Empire State Sugar Co., Inc.

EMPIRE STATE SUGAR CO. 31 Empire State Sugar Company, Inc. and International Union of Operating Engineers, Local 71, 71A, AFL-CIO and American Federa- tion of Grain Millers, AFL-CIO, and its Local 322 Party to the Contract. Case 3-CA-2987 members of the above-named labor organiza- tion, except in accordance with an agreement as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 8, 1967, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Respondent, and the Grain Millers filed exceptions to the Deci- sion and briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Empire State Sugar Com- pany, Inc., Auburn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Substitute the following as paragraph 1(d): "(d) Requiring as a condition of employment that such powerhouse employees be members of the above-named labor organization, except in ac- cordance with an agreement as authorized in Sec- tion 8(a)(3) of the National Labor Relations Act, as amended." 2. Substitute the following for the third indented paragraph of the notice attached to the Trial Ex- aminer's Decision: WE WILL NOT require as a condition of em- ployment that such powerhouse employees be TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: This proceed- ing was heard on November 17, 1966,1 in Auburn, New York, upon a complaint by the General Counsel,2 alleging that Empire State Sugar Company, Inc., herein called Respondent, violated Section 8(a)(2) and (1) of the Na- tional Labor Relations Act. Respondent generally denied commission of the alleged unfair labor practices.3 All parties appeared at the hearing and were afforded full op- portunity to present relevant evidence, to examine and cross-examine witnesses, and to argue orally on the record. Briefs received from the General Counsel and Respondent have been carefully considered. Upon the entire record in the case, and from my obser- vation of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent operates a plant at Montezuma, New York, where it is engaged in the processing, manufacture, sale, and distribution of sugar and related products. Dur- ing the year ending October 1, 1966, Respondent sold and distributed manufactured products valued in excess of $100,000, of which products valued in excess of $50,000 constituted a direct outflow in interstate com- merce. It is undenied, and I find, that Respondent is en- gaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local 71, and 71 A, AFL-CIO, herein called the Operating En- gineers, and American Federation of Grain Millers, and its Local 332, herein collectively called the Grain Mil- lers, are each labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues and Contentions 1. Whether, as alleged by the General Counsel, Respondent rendered unlawful assistance to the Grain Millers - within the year after an inconclusive Board con sent election-by engaging in the following conduct: (a) After rejecting a current recognition claim of the Operating Engineers in a unit of powerhouse operators and an accompanying offer of new "approp 'ate .proof ' of I All dates are in 1966, except as otherwise indicated. 2 The original charge was filed and served by the Operating Engineers on July 7, and the complaint thereon was issued by the General Counsel on October 3. 1 The Grain Millers verbally entered denials to the complaint substan- tially identical to those filed by Respondent 166 NLRB No. 22 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority status -by granting the request of the Grain Mil- lers for an impartial cross check of authorization cards to substantiate a demand for recognition in a unit of produc- tion and maintenance employees , including powerhouse operators. (b) By recognizing the Grain Millers following the re- ported results of such card check. (c) By engaging in contract negotiations with the Grain Millers. (d) By executing a contract with the Grain Millers. (e) By including in the contract union-security provi- sions. 2. 'Whether, as contended by Respondent and the Grain Millers, the claimed unit of powerhouse operators was or is inappropriate. 3. 'Whether, as contended by Respondent, the Midwest Piping doctrine was inapplicable despite the conflicting union claims as to the powerhouse employees. B. The Competing Organizational Efforts 1. Prior inconclusive election On October 5 and 11, 1965, petitions were filed respectively by the Grain Millers and the Teamsters 4 for an election in a production and maintenance unit; and on November 1, 1965, the Operating Engineers petitioned for a unit of powerhouse operators. On November 2, 1965, all parties executed a Stipulation for Certification Upon Consent Election, in which it was agreed that a self-determination election would be conducted in separate voting groups of powerhouse operators and of production and maintenance employees. A payroll list of eligible voters, stipulated in advance, provided the names of three powerhouse operators- Charles E. Tallman, David V. Butler, and Theordore J. Huff. On November 16, 1965, in the elections conducted by the Board, none of the participating unions received a majority vote; and thereafter the Regional Director accordingly issued a Certificate of Results of Election. 2. Renewed organizational campaigns and recognition demands By letter to Respondent dated April 26 the Operating Engineers requested recognition as majority representa- tive of the powerhouse operators and indicated that it was "ready to produce appropriate proof' of such claim.5 On May 3, Respondent replied by letter expressing doubt 4 Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union 506. 5 At this time, the Operating Engineers had in its possession designation cards signed, on April 24, by Tallman and Butler, Myron Kushnir, Wil- liam DeLamarter, and Donald M. Young. In evidence is a payroll list as of April 26 showing Tallman and Butler with the classification of "Power House Operator"; Huff as "Power House Foreman", Kushnir as "Main- tenance Man 'B'," and DeLamarter as "Maintenance Utility" -with the notation that the latter two employees were "Assigned as 'Helpers' in Power House." General Counsel contends that the list should also include Young classified as "Water and Sanitary Treatment Operator." Respond- ent contends that only three of the six employees aforementioned were properly powerhouse employees on April 26; i.e , Huff, Tallman, and Bu- tler (Under Respondent's position, the Operating Engineers would still have a card majority in a powerhouse unit.) The personnel file of Huff in- dicates that on January 23 he was made "Power House Foreman" with a raise in pay-"to fill new opening." Kushnir's file shows that he was "promoted" to powerhouse operator on August 15; and, as testified, he was theretofore a "trainee" in the powerhouse. DeLamarter quit his em- that the Operating Engineers "represent an informed majority" in an appropriate unit, and stating in effect that the question can best be resolved by a Board election. On May 4 the Operating Engineers wrote Respondent that it was precluded from obtaining a Board election (for 1 year after the preceding valid election held in November 1965);6 that it sought recognition on a voluntary basis; and that it must assume that Respondent "is not willing to recognize any Union claiming a majority of the em- ployees in an appropriate unit, without conducting an N.L.R.B. election." On May 11 or 12 agents of the Grain Millers visited the plant and presented Respondent with a verbal de- mand for recognition in a plantwide unit, including' powerhouse employees. Respondent initially refused, ex- pressing doubt of majority status. The Grain Millers then conveyed the threat that the employees "had gotten very militant" and it was "experiencing some difficulties in keeping the employees in the plant." Respondent's reac- tion was that a walkout at this time would be "very detri mental," as it was in the process of getting the plant established as a new operation.7 The Grain Millers then suggested a card count by a neutral person, which Respondent agreed to take under consideration and reply at a later date. 3. The Grain Millers' card check Subsequently, on dates undisclosed, arrangements were made for such a card count, which was conducted by a Reverend Edward A. Shamon, a Roman Catholic priest. Sometime in June Father Shamon issued a "Cer- tificate," indicating majority representation by the Grain Millers of employees in "the Production, Maintenance and Power House Unit." Inter alia, the report recited that the Grain Millers represents 100 percent of the three (unnamed) employees classified in the "Power House Department." Accompanying the exhibit of Father Shamon's report, Respondent submitted into evidence six authorization cards signed for the Grain Millers: May 13 Young (Water and Sanitation Treatment); on May 14 Huff (Power Plant); on May 15 Tallman and Kushnir (Power House); on May 16 DeLamarter (Power House). Thomas McNabb, president of Grain Millers Local 332, testified that he personally approached these six em- ployees and told them they were holding up recognition by Respondent; that he had handed the blank cards to Huff in the boilerhouse office; that thereafter the cards were brought back to him by Huff; and that it took about 2 weeks to obtain the signatures. ployment on June 26 Young's disputed status, further described infra, would turn on whether his water treatment functions and work locations sufficiently ally him in interest with the powerhouse operators As of the hearing date, November 17, one other employee, Roy F Knapp, is also shown as a powerhouse operator (or "Senior Power Technician"); he was formally given this classification on October 16, after a period of training in the powerhouse while holding the position of "Senior Maintenance Technician" at the same top rate of pay. Having noted the foregoing which was the subject of detailed litigation, it should at this point be made clear that the issue involved is not that of a refusal to bargain under Section 8(a)(5), requiring a determination of whether the Operating Engineers actually represented a majority of powerhouse unit employees on April 26. The relevant question is simply whether the recognition claim of the Operating Engineers on April 26 was not a bare assertion but one of substance sufficient to give rise to a real question concerning representation within the context of the 8(a)(2) issue herein. 6 Pursuant to Section 9(c) of the Act. 7 The Montezuma plant commenced operation in September 1965 EMPIRE STATE SUGAR CO. 4. Recognition and contract By letter dated July 1 Respondent notified the Grain Millers that it was granted recognition as sole collective-bargaining agent on the basis of the certificate of Father Shamon. On September 5, following a series of negotiating sessions, a contract between Respondent and the Grain• Millers was executed. Included in the contract are union-shop and checkoff provisions.8 On September 16, 1966, the Operating Engineers filed with the Board a new election petition-which is being held in abeyance pending resolution of this complaint case. C. Appropriate Unit The principal arguments of Respondent and the Grain Millers in opposition to the powerhouse unit rest upon an asserted high degree of integration of all plant functions including those of the powerhouse. As earlier noted, the Montezuma plant is relatively new, having commenced operations in September 1965. It is undisputed that the plant is the first in the United States uniquely designed to process both cane and beet sugar. According to the plans the beet sugar campaign or season begins about October 1 and lasts 100 to 125 days. The cane sugar campaign runs from about May 1 to mid-September. During the in- terim periods or "intercampaign," the plant is "shut down," and all personnel retained are assigned to main- tenance duties under the direction of the master mechanic. In addition, Respondent has a training pro- gram during the intercampaign to acquaint the personnel with the various operations in the plant.9 As of the hear- ing date, Respondent's first beet campaign was under way for about 3 weeks; theretofore its experience consisted of a 3-month pilot operation in processing beet sugar; and it had not yet begun any production of cane sugar. During the beet campaign some 200 production and 75 main- tenance personnel are employed; in the cane season, with less machinery required, this employment is somewhat seduced; and, in the intercampaign, the total complement is about 150 employees. Testimony relating to the technical aspects of the plant, nature of the operations, and duties of various employees, including the powerhouse operators, was given by the master mechanic, Nick L. Shyne.10 He described in detail (which need not be set forth herein) the equipment and processes involved in the production of both beet and cane sugar. Concerning the question of plant integration his testimony revealed essentially a straight line or con- tinuous operation- and he stated that a breakdown at any point would cause a halt in the entire process. Contained in a separate building, the machinery and equipment of the power plant include the following: three I In substance, the union-shop clause requires all present employee members to maintain their membership in good standing , and all other em- ployees to acquire membership on or after the 30th day following the beginning of their employment or the effective day of the contract. The checkoff clause provides for salary deduction of initiation fees and dues upon voluntary signing of assignment cards by the employees. ° The' "main object" of the training program is to utilize as many of the employees as possible because of the reduced complement, i e., to spread the work, and also to provide "backup people" for the whole maintenance crew. However, the purpose is not essentially to train them for the seasonal work as they all have their assigned jobs to which they are devoted during the campaigns 10 Prior to his employment with Respondent which began in May 1966, Shyne worked in different capacities at another beet sugar refining com- 33 high pressure boilers; a low pressure automatic boiler (in- tended for standby or off-season periods); two steam tur- bines; a 5000 kilowatt generator; a steam power reducing station; air compressors; breaker controls; various elec- trical and water pumps; and an apparatus for water sof- tening and treatment. The power produced, in the form of steam and electricity, is utilized for plant processes as well as for heating the premises. The powerhouse employees are responsible for the operation of the power plant equipment. Among other things, they take readings and keep records on steam pressure, temperature, conditions of the generator, and also make adjustments and certain repairs. In the absence of the water treatment man (Young), who works on the day shift, the powerhouse operators perform, as necessa- ry, the functions of testing water and maintaining the re- lated equipment." During the campaign seasons the powerhouse employees work exclusively in the power plant building; in the intercampaign they may perform painting or other maintenance work outside but in the general vicinity of the powerhouse. As previously noted Huff was employed as the power- house foreman from January 23 until he resigned effec- tive July 19. During most of this period no other source of immediate supervision of the powerhouse operators is contended or evidenced. Master Mechanic Shyne testified that sometime following his hire in May, all maintenance personnel, including the powerhouse em- ployees, were placed under the immediate supervision of four assistant master mechanics. Huff resigned when he was notified of such change. In the approximate year of the plant operation, it appears that, in the main and par- ticularly before the summer "shutdown" in July, the powerhouse employees have worked three shifts around the clock, 7 days a week, while the other employees had worked a single day shift, 5 days a week. During the summer vacation period the powerhouse continued to be maintained solely by the powerhouse operators dividing their work on two 12-hour shifts.12 The testimony is un- clear as to the shift arrangement in effect during the beet campaign which began about 3 weeks prior to the hearing. It would seem that the maintenance employees were nominally assigned to four daily shifts under the supervi- sion of an assistant master mechanic for each such shift, but were actually working two 12-hour split shifts. Huff, Butler, and Tallman were hired by Respondent as powerhouse operators on the basis of their past ex- perience and paid the top hourly rate of $3.20. It was testified that the State of New York does not require licensing of the powerhouse operators in that area and that these employees do not possess such a license. In- dicative of the qualifications required by Respondent, the following notice was posted by Respondent on Sep- tember 12: pany for about 13 years Certain of his testimony was based upon his ex- perience with such other company , the machinery and equipment of which he indicated were "almost identical" to those of Respondent . A profes- sional engineering staff, including a chief engineer, and a chief chemist, is employed by Respondent. Portions of Shyne's testimony particularly per- taining to shifts, schedules, and supervision, appear confused and to some extent inconsistent 11 Young has his office in the powerhouse (which, although described as "temporary," was still in effect at the time of the hearing) In connec- tion with his duties, which include the sewage disposal plant, Young also performs work at locations outside the powerhouse. 12 Beginning on July 5, 2-week vacations were taken consecutively by Huff, Butler, Kushnir, and Tallman. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD JOB OPENING NOTICE JOB TITLE: Senior Power Technician DEPARTMENT: Operating WORK SCHEDULE: Rotating Shifts RATE OF PAY: $3.50 per hour PREREQUISITES: Education : High School Graduate. Additional technical training in power generating areas highly desirable. Experience : Thoroughly experienced in operation and maintenance of high pressure boilers and turbo'. generating equipment. Physical Condition: - Excellent BASIC RESPONSIBILITIES: To operate the Company's Steam and Electrical generating plant and associated facilities in an approved and efficient manner. To perform main- tenance and repair activities as needed. To keep necessary records of power plant and associated facilities. Under the Grain Millers' contract, in effect since Sep- tember 1, the senior power technician (previously clas- sified as powerhouse operator) is accorded the highest wage rate of $3.50 per hour.13 D. Conclusions The immediate issue is, raised by Respondent's conten- tion that the separate unit of powerhouse operators for 11 Four other classifications of senior technicians receive this contract rate. " Cf Mallinckrodt Chemical Works, Uranimum Division, 162 NLRB 387. '' Where powerhouse units were granted, despite a similarly strong in- tegration factor, see Olin Mathieson Chemical Corporation, Olin Works, 117 NLRB 1441, 1444; Minnesota Mining & Manufacturing Company, Olin Works, 129 NLRB 789, 791; North America Aviation, Inc., 115 NLRB 1090. 1093, Hawley & Hoops, Inc., 115 NLRB 1276, 1279. And generally, cf. Temple Associates, Inc, 161 NLRB 1604. 16 E I. Du Pont de Nemours and Company, 162 NLRB 413. The Board has abandoned the National Tube rule which precluded separate units in certain highly integrated industries. Ibid. The Grain Millers' posi- tion is therefore rejected that this doctrine be extended to the sugar refin- ing industry, and the instant Montezuma plant. 17 In the experience of the past year, and in the indicated plans for fu- ture operations, the essential powerhouse functions have been and will be performed exclusively by the powerhouse operators and their assigned helpers. These functions, which constitute their principal duties, consume a major portion of their time, notwithstanding the off-season periods dur- ing which they may be temporarily assigned to incidental maintenance which the Operating Engineers sought recognition was in- appropriate and therefore failed to raise a real question concerning representation as would preclude Respondent trom its subsequent recogntion of the Grain Millers as representative of such employees within a plantwide unit. First, it should be quickly set at rest that a unit sev- erance problem requiring stricter standards is not here in- volved, there being no history of collective bargaining.14 However, consideration is given to all relevant fac- tors in the case which bear upon the particular interests of the powerhouse employees as would test the ap- propriateness of the separate unit claimed. While the evidence shows a high degree of plant integration and coordination in Respondent's sugar refining processes, I find this factor insufficient in itself to bar the claimed unit of powerhouse employees 15 as it clearly does not out- weigh or submerge the elements of their separate in- terests for bargaining purposes as detailed herein.'6 In my opinion, the evidence in totality amply provides the essential factors to justify separate representation of a powerhouse unit-as for example, the character of the power plant equipment; the required qualifications, spe- cialized experience, skills, and high rate of pay of the powerhouse operators; their different shift schedules; their lack of interchange with other employees;17 and their separate supervision, here shown at least prior to the time Respondent recognized and contracted with the Grain Millers.18 Accordingly, I find that the powerhouse unit claimed by the Operating Engineers 19 encompasses a functionally distinct and separate group of employees 20 of the type which the Board customarily accords separate representation.21 E. Unlawful Assistance to Grain Millers The long-settled Midwest Piping doctrine, which is not as such disputed herein, provides in effect that-an ern- ployer faced with conflicting claims of two or more rival unions may not recognize or enter into a contract with one of these unions while a real question concerning representation exists.22 The major positions of Respon- dent and the Grain Millers based upon appropriate unit considerations have been resolved against them, supra. As already indicated, the recognition claim of the Operat- ing Engineers in a powerhouse unit presented on April 26 was a substantial one predicated upon new organizational chores outside the powerhouse proper. 18 In any event, separate immediate supervision is not an indispensable factor. See Kolker Chemical Corporation, 130 NLRB 1394; Minnesota Mining & Manufacturing Company, 129 NLRB 789, North American Aviation, Inc, 115 NLRB 1090, Ketchikan Pulp Company, 115 NLRB 279 19 As to any question concerning inclusion in the claimed unit of par- ticular employees in dispute , these would not affect the substance of the Operating Engineers' recognition claim, and would involve only minor variations in the basic umt, subject to modification by the parties. Hamilton Plastic Molding Company , 135 NLRB 371, 373. 20 Relating to the defense that a powerhouse unit is inappropriate, it should here also be noted that Respondent and the Grain Millers had en- tered into the election stipulation on Noveiliber 14, 1965, approved by the Regional Director, which in effect conceded the appropriateness of such a unit, and that a Board election was conducted in such a voting group. 21 See, e.g., cases cited in fn 15 and 18, supra. And in principle, see also Chas. Pfizer & Co., Inc., 162 NLRB 1501. 22 Midwest Piping & Supply Co., Inc , 63 NLRB 1060, Novak Logging Company, 119 NLRB 1573; Retail Clerks Union , Local 770 v. N.L.R.B., 370 F.2d 205 (C.A. 9),- EMPIRE STATE SUGAR CO. support following the earlier unsuccessful election.23 This claim, as I find, gave rise to a real question concerning representation.24 Respondent now advances the conten- tion that, when it accorded recognition to the Grain Mil- lers on July 1, a real question concerning representation "no longer existed" because, without illegal act or pres- sure, it had obtained "indisputable proof" of majority support from the Grain Millers in the production and maintenance unit, inclusive of the powerhouse. The con- tention is without merit.25 Among other things, it can scarcely be held in the circumstances here that the Grain Millers was the free and untrammeled choice of the powerhouse employees when recognition was granted. As a background fact, Respondent admittedly preferred dealing with the Grain Millers in a single comprehensive bargaining unit. The Operating Engineers, first on the scene, had presented Respondent in writing with a new recognition claim and an offer of appropriate majority proof. -Respondent's letter of rejection on May 3 ex- pressed doubt of the Operating Engineers' majority and referred to the Board as the proper recourse for resolving the representation question. Not unreasonably, this reply was construed by the Operating Engineers as an in- sistence by Respondent upon a Board election (barred at the time under Section 9(c)(3)) before it would recognize any union as representative of the employees involved in the prior election. So rebuffed, the powerhouse em- ployees who sought and signed for separate representa- tion by the Operating Engineers were left to the pressures of the Grain Millers alternatively to accept representation as part of a broader unit. And they were subjected to further pressures. Each of the five employees 26 who had freely signed for the Operating Engineers only a few days before (on April 24), was told by Local President Mc- Nabb of the Grain Millers that they were "holding up recognition" by Respondent. McNabb then gave the blank authorization cards to Huff (who in this campaign had not signed for the Operating Engineers). After about 2 weeks (during which interval Respondent had written its rejection of the Operating Engineers' claim and offer of proof), Huff brought back to McNabb 6 signed cards, including his own, bearing dates from May 13 to May 16. It must be assumed that Huff solicited the signatures from, or at least delivered the cards to, the particular em ployees in question. As Huff then occupied the position of powerhouse foreman, I am satisfied that there was present an element of supervision in his activity sufficient to reflect Respondent's illegal assistance in the obtaining of these card 'designations.27 On May 11 or 12 (before it obtained signed cards from any of the powerhouse em- ployees), the Grain Millers verbally demanded recogni- tion in a plantwide unit which included the powerhouse. After a threat of strike by the Grain Millers, Respondent acceded to a neutral party check of the Grain Millers' ,authorization cards. Reverend Shamon then conducted 23 Although under Section 9(c)(3), a new election could not be con- ducted within a year after the valid election held on November 16,-dur- ing this period Respondent was not relieved of its obligation to bargain, nor were the unions precluded from obtaining recognition for the same employees by proper means other than a Board election. Conren, Inc. dlb/a Great Scot Supermarket, 156 NLRB 592; and see Majestic Lamp Mfg. Corp., 143 NLRB 180, 186. 24 E.g., Weather Seal Incorporated, 161 NLRB 1226 zs And the cases cited by Respondent, e.g., N.L.R.B. v Trosch, et al, dlbla Maryland News Company, 321 F.2d 692 (C.A. 4), and N.L.R.B. v Air Master Corporation, 339 F.2d 553 (C.A. 3), are found inapposite in any event. 35 the card count and "certified" that the Grain Millers "represents a majority of the employees in the Produc- tion, Maintenance and Power House Unit."28 Respondent does not argue, and it is, of course, no defense to illegal conduct, that it succumbed to the strike threat of the Grain Millers. At stake were the vital rights of the employees under the Act to choose their own bar- gaining representative with complete freedom. Respond- ent was well aware of the recent and viable claim of the Operating Engineers which imposed upon it a duty of strict neutrality. In Midwest Piping terminology, there in- deed existed a real question concerning representation, and it could not be removed or resolved simply by a count of the Grain Millers' authorization cards-regardless.-of the percentage shown or the manner of proof. More espe- cially is this so in view of the added pressures exerted upon the powerhouse employees to sign cards for the Grain Millers, after the substantial claim had been made by the Operating Engineers. To say, in these circum- stances, that the Grain Millers had accomplished a "suc- cessful coup," or that Respondent validly relied on "in- disputable proof," i.e., the cards, is to disregard the very essence and purpose of Midwest Piping. While in a dif- ferent context, authorization cards may provide accepta- ble evidence of majority representation,29 it has been long recognized that cards are notoriously unreliable because of duplications which occur when competing unions are soliciting such cards. 30 Upon all the evidence, I am impelled to agree with the General Counsel that Respondent rendered unlawful sup- port and assistance to the Grain Millers by the disparate treatment of granting its request for a card count, after denying such a procedure to the Operating Engineers; and while a real question concerning representation ex- isted-by recognizing the Grain Millers as exclusive representative in a unit including the powerhouse em- ployees; by entering into a collective-bargaining contract with the Grain Millers covering such employees; and by requiring the powerhouse employees, as a condition of employment, to be members of the Grain Millers. Ac- cordingly, I find and conclude that by such conduct, severally and collectively, Respondent violated Section 8(a)(2) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relation to trade, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. 26 Tallman, Butler, Kushnir, DeLamarter, and Young. 27WIliie Thugs supervisory status was not litigated as such, Respond- ent makes no claim that Huff was not a supervisor during such period and does not dispute General Counsel's evidence that the powerhouse employees were separately supervised by Huff at least until he was super- seded by assistant master mechanics. See Majestic Lamp Mfg. Corp., 143 NLRB 180, 185. 26 It is not indicated who prepared the particular form of the "Cer- tificate" reported by Father Shamon; the report appears to emphasize that the Grain-Millers represents 100 percent of the powerhouse employees. 29 Bernel Foam Products Co., Inc., 146 NLRB 1277. 30 Majestic Lamp Mfg. Corp., 143 NLRB 180, 186 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (2) of the Act by recognizing and entering into a union-security contract with the Grain Millers covering a unit which includes the powerhouse employees, I shall recommend that Respondent cease and desist from en- forcing and maintaining such contract in its coverage of the powerhouse employees, and that it withdraw and withhold all recognition from the Grain Millers, or any successor, as the collective-bargaining representative of the powerhouse employees, unless and until such labor organization shall have been so certified by the Board. Circumstances are present (e.g., Huff's solicitation of cards for the Grain Millers) which may appear sufficient to justify an order against Respondent to reimburse the dues and fees paid by the powerhouse employees to the Grain Millers following the illegal assistance rendered by Respondent. Although it is primarily a matter for the Board to determine the appropriate remedy, considera- tion is given to the recommendations of the General Counsel -which here specifically omit a request for such reimbursement. Unlike other comparable situations in which a reimbursement order was issued,31 the General Counsel here did not allege discrimination under Section 8(a)(3).32 Additionally, all the alleged powerhouse em- ployees joined the Grain Millers before it illegally received recognition and a contract from Respondent.33 And further, for purposes of remedy, although not for the substantive violations, I believe some weight may be ac- corded the factor that Respondent was under a serious strike threat before it consented to a card count leading to its recognition of the Grain Millers. For all these various reasons, I shall not recommend a reimbursement order.34 Upon the basis of the factual findings and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Operating Engineers and the Grain Millers are labor organizations within the meaning of the Act. 3. At all times material, an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act consisted of- All powerhouse employees at Respondent's Montezu- 31 E g., Lunardt-Central Distributing Co, Inc., 161 NLRB 1443; Meyers Bros. of Missouri, Inc, 151 NLRB 889. But cf, Majestic Lamp Mfg Corp., 143 NLRB 180, 187, in which reimbursement was not recom- mended by the Trial Examiner or ordered by the Board, despite solicita- tion of cards by supervisors. 32 Operating Engineers on October 1, 1966, filed an 8(a)(3) charge predicated upon the union-shop requirement affecting certain alleged powerhouse. employees, but the charge was withdrawn after the instant complaint was issued 33 Cf., Sinko Manufacturing and Tool Company, 154 NLRB 1474, 1476 34 While it was not necessary for purposes of the substantive violations to determine precisely the placement of employees in a powerhouse unit at the time of the Operating Engineers' recognition claim or thereafter, the parties should be made reasonably aware of the specific employees to be excluded from Respondent's recognition of the Grain Millers and from the ma, New York, plant, including powerhouse operators or senior power technicians, and the regularly assigned hel- pers and trainees in the powerhouse, but excluding all other employees and supervisors as defined in the Act. 4. A real question concerning representation affecting an appropriate unit of powerhouse employees of Re- spondent existed on and after Respondent's receipt of the Operating Engineers' recognition claim dated April 26, 1966. 5. By acceding to an authorization card count; by recognizing the Grain Millers as representative in a unit including the powerhouse employees; by executing a con- tract covering such employees; and by providing union security requirements in the contract, Respondent en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Empire State Sugar Company, Inc., Montezuma and Auburn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting and contributing support to American Federation of Grain Millers, AFL-CIO, and its Local 332, or to any other labor organization. (b) Giving effect to the collective-bargaining agree- ment entered into on or about September 5, 1966, with American Federation of Grain Millers, AFL-CIO, and its Local 332, or to any extension, renewal, or modifica- tion thereof, insofar as it embraces the powerhouse em- ployees in an appropriate unit. (c) Recognizing the above-named labor organization as the representative of such powerhouse employees for the purpose of dealing with it concerning wages, rates of pay, hours of employment, or other conditions of employ- ment, unless and until such labor organization shall have been certified by the Board as the exclusive representa- tive of such employees. (d) Requiring as a condition of employment that such powerhouse employees be members of the above-named labor organization. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. contract coverage in order to carry out the terms of this Recommended Order Accordingly, for such purposes the appropriate unit based upon the evidence herein is defined as including all powerhouse operators or senior power technicians, and the regularly assigned helpers and trainees in the powerhouse Young, the water and sanitary treatment operator, does not perform any of the intrinsic functions of the powerhouse, although his water treatment work is in part related to certain power plant equipment and such work is done by the powerhouse operators in Young's absence. He devotes substantial time to duties unrelated to and outside the powerhouse, and he works only on the day shift schedule. Considering also that he was not included on the agreed eligibility list of the powerhouse voting group in the November 1965 election, Young is excluded from the unit here found. DeLamarter and Huff, who are no longer employed, need no further mention. Tallman , Butler, Kushnir, and Knapp are presently full powerhouse operators (senior power technicians) and therefore plainly within the unit EMPIRE STATE SUGAR CO. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Withdraw and withhold all recognition from Amer- ican Federation of Grain Millers, AFL-CIO, and its Local 332, as the exclusive representative of its em- ployees who are appropriately in a powerhouse unit, un- less and until such labor organization shall have been cer- tified by the Board as such representative. (b) Post at its Montezuma, New York, plant copies of the attached notice marked "Appendix."35 Copies of said notice, to be furnished by the Regional Director for Re- gion 3, after being duly signed by Respondent, shall, be posted immediately upon receipt thereof, and be main- tained 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. (c) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of receipt of this Deci- sion, what steps Respondent has taken to comply herewith.36 31 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 36 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 3 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: 37 WE WILL NOT give effect to the collective-bar- gaining agreement entered into on or about Sep- tember 5, 1966, with American Federation of Grain Millers, AFL-CIO, and its Local 332, or to any ex- tension, renewal, or modification thereof, insofar as it embraces the powerhouse employees in an ap- pro^?riate unit. WE WILL NOT assist or support the above-named labor organization or any other labor organization. WE WILL NOT require as a condition of employ- ment that such power house employees be members of the above-named labor organization. WE WILL withdraw and withhold recognition from the above-named labor organization as the exclusive representative of such powerhouse employees, un- less and until such labor organization shall have been certified by the Board as such representative. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to self-organization, to form, join, or assist any labor organization , to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. All our employees are free to become, or refrain from becoming, members of any labor organization of their own choice. Dated By EMPIRE STATE SUGAR COMPANY, INC (Employer) (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 provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3112. 308-926 0-70-4