Purolator Products, Inc.

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor or- ganizations, to join or assist Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or of any other labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to re- frain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become , remain, or refrain from becoming or re- maining members of any labor organization. RIVER TOGS, INC., 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn , New York 11201 , Telephone 596-5386. Purolator Products, Inc. (Van Nuys Plant ) and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America , AFL-CIO Purolator Products, Inc. and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO and Independent Employees Association of Purolator Products, Inc., Party in Interest. Ca.se.e 31-CA-10 (for?nerZy f1-CA1-5698) and 20 (formerly 91-C21-0108). Ady 5, 1966 DECISION, ORDER, AND DIRECTION OF ELECTION On May 6, 1965, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. The National Labor Relations 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 entire record in these cases, including the Trial Exam- iner's Decision, and the exceptions thereto, and hereby adopts the 160 NLRB No. 9. PUROLATOR PRODUCTS, INC. 81 findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions. 1. We adopt the Trial Examiner's findings, conclusions, and rec- 'ommendations respecting the issues raised by the Section 8(a) (2) allegations of the complaint.,, 2. We adopt, for the reasons stated by the Trial Examiner, the finding that at all times since January 1964, Respondent violated Section 8(a) (5) and (1) of the Act by its failure and refusal to bar- gain in good faith with the Union concerning terms and conditions ,of employment of its Van Nuys employees. The record contains ample evidence to support the Trial Examiner's findings and conclusions in this regard, as well as his additional conclusion that Respondent's entire course of conduct, including its recognition of the Association as the collective-bargaining representative of its Newbury Park employees, was an attempt to "freeze out" the Union at its Newbury Park plant. We note, in addition, that Respondent's failure to bar- gain in good faith at Van Nuys prevented meaningful bargaining over the effects on its Van Nuys' employees of its decision to close down that operation.2 3. For reasons stated by the Trial Examiner, we find that Respond- ent violated Section 8(a) (5) of the Act by unilaterally changing existing seniority policies in order to lay off Tibor Lonyai out of seniority. We also adopt the Trial Examiner's findings that employ- ees Edward Zaloom; Josephine Zaloom, Fred Deutsch, Irene Dupont, and Frank Tillotson were denied employment at Newbury Park for discriminatory reasons, in violation of Section 8(a) (3) and (1) of the Act. 'For reasons indicated below, we do not adopt the Trial Examiner's finding that the August 4, 1964 , contract between the Respondent and the Association was negotiated at a time when the Union was the majority representative of Respondent's Newbury Park em- ployees. Further, in view of the fact that the appropriate remedy for Respondent's 8(a) (2) violations requires an order requiring Respondent to withdraw and withhold recognition from the Association until the Association is certified as the collective-bargaining repre- sentative of Respondent's employees , we deem it unnecessary to pass on the Trial Examiner's finding that certain provisions of the August 4 contract constituted independent violations of the Act 2It is, of course , well established that, even where economically motivated, the reloca- tion or removal of a plant to a new site does not eliminate an employer's obligation to bargain with his employees ' representative respecting the relocation and removal and its effect upon employees . Corwin Corporation, 153 NLRB 664; Standard Handkerchief Co, 151 NLRB 15; Sidele Fashions, Inc., etc., 133 NLRB 547, 555-556, enfd. 305 F.2d 825 (C.A. 3) ; Industrial Fabricating, Inc., 119 NLRB 162, 168, 189-190. See, generally, East Bay Union of Machinists, Local 1304 v N.L.R B., 379 U S. 203, affg Fibreboard Paper Products Corporation, 138 NLRB 550, and Town d Country Manufacturing Com- pany, Inc., 136 iNLRB 1022. Insofar as the Respondent contends that it had the unfet- tered right, in the absence of a contract , to alter its manner of operations without regard to the effect upon the employees at Van Nuys, we reassert and reaffirm our holding in Winn-Diwie Stores, Inc , 147 NLRB 788, 789, enfd. 353 F 2d 76 (C.A 5), rejecting a claim of an employer "that, absent a collective bargaining agreement any operational change is a matter of management prerogative and not a bargainable subject " 257-551-67-vol. 160-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. We do not agree with the. Trial Examiner that Respondent vio- lated Section 8(a) (5) of the Act by its refusal and failure to recog- nize and bargain with the Union as the representative of the produc- tion and maintenance employees at Newbury Park. While we agree with the Trial Examiner that at all times since July 27, 1964, the pro- duction and maintenance employees of Respondent's Newbury Park plant constituted an appropriate unit for purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act, we do not adopt his finding that the Newbury Park unit was simply the Van Nuys unit expanded by accretion of the Newbury Park employees.' The facts as related by the Trial Examiner plainly show that the Newbury Park plant 'resulted from a merger and relocation of Respondent's separate Van Nuys and Eagle Rock plants. The New- bury Park plant was neither an expanded Van Nuys plant, as found by the Trial Examiner, nor an expanded Eagle Rock plant, as con- tended by Respondent. It was, we believe, the amalgam of two sep- arate facilities into one. We find that Newbury Park was an entirely new operation with major personnel changes 4 In these circumstances, we find, contrary to the Trial Examiner, that the Union's certification as the bargaining representative for the employees employed at the Van Nuys plant did not constitute it as the statutory representative of the production and maintenance employees employed at the Newbury Park plant. We further find, as a direct consequence of the foregoing, that the General Counsel was required to prove, as an element of his prima facie case, that the Union represented a majority of the Newbury Park employees. We are satisfied that the General Counsel has not borne this burden. On July 27, 1964, there were at least 70 employees in the Newbury Park production and maintenance unit; 5 of these, 32 were former Van Nuys employees, 19 were former Eagle Rock employees, and the rest were newly hired. In addition to the 32 Van Nuys employees who transferred to Newbury Park, the Trial Examiner found that 5 for- mer Van Nuys employees were entitled to reinstatement at Newbury Park because of Respondent's unlawful action in terminating their employment or in refusing to transfer them to Newbury Park. We note, however, that the Trial Examiner did not find that each or any of these former Van Nuys employees was a member of the Union or had actually designated the Union to act as its collective- bargaining representative at Newbury Park. Rather, he cites the 37 3 Nor do we accept Respondent's contention that the Newbury Park facility was simply a relocation of Eagle 'Rock, with the later absorption of certain of the Van Nuys functions. 4 The Kroger Company, 155 NLRB 546. s The Trial Examiner excluded three employees who had been employed in the engineer- ing division at Eagle Rock, apparently because they had not been part of the Eagle Rock production and maintenance unit. If these employees are employed at Newbury Park in production and maintenance jobs, they are included in the unit and eligible to vote in the election hereinafter directed. PUROLATOR PRODUCTS, INC. 83 to 70 ratio as a factor supporting his finding that the Newbury Park unit was the "Van Nuys unit expanded by accretion of the Newbury Park employees" and his conclusion that, because the Union was the statutory bargaining representative of the Van Nuys employees,' it also was entitled to such status for the Newbury Park production and maintenance unit. We leave previously rejected the Trial Examiner's accretion theory. We believe it impermissible to infer from the fact of employment at Van Nuys that a former Van Nuys employee necessarily was a mem- ber of the Union or had designated the Union to act as his collective- bargaining representative at Newbury Parks We therefore find that, because the General Counsel has failed to prove that the Union was the majority representative of the Newbury Park unit, the allega- tions of the complaint concerning a refusal to bargain at Newbury Park have not been sustained and must be dismissed. THE REMEDY We have found that Respondent violated Section 8(a) (5) of the Act by its refusal to bargain with the Union concerning terms and conditions of employment of its employees at its Van Nuys, Califor- nia, plant, and that a significant aspect of that violation was Respond- ent's failure to bargain with the Union concerning the effects on employees of its decision to close down and relocate the Van Nuys plant. We have found that Respondent unlawfully discriminated against certain employees by refusing to transfer them to its New- bury Park plant because of their support and adherence to the Union. We have found that Respondent violated Section 8 (a) (2) and (1) of the Act by assisting Independent Employees Association of Purolator Products, Inc., by, inter alia, granting it recognition as the bargaining representative of its Newbury Park production and maintenance employees in February 1964, prior to the time that New- bury Park commenced operations, and again in August 1964, when the Association was not the lawfully designated representative of the employees involved. We have further found that Respondent engaged in the foregoing conduct in an effort to prevent the Union from achieving representative status at Newbury Park. In order to remedy the foregoing unfair labor practices, we adopt the Trial Examiner's recommended remedy, with the following modifications:" Because we shall dismiss the 8(a) (5) allegations e We note that 9 of the 60 employees in the Van Nuys unit voted against the Union in the election which resulted in the Union's certification as the representative of the Van Nuys unit. , To the extent that employees may have been coerced into paying dues and initiation fees pursuant to the union-security provision , we shall, in agreement with the Trial Examiner, require reimbursement with interest, the determination thereof to be made at the compliance stage of these proceedings. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning the Newbury Park plant, we shall not order Respondent to recognize and bargain with the Union as the representative of the production and maintenance employee unit at that location. We deem it appropriate, however, in order to remedy the 8( a) (5) violations found concerning the Van Nuys plant, to order Respondent, upon request, to bargain with the Union concerning the effects on its Van Nuys' employees of its decision to close down the Van Nuys plant and to relocate and merge it with the former Eagle Rock operations at Newbury Park. Because Respondent unilaterally departed from its announced policy of permitting all Van Nuys employees who wished to transfer to Newbury Park to do so,8 we shall order Respondent to notify all of its former Van Nuys employees who have not received employment at Newbury Park that it has reinstated such policy and that it will afford employment to all such employees who have applied, or who do now apply, for such employment. As Respondent, by its unfair labor practices detailed herein, has arrogated to itself the selection of a bargaining representative for its Newbury Park employees and has denied such employees a voice in the matter, we shall, in addition to the usual provisions requiring Respondent to cease recognizing the Association as such representa- tive, provide for a remedial election, pursuant to Section 10(c) of the Act, in order to resolve the, question concerning representation that exists at Newbury Park.9 To insure that the effects of Respond- ent's unfair labor practices are fully dissipated and that all parties to the election will have full and equal opportunity to inform all eli- gible voters of the issues involved, thereby enabling the employees to make a free and reasoned- choice, we shall apply the rule of Excelsior Underwear, Inc., 156 NLRB 1236, relating to the furnishing of eligi- bility lists to the remedial election directed herein. In order to insure that the effects of the unfair labor practices already committed have been thoroughly dissipated and to remedy current violations, we shall require that the Regional Director with- hold conducting any election until such time as Respondent : (1) 9 Respondent, in response to Union inquiries on this Issue during collective-bargaining negotiations , assured the Union that all employees who wished to transfer to Newbury Park could do so. Respondent nevertheless departed from that policy when it discrimina- torily refused to accept applications from certain employees for employment at Newbury Park. In contrast to such treatment of Van Nuys employees, Respondent transferred all Eagle Rock employees to Newbury Park. Although the record does not establish that Van Nuys employees other than those named herein were denied employment at Newbury Park, neither does It establish that all Van Nuys employees who requested such employment were given employment at Newbury Park. Because Respondent's unilateral change in policy occurred within the context of an open rejection of the practices and procedures of collec- tive bargaining, and because such conduct may well have caused employees not to request transfer to Newbury Park, we believe it necessary, in order to ensure that former em- ployees of Van Nuys and Eagle Park receive equal consideration and treatment without regard to union affiliation, to provide the remedy indicated herein 9 See N.L .R.B. v. District 50, United Mine Workers of America, 355 U S . 453; Bowman Transportation Inc., 120 NLRB 1147 ; Checker Taxi Company, Inc., 131 NLRB 611. PUROLATOR PRODUCTS, INC. 85 offers employment at Newbury Park to each bargaining unit employee formerly employed at Van Nuys whose employment was caused to be terminated because of the cessation of operations at Van Nuys and the transfer to Newbury Park, such employment to be of like or related character to that formerly enjoyed and at an equivalent wage rate ; (2) bargains with the UAW as to the effect on Van Nuys bar- gaining unit employees of the transfer of operations to Newbury Park; and (3) offers reinstatement with backpay to the five discrim- inatees and to Tibor Lonyai, with interest thereon at the rate of 6 percent per annum, in accordance with F. Y. Woolworth Company, 90 NLRB 289, and Isis Plumbing cf Heating Co., 138 NLRB 716. In accord with the foregoing, we find that it will best effectuate the policies of the Act to direct the Regional Director for Region 31 to direct and supervise the conduct of an election (1) when compliance with our Order herein is voluntarily achieved, after the posting period has elapsed and at such time as the Regional Director deter- mines that a free election can be held; or (2) should the Respondent fail to comply with the provisions in this Decision and Order and it is necessary to have this Order enforced by a decree of a United States Court of Appeals, upon the Respondent's full compliance with such decree; or (3) in the event of such noncompliance, at such time as UAW indicates that it is nevertheless willing to proceed to an election.'° The election provided for above shall be conducted among employ- ees in the following unit, which we find upon the entire record to be appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees, including shipping and receiving employees, employed by Respondent at its Newbury Park plant, but excluding office and plant clerical employees, professional and technical employees, guards, and supervisors as defined in the Act. In the election the employees shall determine whether they wish to be represented for collective-bargaining purposes by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO; by Independent Employees Asso- ciation of Purolator Products, Inc.; or by neither. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the 10 See Checker Taxi Company, Inc., 625. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, Purolator Products, Inc., Newbury Park, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment. (b) Assisting in the administration of Independent Employees Association of Purolator Products, Inc., or contributing support to it or to any other labor organization. (c) Giving effect to the recognition agreement dated February 26, 1964, and the collective-bargaining agreement. dated August 4, 1964 between Respondent and Independent Employees Association of Purolator Products, Inc., or to any extensions, renewals, or modifica- tions thereof, or any other contract or agreement between the Respondent and the said labor organization which may now be in force; provided, however, that nothing in this Decision and Order shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantative feature of its relations with its employees, which the Respondent has established in the performance of these agreements, or to prejudice the assertion by employees of any rights they have thereunder. (d) Recognizing Independent Employees Association of Purolator Products, Inc., as the representative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive representative status pursuant to a Board- conducted election among the Respondent's employees. (e) Unilaterally altering terms and conditions of employment where there is a lawfully recognized or certified collective-bargaining representative for the employees who will be affected by such alteration. , (f) Refusing to bargain with International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers, AFL-CIO, as the exclusive representative of its employees at Van Nuys, concern- ing the effects upon these employees of the transfer of its operations to its plant at Newbury Park. (g) Giving effect to the maintenance-of-membership provisions incorporated in the agreements of February 26 and August 4, 1964, requiring the payment of dues and initiation fees to Independent PUROLATOR PRODUCTS, INC. 87 Employees Association of Purolator Products, Inc., as a condition of continued employment. (h) In any other maruier interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 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 may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Independent Employees Association of Purolator Products, Inc., or any other labor organization as the collective-bargaining representative of any of its employees in the production and maintenance unit at its New- bury Park plant, for the purpose of dealing with Respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until the Board shall certify the Association or any other labor organization as such representative. (b) Reimburse each of its present and former employees at its Newbury Park plant for all initiation fees, dues, and other moneys they have been required to pay Independent Employees Association of Purolator Products, Inc., while employed at said plant, by reason of Respondent's enforcement of its agreements dated February 26 and August 4, 1964, with said Association, as set forth in the section of this Decision entitled "The Remedy." (c) Offer to Edward Zaloom, Josephine Zaloom, Fred Deutsch, Irene Dupont, and Frank Tillotson immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them, as set forth in the section of this Decision entitled "The Remedy." (d) Offer to Tibor Lonyai immediate and full reinstatement at its Newbury Park plant to his former or substantially equivalent posi- tion without prejudice to his seniority or other rights and privileges, 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and make him whole for any loss of earnings he may have suffered by reason of Respondent's unilateral alteration of his terms and con- ditions of employment and bypassing of his certified representative,. in the same manner as set forth above. (e) Offer employment at their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges to all former Van Nuys bargaining unit employees termi- nated on or after June 1964, who have not been offered employment at Newbury Park. (f) Preserve and,,upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amounts of initiation fees, dues, and other moneys, and backpay required to be^ reimbursed or awarded to employees, and the reinstatement rights, and offers of employment to be made under the terms of this Order. (g) Bargain with International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, AFL-CIO, as the exclusive representative of bargaining unit employees at Van Nuys concerning the effect upon them of the transfer of Respondent's operations to Newbury Park. (h) Notify the employees described in paragraphs 2(c), 2(d), and 2(e), above, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (i) Post at its plant in Newbury Park, California, and mail to the individuals described in paragraphs 2(b), 2(c), 2(d), and 2(e), above, at their last known address, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 31, shall, after being duly signed by Respondent's representative, be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (j) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order, what steps have been 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" PUROLATOR PRODUCTS, INC. 89 IT IS FURTHER ORDERED that those allegations of the complaint alleg- ing violations of the Act not herein found be, and they hereby are, dismissed. [Text of Direction of Election omitted from publication.] 12 12 An election eligibility list, containing the names and addresses of all the eligible voters must be filed by the Employer with the Regional Director for Region 31 within 7 days after the date of issuance of the notice of election by the Regional Director. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc, 156 NLRB 1236 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT give effect to a recognition agreement dated February 26, 1964, or a collective-bargaining agreement signed with Independent Employees Association of Purolator Products, Inc., dated August 4, 1964, or to any modifications, extensions, renewals, or supplements thereto. 117E WILL NOT give any unlawful assistance or support to Inde- pendent Employees Association of Purolator Products, Inc. WE WILL NOT unilaterally effect a change in working conditions while our employees have an exclusive bargaining representative. WE WILL NOT discourage membership in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any other term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right ton self- organization, to form labor organizations, to join or assist Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 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 may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL withdraw and withhold all recognition from Inde- pendent Employees Association of Purolator Products, Inc., as the collective-bargaining representative of any or our employees, unless and until it is certified by the National Labor Relations Board. WE WILL bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, as the exclusive representative of our pro- duction and maintenance employees formerly employed at our plant in Van Nuys, California, concerning the effects upon them of our transfer of operations to Newbury Park, California. WE WILL offer to Edward Zaloom, Josephine Zaloom, Fred Deutsch, Irene Dupont, and Frank Tillotson immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of our discrimination against them, with interest thereon at 6 percent per annum. WE WILL offer to Tibor Lonyai immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by rea- son of our unfair labor practices, with interest thereon at 6 per- cent per annum. WE WILL offer employment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all former Van Nuys bargaining unit employees terminated on or after June 1964, who have not been offered employment at Newbury Park. WE WILL reimburse each of our present and former employees at our Newbury Park plant for all initiation fees, dues, and other moneys, with interest thereon at 6 percent per annum, which they have been required to pay Independent Employees Association of Purolator Products, Inc., while employed at said plant, by reason of our enforcement of the agreements dated February 26 and August 4, 1964, with said Association. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named, or any other labor organization. PUROLATOR PRODUCTS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) PUROLATOR PRODUCTS, INC. 91 NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Tenth Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was heard before Trial Examiner Eugene K. Kennedy in Los Angeles, California, on various dates between January 21 and February 3, 1965. Purolator Products, Inc., the Respondent, is charged with committing violations of Section 8(a)(1), (2 ), (3), and (5) of the National Labor Relations Act, as amended, herein the Act.' In summary form, the issues raised by the pleadings and the record can be stated as follows: In connection with its anticipated consolidation of two of its plants, Respondent is charged with bargaining in bad faith , with discrimination with respect to employees at the Van Nuys plant, and with assisting an independent union at its Eagle Rock plant. The question is suggested by the record as to whether these alleged acts were done in contemplation of Respondent's move to its Newbury Park 1 The first charge in this consolidated proceeding was filed on December 13, 1963, in Case 21-CA-5698. This charge claims that , on or about December 1, Respondent violated Section 8 ( a) (1) and (5) by the layoff of Earl Sweet, James Wald, and Tibor Lonyai while failing to discuss the tenure of employment with the Charging Union. On December 27, 1963, in Case 21-CA-5698, a first amended charge was filed alleging violations of Section 8(a) (1) and ( 5) by failing to discuss the layoff of Sweet, Wald, and Lonyal and also alleging that Respondent failed to bargain in good faith on various dates preceding December 27, 1963. On June 24 , 1964, a second amended charge in Case 21-CA-5698 was filed alleging that on various dates the Respondent failed to bargain in good faith and that on December 20, 1963, it refused to sign any agreement extending beyond July 1964, the date of the ex- pected move to another location . This charge also claimed a 8(a) (1 ) and (5 ) violation predicated on the change of seniority system affecting employee Tibor Lonyal. - On August 6, 1964 , in Case 21-CA-6108 , the Charging Union filed 'another charge alleging Respondent violated Section 8 (a) (1) and ( 3) by terminating and refusing to recall Irene Dupont, Josephine Zaloom, and Edward Zaloom. On September 1, 1964, a first amended charge was filed in Case 21 -CA-6108, claiming violations of the Act by the termination of Irene Dupont , Josephine Zaloom , Edward Zaloom, Fred Deutsch , Larry Duprey, and Frank Tillotson . It also claims violations based on the Employer's move and failing to bargain with the Union as the representative of its employees at its new plant. This charge also claims that since about July 2 , 1964, the Respondent has unlawfully assisted with the formation of a labor organization and has signed a collective-bargaining agreement with such organization. On January 27, 1964, a second amended charge was filed in Case 21 -CA-6108. In addi- tion to the claim set forth in the original and first amended charge, the second amended charge claims violations predicated on the failure of Respondent to recognize the Charging Union as the exclusive representative of the bargaining unit in the Newbury Park plant. The original complaint was issued on July 15 , 1964. A consolidated , amended complaint in Cases 21-CA-5698 and 21-CA-6108 was issued on December 3, 1964. An amendment to the consolidated complaint was issued on January 28, 1964. The amended consolidated complaint does not list Duprey as an alleged discriminatee , nor Wald or Sweet as victims of Respondent's unilateral change in working conditions. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant in order to unlawfully divest itself of its obligation to recognize the Charging Union as the representative of its production and maintenance employees. Subsequent to the hearing, the General Counsel submitted a motion to correct the transcript with service on all parties. There being no opposition to such motion, it is hereby granted and the corrections are included in Appendix B attached hereto. Upon consideration of briefs filed by all parties participating, and a consideration of the entire record and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND JURISDICTION OF THE BOARD Until about July 2, 1964, Respondent operated a plant in Van Nuys, California, where it was engaged in the production of filters for the airspace industry. Until about June 1964, Respondent operated a plant at Eagle Rock, California, known herein as the Eagle Rock plant and referred to sometimes as the On Mark Division, where Respondent was engaged in the business of manufacturing couplings and valves for the space industry. The two above-named divisions were both transferred to Newbury Park, Califor- nia, the Eagle Rock plant about June 1, 1964 and the Van Nuys plant on about July 2, 1964. The Newbury Park facility is also at times designated as the Aero- space Division. In the conduct of its business, Respondent annually manufactures and sells prod- ucts valued in excess of $50,000 which are shipped directly to customers located out- side of California. Its annual purchases of goods and supplies shipped to it within the State of California directly from outside the State are valued in excess of $50,000. Respondent is now, and at all times material has been, an employer engaged in commerce and in a business affecting commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein the Union, is a labor organization within the meaning of the Act Independent Employees Association of Purolator Products, Inc., herein called the Association, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged refusal to bargain As indicated above, Respondent's Aerospace Division, located at its Newbury plant, commenced operations about June 1, 1964. It incorporated the functions of the Van Nuys and the Eagle Rock plants. Production at the Newbury plant required similar skills from the employees and after the move there was a substantial inter- change of employees on the functions formerly performed at the separate plants. According to the Newbury plant manager, Ben Ohannesian, working on the filters formerly produced at the Van Nuys facility and on gauges formerly produced at the Eagle Rock facility required similar skills. One reflection as to the relative strength of the production and maintenance employees in the Van Nuys and Eagle Rock plants may be obtained from a compar- ison of the lists of employees used for certification of a bargaining representative in their respective plants. At the Van Nuys plant, there were 63 employees on the eligibility list for voting in Board-conducted election which the Union won by a vote of 51 to 9 and was cer- tified as a representative of the production and maintenance employees in the Van Nuvs plant as of November 26, 1963. As of January 15, 1964, there were 24 employees in the production and mainte- nance unit of the Eagle Rock plant and, in a card check, 22 out of 24 were determined to have selected the Association as the bargaining representative for the Eagle Rock plant 2 2 In Its submission of payroll lists to the General Counsel which were incorporated In the record, Respondent employed two devices which apparently were intended to suggest that the Eagle Rock or On Mark Division had approximately the same number of employees in the unit as the Van Nuys facility. One of the devices was to utilize a bookkeeping meas- PUROLATOR PRODUCTS, INC. 93 The facility at Newbury Park was in the planning stage in approximately June of 1963 and the construction was commenced in November of 1963 and was completed on or about June 1, 1964. The collective-bargaining history at the Respondent's Eagle Rock and Van Nuys facilities is significant in determining the nature and extent of the alleged unfair labor practices . The distinctly different manner in which Respondent dealt with the Union representing the employees at the Van Nuys plant and its dealings with the Association representing the Eagle Rock employees, is reflected by a consideration of the events. The employees at Eagle Rock were unorganized in 1961 and 1962. In late 1963 it became widely known among the employees that the Respondent planned to move the Van Nuys and Eagle Rock facilities to Newbury Park. On January 5, 1964, the Association was determined by a judge, utilizing a card check, to have been author- ized by 22 out of an eligible 24 employees to be their collective -bargaining repre- sentative at the Eagle Rock facility . A collective-bargaining agreement , dated Janu- ary 24, 1964, was executed on February 26, 1964, in which Respondent recognized the Association as the collective -bargaining agent for the production and mainte- nance employees at its Eagle Rock facility, and of Newbury Park . The Newbury Park facility was not in operation until June of 1964 . Without any further showing of which employees were represented by the Association, Respondent entered into another collective-bargaining agreement with the Association on August 4, 1964, rcognizing the Association as the exclusive representative of the production and maintenance employees at Newbury Park. At this time, there were 70 employ- ees in the production and maintenance unit at Newbury Park. As of June, 1964, there were 19 employees in the production and maintenance unit who transferred to Newbury Park from Eagle Rock.3 The balance of the 70 employees were newly hired or had transferred from the Van Nuys facility. Thirty-two transferred from Van Nuys and five more, for reasons set forth herein, were properly included in the num- ber of employees eligible to be counted in the unit transferring from Van Nuys. The collective-bargaining agreement of January 1964 was drafted by Respondent after some meetings in which the members of the Association made some general- ized suggestions. The more comprehensive August 4, 1964, agreement was signed by the same three officers of the Association as signed the January agreement. The rec- ord does not indicate whether there were any negotiations prior to the execution of the August 4, 1964, agreement? In December 1963, the first Association officers selected by the employees at Eagle Rock were unacceptable to the Respondent, and the Association, on being so advised proceeded to elect three replacements, Arthur Porter as president, John Healy as vice president, and Stella Gaudu as secretary-treasurer. In their testimony, ure which would suggest that the 13 employees who were hired during the month of June worked for the On Mark Division although they were actually employed at Newbury Park General Counsel's Exhibit 23 lists the names of 23 employees hired at the Aerospace Division during May 1964 who were former employees at Eagle Rock ( On Mark). This demonstrates the pretextual nature of Zacrep ' s and Respondent' s contention that the On Mark Division functioned at Newbury Park during June 1964 , and that the Aerospace Division did not commence operations until July 1964 When asked to explain why em- ployees who were transferred from Eagle Rock ( On Mark ) were listed by Respondent as being employed by Aerospace ( Newbury Park ) in May 1964 and why individuals hired in June 1964 at Newbury were listed as being employed at On Mark , Personnel Manager Zacrep testified he had no comment and that he was not in a position to give an explanation. Illustrative of Respondent's attempt to mold the facts to its current objective is the following. At an earlier stage of this case Respondent , for example , listed the names of employees William Kopec and George Heslop as being employed by the Aerospace Division (General Counsel's Exhibit 10 ) During the course of the hearing, Respondent submitted a list of alleged On Mark employees ( General Counsel ' s Exhibit 22 ). Included on this list were employees William Kopec and George Heslop There were also included in the Aerospace list submitted three employees from an engineering unit who were not incorporated in the lists submitted to Judge Donnellan for certification of the Association but were included in the list of On Mark employees after the move to the Aerospace Division in Newbury Park. These employees were Barnett, Deem, and Royal s This does not include the 13 employees hired at Newbury in June 1964 whom Respond- ent lists as On Mark employees 4 Zacrep , the personnel manager, testified there were negotiations prior to the execution of the August 4, 1964 , agreement . For reasons noted herein , Zacrep ' s testimony is not regarded as being worthy of credence 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD none of these three who composed the Union's negotiating committee could recall suggesting the following provision incorporated in the August 4, 1964 agreement: ARTICLE 15 MUTUAL BENEFIT-NON AFFILIATION 1. The parties to this Agreement agree that this contract is to insure [sic] to their mutual benefit and that this Agreement will become null and void if said Association should for any reason whatsoever associate or merge with any other labor organization. The testimony of Stella Gaudu, the secretary-treasurer of the Association, indi- cates how this provision, as well as the rest of the agreement, was accepted by the Association "Well as I stated it sir, the contract-we did not know how to draw one up and it was drawn up and we had-our association members agreed to everything in it." Thus, the purpose of the agreement was to establish the Association as the repre- sentative of the production and maintenance employees at Newbury Park as of August 4, 1964, including the newly-hired employees as well as the 32 who trans- ferred from the Van Nuys plant. This agreement was executed when the Association did not represent a majority of the employees in the unit. In fact, this agreement was executed at a time when the Union was entitled to be recognized as the bargaining representative of the production and maintenance unit at Newbury Park. The various negotiating sessions with the Union are noted to demonstrate the different methods of bargaining Respondent utilized, with the Association and the Union. The contrast as well as the intrinsic mode of dealing with the Union demonstrates Respondent's bad faith. In November 1961, Respondent and the Union executed a collective-bargaining agreement for the Van Nuys plant with an expiration date of November 20, 1963. On September 16, 1963, the Union, in a letter to Respondent, advised that it wished to negotiate a new agreement. On September 19, 1963, Respondent sent the follow- ing letter to the Union: Amalgamated Local Union No. 509 United Auto Workers AFL-CIO 7929-31 Seville Avenue Huntington Park, California Attention: Mr. J. W. Whipple, President Gentlemen: Notice is hereby given of our desire to terminate the existing agreement between your Union and our Company. This notice is in accordance with Arti- cle XXX of the collective bargaining agreement between the parties, dated November 20, 1961. This notice is also in compliance with the National Labor Relations Act of 1947 as amended, and in accordance with the terms of our collective bargain- ing agreement. Yours very truly, PUROLATOR PRODUCTS, INC., (S) H. W. Sitton, H. W. SITTON, HWS:ah Plant Manager. cc: Normal distribution File Note : The Company offers to meet and confer with you as required. An employee who had been a clerk until September 16, 1963, in the Van Nuys plant was transferred into the production and maintenance unit on September 16, 1963, as a leadwoman. On September 18, 1963, she wrote the following letter to the Plant Manager Sitton: September 18, 1963. Dear Mr. Sitton: A large group of fellow workers including myself are requesting to meet with you and the Company to negotiate a contract. We believe that we represent most of the employees, and we plan to get out of the Union, and do not want them to have a contract with the company to represent us. When can we meet with you? Sincerely, (S) Minerva E. Bettis 4617 "Budge" PUROLATOR PRODUCTS, INC. 95 On September 19, 1963, Van Nuys Plant Manager Sitton filed an RM Petition with the National Labor Relations Board seeking an election to determine whether or not the Union was the majority bargaining representative. The petition recited that there were 75 employees at that time in the Van Nuys production and mainte- nance unit. An election was conducted by the National Labor Relations Board on November 14, 1963, resulting in 51 votes for the Union and 9 against. Prior to the election in the Van Nuys plant, Respondent circulated among all its employees three documents exhibiting an extremely hostile attitude toward the Union. These are included in Appendixes C, D, and E attached hereto. Despite the filing of the RM Petition, Respondent on September 25, 1965, stated a desire to negotiate and reach a contract. Clyde Baker, a Union International repre- sentative, who negotiated on behalf of the Union, suggested it was pointless in such a context to attempt negotiations as Respondent had expressed the belief that the Union did not represent a majority. Nevertheless, Sitton, on behalf of Respondent, indicated that Respondent wished to bargain and negotiate an agreement. The first meeting on September 25, 1963 was fruitless with respect to reaching agreement on any item of a contract. The next negotiating meeting was held on October 14, 1963. Representing the Respondent was Plant Manager Sitton and Robert McEdward, personnel manager at the Eagle Rock facility, who also was acting in that capacity for the Van Nuys plant. Baker asked the Respondent to withdraw its RM Petition inasmuch as it was purporting to be negotiating toward the end of reaching a contract. Baker stated that his investigation convinced him there was no question of the Union's majority. Sit- ton still insisted on the Board determining whether the Union represented a major- ity. Baker then suggested they go through the current agreement to ascertain what was mutually agreeable. Sitton replied he was not prepared to do that. Instead, while refusing to use the current agreement as the basis for negotiation, he requested a written proposal from the Union. This position of Respondent that it was negotiat- ing from scratch and that the existing agreement did not provide a basis for negotia- tion was consistently adhered to through the subsequent months. At this second meeting, because of Respondent's attitude, Baker stated he did not believe Respondent was negotiating in good faith. However, Baker went through seven articles of the current agreement, attempting to obtain Respondent 's assent to them without any success. The next negotiating meeting was held on October 24, 1963. Attending this meet- ing with Baker, was Ben Herr and Frank Tillotson, union stewards at the Van Nuys plant. At this meeting, Baker again accused Sitton of bargaining in bad faith by vir- tue of a letter circulated among employees .5 Baker was particularly incensed at the accusation in that letter that the Union wished to avoid an election whereas the Union had in fact sought an expedited election and the Respondent wished to post- pone it until 2 or 3 weeks after the current agreement expired on November 21, 1963. At this meeting, Baker went through the entire existing agreement except for the sections dealing with economic benefits but was unable to gain agreement even on minor provisions. At this meeting, Baker proposed an assignability clause which would provide that in the event the plant moved the Union would move with the plant and if the plant were sold the Union would continue. Respondent, being less than candid in disclosing its plans for moving the plant, refused to agree to this clause along with the other proposals of the Union. The Union's proposed assigna- bility clause reflected the distrust the Union had for Respondent's negotiating tactics. That it had a basis for its suspicions, is reflected by the whole course of events as well as by the testimony of Personnel Director McEdward: CROSS-EXAMINATION Q. (By Mr. SMiTm.) Mr. McEdward, did the bargaining sessions, the meet- ings you attended in the Newberry (sic) Park facility come into discussion. A. Not directly. Q. Did it come in indirectly? A. Mr. Baker, I believe Mr. Whipple hinted around on one or two occasions that they "thought we had a new plant building or they saw an article in the paper about a new plant. 5 Appendix C. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Will you tell us the discussion that occurred as nearly as you can remem- ber it now on those one of two occasions. A. As nearly as I can remember either Mr. Baker or Mr. Whipple came in and said, "I see you fellows have a new plant going up in Rancho Conejo." Oh yes? And that was it. This was never carried any further. Q. Now when an assignability clause was discussed, did the Newberry (sic) facility come into the discussion in that context? A. It did not. Q. But it was pretty clear to you, was it not, this was the reason that the assignability clause was being asked? Mr. LOVATT• Objection, argumentative. TRIAL EXAMINLR. I think he can give his impression in this context, whatever it might be. How did you interpret it? You were in a position to do it, I think. WITNESS' My honest interpretation? TRIAL EXAMINER Yes. Let pie put it this way, if I may-Mr. Smith, I am going to rephiase and you can put another question. What significance, if any- thing, did the proposal of the union for an assignability clause have to you dur- ing the course of the negotiation? WITNESS: I thought they were pussy footing around the issue. TRIAL EXAMINER: What issue? WITNESS: Of the new plant. TRIAL EXAMINER: This was an indirect way of trying to protect themselves at the new plant? WITNESS: Right. During the several months of negotiating with the Union, commencing in Septem- ber 1963, Respondent completely withheld from the Union the fact that as of Janu- ary 24, 1964, it had reached agreement with the Association, recognizing it as the representative of the production and maintenance employees of the Newbury Park plant as well as the Eagle Rock facility. Inasmuch as the employees from the Eagle Rock and the Van Nuys facilities were integrated with respect to work on the trans- fer to the Newbury Park plant, the execution of the agreement by the Association represents a gross failure at the bargaining table to engage in a frank exchange of pertinent facts, looking toward reaching an agreement in good faith. The next negotiating meeting was held on November 7, 1963. Instead of having any proposals of its own, Respondent submitted a typewritten version of the propos- als made by the Union at the previous meeting. However, Respondent at this meet- ing also refused to accept any of the Union's proposals. As indicated previously on November 14, the Union won a Board-conducted election by a vote of 51 to 9. Baker did not attend the next meeting which was held on November 27, 1963. Arthur Lovatt, the labor relations consultant who represented Respondent at the hearing in this matter, attended this session on behalf of Respondent and also the ensuing ones along with Plant Manager Sitton and Personnel Manager McEdward. At this meeting, Lovatt asked Whipple, president of the Union, for written propos- als. Whipple replied that Respondent had already reduced the Union's proposals to writing Also ignoring the fact that there was a complete agreement which had just expired, Lovatt pressed the Union for written proposals and Whipple advised him that they would be produced at the next meeting. Whipple also told Lovatt that he did not consider Respondent was negotiating in good faith since they had been meet- ing since September without any proposals from Respondent or agreement by it to any of the Union's proposals. At this meeting, the question arose as to whether Respondent was going to continue to honor the expired agreement. Lovatt stated there was not going to be any monetary changes or words to the effect. Another negotiating meeting was held on December 5, 1963. At this meeting, the Union proposed an indefinite extension of the contract which had expired on Novem- ber 21, 1963. Lovatt stated it was not advisable from Respondent's standpoint to extend the contract. On December 12, 1963, another negotiating meeting was held. At this meeting there was considerable discussion about Respondent's laying off three men without the 3 days' notice or 3 days' pay and about employee Tibor Lonyai who was laid off in a denartment without following the former seniority procedure as required by the expired contract. Respondent claims these were changes in its policy which it could effect since there was no agreement in force At this meeting Whipple, Union presi- PUROLATOR PRODUCTS, INC. 97 dent, asked Lovatt when he was going to submit Respondent's proposals since Respondent had the Union's proposals for about 21/z months without submitting any of its own The next meeting was on December 20, 1963. Respondent submitted the follow- ing proposals in writing. COMPANY PROPOSALS Agreement Not Assignable This Agreement is not assignable. In the event of sale, consolidation, or mer- ger of the Company this Agreement shall become null and void. Union Responsibility In the event of a breach by the Union of the strike and lockout provisions of this Agreement, the Company may abrogate this entire Agreement. Union Membership Employees are not required to join or belong to the Union in order to work for the Company. If an employee joins the Union and should at a later date desire not to continue membership in the Union he may drop his membership and still remain in the employ of the Company. Discrimination The Union shall not discriminate against any employee because he is not a member of the Union or because of race, creed or sex. Solicitation of Membership Employees and Union representatives shall not solicit Union memberships or collect dues on Company property on the Company time of any employee. Management of the Plant The management of the plant and the direction of the working force includ- ing the right to hire, discharge, discipline, promote, transfer, to maintain order and efficiency, to decide the number and location of plants, the machine and tool equipment, the products to be manufactured, the method of manufacture, schedules of production, production standards, the processes of manufacturing or assembling together with all designs, engineering, and the control of raw material, semi-manufactured and finished parts, which may be incorporated into products manufactured, sub-contracting, plant closure and any sale of the com- pany shall be vested exclusively in the Company. Baker asked if the plant moved would the effect of Respondent's proposals make any agreement null and void. Lovatt replied that was true and also that even an unfair labor practice strike would nullify the agreement. There was no agreement reached on Respondent's proposals. Lovatt suggested a contract with a 6 month's duration, insisting it had to be an entire new agreement and not an extension of the old one. The next negotiating meeting was held on January 2, 1964. At this meeting, Respondent had no further proposals. The union spokesman informed Respondent it could not agree to proposals that would negotiate the Union out of the shop and again questioned the good faith of Respondent in making only fragmentary propos- als which were meaningless without proposals on other subjects. At the January 9, 1964, meeting, Respondent submitted proposals which did not include any fringe ben- efits, vacation pay, or cost items such as wages. Whipple asked Lovatt if the Respondent would make a complete proposal by January 16, 1964, so that he could submit it to the membership. Lovatt replied in the negative and stated he still had to work it out with management. Nothing of any substance was agreed on at this meeting. On January 30, 1964, the parties met with the representative of the Federal Medi- ation and Conciliation Service. The union spokesman pointed out that after about 4 months, the Respondent had not submitted a complete agreement that could be voted upon by the union membership and no proposals including economic or cost items. Lovatt, for the Respondent, expressed the willingness to continue negotiations. Another session was held at the conciliation office on February 9, 1964, with the parties meeting separately with the conciliator Sitton and Lovatt represented the Respondent. Baker and Whipple, union president, and Stewards Ben Herr and Frank Tillotson represented the Union. After Lovatt had stated he was willing to have weekly additional meetings for the next 12 weeks, Whipple advised him that the Union was principally concerned over the prospective moving of the plant and the continuation of the employment of the Van Nuys employees. Lovatt replied that he did not intend to negotiate a contract that would cover the Newbury plant and that 257-551-67-vol. 160-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when the Van Nuys plant moved, the problem could be solved at that time. Whip- ple replied that he wanted the people to move with the plant and that the Union had a right to the bargaining unit as a result of the Board election. Again, Lovatt did not disclose that Respondent had already recognized the Association as the bar- gaining representative of the production and maintenance employees to be employed at Newbury Park. Lovatt stated he did not know if the employees in the production and maintenance unit were to be integrated. At this meeting, Plant Manager Sitton stated to the union representatives that the Van Nuys employees had been assured that any employee who desired could trans- fer to Newbury Park. This policy is included in the notice to all employees, dated June 26, 1964, and signed by Sitton and attached hereto as Appendix F. The next and final meeting was held with the Federal conciliator on April 9, 1964. In addition to Sitton and Lovatt, a Robert Zacrep, the newly appointed person- nel manager for Respondent, attended on behalf of Respondent. At this meeting the Union indicated it was willing to withdraw all its proposals and extend the old con- tract with a modest increase in wages and sick leave of 4 hours a month. Lovatt replied that he would insist on all Respondent's proposals, which included the pro- vision for termination of the agreement when Respondent moved to Newbury Park. Neither at this meeting, prior thereto, or subsequently, did Respondent submit any proposals dealing with wages or economic benefits. After this meeting, Baker made the three unsuccessful attempts to contact Respondent's vice president, Willis, in charge of the facilities involved. Willis failed to call back on the first two tele- phone calls and on the third attempt, Baker was told by the secretary of Willis that he would have to handle all his labor relations problems through Lovatt. In view of the experience in attempting unsuccessfully to bargain with Lovatt, it is hardly surprising that the Union made no further efforts to negotiate with him. Certain proposals made by Respondent to the Union appear inflammatory and this impression is intensified by comparison of comparable provisions included in the Respondent's agreement with the Association. At the same time, Respondent was proposing that the agreement with the Union be not assignable, it was spe- cifically recognizing the Association as the representative at the Newbury Park facility several months before there were any employees at such facility. Respondent was agreeing to a maintenance of membership in its agreement with the Association while it was proposing that the Union accept the following clause: Employees are not required to join or belong to the Union in order to work for the Company. If an employee joins the Union and should at a later date desire not to continue membership in the Union he may drop his membership and still remain in the employ of the Company. Respondent's agreement with the Association provided that the expenses of arbi- tration should be borne equally by the Company and the Association. In its pro- posal to the Union, it included the language that the party taking the grievance to arbitration shall pay all the impartial arbitrators' charges. In view of the fact that the proposed management clauses were so broad, it is apparent that the only party bringing a grievance to arbitration would be the Union and, hence, the practical effect would be to require that the Union pay the full arbitrators' cost in all cases. Article 15 of the association contract provides that it would become null and void if the Association should merge with any other labor organization. This is consistent with the efforts of Respondent to keep the Union out of its Newbury Park facility. The agreement with the Association was entered into on January 24, 1964, fol- lowing a certification on January 15, 1964. By way of contrast, it will be recalled that the Union was certified on November 15, 1964, and by April of 1965, the Respondent had not yet submitted to the Union a proposal including wages or other economic benefits, nor has it done so since. The above recital of events is directed at the issue of whether Respondent failed in its statutory obligation to bargain in good faith for the production and main- tenance employees at its Van Nuys and Newbury Park facilities.6 At the hearing in this matter, the General Counsel initially took the position that the issue of bad-faith bargaining was only at the Van Nuys plant. However, the Union contended the proper remedial order would include an order directing the Respondent to bargain for the production and maintenance employees at the Newbury Park facility. Prior to the close of the hearing, a second amended charge was filed in Case 21 -CA-6108, PUROLATOR PRODUCTS, INC. 99 A consideration of the events set forth above establishes without any serious ques- tion that Respondent's course of conduct in dealing with the Union was designed to frustrate any meaningful bargaining until Respondent had moved to its Newbury Park facility. At such time, it was Respondent's apparent aim that the Union would no longer be a meaningful representative of any of the employees at Newbury Park. Respondent's insistence on a clause terminating any contract on its moving the Van Nuys plant to Newbury Park and its concealment of the fact that it had already recognized the Association as the representative of the production and maintenance employees at Newbury Park are flagrant indicators of bad-faith bar- gaining. Respondent's failure to make any economic proposals during the approxi- mate 5 months of negotiations demonstrate Respondent was engaged only in surface bargaining designed to effect delay until the move of the Van Nuys plant to New- bury Park. Respondent's willingness to give to the Association a maintenance of membership clause while insisting on an open-shop clause with the Union; its insist- ence on an assignability clause with the Union while not raising the question with the Association and its readily granting to the Association economic terms while withholding them from the Union for more than 5 months spells out a very thinly disguised bad-faith approach to collective bargaining with the Union. The realistic problem presented by this record with reference to the question of good- or bad-faith bargaining is whether the Union is entitled to represent all the production and maintenance employees at Newbury Park. This determination would rest on a finding that the Union was entitled to represent the production and main- tenance employees at Newbury Park by virtue of an accretion to the Van Nuys production and maintenance unit. In this connection it must be noted that the Association had no lawful claim to represent the production and maintenance employees at Newbury Park.7 The execu- tion of the agreement on August 4, 1964, recognizing the Association as the repre- sentative of all the production and maintenance employees when the Association did not represent a majority constitutes unlawful assistance to the Association. Inter- national Ladies' Garment Workers' Union v. N.L.R.B., 366 U.S. 731. It is clear the Association did not represent a majority of employees in the production and main- tenance unit at Newbury Park when the agreement was executed. Such conduct rep- resents unlawful assistance to the signatory union and is a violation of Section 8(a) (2) even though the employer enters into the agreement believing the Union to represent a majority. I.L.G.W.U. v. N L.R.B., supra. As of June 1, 1964, 19 employees transferred from the production and maintenance unit of the Eagle Rock facility to the Newbury Park facility. As of August 4, 1964, there were at least 32 Van Nuys employees in the production and maintenance unit who were transferred to the Newbury Park facility. This number does not include the five employees found herein to be discriminatees and, hence , entitled to be included in the number of employees in the production and maintenance unit transferring from Van Nuys. There were 70 employees in the Newbury Park production and on January 27, 1964, alleging discriminatory termination by Respondent of Irene Dupont, Josephine and Edward Zaloom, Fred Deutsch, Larry Duprey, and Frank Tillotson and that Respondent, since July 27, 1964, had refused to bargain with the Union as the representative of the employees at the Newbury Park facility and that since July 2, 1964, Respondent has dominated and interfered with the formation and administration of the labor organization of its employees and has continued support thereof by signing a collective-bargaining agreement. An amendment to the consolidated complaint reiterated and amplified these allegations. Respondent has failed, since that date, to file an answer denying such allegations . Because of my remark that it was commonplace, upon request, to deem such an amendment denied in lieu of submitting a formal answer and because of Respondent's generalized position that it committed no unfair labor practices, Respondent will be deemed to have denied the amendments to the complaint dated January 28, 1964. An examination of the first amended charge filed September 1, 1964 , in Case 21-CA- 6108 reflects it is substantially the same as the second amended charge except that it does not claim specifically a failure to bargain with respect to all the Newbury Park produc- tion and maintenance employees. 7 Even if the Association were not unlawfully 'assisted by Respondent, evidence of its existence would be immaterial after a finding that the Union was entitled to representa- tion of the expanded unit at Newbury Park. Toledo Desk & Future ,Co., 75 NLRB 744, footnote on page 747. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance unit as of August 4, 1964.8 Plant Manager Sitton, during the negotia- tions, stated that any employee from Van Nuys could transfer to Newbury Park. This policy is reflected by the notice to employees dated June 26, 1964,9 and by the testimony of Respondent's vice president, Willis, which establishes that at least until June 26, 1964, the Respondent's policy was the same with respect to transferring the Van Nuys and Eagle Rock employees. That this policy was not carved out will be demonstrated herein. All of the former Eagle Rock employees who desired to move to Newbury Park were transferred as a matter of course. This practice did not apply in the case of the former Van Nuys employees. All of the five discriminatees were asked more than one time whether they wished to transfer to Newbury Park and they answered in the affirmative. Respondent's abrupt change in implementing this policy 10 with respect to the Van Nuys employees and its recognition of the Association without a showing of representation on August 4, 1964, evidences a plan to divest itself of the obligation to recognize and deal with the Union. The factors supporting a finding that the entire production and maintenance unit at Newbury properly was an accretion to the former Van Nuys unit, includes the fol- lowing- The jobs were largely interchangeable and integrated; the Newbury facility was a few miles closer to the Van Nuys plant than the Eagle Rock plant; the Union is the only lawfully constituted collective-bargaining representative and was the choice of the Van Nuys employees by a 51 to 9 margin in the Board election and the Van Nuys unit was approximately double the Eagle Rock unit and the Eagle Rock employees were represented by an unlawfully assisted association in violation of Section 8(a)(2) and (1) of the Act; and because the Union represented a lawful majority in the appropriate unit as of August 4, 1964, the date Respondent executed an agreement recognizing the Association as the exclusive representative of the pro- duction and maintenance employees at Newbury Park. Since the Van Nuys unit was expanded by the accretion of the Newbury employ- ees, no demand for recognition need be shown to establish a failure to bargain for the expanded unit. The certification of the Union at Van Nuys applies to the unit during the certification year with accretions due to change in economic circum- stances. Here, the Union as the certified representative dealt with Respondent until it became obvious that any further negotiations would be meaningless. Although not necessary to establish a failure to bargain, a case can be made out on this record that the Union did make a demand to represent the production and main- tenance employees at Newbury Park, or was excused by attending circumstances.ii During the negotiations, the union representatives were misled by Respondent's representatives when they were informed that Respondnt did not know whether the Newbury facility was going to be integrated with respect to the production and maintenance employees from Eagle Rock and Van Nuys. The Union made it clear during the negotiations that it was seeking to represent employees holding jobs to be included within the production and maintenance unit of Newbury Park. Hence, the Union's stated position is reasonably construed as a request for bargaining with respect to all of the production and maintenance unit jobs of Newbury Park. 9 The Union contends that because of Respondent's conduct in not transferring the Van Nuys employees as it did the Eagle Rock employees , there should be a presumption that there were 18 discriminatees from Van Nuys Instead of the 5 alleged and that the number in the unit entitled to be considered as transferred from Van Nuys would number approxi- mately 50 instead of 37, including the discriminatees . It is not necessary to reach this question as the number in the unit transferred from Van Nuys along with the other factors set forth herein are sufficient to support a finding of an accretion to the Van Nuys unit, entitling the Union to represent the production and maintenance unit at Newbury Park. e Appendix F. 10 Zacrep, Respondent's personnel manager at Newbury , testified that the Van Nuys em- ployees were only hired at Newbury If they happened to be present when an opening occurred, although they had been told they would be called by Respondent n It Is clear the amendment to the complaint constitutes a specific demand for recogni- tion and bargaining at Newbury Park which Respondent is still resisting. Even without evidence of demands of recognition before the amendment , Respondent , because of its wrongful concealment of the nature of the unit at Newbury Park, would be estopped from successfully raising the issue as to the lack of demand by the Union for recognition at Newbury Park, since the prospective Integration of the Van Nuys and Eagle Rock em- ployees was concealed at the bargaining meetings and the fact of integration was not revealed to the Union until the hearing herein. PUROLATOR PRODUCTS, INC. 101 Respondent's conduct in executing an agreement with the Association recognizing the Association as the representative of the production and maintenance employees at Newbury Park foreclosed the Union from pursuing its lawful right of repre- sentation unless it had recourse to the Board. The following extract of Baker's testimony, the representative for the Union at the hearing and at the negotiations, establishes the deliberate design of Respondent to create a situation that would prevent the Union from making a more definitive request to represent all of the production and maintenance employees at Newbury Park when the operations commenced there, and also indicates the Union's position with respect to representing the production and maintenance employees at Newbury Park. With respect to the February 9, 1964, meeting, Clyde Baker testified without contradiction to the following: At this time Jerry Whipple (union president) asked what about the time they expected to move the plant, that he had understood they were going to move in in about April. And Mr. Lovatt said no. He didn't think they could move until the middle of summer. So Jerry told him when it seemed-the thing that we were bothered with in this (sic) negotiations was the moving of the plant, which was paramount in the people's minds, and the continuation of their employment. And the one was whether or not we would represent the people in the plant or whether we would represent certain jobs. (Emphasis supplied.) And Mr. Lovatt said he didn't intend to negotiate a contract that would cover the Newbury Park plant. He didn't want to get into that particular prob- lem. He felt we could negotiate a contract that would cover lust the people at the Van Nuys plant. At the time the people at the Van Nuys plant moved, then we should try to solve that problem at that time Mr. Meadoff, the conciliator asked him what his opinion would be if the plant moved, and whether or not the contract would follow the plant. And Mr. Lovatt said that there is Labor Board cases both ways. Sometimes the plant followed the contract, and sometimes it didn't follow the move. He wanted this to be discussed at the time that we moved. And Jerry Whipple told him that we wanted a contract to move with the plant, that we felt that we had a right to the bargaining unit the people had voted in the election. (Emphasis supplied.) And Mr. Lovatt told Jerry that he was in no position to bargain for the people at the Newbury Park plant. He didn't know what the makeup of the plant was going to be. Jerry asked him if there was going to be separate departments, and he said he didn't know whether they were going to be integrated or whether they were going to be separated, and he didn't know whether the new people that went out there would want to hire into the plant if the UAW at (sic, had) a con- tract there, and he didn't know whether some of the people that might want to move from the Eagle Rock at the On Mark plant would want to move if they felt the UAW was there. So he was in no position to bargain with UAW regarding the bargaining unit and on the coverage of the people in the plant until he would know the makeup and the circumstances. Inasmuch as at the time of this statement by Lovatt the Association had been formally recognized by Respondent as the representative of all the production and maintenance employees at Newbury Park as well as Eagle Rock, it is clear that this deliberate concealment by Respondent was not only bargaining in bad faith but also effectively prevented the Union from making a more specific demand for all the production and maintenance jobs at the Newbury Park facility. However, the fore- going quotation does establish the Union was in effect requesting recognition of a production and maintenance unit, and since there was only one at the Newbury facility, the Union in these circumstances must be deemed to have made an effective demand to represent all production and maintenance employees at the Newbury facility. In view of the contract executed on August 4, 1964, recognizing the Asso- ciation as the exclusive bargaining representative of all of the production and main- tenance employees at Newbury Park, the Union, in these circumstances, was not obligated to again formalize its position. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In N.L.R.B. v. J. W. Rex Co., 243 F.2d 356 (C.A. 3), a union was certified as a representative of a unit comprising approximately 60 employees. Two months after the certification, the company merged with two other corporations with an" addi- tional 29 employees in the production and maintenance unit. The court held that there was an obligation to bargain on the part of the company with the union for the expanded unit. The court also adds that an employer may not rely on changes which occur within the year following certification to justify a refusal to bargain, particularly where the employer's first refusal to bargain occurred before the merger. The court relied on Ray Brooks v. N.L.R.B., 348 U.S. 96, 103 (1954), where the Supreme Court states: If an employer has doubts about his [ability] to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Although the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. The underlying purpose of this statute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. The appropriate unit for bargaining after July 1, 1964, is found to be "All pro- duction and maintenance employees at the Newbury Park plant including shipping and receiving employees, but excluding office and plant clerical, professional and technical employees, and guards and supervisors as defined in the Act." Prior to July 1, 1964, the appropriate unit was the same described unit at Respondent's Van Nuys plant. At all times material herein, the Union represented a majority of employees in the above-described appropriate units. Specific indicia of Respondent's bad-faith bargaining include its execution of contracts with the Association recognizing it as the employees' representative at Newbury Park in February and August 1964. However, the total conduct of Respondent demonstrates also it was engaged for a period of about 6 months in purely surface bargaining for the purpose of delaying any commitment with the Union until the Van Nuys plant had moved to Newbury Park. It is clear Respond- ent was attempting to "freeze out" the Union at Newbury Park as its agreement with the Association demonstrates. A quotation from N.L.R.B. v. Herman Sausage Company, 275 F 2d 299 (C.A. 5), is applicable here to Respondent's conduct in this case. After setting forth the things an employer may do without bargaining in bad faith, such as its right not to have the Board make its agreement, not yielding a position fairly maintained, and its right to be free from any Board compulsion of concession, the court describes the situations which are unlawful and parallels situations presented by the case at hand. At page 232 the court states: On the other hand while the employer is assured these valuable rights, he may not use them as a cloak. In approaching it from this vantage, one must recognize as well that bad faith is prohibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence, we have said in more colorful language it takes more than mere "surface bargaining," or "shadow boxing to a draw," or "giving the Union a runaround while pur- porting to be meeting with the Union for the purpose of collective bargaining." Citing N.L R.B. v. Whittier Mills Company, 111 F.2d 474, 478 (C.A. 5); Stonewall Cotton Mills, Inc v. N.L.R B., 129 F.2d 629, 631 (C.A. 5), cert. denied 317 U.S. 667; N.L.R.B. v. Athens Manufacturing Company, 161 F.2d 8 (C.A. 5). In summary, it is found that Respondent at all times since July 27, 1964, has refused to bargain in good faith with the Union as the representative of the pro- duction and maintenance employees at Newbury Park and from January until July 1964 has unlawfully refused to bargain with the Union as the representative of the production and maintenance employees at Van Nuys.12 v January 1964 is an arbitrary date for fixing the date of failure to bargain in good faith. It may be argued that bad faith was indicated by Respondent before this date but no useful purpose would be served by attempting to fix a precise day prior to January 1964 when Respondent was chargeable with bad-faith bargaining. PUROLATOR PRODUCTS, INC. 103 2. Unlawful assistance of the Association by Respondent The alleged unlawful assistance of the Association, the failure to bargain and the question as to the appropriate unit have interlocking considerations. As indicated in Toledo Desk, supra, the finding that the Union is entitled to represent all of the production and maintenance employees at the Newbury Park facility does not necessarily depend on a finding that the Association was unlawfully assisted. How- ever, as established in I.L.G.W.U. v. N.L.R.B., supra; James V. DeGeorge d/b/a DeGeorge Transfer & Storage Co., 143 NLRB 83; and Salmirs Oil Company, 139 NLRB, it is a violation of Section 8(a)(2) of the Act to recognize and execute an agreement with a labor organization that does not represent a majority of employ- ees in the appropriate unit. Obviously, if Respondent is obligated to recognize the Union at Newbury Park, it is a violation of its duty to bargain for it to recognize the Association as the representative of the production and maintenance unit at Newbury Park. The testimony in this record suggests that there was no bargaining between the Association and Respondent in connection with the execution of the August 4, 1964, agreement. However, even assuming for the purposes of this Decision that there was some bargaining, it is found that the Respondent, by recognizing and executing the agreement, gave unlawful assistance to the Association on August 4, 1964. At this time, there were approximately 32 employees from the Van Nuys plant belong- ing to the production and maintenance unit that were working at Newbury Park, and 5 additional employees entitled to reinstatement, eligible for inclusion in the production and maintenance unit. Respondent, of course, had full knowledge that the Union was certified as the bargaining representative of the production and maintenance employees at Van Nuys. The record establishes that the Association did nothing whatsoever to establish its representative status with Respondent after the card check by Judge Donnellan in January 1964, nor was any proof requested by Respondent. The number of employees in the production and maintenance unit in Newbury Park on August 4, 1964, when the contract with the Association was executed, was 70 excluding the 3 employees from the engineering division who were not in the Van Nuys or the Eagle Rock production and maintenance unit before the consolidation. 13 Since the former Eagle Rock unit had 19 employees represented by the Association, it is apparent that the Association did not represent a majority at the time that Respondent executed its collective-bargaining agreement with the Association. Indeed, the Union represented a majority as it represented 37 of the 70 employees eligible to be included in the unit. Thus, Respondent's execution of the agreement with the Association when it did not represent a majority of employees in the Association constitutes unlawful assist- ance. I.L.G.W.U. v. N.L.R.B., 366 U.S. 731. Representative pertinent comments on unlawful assistance are in DeGeorge Transfer, 143 NLRB 83, 85: we further find that by recognizing Teamsters as the representative of these employees, and by applying the terms of the Association-Teamsters' con- tract to them at a time when Teamsters did not represent a majority in this unit, the Respondent violated Section 8(a) (2) . . . of the Act. Comments of the Board in Toledo Detsk, 75 NLRB 744, 746-747, enfd. 158 F.2d 426 spell out an employer's obligation when dealing with a certified bargaining agent as is the case here: It is well established that an employer may not allege a purported loss of majority as the reason for refusing to bargain with a certified bargaining rep- resentative where such loss of majority status is attributable even in part to the effect of unfair labor practices of the employer. As we have frequently noted, a certified union, absent unfair labor practices on the part of the employer, may normally be expected to absorb newly added employees into its membership and to maintain its majority status during such pay-roll changes as are attributable to economic consideration. In view of the respondent's unfair labor practices, we must therefore presume the continuation of the Union's majority representation, and, on the basis thereof, we find, as did the Trial Examiner, that the Union is, and at all times since its certification on August 11, 1964 , has been, the statutory bargaining representative of the Respondent's employees. 13 These employees were Barnett, Beem, and Royal. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a footnote the Board states: It may be assumed that some employees abandon a union , impelled in part by factors other than the effects of the unfair labor practices of their employer; but to disentangle other factors from such discouraging effects is impossible so long as the unfair labor practices are unremedied. Matter of Karp Metal Prod- ucts Company, 51 NLRB 621, 624. The fact that another labor organization, which lost to the Union in the election held in 1944, claims a present majority representation , is thus immaterial on the issue respecting the presumption of the charging union's continuing majority. The Trial Examiner therefore prop- erly excluded testimony on this matter. As will be indicated below, the unfair labor practices in this case before August 4, 1964, included unlawful discrimination resulting in loss of employment for 5 employees in the unit represented by the Union in addition to the failure to bargain commencing in January 1964. An additional element of unlawful assistance is found in the Association security provision contained in the August 4, 1964, contract between Respondent and the Association. ARTICLE III ASSOCIATION SECURITY 1. Any employee within the bargaining unit who, on the effective date of this Agreement, is a member of the Association in good standing and each employee within the bargaining unit who thereafter becomes a member of the Association, shall pay while on the Company's active payroll and a member of the Association, initiation fees and current monthly dues levied by the Association in accordance with the constitution and by-laws of the Association while in the bargaining unit, provided that in no event shall the initiation fee or monthly dues exceed the amount specified in the constitution and by-laws. Such union-security provision constitutes an additional violation of Section 8(a) (2) of the Act, Salmirs Oil Company, supra, 26. C. Unlawful no-solicitation rules Paragraphs 18 and 19 of the complaint provide as follows: 18. The collective-bargaining agreement referred to in paragraph 13 above, (the August 4, 1964, agreement between the Association and the Respondent) provides, in Article XIV thereof, inter alma, that there shall be no general dis- tribution, or posting by employees, of pamphlets, advertising, or political mat- ter, notices, or any kind of literature upon Company property other than therein provided for the posting, after approval by Respondent' s Personnel Department, of notices of Association recreational and social affairs, notices of Association elections, notices of Association appointments and results of Association elections, and notices of Association meetings. 19. The collective-bargaining agreement referred to in paragraph 13 above, (the August 4, 1964, agreement between the Association and the Respondent) contains, in Article XVII dealing with shop rules, a list of specified conduct for which penalties ranging from reprimand to discharge may be imposed, which list includes items reading as follows: 9. Unauthorized soliciting or collective contributions for any purpose whatsoever on Company premises. 10. Unauthorized distributing, posting or removal of notices, signs, literature, petitions, written or printed matter of any description on bulletin boards or Company premises at any time without the specific authority of Management. It is clear that these provisions are unlawful prohibitions on the employees' rights guaranteed by Section 7 of the Act. General Motors Corporation, 147 NLRB 509 and Chevrolet Motor Division, General Motors Corporation, 144 NLRB 862. D. The Tibor Lonyai incident In December 1963, after the termination of the contract between the Union and Respondent, Respondent laid off Tibor Lonyai although he had seniority over an employee who was retained. Under the contract, absent unusual circumstances, se- PUROLATOR PRODUCTS, INC. 105 niority would prevail in determining who would be laid off. The General Counsel contends that by laying off Tibor Lonyai out of seniority and without giving him 3 days' notice or pay as required by the expired contract, the Respondent had made a change in working conditions without consulting with the Union and, hence, violated Section 8(a)(1) and (5) of the Act. When this subject was raised by the union representative at a negotiating meeting, Lovatt, speaking on behalf of Respondent, claimed that this was not a change in working conditions but a change in company policy, and that since the contract had expired, the Respondent was entitled to take such unilateral action. Plant Manager Sitton at the negotiating meet- ing stated the reason Respondent wanted to get rid of the old contract was because it was not satisfied with the seniority provisions. It is clear that Respondent, in the case of Lonyai, was making a unilateral change in working conditions at a time when the Union was the certified bargaining representative. Such a change violates Section 8(a)(1) and (5) of the Act. N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co. 369 U.S. 736, and Aztec Ceramics Company, 138 NLRB 1178. E. The alleged discriminatory layoffs The complaint alleges that Josephine and Edward Zaloom, Irene Dupont, Fred Deutsch, and Frank Tillotson were terminated on July 2, 1964, in order to dis- courage membership in the Union. The unlawful discrimination against these indi- viduals does not rest mainly on Respondent's knowledge and unlawful motivation with respect to an individual, although there are special circumstances indicating each termination was discriminatory. The evidence establishes that discrimination occurred because Respondent was attempting to eliminate the Union as the bargain- ing representative of its production and maintenance employees. The communica- tions to the employees prior to the election in November 1963 establish Respondent was bitterly and strongly opposed to the Union (Appendixes C, D, and E). On the other hand, the record establishes the Association as an apparent docile organiza- tion with its negotiating committee content to permit Respondent to draft its collective-bargaining agreement. Respondent did not communicate to its employees any opposition to the Association but, on the contrary, recognized it and executed a complete collective-bargaining agreement on August 4, 1964, without any showing of the Association's representative status. This was at a time when the Association represented approximately 19 employees out of a unit comprised of 70 employees. This was also at a time when the Union was the certified bargaining representative following an election in November 1963 in which the employees of Respondent at its Van Nuys facility voted for the Union by a vote of 51 to 9. In N.L.R B. v. Piezo Manufacturing Corporation, 290 F.2d 445 (C.A. 2), the court held that a finding that "Respondent's vice president knew whether or not the employees whom he laid off had signed union authorization cards was not essential to the Board's decision." The layoffs occurred almost immediately after the vice president had been informed that a majority of Respondent's production and main- tenance employees had selected the Union to represent them. The Board could infer from the timing of the layoffs and from (the vice president's) statements made almost contemporaneously with them that they were intended to discourage respondent's employees from adhering to the union at a period critical to its future at respondent's plant and also to effect the union majority. In the case at hand, it is obvious that the failure of Respondent to recall the five employees was at a critical time for the Union and at a time when at the very least a serious question of representation existed with reference to the employees at the Newbury Park plant. It is also clear that failing to call to work the five discriminatees would adversely affect the majority of the Union since these were five employees from the production and maintenance unit represented by the Union. In Liberty Coach Company, Incorporated, 128 NLRB 160, the Board found the employer violated the Act in failing to reinstate seven employees who were laid off in a mass layoff, despite the fact that it was not shown the seven were union members or that the employer had any knowledge of their union membership in view of the dis- criminatory acts applied to the employees as a whole. In the case at hand, the record shows that there were ample jobs for the employ- ees commencing with the operation of the Newbury Park facility after the move from Van Nuys. Thirteen were hired during July 1964 alone. There was no com- plaint of the employees' work and the employees' foreman testified that they were satisfactory employees and would be reemployed if a job was open. Despite the statement of the Respondent's plant manager that it was valuable to have the 106 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD employees who were experienced, there was no rational explanation why the dis- criminatees were not recalled.14 The abrupt change in policy following the posting of the notice on June 26, 1964, and the informing of the employees that they would be called instead of reporting on July 20 suggests a plan designed to decrease the size of the unit which the Union could claim to represent. Here Respondent conceded the principle that trained employees were to be desired at Newbury Park. In one of his speeches to the Van Nuys employees prior to the Board election, Plant Man- ager Sitton told them: A. Well, he wanted to inform us that the plant was moving, but at that particular time they couldn't say exactly when or what month it was moving, and that they would have brochures and personnel pertaining to housing avail- able in that particular area and so forth on that line, and- Q. Excuse me. You said they would have brochures and personnel? I don't understand. A. At personnel. Q. Excuse me. Thank you. A. They would be available for anyone that wanted to look into it, if they decided they wanted to move out there to go with the plant. They would know what type of housing was available and so forth in that line. And he didn't know, just like I said, when the plant would be moving, and we had-he said he knew we had heard rumors to this effect, but he wanted to confirm and get it straight that they were definitely moving, but as to when or when the building would be completed and so forth, he didn't know just when this would be. And anyone that wanted to go with the plant would be welcome to go; that there would be jobs waiting for them there; that they couldn't afford for all of the old help to quit or they couldn't afford to lay them off, because they needed people that knew the job. If they didn't take them with them, that they would be back in the same predicament they were in when they moved to California. They would be put so far behind in their production. That there would be jobs available for anyone that wanted to go to the new plant. And he introduced, I believe it was at that meeting, he introduced Mr. Lovatt; that he wasn't a union buster. Respondent offered no explanation why it canceled its notice affording all the Van Nuys employees the right to transfer to the Newbury Park facility. In view of the claim by Vice President Willis that the policy for transferring was the same at Van Nuys as at Eagle Rock and that in fact this practice was not carried out, an explanation is required which it not found in this record to negate the finding that the disparate treatment of the Van Nuys employees was aimed at ridding Respondent of its obligation to bargain with the Union. In the context of events set forth, it is found that Respondent practiced unlawful discrimination with respect to Josephine and Edward Zaloom, Fred Deutsch, Frank Tillotson, and Irene Dupont, five Van Nuys employees who were not called to work at Newbury Park. This finding is strengthened by a consideration of facts attending each discharge. Josephine Zaloom had been working at the Van Nuys plant since 1961. She was a union member and attended union meetings and had filed a grievance with respect to holiday pay. She attended an assembly of employees at the Van Nuys plant in October 1963, at which Plant Manager Sitton talked about moving the plant after he had urged the employees to vote against the Union in the impending Board election. Sitton urged the employees to move to the new facility when it was completed and made available for the employees pamphlets of homes near the New- bury Park facility. Sitton stated at the meeting of employees that since the employ- ees were doing such a good job, he would appreciate it if all the employees would move. Josephine Zaloom was asked about six times by various supervisory person- nel if she would move to Newbury Park and she replied affirmatively each time. Josephine Zaloom reported to work at Newbury on July 20, in company with her husband, Edward Zaloom, Fred Deutsch, and another former Van Nuys employee. Bob LaHuillier, a foreman from Van Nuys, was present at Newbury Park when i! Absent a contrary showing, it would appear that "seasoned men are better than green hands" N.L.R.B. v. Remington Raid, Inc., 94 F.2d 862, 872 (C A. 2) Cited in N.L.R.B. v. Northwestern Publishing Co., 343 F.2d 521 (C.A. 7). PUROLATOR PRODUCTS, INC. 107 these individuals arrived at the Newbury plant about 7:45 a.m. on July 20. LaHuil- lier refused to talk to them saying he had nothing to do with employment and they would have to see personnel.15 When these employees saw Zacrep, he told them they would be notified and that it would be at least another week before they were required Josephine Zaloom called Zacrep in a week and he advised her that the production did not yet justify her recall. She asked him if she was still on his list for recall and he replied she was. She called in another 3 days for herself and her husband, Edward, and Zacrep again told her Respondent was not ready to call her and he stated he would call her.16 After this, Josephine Zaloom did not call Respondent again and she was never called to work at the Newbury Park facility of Respondent. - Edward Zaloom commenced working for Respondent in April 1961. He was a member of the Union and attended union meetings . On one occasion in November 1963, his foreman, Lyman Schewbert, asked him what he thought about the Union. Edward Zaloom replied that he thought the Union could do a lot for the employees. Schewbert replied "Don't you think it would be better if you stuck with the com- pany? Stand on the company's side?" Zaloom replied he would have to think it over. Schewbert also asked Zaloom what his wife thought about the Union and Zaloom replied, in effect, that he hadn't discussed it very much with her. Foreman Schewbert asked Zaloom at least twice if he was going to move to the Newbury Park facility and Zaloom answered yes each time. On July 2, 1964, Zaloom was first told to be sure and come to work on July 6, which was moving day, to straighten out the records and get the department set up. After everything in his department was sealed and ready to move, about ten minutes before quitting time on July 2, Foreman Schewbert called Zaloom in and said the Company had a new policy and that Zaloom would be notified when to report for work. Not hearing by July 20, 1964, in company with his wife, Josephine, Fred Deutsch, and another employee, Edward Zaloom went to the Newbury Park facility. As related by Josephine Zaloom, Zacrep told them they would be called. Zacrep also advised Edward Zaloom he would have to deal with him and not his foreman. Edward Zaloom was never called back for work. Fred Deutsch commenced working at Respondent's Van Nuys plant in August 1961. He was a union member and attended union meetings . Foreman Lyman Schewbert, in the summer of 1964, before the move, asked Deutsch what he thought about the Union. Deutsch replied it was all right and Schewbert said "Well, you would be better off-you would be better off if you stay with us." Prior to the move to the Newbury Park, Foreman Hughes asked Deutsch if he wished to work at the new plant. Hughes had a list in his hand and Deutsch replied that he would be glad to come along. He also observed Hughes asking other employees with respect to moving with the plant. A week before the move, Hughes instructed two men who were not going to move to instruct Deutsch with respect to work that had to be done at the Newbury Park facility. When Deutsch was packing the parts, Hughes gave hint his check and told him he would be called for work in about 2 weeks and if not called, to come to the new plant. On the strength of his under- standing that he would be called to work, Deutsch purchased a home closer to Newbury Park. In about 2 weeks after June 28, 1964, Deutsch reported to Hughes who told him he would have to go to the personnel department where he was told he would be called to work on the following Wednesday but he was never called. Later, Deutsch called the plant and asked to speak with Foreman Hughes but was not able to get through to Hughes. Deutsch was never called to work by Respondent. '- Zacrep, the personnel manager at Newbury Park, testified the Van Nuys employees were hired only If the foremen put in a requisition for an employee and the individual happened to be present LaHuillier , Josephine Zaloom's foreman , testified he had nothing to do with recommending hiring, thus completely contradicting Zacrep's unbelievable ac- count as to the procedure for putting the former Van Nuys employees to work. 10 Zacrep denied he was ever contacted for employment by Josephine and Edward Zaloom, Irene Dupont, and Fred Deutsch . Zacrep's patently incorrect testimony was contradicted by Respondent's foreman , LaHuillier, with respect to the procedure for calling - the Van Nuys employees to work at the Newbury facility . Zacrep also denied that be spoke to Irene Dupont although LaHuillier testified that he brought her in to Zacrep's office. The general tenor of Zacrep 's testimony was extremely evasive and , taken with his demeanor and the contradictions by Respondent's witnesses, compels. a conclusion .that his entire testimony must be rejected as untrustworthy. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irene Dupont commenced working at Respondent's Van Nuys plant in January of 1962. Dupont was a union member and attended union meetings. Before the election in November 1963, she had a discussion with antiunion employees Barbara Jarret and Mrs. Aswell, wherein Dupont spoke in favor of the Union. Dupont's foreman, LaHuillier, asked her on two occasions if she was going to move to the Newbury Park plant and Dupont answered yes on each occasion. The second time was a day or so before the plant closed. On the last day of work, aout 5 minutes before quitting time, Foreman LaHuil- lier told Dupont not to report to work until called instead of on July 20 as Plant Manager Sitton's June 26 notice stated (Appendix F). On one occasion after this, in company with another employee, Irene Dupont went to the home of Foreman LaHuillier to find out if they would be recalled to the Newbury Park plant. LaHuillier stated Dupont would be called back but several employees, including Mr. and Mrs. Zaloom, would not. Employee Stewart, on the Saturday before July 20, told Dupont she was not going to be recalled. Dupont then called LaHuillier and asked him why he had not let her know directly. He told her he did not know. She saw him again at the plant where he repeated he did not know why she was not being recalled and that he had orders from higher up. Dupont, after this, telephoned to the Newbury Park plant and was informed she was on the list and would be recalled as quickly as needed. After this, she went to the plant in person a few days later and talked to Per- sonnel Director Zacrep. She told him there were an awful lot of new girls and asked why she was not called back. He replied that he got the list from the fore- man when an employee was needed, and he had not received her name yet. The same day she saw her foreman, LaHuillier, and asked him "how come I'm not called back?" and he replied "I did the best I could. I couldn't do any more." Irene Dupont has never been called to work at the Newbury Park plant by Respondent.17 Frank Tillotson commenced working at Respondent's Van Nuys plant in August of 1961. He was a member of the Union's shop committee for about 2 years. He represented the Union at contract negotiations and processed grievances under the union contract. He was twice asked if he wanted to move to the Newbury Park plant by Foreman Hughes about a month and about a week before the move. He stated both times that he would move. On the last day of work, shortly before quitting time, his foreman, Hughes, told him to disregard the notice on the bulletin board of June 26 telling employees to report to work on July 20 and that he would be called when Respondent wanted him. He never was called to work by Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent 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 thereof. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union and the Association are labor organizations within the meaning of the Act. 3. All production and maintenance employees at the Newbury Park plant, includ- ing shipping and receiving employees, but excluding office and plant clerical, pro- fessional and technical employees, and guards and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining. 4. All production and maintenance employees at the Van Nuys plant, including shipping and receiving employees, but excluding office and plant clerical, profes- sional and technical employees, and guards and supervisors as defined by the Act prior to July 2, 1964, constitute a unit appropriate for the purposes of collective bargaining. 17 LaHuillier denies telling Dupont on the phone she would not be recalled to work on orders from higher up, or that the Zalooms would not be recalled or that he told her he did all he could. Dupont's version seems more credible and her testimony was convincing and of a nature not plausibly manufacured and Is credited over LaHuillier 's denials PUROLATOR PRODUCTS, INC. 109 5. From September 1963 until July 2, 1964 , the Union was the exclusive repre- sentative of all employees in the above -described unit for the Van Nuys plant for the purposes of collective bargaining, and subsequent to July 2, 1964, the Union was, and has been at all times thereafter, the exclusive representative of all employ- ees in the above-described unit for the Newbury Park plant for the purposes of collective bargaining. 6. Respondent has violated Section 8 (a)(1) and (5) of the Act by failing to bargain with the Union as the representative of the employees in the appropriate units at both the Van Nuys and Newbury Park plants. 7. Respondent has violated Section 8(a)(1) and (3) of the Act by unlawfully discriminating with respect to the employment of Edward and Josephine Zaloom, Irene Dupont, Frank Tillotson, and Fred Deutsch by terminating said employees on July 2, 1964, and failing to recall them thereafter. 8. Respondent has violated Section 8(a)(1) and (2) of the Act by unlawfully assisting the Association and particularly by executing a collective -bargaining agree- ment on August 4, 1964, when said Association did not represent a majority of the employees in the appropriate unit at its Newbury Park plant. 9. Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing conditions of employment so that Tibor Lonyai was laid off without refer- ence to the seniority practice in effect previously and without consultation with the certified bargaining representative of Lonyai. 10. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminated in regard to the hire and tenure of employment of Josephine Zaloom, Edward Zaloom, Frank Tillotson, Irene Dupont, and Fred Deutsch by terminating them on July 2, 1964, it will be recommended that Respondent offer each of them immediate and full reinstatement to their former or substantially equivalent position without prejudice to their seniority. or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of said discrimination against them by payment to them of a sum of money equal to that which they would have earned as wages from the' date of discrimination to the date of reinstatement, less net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It having been found that the layoff of Tibor Lonyia was a violation of Section 8(a)(1) and (5) of the Act, it will be recommended that Respondent- reimburse him for any loss of wages he may have suffered from the date of his termination until such time as an unconditional offer of reinstatement to the same or sub- stantially equivalent job is made by Respondent. Square Binding and Ruling Co., Inc., 146 NLRB 206.18 Since the agreement of August 4, 1964 , between the Association and Respondent is found to have been entered into and subsequently maintained at a time when Respondent did not represent a majority of employees in the appropriate unit, it will be recommended that Respondent be required to withdraw recognition from the Association and continue to withhold recognition unless and until such time as the Association is certified in accordance with the terms of the Act. It will be further recommended that Respondent reimburse each of its present and former is Respondent's personnel manager , McEdward, testified he "believed" he offered Lonyai a job in December 1963 and that Lonyai refused it "more or less." He also testified that he saw Lonyai in the hallway and called him into his office Lonyai denied he was in the plant or that he even saw McEdward Lonvai's testimony was definite and forthright McEdward's was vague and uncertain Lonyai's version is credited. Zacrep, along with Marino, a supervisor, went to Lonyal's home approximately in June 1964 and offered Lonyai some type of employment. Whether or not it was substantially equivalent to his former job is not clear. This would have to be determined at the com- pliance stage. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees for all dues and other moneys they have been required to pay the Asso- ciation by reason of Respondent's enforcement of the Association security pro- vision of the August 4, 1964 agreement. Sahnirs Oil Company, 139 NLRB 25. Because of the nature and extent of the unfair labor practices committed by Respondent and its disregard of the collective-bargaining process, it will be recom- mended that Respondent be required to cease and desist from interfering with its employees' rights in any manner violative of the Act. [Board's Appendix substituted for Trial Examiner's Appendix A.] APPENDIX B ORDER CORRECTING TRANSCRIPT 1. Page 36, line 17, strike out the word "not." 2. Page 40, line 2, strike out the word "top." 3. Page 70, line 17, correct the word "shipping" to "chief." 4. Page 87, line 2, correct the word "wouldn't" to "wanted to." 5. Page 187, line 3, correct the word "Cajon" to "Conejo" and the word "New- berry" to "Newbury." 6. Page 191, line 10, correct the word "rates" to "dates." 7. Page 207, line 23, correct the word "would" to "wouldn't." 8. Page 209, line 16, insert the word "not" between the words "applied" and "only." 9. Page 345, line 19, insert the word "not" between the words "union" and "to." 10. Page 369, line 20, correct the word "in" to "if." 11. Page 369, line 21, correct the first word, "at" to "had." 12. Page 374, line 19, correct the word "if" to "after." 13. Page 384, line 5, correct the first word, "and" to "in." 14. Page 401, line 15, correct the word "as" near the end of the line to "after." 15. Page 426, line 16, correct the word "equipment" to "employment." 16. Page 435, line 1, correct the word "before" to "after." 17. Page 435, line 3, correct the word "before" to "after." 18. Page 456, line 7, correct the word "for" to "or.,, 19. Page 472, line 20, correct "ity" to "ization." 20. Page 481, line 20, correct the word "and" to "at." 21. Page 486, line 13, strike out the words "and the" and substitute for them the word "at." 22. Page 486, line 22, insert the word "offer" at the beginning of the line. 23., Page 488, line 15, correct the name "Donovan" to "Donnellan." 24. Page 499, line 11, correct to read: "employees which was furnished during the investigation of the." 25. Page 539, line 9, correct the word "him" to "them." 26. Page 658, line 20, correct the word "allow" to "follow." APPENDIX C October 21, 1963. Dear Ben; We want to take this opportunity to let you know why we recently filed a petition for a representation election for our Van Nuys plant. As most of you probably know, we have been contacted on numerous occasions by many of your fellow employees. They have expressed complete dissatisfaction with the present U. A. W. Union and the manner in which they represent you. This raised the serious question as to whether or not the present Union represents a majority of our employees. We believe they do not, so we petitioned the National Labor Relations Board for an election. A hearing was held on October 15, 1963, by the National Labor Relations Board, and it was determined that an election would be held on November 14, 1963, between the hours of 3:00 P.M. and 4:00 P.M. on the Company premises. The validity of our petition was upheld by the Board, but Local #509 tried everything to prevent an election from being held. It appears that they are against employees having the freedom to vote. We will always oppose the selfish interests of a few union leaders who are only interested in getting your money in the form of dues, initiation fees and assessments. The election to be held under the jurisdiction of the National Labor Relations Board will determine if you and your fellow employees still want to be represented by Local #509 of the U. A. W. It is up to you to decide whether you want the PUROLATOR PRODUCTS, INC. 111 present Union, no union at all, or an independent union. After all, you vote every two years for your representatives in Congiess, so why shouldn't you have the same free choice here in your Company? Rumors that you will lose your present benefits if you vote against the Union are deliberate lies. We can assure you that you will not lose anything because you vote the way you want to vote. The Company is restricted by law from promising you any additional benefits if you vote against the Union, but the Union is allowed to promise you anything, but they can guarantee you nothing. It is the Company that gives you your benefits and pays you your wages-not the Union. If you have any questions regarding statements made by the Union, please feel free to contact our Personnel Manager, your foreman, or myself. We will answer your questions with clear honest facts. Thank you very much for allowing me this time with you. We will continue to keep you informed of your rights. Cordially, HWS: ah APPENDIX D (S) Howard W. Sitton, HOWARD W. SITTON, Plant Manager. November 6, 1963. Dear Joe, As you know, there is to be an election , conducted by the National Labor Relations Board on Thursday, November 14, 1963, between the hours of 3:00 and 4:00 P.M. We Tope that every employee will vote. The vote will be secret and no one will know how you vote except yourself . If, after earnest consideration, you believe that you want a union in the plant, then of course you vote "yes." But, if you decide that management-employee relationships are better if there is no union- you naturally vote "NO." A number of employees have asked the question : "If I am a member of the union, am I obligated to vote for the union "? The answer is "NO." You are free to do just what you want to do at the time you cast your ballot. That is just what the secret ballot is for-to give you an opportunity to vote without coercion or pres- sure from any source. It is important that you keep in mind certain things when you are considering this matter. It is true that while it is attempting to get your vote, the union can promise you anything under the sun-no matter how ridiculous . But can it keep its pre-election promises ? Here are the facts: If the union wins the election, the employer (or its designated representative ) will be obligated under the law to meet with the union at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . The union can then make any proposal to the company that it wants to-but it cannot compel the company to accept its proposals . This is just what the Federal law provides for. So, when you listen to the union solicitation for your vote , and read the literature it passes out, keep this fact always in mind: THE UNION CANNOT GET YOU ANY- THING THE COMPANY IS NOT WILLING TO GRANT. When a union is voted in , and thereafter makes various proposals to the com- pany which the company is unable or unwilling to concede, as a general rule the first thing the union does is to call its members out on strike against the company in an effort to force the company to grant its proposals . This is called an economic strike. Under the provisions of the law economic strikers can be replaced with new and permanent employees in the jobs the strikers have left, and when this occurs, the striker no longer has any employee status with the employer . All too often, a union vote-getting drive starts off with a rosy picture of what the union claims it can accomplish, and ends up with a picket line when the union is unable to fulfill its promises. Remember too, a union does not work for nothing . There is the matter of monthly dues, assessments and fines. You should remember the union has some- thing to sell you that you go on paying for the rest of your working days. Be sure you want to "buy" before you vote for a union in our plant. If you have grievances , there is nothing in the world to prevent your bringing them directly to management , as an individual or through your own chosen com- mittee , The company firmly believes you do not need a union to settle any griev- ances you may have with this company. We hope you will give the company a "vote of confidence" and vote "NO" on November 14. Whichever way you vote, however, the decision is yours. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have written you at length because it is of vital importance to both you and the company. The company is the source of your livelihood, and the employees and the company have a mutual interest which should not be overlooked. When you cast your ballot on Thursday, November 14, please do so with our assurance that you have complete freedom to choose which way you vote. Good luck! Cordially, PUROLATOR PRODUCTS, INC. (S) Howard W. Sitton, HOWARD W. SITTON, Plant Manager. HWS:ah APPENDIX E November 13, 1963. Dear Fellow Employees: For weeks the Union has tried to convince you that you are dumb -that you do not have the ability to do your own thinking-that you cannot distinguish between right and wrong, falsehoods and truth. They have attacked your dignity and mental ability. They had the gall and nerve to insult you by telling you lies about the Company. They have attempted by means of twisted propaganda to sell you on the idea that your "job is bigger than you" that you cannot handle your own affairs- that you need the Union to do your thinking for you. Thursday you will have the opportunity to prove to the Union that you have respect for yourselves and that as men and women in your own free right, you are capable of doing your own thinking. You will have your chance to show them that you are perfectly able to decide for yourselves what is right and what is wrong, that you can handle your own affairs, correct any problems that may exist-and live your life as you see fit without any advice or help- from any Union. You will be able to tell the Union that you have seen thru their tactics and know the real reason for their interest in you . They want each of you to pay them lots of money per year in dues for the privilege of running your life and your business. The Union wants your money taken right out of your paycheck and paid to them. Think this over very carefully. Without a Union you own your own souls, your own hearts. You are free to talk to whoever you want, free to say what you want to say, laugh , joke or get mad-you can do as you see fit. You have freedom-do not give it away. In a Union shop the shop committee man will demand that he do your talking and thinking for you . Think this over carefully. Do not vote away your freedom and your self respect. Sincerely, PUROLATOR PRODUCTS, INC., (S) Howard W. Sitton, HOWARD W. SITTON, Plant Manager. HWS:ah APPENDIX F NOTICE TO ALL EMPLOYEES Operations of the Van Nuys plant will close down Thursday, July 2 at the end of the regular work shift. Friday, July 3, will be observed as the Independence Day holiday, and all employees who otherwise meet the requirements and work through Thursday, July 2, will receive holiday pay. The plant will be moved to our new location at Newbury Park the week of July 6-10 and production operations will be resumed at the new location as soon as machinery is installed and ready, during the week of July 13-17, or at the latest, July 20. Those employees who anticipate working at the new plant location are requested to verify this fact with their foreman or supervisor and be sure that their correct address and phone number are available. Employees who are needed to help during the move period will be individually contacted by their supervisor. All who will make the move but who are not contacted previously are requested to report for work at the Personnel entrance of the new plant, to start at 7:30 A.M. Monday, July 20. Every effort will be made to call most of the people in approximately July 15, if the production areas can be made ready in time. LYNCH AND COMPANY, INC. 113 All vacation pay will be distributed Tuesday, June 30 and all hourly employees will be paid in full Thursday, July 2. This is not to be construed as causing any break in the employment record of those who are moving to Newbury Park, but is simply being done for your convenience, so that it will not be necessary for you to go to the new plant for your paycheck during the time the move is in process. The manner in which all personnel of this plant have conducted themselves and handled their jobs during this time leading up to the move is most commendable and is certainly appreciated by all members of supervision. Since coming here a little over two'years ago, I feel that the Van Nuys operations have shown steady improvement, reflecting a high degree of cooperation on the part of all employees and a real desire to do a good job, which has been evident by our'steady improve- ment in quality and ability to make deliveries on schedule. In closing the Van Nuys operations, I want to express my personal thanks to each and everyone of you, and to those of you who will not be going with us to the new location, I wish you -a happy and successful future. June 26, 1964 (,, (S) H. W. Sitton, H. W. SIrroN, Plant Manager S. H. Lynch and Company, Inc. and International Union of United Brewery, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO.. Case 16-CA-2618. July 6,1966 . DECISION AND ORDER Upon charges duly filed by International Union of United Brewery, Cereal, Soft Drink and Distillery Workers of'America, AFL-CIO, herein called- the Union, the General-,Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint dated March 23, 1966, against S. H. Lynch and Company, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair' labor practices within 'the meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the,Union. , With respect to the unfair labor practices, the complaint alleges, in substance, that on or about March 7, 1966, the Union was duly certified by the Board 1 as the exclusive bargaining representative of Respondent's employees in the unit found appropriate by the Board and that, since on or about March 14, 1966, Respondent has refused to 'recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested it to do so. On or about April 13, 1966, the parties executed a stipulation whereby they agreed to the submission of this case directly to the . 1 Decision and certification of representative in Case 16-RC-4095 (not published in NLRB volumes). 160 NLRB No. 8. 257-551-67-vol . 160-9