Spun-Jee Corp.

SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 943, As the unfair labor practices committed by Respondent are of a type which strike at the very roots of employee rights safeguarded by the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. John F. Cuneo Company is engaged in commerce within the meaning of the Act. 3. By discriminating with respect to the hire and tenure of employees, thereby discouraging membership in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, thereby violat- ing Section 7 of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com-- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication ] Spun-Jee Corp. and The James Textile Corp. and Undergarment- and Negligee Workers Union, Local 62, International Ladies'- Garment Workers' Union, AFL-CIO. Case No. 2-CA-9590. May 26,1965 DECISION AND ORDER On June 3, 1964, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondents filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 the case, and finds merit in the exceptions of the General Counsel. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent consistent herewith.' The complaint herein states in substance that the Respondents Spun- Jee Corp. and The James Textile Corp., as a single employer, violated Section 8(a) (5) and (1) of the Act when, as members of the Allied 1 Member Jenkins concurs in the result 152 NLRB No. 96. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Underwear Association (hereinafter referred to as the Association). they unilaterally subcontracted and transferred their operations with- out affording the Union an opportunity to bargain concerning this action, and since July 1, 1963, have refused to comply with the terms of the Association's bargaining agreement. Respondents deny that they became bound by the Association's agreement, contending that they withdrew from the Association in a timely manner and further- more that the Union, by its conduct, acquiesced in the Respondents' withdrawal, thereby relieving the Respondents of any obligation to be bound by the Association's agreement. The Respondents also con- tend that they fulfilled their obligation to bargain when they bar- gained individually with the Union. The Trial Examiner upheld the Respondents' contentions. We do not agree. For a number of years, the Union and the Association have entered into successive collective-bargaining agreements. Since 1958, the Respondents' production, shipping, and warehousing employees have been represented as part of this multiemployer bargaining unit. In -larch 1963, the Association requested a 1-year extension of its then current agreement which was to expire on June 30. The Union refused the request and informed the Association that it had some demands which it wanted to incorporate in a new agreement. On April 29, at a meeting attended by the membership of the Association, including the Respondents' president, James Pillet, the Union presented an out- line list of changes it sought to include in the new agreement. On May 6 the Union again met with the Association's membership, includ- ing the Respondents, to explain its demands in detail. On May 10, Pillet made arrangements to meet May 17 with Union Business Manager Schoenwald. At this meeting, Pillet explained the Respondents' economic problems and requested a 1-year extension of the current contract without modifications. Sclioenwald told Pillet that he could not give him a special deal since bargaining had to be on an associationwide basis. Sehoenwald, however, did offer to aid the Respondents in meeting their problems by provicling technical engineering assistance; Pillet rejected the offer, stating that his back was to the wall and that without a 1-year extension the Respondents would have to give up their plant. Pillet also stated that if the Respondents remained in business they would have to subcontract the production work and move out of New York City. James Pillet, on his return from the meeting with Schoenwald, dis- cussed conditions with his brother, Davis Pillet, and together they decided to resign from the Association, subcontract the production work, and move the business. They immediately resigned from the Association by letter dated May 17. The Association in turn notified the Union of the Respondents' resignation in a letter dated May 20. SPUN-JEE CORP . & THE JAMES TEXTILE CORP. 945 In the meantime, on May 18, the Pillets contacted a realtor in order to find a place to which to move and notified Plant Manager Iorio of their plans, directing him to dismantle the plant. On May 27, Union Business Agent Shatnoff , who had been informed of Schoenwald's May 17 meeting with Pillet, visited the Respondents' plant and asked Plant Manager Iorio "what was wrong in the plant," to which Iorio replied "Business was slow." Shatnoff said , "Who is kidding who." During the last week in May and the first week of June, Iorio commenced dismantling the machines , on the pretense that the Company was considering automation. On June 10, after being informed by the employees that "things weren't right in the shop" and that the machines were being dismantled , Shatnoff asked Iorio if the Respondent was moving . Iorio said, "No." On June 18, in response to reports from employees that the Respondents were moving and going out of business, Shatnoff again visited the plant and met with Pillet who finally confirmed the reports that the Respondents were going out of business. On June 20 Schoenwald notified Pillet by letter that the Union intended to hold Respondents to the Association 's collective-bargain- ing agreement currently being negotiated . The Respondents did not reply but continued to phase out the production operations. By July 1 the equipment had been dismantled and only a few employees were still employed. On the afternoon of July 2, the few remaining em- ployees went out on strike. Later, on July 5, upon learning of the Respondents' new location in New Jersey, the Union began to picket that location. The first issue presented is whether Respondents effected a timely withdrawal from the Association and, if not, whether the Union by its conduct acquiesced in an untimely withdrawal , thus relieving the Respondents of their obligation to be bound by the contract subse- quently executed by the Association and the Union. A second issue presented is whether the Respondents fulfilled their obligation to notify the Union and bargain with it concerning their closing of the New York plant and removal of operations to a new location. The principles governing withdrawal from a multiemployer unit are not in dispute. Where an employer has entered into a multiem- ployer bargaining arrangement, he may withdraw therefrom only at an appropriate time, except where such withdrawal is with the consent, express or implied, of other interested parties. On the facts set forth above, we find that the Respondents' withdrawal , coming after the commencement of negotiations for a new association agreement, was untimely and ineffective. Furthermore, we are persuaded that the Union did not acquiesce in this untimely withdrawal. Thus when Pillet, on May 17 , after the Association had begun negotiations with 789-730-66-vol. 152-61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, requested a 1-year extension of the current association con- tract in its application to the Respondents, his request was met by Schoenwald's reply that the Union could not give the respondents , "special deal" and that bargaining would have to be on an association- wide basis. The Union did not thereafter engage in any conduct incon- sistent with that position. And when the Respondents subsequently disclosed that they were going out of business, the Union again notified them that it intended to hold them to the Association's contract then being negotiated. It is likewise apparent that the Respondents failed and refused to bargain with the Union concerning the shutdown and removal of their New York plant. At the meeting between Pillet and Schoenwalcl on May 17, the Respondents did not more than suggest the possibility of plant closing or removal, using this to buttress their advancement of reasons of economic hardship as the basis of their request for a year's extension of the terms of the existing contrast. After this meeting the Respondents did in fact decide to subcontract their production opera- tions and move the business. The Respondents, nevertheless, withheld from the Union for a period of a month information concerning their determination to close the New York plant, masking their intentions with pretense and denials. And the Respondents never informed the Union of their new business location, leaving that for the Union to discover through its own efforts, and offering no reason for their failure to disclose the new location other than that they did not want to make it "too easy" for the Union. Upon consideration of these facts in par- ticular, but on the basis also of the record as a whole, we are convinced that the Respondents failed to meet their good-faith bargaining obligation. We find, accordingly, upon the entire record, that the Respondents did not validly withdraw from the association unit and that Respond- ents, by refusing thereafter to accept and be bound by the results of bargaining between the Union and Association, violated Section 8(a) (5) and (1) of the Act. We also find that the Respondents, by failing to notify the Union and to bargain with it concerning the shutdown of their New York plant, the subcontracting of operations formerly per- formed by their production employees, and the removal of their opera- tions to a new location, have further violated Section 8 (a) (5) and (1).2 TILE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the pur- 2Ftbreboard Paper Products Corpoaation , 138 NLRB 550, enfd 379 U. S. 203. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 947 poses of the Act. In fashioning our affirmative order, we bear in mind that the remedy should be adapted to the situation that calls for redress,, with a view toward restoring the situation as nearly as possible to that which would have obtained but for the unfair labor practices. The nature of the violation night justify us in directing the Respondents to resume their New York operations, to sign or other- wise indicate in writing their adherence to the agreement covering the association unit, and to reinstate their terminated employees to employ- ment in the reestablished operations, making them whole for loss of pay until the offer of such reinstatement. However, we believe that our remedy should also be tempered by certain practical considerations. Having reviewed the nature of the Respondents' general business oper- ations, the record's indication of economic obstacles confronting the Respondents' enterprise, and the possible impracticability of any attempt to reinstitute the former operations, we are of the opinion that to require such reestablishment is not essential to the molding of a meaningful remedy suited to the needs of the situation before us. Effectuation of the purposes of the Act does require, however, that the Respondents undo the specific violations found by offering now to bargain with the Union about the resumption of the unilaterally sub- contracted and removed operations, and if these operations are not restored, about the effects on the employees of such discontinuance. Our Order will so provide .3 As Respondents' removed operation is presently functioning at Bergen, New Jersey, and as we are not requir- ing resumption of the Respondents' manufacturing operations in New York, we shall order that Respondents offer to all of its employees who were terminated as a result of Respondents' subcontracting and plant removal immediate and full reinstatement to their former or substan- tially equivalent, positions, if any such exist, at the Bergen, New Jersey, operation, and any resumed operations in the New York area, without prejudice to their seniority or other rights and privileges, discharging newly hired employees if necessary to make room for them. We shall also order that Respondents place the names of all remaining employ- ees for whom no work is immediately available upon a preferential hiring list and offer to the employees on such list employment as and when positions for which they are qualified become available. We shall further order that the Respondents make the terminated employees whole for any loss of pay they may have suffered as a result of the Respondents' unfair labor practices. The liability for such 3 As appears above, in fashioning a practical and meaningful remedy suited to the needs of the-situation, we will not order that the Respondents adhere to the Associa- tion's agreement or bargain in an associationwide unit We will, hos ever , in view of all the circumstances here present , order the Respondents to bargain with the Union in a unit comprising its own production , shipping, and warehouse employees which , we find, is also an appropriate unit. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD backpay shall cease upon the occurrence of any of the following con- ditions: (1) reaching mutual agreement with the Union relating to the subjects which the Respondents are herein required to bargain about; (2) bargaining to a bona fide impasse; (3) the failure of the Union to commence negotiations within 5 days of the receipt of the Respondents' notice of their desire to bargain with the Union; or (4) the failure of the Union to bargain thereafter in good faith. Respond- ents' liability for backpay as to any of said former employees shall also cease upon his reinstatement to the same or a substantially equivalent position at Respondents' present or any resumed operation. Backpay shall be based upon the earnings which the terminated employees would normally have received during the applicable period less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344; with interest thereon, Isis Plumbing and Pleating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Spun-Jee Corporation and The James Textile Corp., New York, New York, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Undergarment and Negligee Workers Union, Local 62, International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all their employees in the production, shipping, and warehousing depart- ments with respect to wages, hours, and other terms and conditions of employment. (b) Unilaterally subcontracting or discontinuing unit work, or relo- cating operations, or otherwise unilaterally changing the wages, hours, and other terms and conditions of employment of unit employees with- out prior bargaining with the above-named Union concerning such decision and the effects thereof. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 949 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Offer to, and, upon request, bargain collectively with, the Union concerning the resumption of their manufacturing operations and if no agreement is reached with respect thereto, bargain collectively with, the Union concerning the effects of the discontinuance of their manu- facturing operation on the employees in the above-described unit. (b) Offer all employees, in the manner and to the extent set forth in the section of the Board's decision entitled "The Remedy," who were terminated as a result of Respondents' unilateral subcontracting of unit work and relocation of operations, immediate and full reinstate- ment to their former or substantially equivalent positions, placing those not reached on a preferential hiring list, and offer employees on said list reemployment as and when positions for which they are qualified become available; and make all the aforementioned employees whole for any loss of earnings suffered by them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of back- pay due and the rights of reinstatement under the terms of this Order. (d) Post at its plant in North Bergen, New Jersey, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by an official representative of the Respondents, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. * In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals, Enforcing an Order". APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with Undergarment and Negligee Workers Union, Local 62, International Ladies' 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garment Workers' Union, AFL-CIO, as the exclusive representa- tive of all employees in the appropriate unit comprising all employees in the production, shipping, and warehousing depart- ments at our plant in North Bergen, New Jersey. TOTE WILL NOT unilaterally subcontract or discontinue our manu- facturing operations or otherwise make changes in the wages, hours, and other terms and conditions of employment for the employees in the appropriate unit without prior bargaining with the aforesaid Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations , to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection , as guaranteed in Sec- tion 7 of the Act, or to refrain from any or all such activities. IVE WILL, upon request, bargain collectively with the above- named Union as the exclusive representative of all employees in the aforesaid unit with respect to our decision to discontinue, sub- contract, and relocate manufacturing operations , and failing to reach agreement thereon, WE WILL bargain collectively as to the effects of said discontinuance. 1`7E WILL offer all employees in the manner and to the extent set forth in the section of the Board 's decision entitled "The Remedy," who were terminated as a result of Respondents ' subcontracting, discontinuance of unit work , and relocation of operations, imme- diate and full reinstatement to their former or substantially equiv- alent positions, establish a preferential hiring list, and offer all remaining employees reemployment as and when positions for Which they are qualified become available , and make all the afore- mentioned employees whole for any loss of earnings suffered by them. SPUN-JEE CORP. AND THE JA'[Es TEXTILE CORP., 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 concern- ing this notice or compliance with its provisions. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. TRIAL EXAMINER'S DECISION 951 STATEMENT OF THE CASE Upon a charge filed on August 8, 1963, by Undergarment and Negligee Workers Union, Local 62, International Ladies' Garment Workers' Union, AFL-CIO (herein sometimes called Charging Party or Union), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2 (New York, New York), issued a complaint dated December 30, 1963, against Spun-Jee Corp. and The James Textile Corp.1 The Respondent's answer as amended at the hearing admits many of the facts but denies that the Board has jurisdiction over Spun-Jee Corp. and denies the commission of unfair labor practices. The principal issues concern (1) whether James Textile and Spun-Jee constitute a single employer within the meaning of the Act, (2) whether Respondents have refused to bargain in good faith by untimely or ineffectual withdrawal from an estab- lished multiemployer association bargaining unit, and (3) whether Respondents have refused to bargain in good faith concerning the termination of Spun-Jee's production operations. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone at New York, New York, on February 3, 4, and 6, 1964. All parties were rep- resented at the hearing, participated therein, and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral argument, and to file briefs. Briefs were filed by the General Counsel and Respondents and have been considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS The facts concerning the business of the Employers are based upon admissions in the pleadings and a composite of the credited uncontradicted testimony of James Pillet (the president of both James Textile and Spun-Jee), and of the credited uncon- tradicted testimony of Jacob Rosenbaum and Matthew Schoenwald. James Textile is, and has been at all times material to this proceeding, a corporation duly organized under, and existing by virtue of the laws of the State of New York. At all times material herein up and,to about July 2 ,1963, James Textile maintained its office and place of business at 555 Broadway, New York City, and thereafter it has maintained its office and place of business at 900 74th Street, North Bergen, New Jersey, where James Textile was and is engaged in the sale and distribution at whole- sale of women's polo shirts, knitted sportswear, and related products. James Textile during fiscal year 1963 manufactured, sold, and distributed products valued in excess of $500,000, of which sales in excess of $50,000 were made to whole- salers of chainstores outside of the State of New York from its New York plant. James Textile, during fiscal year 1963, made gross purchases of materials shipped to its New York plant from outside the State of New York valued in excess of $50,000. Spun-Jee and James Textile until at least July 2, 1963, had common officers, owner- ship, and directors. The record does not reveal exactly when Spun-Jee came into being. Nor does the record reveal exactly when Spun-Jee ceased existing. However, on February 11, 1955, James Textile, by letter, notified the Allied Undergarment Association that "We are employing the operators at our other location at 38 West 21st St., under the name of Spun-Jee Corp " On February 18, 1958, James Textile, by letter, advised the executive director of the Allied Undergarment Association in effect that Spun-Jee, for over a year, had taken over James Textile's entire manufactur- ing operations. James Pellet's credited testimony reveals the following: (1) James Textile pur- chased all the materials used by Spun-Jee; (2) substantially all of Spun-Jee's produc- tion (90 percent of Spun-Jee's total production) was for James Textile; (3) 100 per- cent of the sales of James Textile was of goods made by Spun-Jee; (4) the compen- sation for Spun-Jee's services was arrived at by allowing a percentage of cost over the actual outlay of labor to cover such expenses as taxes, vacation, health funds, and other expenses that Spun-Jee incurred in managing a plant; (5) James Textile leased and paid for the lease rent of premises used by Spun-Jee and was reimbursed by Spun-Jee Corp. for the said lease rent; (6) the premises were leased for a period of time expiring in 1965 or 1966, but was canceled in September 1963 by the landlord (not named); and (7) the compensation arrangements for Spun-Jee was set up as a 'Sometimes referred to herein for brevity as James Textile and Spun-Jee. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cost controlling factor, and if estimates of costs were correct, Spun-Jee was supposed to make a slight profit and in recent years Spun-Jee "wavered at about the break-even point" as regards its operation. James Pillet credibly testified to the effect that James Textile purchased fabric, had Spun-Jee to cut, sew, and ship the product, and that James Textile handled the selling and the financing; that both James Textile and Spun-Jee utilized the same premises; that the operations were so interrelated that James Pillet was not sure whether clerical employees of James Textile were carried on the James Textile Corp. payroll or on Spun-Jee payroll; that there was one office manager for both Spun-Jee and for James Textile; that there was one central switchboard (telephone) for both concerns and there was one telephone number; that James Pillett was president of both James Tex- tile and Spun-Jee and Davis Pillet was an officer in both concerns; that James Pillet was not familiar with the titles in the interrelated companies and was not sure of his sister's status in them; that James Pillet and others exercised hiring authority for the two companies; that James Pillet handled labor relations for Spun-Jee; that the plant manager for Spun-Jee was on the James Textile payroll; that many of Spun-Jee's day-by-day operations, including certain grievances, were handled by the plant man- ager; and that hiring at James Textile was by James Pillet, Davis Pillet, or his sister, Francis Glantz. Considering all of the foregoing, it is found that James Textile and Spun-Jee con- stitute a completely and closely integrated operation and are in effect one enterprise within the meaning of the National Labor Relations Act. I so conclude and find that The James Textile Corp. and Spun-Jee Corp., the Respondents, constitute a single employer within the meaning of Section 2(2) of the National Labor Relations Act? I further find that Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings establish and I find that Undergarment and Negligee Workers Union, Local 62, International Ladies' Garment Workers Union, AFL-CIO, constitutes a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The employer association The pleadings establish and I find that Allied Underwear Association, Inc., herein called the Association, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York, with its office located at 1450 Broadway, New York, New York. The pleadings establish that at all times material herein the Association has been composed of member-employers engaged in the garment industry, and has acted as agent and on behalf of said members in negotiating and entering into collective-bar- gaining agreements with labor organizations, including the Union, with respect to the wages, hours, and other terms and conditions of employment of the production, ship- ping, and warehousing employees of the Association. B. The Union's representative status Upon the undenied allegations of the complaint, I find that at all times material herein the Union has been the representative of the employees of the employer- members of the Association for the purpose of collective bargaining with respect to their wages, hours, and other terms and conditions of employment. In connection with the finding herein of a single-employer status within the mean- ing of the Act (James Textile and Spun-Jee-see section I. The business of Employ- ers) and upon Respondents' admission as to Spun-Jee, and upon the uncontradicted credited testimony of Shatnoff and Matrullo, it is found that from 1955, and at all times material herein up and to July 2, 1963, the Union has been the representative of Respondents' production, shipping, and warehousing employees at Respondents' New York plant for the purpose of collective bargaining with respect to their wages, hours, and other terms and conditions of employment. In connection with the findings herein that Respondents constitute a single employer within the meaning of the Act and upon Respondents' admissions as to Spun-Jee Corp., and upon a composite of the credited uncontradicted testimony of Rosenbaum, a Respondents' actions on May IT, 1963, and thereafter, when considered with the facts set out herein, further reveal such single-employer status. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 953 Schoenwald, and James Pillet, it is found that the Respondents, since 1955 and up to June 30, 1963, have recognized the Union as the collective-bargaining agent of their production, shipping, and warehousing employees at Respondents' New York plant, and have maintained successive collective-bargaming agreements with the Union covering the wages, hours, and other terms and conditions of employment of said employees, the most recent of which expired on or about June 30, 1963. C. Past bargaining practice A composite of the credited uncontradicted testimony of Jacob P. Rosenbaum (executive director and counsel of the Association) and Matthew Schoenwald (man- ager and chief negotiator of the Union) reveals that it was the practice for the Asso- ciation and the Union to commence negotiations with relatively large representation of employer-members of the Association and for several sessions to discuss proposals generally, and that thereafter the negotiations were conducted with a smaller commit- tee for the Association. After terms of a contract had been agreed upon, the terms were submitted to the membership of the Union and to the employers of the Associa- tion for ratification. After ratification the Union and the Association would execute the agreed contract. In the past the Union had submitted to the Association forms entitled "Certificate of Authorization and Assumption" for submission by the Asso- ciation to employer-members. Some of the employer-members executed the same and some did not. Rosenbaum's and Schoenwald's testimony was to the effect that the execution of such certificates did not affect the validity of the contract or of membership in the Association. I am convinced that the certificates were merely a convenient form utilized by the Union as admission of employer responsibility. Contrary to Respond- ents' contentions, I do not see that the execution or lack of execution, in and of itself, would be meaningful as to the critical issues involved herein. Economic Factor-Background A composite of the credited uncontradicted testimony of James Pillet and James Iorio reveals that the Respondents had been concerned over their economic position prior to March 20, 1963, and had discussed among management dissatisfaction with the current operation and a desire to have a plant out of town. The 1963 Association Bargaining and Related Matter On March 20, 1963, Jacob P. Rosenbaum, for the Association (including Respond- ents as members), wrote and sent a letter to the Union in which the Association requested an extension of the current contract for 1 year beyond the June 30, 1963, expiration date of the current contract. In this letter the Association iterated the economic plight of the industry. On March 28, 1963, Schoenwald, business manager for the Union. wrote and sent to the Association a reply to the Association's March 20, 1963, letter. The Union's letter in effect rejected the Association's request for a 1-year extension of the current contract and set forth that the Union desired to modify the terms of the current agreement. On April 29, 1963, the Union and the Association met for the first bargaining session on a new contract. At this time and up to May 10, 1963, James Pillet was a member of the Association's bargaining committee. At the first (April 29, 1963) and second (May 6, 1963) bargaining sessions the Association put on a "show of force" and had representation from many of its employer-members. Jacob P. Rosenbaum and Schoenwald credibly testified to the effect that at the bargaining meetings of April 29 and May 6, 1963, discussions were on a preliminary basis and concerned the Union's demands for modifications, including added wage costs. James Pillet attended both the April 29 and the May 6, 1963, bargaining sessions. On May 10, 1963, James Pillet wrote the Association, on Spun-Jee stationary, that "I wish to advise that I find it necessary to resign from the negotiating committee as of this date." Union Business Manager Schoenwald credibly testified to the effect that either on May 10 or 13, 1963, Respondents' President James Pillet called him and made arrangements for a meeting between Pillet and Schoenwald on May 17, 1963. On May 14, 1963, the Union and the Association met for a further bargaining session. At this session the Association had a reduced-in-size bargaining committee. Neither James Pillet nor any other representative of Respondents participated in any association bargaining session with the Union after May 6 ,1963. The Union and the Association had a further bargaining session on May 20, 1963. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 17, 1963, James Pillet met Matthew Schoenwald at the latter's office- Pillet and Schoenwald commenced discussion of certain economic business prob- lems of the Respondents. The discussion was interrupted briefly by Pillet and Schoenwald leaving the office and going to a restaurant where the discussion was resumed. Pillet told Schoenwald of the economic problems facing his company and of the need for a 1-year forbearance or extension of the current contract terms. Schoenwald told Pillet that he could not give him a special deal, that the bargaining would have to be association bargaining, and that the contract would have to be the standard contract. Schoenwald offered technical engineering assistance which was rejected by Pillet who stated in effect that he had such engineering knowledge. There was dis- cussion of New York City taxation, the laying off of employees not needed, the reduction of space needed, and a means of saving association dues.3 At the point in the conversation when Schoenwald told Pillet that he could not have an extension of the contract for 1 year at current rates, Pillet told Schoenwald that his back was to the wall and that he could not continue, that the Respondents would have to terminate at the end of the current contract, that the Respondents, would have to give up the New York plant and go into contracting if they were to remain in business, and that because of New York City taxes that they would have to get out of New York City. In general the James Pillet-Schoenwald May 17 discussion is not in dispute. There is, however, critical dispute as to certain points. James Pillet's version of the discus- sion was more complete on direct examination than was Schoenwald's version. Considering James Pillet's testimony on direct and cross-examination as compared to Schoenwald's testimony, I find Pillet's version to be more reliable. Schoenwald's testimony on direct examination was much less complete than Pillet's. However, Schoenwald's testimony on cross-examination reveals that there is no issue as to much of Pillet's testimony. I have carefully considered the contentions of both the General Counsel and the Respondent pertaining to the credibility of James Pillet and Matthew Schoenwald. I do not find that James Pillet's answers, as related to the questions asked, reveal that he was attempting to hide the fact that he was on the negotiating committee. Nor do I find that the fact that Davis Pillet and James Iorio were advised to "don't let it get around" reveals an inconsistency with James Pillet's testimony to the effect that he had told Schoenwald he planned to move, and that James Pillet advised Davis Pillet and Iorio to that effect. Rather I am convinced that James Pillet told Schoenwald that he planned to move and that he desired to keep further actions in secret to avoid economic and other retribution by the Union. James Pillet as a witness impressed me as a person who was telling the truth as to much that he was testifying to. However, James Pillet impressed me as a witness prone to exaggerate or confuse argument and undisclosed rationalization with the facts, and to add what might appear to be critical detail where he believed it to be important. In this regard his testimony that he did not intend to resign from the Association when talking to Schoenwald as compared to a statement in his pretrial affidavit that he intended to resign at this occasion is revealing. I did not and do not believe his testimony to the effect that he discussed severance pay problems connected with termination of production workers as envisioned to occur when the Respondents changed its operations. Union Business Manager Matthew Schoenwald's testimony was relatively consistent. Schoenwald, however, impressed me as a witness who was reluctant to give details and who wanted to avoid mentioning subcontracting or con- tracting. Schoenwald testified, on cross-examination, however, that James Pillet had said that he wanted an extension of the contract for 1 year and that then he (James Pillet) could decide whether to retain the factory or get out of business and contract out. Schoenwald, while Shatnoff was testifying as a witness, was observed by me making motions with his hand. I have carefully considered the meaning of such motioning by Schoenwald. I am now convinced that such motions by the hands were not unintentional. I am further convinced that such motions were made in an attempt to warn the witness concerning areas of vital testimony. Considering all the foregoing and Schoenwald's demeanor as a witness, I am convinced that he, like James Pillet, was prone to present the version of facts supposedly favorable to his cause. As indicated in the version of the facts credited, I find James Pillet's testimony more credible as to the statements referring to what he (James Pillet) said concern- ing the necessity for contracting because of the failure to get a contract extention. 3 Dues paid to the Association by Respondent. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 955 After the May 17, 1963, meeting with Schoenwald , James Pillet wrote the Associa- tion on Spun-Jee stationary, setting forth "We are resigning as a member of the Allied Underwear Association to take effect as of May 17, 1963. We are also revoking any authorization which you might have had to act in our behalf as a bar- gaining agent with any Local of the I.L.G.W.U." The record is not clear whether this letter was received before or after the association -union bargaining session on May 20, 1963. On May 20, 1963 , the Association by Jacob P. Rosenbaum , sent a letter to the Union notifying that Spun -Jee had resigned as a member of the Association effective as of May 17, 1963. This association letter was received either on May 21 or 22, 1963. At no time after receipt of this May 20, 1963 , association letter and to Au- gust 5, 1963 , when the parties (Association and the Union ) executed a new contract, did the Union ever protest to the Association that Spun-Jee was or should be consid- ered a member of the Association as regards the new contract. James Pillet returned from his meeting with Schoenwald around 4 p .m. on May 17, 1963, and discussed with his brother ( Davis Pillet ) what had transpired between himself and Schoenwald . James and Davis decided that in order to avoid the increased costs of an association-union contract that they would have to move their business and subcontract the production work. They commenced looking for a place to move to. On May 18, James Pillet contacted a realtor by telephone and met a representative of the realtor on May 19. There were ensuing meetings with the realtor, checking of the sites , and negotiations culminating in the execution of a lease on June 14, 1963 , for the new site in New Jersey. In the meantime , on May 18, 1963, the Pillets notified Plant Manager James Iorio of their plans , invited him to go with them to inspect the prospective sites, and cautioned him not to tell anyone what was going on .4 During the week following May 17, 1963, James Pillet directed Plant Manager Iorio to make plans to terminate production in the New York plant and to dismantle the plant. Plant Manager Iorio commenced implementation of the Respondents' directions . This resulted to a degree in less work for the employees during this week. Commencing in April 1963 , however, because of economic reasons, the Respondent had been laying off some employees. On May 27 , 1963, Union Business Agent Shatnoff , who had been advised by Schoenwald of the May 17, 1963, conversation between James Pillet and Schoenwald and who had been directed by Schoenwald to check into the situation at Respondents' plant, visited Respondents' New York plant. Shatnoff saw Plant Manager Iorio and asked him what was the matter at the plant. Iorio told Shatnoff that business was slow. Shatnoff asked Iorio, "Who is kidding who?" The Respondents during the last week of May and first week of June 1963 com- menced dismantling machines . Union Chairlady Matrullo asked Plant Manager Iorio about the dismantling of the machines and was told that the Company was considering automation . During this period of time Matrullo reported the dis- mantling of machines to Shatnoff. Some of Respondent's employees sought out Shatnoff on June 5, 1963 , and com- plained that things were not "right" in the shop. Shatnoff told the employees that he would let them know when he had official information . Shatnoff again saw Plant Manager Iorio on June 10, 1963, and asked Iorio if Respondents were moving. Iorio told Shatnoff that Respondents were not moving.5 Around the middle of June 1963 both James Pillet and Plant Manager Iorio told Chairlady Matrullo that the plant was moving to New Jersey and told her the new address. Matrullo reported the above conversation to Shatnoff.s 4I am convinced from Davis Pillet's credited testimony relating to the reason that the Respondents did not give specific details to Union Business Agent Shatnoff, that Re- spondents desired to keep actual specifics from the Union in order to avoid retribution by the Union 5 James Pillet and Davis Pillet both testified in effect that they talked to Shatnoff on May 29, 1963, and that James Pillet discussed his conversation with Schoenwald with Shatnoff and that he told Shatnoff that be would have to cut out the plant, move, and subcontract the work Considering the questions asked the Pillets as to this matter, the demeanor of the witnesses while answering and especially the hesitancy and unsure- ness of James Pillet in his testimony, as compared to Shatnoff's demeanor while testifying in denial of a conversation on May 27, 1963, with the Pillets, I find Shatnoff's denial of a conversation with the Pillets on May 27, 1963, more credible and so credit 5 Shatnoff testified confusedly to the effect that be told Matrullo about the moving and that she told him she had heard it also. I find and credit that Matrullo had pre- viously told Shatnoff of the moving. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 18, 1963 , Union Business Agent Shatnoff visited Respondents ' plant to ascertain what was happening to the shop and whether the shop would remain in business. What occurred is revealed by the following excerpts from Shatnoff's credited testimony.? Well, I came in to Mr. Pillet's office and I said, "Jimmy, there is a lot of rumors going on. What is happening? Are you really moving? Are you giving up? I would like to get it from the top." And we sat down and had a conversation. And Mr. James Pillet told me that Spun-Jee is going out of business and I said to him, "Are they going out of business?" And he said, "Yes." I told Mr. Pillet-I amend that. I asked him, did he receive a letter from Mr. Schoenwald and the Union that he would be in violation of the agreement if he did not continue with the factory and we went on into this topic and I said to him, there have been other rulings where people have left New York City and go out of town, and he answered me that he has consulted different people, that he is within his rights to do what he intends to do. Q. What did he state he intended to do? A. He intended to go into contracting. To give up. Spun-Jee is going out of business. Under the name of James Textile. And I told him, under the agreement and the letter, which I thought he had already received-I subse- quently found out that it had come a day or two later of my visit-that he would be bound by the agreement. I asked him point blank, "Are you moving, Jimmy?" And he said, "I will let you know." On June 20, 1963, Schoenwald, for the Union, sent to James Pillet as president of Spun-Jee, a letter which in effect notified Spun-Jee that the Union contended that Spun-lee's resignation from the Association was untimely and that the Union intended to hold Spun-Jee liable for the terms of the new collective-bargaining agreement (association-union agreement). The Respondents made no reply to the above-referred to union letter but continued to phase out its operation. On June 28, 1963, there remained a slight amount of work to do at Respondents' New York plant. In the meantime most of Respondents' employees had been terminated and most of the equipment dismantled and moved. A few employees worked on July 1 and 2, 1963. Toward the end of July 2, 1963, apparently the remaining employees who were union adherents were called out on strike at the Respondents' plant and commenced striking the Respondents. Appar- ently at some time about this time the New York operations of the Respondents ceased and Respondents' operations in New Jersey commenced. The Union also, apparently, commenced picketing at the New Jersey site around July 5, 1963, or shortly thereafter. On July 5, 1963, Business Agent Shatnoff located the New Jersey site of Respondents and spoke to James Pillet. Shatnoff asked Pillet why the Union had not been informed of the new location. James Pillet informed Shatnoff that he had not wanted to make it easy for the Union.8 As best as can be established from admissions in Respondents' pleadings, from the Pillets' statements of their intentions as to operations, and from lack of evidence otherwise, the Respondents, since sometime around July 5, 1963, have continued an operation at its New Jersey site which substantially corresponds with that aspect of 7 James Pillet did not testify In detail to this event. James Pillet did testify that he told Shatnoff that Respondents were moving and that It was to New Jersey, but he did not say specifically where in New Jersey. Davis Pillet testified to the event in terms of "we" said. The main difference in Davis Pillet 's testimony and Shatnoff's testimony is that Davis Pillet's testimony was to the effect that the Pillets told Shatnoff that they were moving and did not want to tell him where because the Union had warned them (Pillets) that they were strong, powerful and rich, that they did not want to give any extra help In hurting the Pillets. Considering James Pillet's, Davis Pillet's, and Shatnoff's demeanor as witnesses , the type of questions asked , and the answers thereto, I find Shatnoff's version of what was said on June 18, 1963 , more credible and so credit. I do not credit Davis Pillet's testimony in conflict with the facts found herein. e In view of the total evidence I do not find that such remarks reveal other than a realization or belief that the Union would fight the Respondents' move by economic means such as picketing or boycotts, etc. SPUN-JEE CORP. & THE JAMES TEXTILE CORP. 957 its buying and selling operation at its old site. From James Pillet's testimony of what he told Schoenwald, it can be gathered that his new operation has at least a few cutters, a few shipping clerks, and a designer, and that the bulk of the former work described as production work is performed by subcontractors. James Pillet's uncontradicted credited testimony reveals that at the new location there are approximately three employees who worked at the New York location and three other employees.9 Pillet also testified to the effect that at some undated time since July 1963 that Spun-Jee Corp. has been liquidated. Analysis and Conclusion The General Counsel's theory as set forth in his complaint, and as generally stated by him, appears to be that the Respondents' actions were not for devious reasons, but were in furtherance of economic reasons. In essence it appears that the General Counsel contends that the Respondents did not timely or effectively withdraw from the multiemployer bargaining association and that therefore Respondent is a party to the collective-bargaining contract executed by the Association and the Union 1° The General Counsel further contends that the Respondents did not offer the Union an opportunity to bargain over subcontracting and removal of operations to North Bergen, New Jersey, and thus has refused to bargain with the Union. Preliminary It appears that on May 17, 1963, that Respondents through James Pillet did engage in individual bargaining while a member of the Association. Individual bargaining while being a member of a bargaining association would appear to constitute a viola- tion of Section 8(a)(1) and (5) of the Act. However, since not alleged and since the case was not litigated on this contention, and since I find under the circumstances of this case that it would serve no useful purpose to find a violation in this respect, or to remedy such a violation, I make no findings in this regard. The General Counsel through witness Matrullo (union chairlady) adduced evi- dence on direct examination to the effect that selection of employees for employment at the new location was on a discriminatory basis to prevent the employment of union adherents. On cross-examination Matrullo testified as is revealed by the following excerpts from her testimony. Q. You said that you had some talk with Mr. Pillet on a picket line about your coming back to work. Didn't he say to you that if the Union would let you come back to work, you could come to work? Didn't he- A. If the Union would let me come back to work. Q. Didn't he ask the Union to let you come back to work? A. He didn't ask me that. He said, "Marie, your job is there." I answered him, I said, "Jimmy, if you unionize me and you get together with the Union, I will come back to work but otherwise I will not cross the picket line." Q In other words, until the picket line is removed, you wouldn't go back to work? A. No. Q. You mean yes, you would not? A. I wouldn't go back to work. Considering the pleadings and statements of position, I do not evaluate or credit the foregoing evidence as revealing discriminatory motivation in the selection of employees for the new operation. The General Counsel also adduced through witness Louis Fiering's testimony to the effect that Davis Piliet told him in June, before his layoff, that the Respondent would like him to go to work for Respondent in New Jersey but only if he discon- tinued the Union and went on the payroll in New Jersey as a nonunion member. The General Counsel does not contend that the selection of employees was on a discrimi- natory basis. Thus, under his own theory, he does not appear to advocate the credit- ing as facts of the above testimony. Considering the record as a whole, I do not credit such testimony of the witness but I am convinced that he, like Matrullo, has confusedly interpreted something else that was said. 9 Such evidence does not establish that the Union now represents a majority of the Respondents ' production employees. 10 The Association and the Union agreed to contract terms on July 1 , 1963, and finally executed the same, after ratification on August 9, 1963, as best appears from the record. The Union did not specifically request the Association to have Respondents execute a document of authorization and assumption and the Association did not so request. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Effective Withdrawal from the Multiemployer Bargaining Association The General Counsel in his brief relies heavily upon the Board's reasoning and guidelines in Retail Associates, Inc., 120 NLRB 388, as support for his contention that Respondents' withdrawal from the multiemployer bargaining association on May 17, 1963, was ineffective. I am familiar with the contention raised by Respond- ents that Retail Associates, Inc., supra, has no value as authority by virtue of the fact that the Board later vacated its order in the same case. I do not find that the Board's limited modification of its order removes the value of the Decision.ll The Board's expressed reasoning and guidelines in that case appears to me to be very logical and persuasive. Nor do I find that the Board has abandoned such reasoning or logical adherence to such guidelines in later cases. Rather I find that the Board, in proper cases, has construed the term "unusual circumstances." Thus I am convinced that the Board does apply in multiemployer association cases the guidelines set forth in Retail Associates, Inc., supra, as follows "where actual bargaining negotiations based on the existing multiemployer unit have begun, we would not permit, except on mutual consent an abandonment of the unit upon which each side has committed itself to the other, absent unusual circumstances " Without reiterating the facts previously set out, the critical fact in the instant case is that the Association bargained with the Union for approximately 1 month and 10 days after May 20, 1963, with the Association proceeding on the basis that Respond- ents were not members of the Association and without concern as to the problems connected with Respondents and its employees, and without protest by the Union to the Association as to Respondents' status. Under such circumstances I find that the Union's failure to protest to the Association amounted to acquiescence to the Associa- tion as to Respondents' withdrawal from the Association,12 and thus that the Respondents effectively withdrew from the Association. Under the facts of this case, I find that Respondents have not refused to bargain with the Union (in violation of Section 8(a) (1) and (5) of the Act) by their conduct in relation to the association- union bargaining and contract.13 The Opportunity to Bargain over Subcontracting and Removal of Operations to New Jersey The General Counsel contends that as to subcontracting and moving operations that the Union must have an opportunity to be heard before the final decision is made by Respondent. He cites Town & Country Manufacturing Company, Inc, et al, 136 NLRB 1022, in support of his contentions Again, without reiterating the facts set out in this Decision, Pillet, on May 17, 1963, clearly revealed to Schoenwald of the Union that Respondent was considering the possibility of subcontracting and moving and that Respondent was willing to discuss the problems. I am convinced that when the Union learned on May 21 or 22 that Respondents had withdrawn from the bar- gaining association, that the Union knew the Respondents were considering subcon- tracting and moving operations, and that Respondents would discuss such possibili- ties.14 Under such circumstances the facts do not reveal that the Respondents precluded the Union from negotiations or discussions as to the subcontracting or moving, and the Union in effect had sufficient notice of the same.15 Accordingly, I find that the evidence does not reveal that Respondents violated Section 8(a)(1) or (5) of the Act by its decision and implementation of subcontracting and moving of its operations. 11 On December 5, 1958 , the Board vacated its Decision and Direction of Election insofar as they held that the appropriate bargaining unit was a multiemployer unit 11 No reason was advanced at the hearing for such failure to protest. The Union may very well have thought that the injection of Respondents ' problems into association bar- gaining would have complicated or weakened the Union 's overall bargaining posture and that the Union' s best position was to follow the course it did , and later to attempt to compel the Respondents to accept the association-union contract. ' ' Although the complaint does not allege "appropriate units " as such , and although evidence as to unit description , etc , was not adduced except as set forth in the contracts, there appears no real issue as to the appropriateness of association and or single -employee unit subject to the question of effective withdrawal from the Association '} My findings and conclusions in this respect would he the same even it I accepted Schoenwald's version of the May 17, 1963 , Pillet-Schoenwald conversation 15 See Afotoresearc ]i Company and Kenis Corporation, 138 NLRB 1490 WGOK, INC. 959. CONCLUSIONS OF LAW 1.. Respondents constitute a single employer which is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. It has not been established by a preponderance of the evidence that Respondents ,engaged in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act,as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the complaint herein be dismissed in its entirety. WGOK, Inc. and Carl F. Bouler and William Langley WGOK, Inc. and Radio Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL- CIO. Cases Nos. 15-CA-9299(l), 15-CA-2099(2), and 15-CA- .2357. May 27, 1965 DECISION AND ORDER On June 25, 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, 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, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. '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 Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as herein modified. We find merit in Respondent's exception to the finding of the Trial Examiner that Respondent, in violation of Section 8(a) (5) and (1) of the Act, unilaterally changed the working conditions of employee Nations after the Union had become the collective-bargaining repre- sentative of the technical employees of station WGOK. In doing so ,we find, contrary to the assertion of the Respondent, that the complaint is sufficient to establish the matter as an issue in these proceedings. 152 NLRB No. 1104.