concerning representation, and negotiating with it concerning terms and conditions of employment, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (2) and (1) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and upon the foregoing findings of fact and conclusions of law, it is recommended that Respondents, Harold Miller, Herbert Charles and Milton Charles, Co-partners, d/b/a Miller-Charles and Company, Mineola, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with elimination of overtime work, closing of their plant, or other reprisals for concerted activities, and offering them benefits, to induce them to abandon such activities. (b) Recognizing the Employees Committee of Miller-Charles' as the exclusive representative of the Respondents' employees, unless and until said Committee is certified by the Board as such representative. (c) Giving any effect to the collective-bargaining contract negotiated on June 3 with said Committee and adopted by the Respondents, or to any extension, renewal, supplement, or modification thereof. 17 There was testimony, that at a conference concerning the representation petition, when the Respondent proposed inclusion of the shipping employees, the Union asked for a list of such employees. Such testimony obviously falls short of proof that the Union opposed their inclusion In the unit. 18 The J. S. Dillon & Sons Stores Co., Inc., 144 NLRB 1235. MILLER-CHARLES AND COMPANY 413 (d) Assisting or contributing support to the Employees Committee of Miller- Charles, or any other, labor organization of their employees, or interfering with the formation of such Committee or other labor organization. (e) In any like or related manner interfering with , restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Local 463, International Union of Electrical , Radio and Machine Workers, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities except to the extent that such right is affected by the provisos in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Employees Committee of Miller-Charles as the exclusive representative of Respondents ' employees for the prupose of dealing with the Respondents concerning grievances , wages, hours, or other conditions of work, unless and until said Committee is duly certified as such representative by the Board. (b) Post at their place of business in Mineola, New York, copies of the attached notice marked "Appendix." 19 Copies of said notice, to be furnished by the Regional Director for the Second Region , shall, after being duly signed by the Respondents' representative , be posted by the Respondents immediately upon receipt thereof, and be maintained by them for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondents have taken to comply herewith.ao 19 If this Recommended Order Is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." =° If this Recommended Order is adopted by the Board , this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten our employees with elimination of overtime , closing of our plant, or other reprisals if they select an outside union to represent them or offer them benefits to induce them to give up their union activities. WE WILL NOT assist or contribute support to, or interfere with the formation of, the Employees Committee of Miller-Charles, or to any other labor organiza- tion of our employees. WE WILL withdraw and withhold all recognition from the Employees Com- mittee of Miller-Charles as the representative of our employees for the purpose of dealing with us concerning grievances , wages, hours, or other conditions of work, unless and until said Committee is duly certified by the Board as such representative. WE WILL NOT give any effect to the contract negotiated by us on June 3, 1963, with the Employees Committee of Miller-Charles, or any renewal , extension, modification , or supplement thereof. WE WILL NOT in any like or related manner interfere with , restrain, or coerce, our employees in the exercise of their right to self-organization, to form, join, or assist Local 463, International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities for the purpose of collective-bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8 (a) (3) of the Act. HAROLD MILLER, HERBERT CHARLES AND MILTON CHARLES, CO-PARTNERS, D/B/A MILLER-CHARLES AND COMPANY, Employer. Dated------------------- By-------------- _---------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. Penn Central Containers, Inc. and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO. Case No. 4-CA-3108. March 20, 1964 DECISION AND ORDER On December 16, 1963, Trial Examiner Federick U. Reel issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices sand recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief, and the Gen- eral Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent herewith. The Trial Examiner found, land we agree, that by refusing on and after September 17, 1963, to bargain with the Union which was the certified representative of the Respondents employees, the Respond- ent violated Section 8 (a) (5) and (1) of the Act. The election upon which the Union's certification was based was held pursuant to a consent-election agreement. The Respondent contended, inter alia, that the consent-election agreement had been conditioned upon the Union agreeing to the eligibility list which it had submitted to the 146 NLRB No. 57.