Sturgeon Electric Co., Inc.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sturgeon Electric Company, Inc. and International Association of Machinists and Aerospace Workers and Its District Lodge 86, AFL-CIO and International Brotherhood of Electrical Workers, Local 111, Party to the Contract. Case 27--CA-2117 June 28, 1967 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On April 26, 1967, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices alleged in the complaint and recommend- ing that it cease and desist therefrom, and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to those allegations. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, the Respondent filed cross-exceptions and a brief in support of its cross-exceptions and in answer to the General Counsel's exceptions, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has 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, cross-exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following modification: The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) and (2) of the Act by its assistance to the IBEW during the or- ganizational activities of the Machinists Union (hereinafter IAM), particularly following receipt of the IAM's request for recognition on September 15, 1966. He further found that at all material times on and after August 23, 1966, the IAM represented a majority of the employees in the unit of Respondent's garage department employees which he found to be appropriate for the purposes of collective bargaining, and that Respondent had 1 Majestic Weaving Co., Inc, of New York, 147 NLRB 859, supple- mented 149 NLRB 1523, enforcement denied on other grounds 355 refused its request to bargain. Nevertheless, he recommended dismissal of the allegation in the complaint that Respondent had unlawfully refused to bargain with the IAM, to which recommendation the General Counsel has excepted. We find merit in the exception. It is abundantly clear from the record herein that all of the necessary ingredients of a violation of Sec- tion 8(a)(5) have been established. Thus, the IAM had been designated by a majority of the employees in an appropriate bargaining unit, and duly requested recognition from Respondent by letter dated September 14, 1966. On September 16, 1966, the day following its receipt of the request for recognition, the Respondent met with IBEW Busi- ness Agent Duffey and negotiated the terms of a contract with that union. On the same day, it sought and obtained the signatures of several employees on IBEW authorization cards. On September 20, Respondent's President Johnson replied to the IAM's September 14 request for recognition, stat- ing that its attorney would be out of town until Oc- tober 5 and requesting postponement of any further action until that time. On September 21, the IAM advised Respondent by letter that it had filed a representation petition with the Board, again requested recognition, and offered to prove its majority status. On September 22, Respondent ad- vised the IAM that it had signed a "working agree- ment" with the IBEW on September 16. The situation which controls is that which existed on September 15, the date when Respondent received the IAM request for recognition. At that time, the IAM represented a majority of Respond- ent's employees in the garage department, an ap- propriate bargaining unit. Immediately thereafter, Respondent unlawfully assisted the IBEW in the manner indicated above and in the Trial Examiner's Decision, and then rejected the IAM's claim. By establishing this course of conduct, the General Counsel has satisfied his burden of proving that Respondent in bad faith declined to recognize the IAM in order to destroy its majority status and to substitute the IBEW as the bargaining representa- tive of its garage employees. I This conclusion is not altered by the presence of the IBEW- an assisted union - on the scene. Indeed, the heart of the proof of Respondent's bad faith lies in its actions sponsor- ing that organization at a time when it was under a statutory duty to bargain with the IAM.2 Under these circumstances, Midwest Piping & Supply Co., Inc., 63 NLRB 1060, upon which the Trial Ex- aminer relies, is inapposite. We find, therefore, that by refusing to recognize the IAM as the exclusive representative of its employees in the appropriate unit, Respondent has violated Section 8(a)(5) of the Act. F 2d 854 (C A 2), H & W Construction Company, Inc., 161 NLRB 852 ' See Majestic Weaving Co ., of New York, supra. 166 NLRB No. 28 STURGEON ELECTRIC CO. 211 ADDITIONAL CONCLUSIONS OF LAW Upon the basis of its findings of fact and the en- tire record in this case, the Board hereby deletes the Trial Examiner's Conclusion of Law 6, and adopts the following as its Conclusions of Law 5, 6, and 7, with the present Conclusion of Law 5 being renum- bered as Conclusion of Law 8: 5. All mechanical, maintenance, and garage em- ployees at Respondent's garage, excluding all office clerical and professional employees, supervisors as defined in the Act, and all employees presently represented by another labor organization, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 6. On August 23, 1966, and at all times thereafter, the IAM has been the exclusive representative of all the employees in the aforemen- tioned appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 7. By refusing, on September 15, 1966, and thereafter, to bargain collectively with the IAM as the exclusive representative of its employees in the aforementioned appropriate unit, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Sturgeon Electric Company, Inc., Denver, Colorado, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interfering with the administration of or giv- ing support to International Brotherhood of Electri- cal Workers, Local 111, or recognizing that or any other labor organization which does not represent a majority of its employees in an appropriate unit. (b) Recognizing the above-named labor or- ganization as the bargaining representative of its garage employees, or giving any effect to the con- tract executed with said labor organization on Sep- tember 30, 1966, or to any modification, extension, renewal, or supplement thereto, provided, that nothing herein shall require it to vary or abandon any wage, hour, seniority, or other substantive clauses set forth in said agreement. (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with In- ternational Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit: All mechanical, maintenance, and garage em- ployees of Respondent at its garage, excluding all office clerical and professional employees, supervisors as defined in the Act, and all other employees presently represented by another labor organization. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such ac- tivities, 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 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 is deemed necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from International Brotherhood of Electrical Workers, Local 111, as the collective-bargaining representa- tive of its garage employees for the purposes of dealing with grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until the Board shall certify said labor organization as the representative of these employees. (b) Reimburse those employees who joined the above-named labor organization pursuant to the union-security language of the September 30, 1966, contract for all initiation fees and dues paid by them. (c) Upon request, bargain collectively with In- ternational Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, as the exclusive representative of the employees in the aforestated appropriate unit, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Post at its garage at Denver, Colorado, co- pies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Re- gional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to 3 In the event that this Order is enforced by a decree of a United States ' Order" the words "a Decree of the United States Court of Appeals En- Court of Appeals, there shall be substituted for the words "a Decision and forcing an Order." 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8(a)(3) of the Act. STURGEON ELECTRIC COMPANY, INC. (Employer) 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 interfere with the administra- tion of or give support to International Brother- hood of Electrical Workers, Local 111, or to any other labor organization which does not represent a majority of our employees in an ap- propriate unit. WE WILL withdraw and withhold all recogni- tion from the above-named labor organization as the representative of our garage employees until it is duly certified by the National Labor Relations Board, and we will not give effect to our contract with it executed on September 30, 1966, or to any modification, extension, renewal, or supplement thereto. WE WILL reimburse all employees who joined the above-named labor organization pur- suant to the union-security language of the Sep- tember 30, 1966, contract for all initiation fees and dues paid by them. WE WILL, upon request, bargain collectively with International Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, as the exclusive representative of our employees in the unit described below, with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed agreement. The bargaining unit is: All mechanical, maintenance, and garage employees at our garage, excluding all office clerical and professional em- ployees, supervisors as defined in the Act, and all other employees presently represented by another labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-or- ganization, to form labor organizations, to bar- gain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all, such activities, except to the ex- tent that such right may be affected by an Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, New Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Denver, Colorado, on February 20 and 21, 1967. The complaint' alleges that Respondent, Sturgeon Electric Company, Inc., had engaged in unfair labor prac- tices within the meaning of Section 8(a)(1), (2), and (5) of the National Labor Relations Act, as amended. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: 1. JURISDICTIONAL FINDINGS Sturgeon Electric Company, Inc., is a Colorado cor- poration maintaining its office and place of business at Denver, Colorado, where it is engaged in the business of electrical construction and service. It annually purchases and receives goods and materials valued in excess of $50,000 which are shipped to it directly from points out- side the State of Colorado. It also annually sells and dis- tributes goods and materials or provides services at retail valued in excess of $500,000. ][ find that the operations of Respondent affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, and Inter- national Brotherhood of Electrical Workers, Local 111, herein called Machinists and Electricians, respectively, are labor organizations within the meaning of Section 2(5) of the Act. I Issued November 25, 1966, and based upon charges filed September 22, and November 2 and 8 , 1966, by International Association of Machinists and Aerospace Workers and its District Lodge 86 , AFL-CIO STURGEON ELECTRIC CO. 213 III. THE UNFAIR LABOR PRACTICES A. The Issues; Introduction The issues herein are whether in the face of an or- ganizational campaign by Machinists among its garage employees, Respondent (1) unlawfully assisted and con- tributed support to Electricians by certain acts of inter- ference, restraint, and coercion and by recognizing and entering into a contract with Electricians as the represen- tative of said employees despite the absence of a majority and (2) refused to bargain with Machinists as the representative of said employees. Respondent challenges the majority status of Machinists and claims further that the garage is an accretion to another unit of Respondent's employees already represented by Electricians. A consideration of the organizational structure of Respondent and its collective-bargaining history with Electricians will be of assistance in an evaluation of these issues. Respondent has three operating divisions: (1) line construction including overhead and underground trans- mission lines; (2) service, this involving small residential and commercial work; and (3) inside construction, this being work on larger residential and commercial projects. Service and inside construction have been under contract for some years with a sister local of Electricians, Local 68, not directly involved herein, and their exclusion from the unit in the instant case is not in issue. The line department is headed by Vice President A. B. Baumgartner who reports directly to President Ralph Johnson and was established in 1952 through the purchase of another concern. It is Respondent's largest department with some 116 employees, a figure which in- creases during the summer months. Some 8 or 9 months after the establishment of the line department, Respond- ent moved to a new location and there established a garage for the first time; this too is under the supervision of Baumgartner. The garage has five full-time employees, four mechanics, and a gas boy and is headed by Garage Foreman Charles Hambley. The General Counsel con- tends and Respondent disputes that Hambley is a super- visor. A sixth employee, Harvey Winckel, works a 5-day week in the field in the line department under a contract with Electricians, described below, and also works ap- proximately three out of every four Saturdays in the garage as a mechanic. A seventh employee, Philip Mosconi, is a student who averages less than 20 hours a week in the garage, but works longer hours in the sum- mertime. For many years, Respondent, as a member of Moun- tain States Line Contractors Chapter, NECA, Inc., has been party to contracts between the association and four labor organizations, these including Local 111 and three sister locals other than Local 68 which cover the em- ployees of Respondent's line division. The most recent of these ran from March 14, 1966, through March 1, 1967, and is renewable from year to year thereafter absent cer- tain specified notice. An employee such as Winckel is covered by this contract when in the field for his regular 40-hour week, but not when in the garage on Saturdays. By contrast, a garage employee will, on occasion, work in the field and the converse applies, this entitling him to the higher field wage rates specified in the contract. As Vice President Baumgartner put it, Respondent considers the garage an adjunct of the line department because 90 percent of its work is performed on line de- partment vehicles; Foreman Hambley placed the figure as between 80 and 90 percent. According to President Johnson, Respondent would not operate a garage for its service and inside construction departments because those vehicles can be adequately serviced by an outside repair shop. On the other hand, service and repair of the heavy equipment of the line department require special- ized knowledge. It appears that there has been a disagreement among the contractors who negotiate with Local 111 about the inclusion of garage employees who receive a lower wage scale than those in the unit. Their inclusion has been op- posed by employers who construct heavier type transmis- sion lines and favored by those in utility or distribution construction. As a result, they have not been covered by the above-described contract and previous contracts. The record also discloses that in the negotiations for the 1966 contract Electricians sought and the Association rejected coverage of garage employees. In view of the foregoing, the garage, at least that at the premises of Respondent, is more accurately described as an unorganized residual or fringe group rather than as an accretion. As I understand that term, it more logically refers to a newly acquired or created division rather than a long-existing and unrepresented division. Crucible Steel Casting, 162 NLRB 1513, and Dura Corp. v. N.L.R.B., 375 F.2d 707 (C.A. 6). B. The Supervisory Status of Charles Hambley The General Counsel relies strongly herein upon cer- tain conduct by Garage Foreman Charles Hambley. Respondent denies his supervisory status, contending that his title of foreman is not substantiated by his actual authority and duties. As Respondent points out, Hambley works approxi- mately 25 percent of the time with tools as do the other men in the garage. On the other hand, for 75 percent of the time he is not so engaged. Moreover, he receives a wage rate of $4 per hour as contrasted with a rate of $3.25 paid to other mechanics. Respondent urges that his work consists basically of routine assignments of tasks and that policy decisions are made elsewhere. The evidence pre- ponderates otherwise. That Hambley is over the five garage employees plus two part-time men is undisputed. His tenure dates back 15 years to the time when the garage was opened. Ac- cording to mechanic Dallas Coleman, Hambley assigns him work and has granted him time off. Mechanic George Johnson testified only that Hambley directs him where to work. Mechanic George Tuttle testified, and I find, that he was hired by Hambley. Tuttle applied for work in July or August 1965 and was referred to Hambley. The latter in- terviewed him for 30 or 40 minutes and then instructed him to report for work. Hambley did not interrupt the in- terview to contact anyone else. In addition, Hambley tells Tuttle what work to perform. Gas boy Mark Pazen testified that Hambley directs him in the performance of his duties. He has asked Hambley for time off and this has been granted; he did not know whether Hambley ob- tained prior approval elsewhere. Duane Pendergraft, a mechanic with 10 years' tenure, testified that Hambley interviewed and hired him, stating that he could start work whenever he wished. On occa- sion, Pendergraft has asked Hambley for time off and this has been granted. Pendergraft also was present when 308-926 0-70-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hambley hired another employee, George Abel. He heard Hambley tell Abel that "We'd like to have him there" and that Abel was hired whenever he chose to start. On cross-examination Pendergraft testified that he as- sumed but did not know that Hambley checked with the personnel office at the time of his, Pendergraft's, hire. He testified further that Hambley consulted with Vice Pre- sident Baumgartner when he, Pendergraft, wished time off and that 1 or 2 days before Abel was hired, Baum- gartner stated that he, Abel, would be a good man to procure: He repeated, however, that it was Hambley who had hired him, Pendergraft. Vice President Baumgartner claimed that Hambley never assigned work on a day-to-day basis and that he, Baumgartner, made decisions on major jobs. He claimed that Hambley had no authority to hire. Baumgartner con- ceded that Hambley made recommendations on hiring and that he, Baumgartner, relied upon his judgment. While claiming that the personnel department would screen applicants for work, he admitted that Hambley would decide if the man was qualified. Baumgartner has never rejected a recommendation made by Hambley. But there is much in the testimony of Baumgartner that supports the position of the General Counsel. The fact is that Baumgartner is out of the office and away from the premises 80 percent of the time. This is also true in the case of his assistant, Dan Grizzle. Indeed, both are al- ways out on Wednesdays and Thursdays when they separately visit the various line construction projects, one of them attempting to cover projects close to Denver. Both men drive company vehicles equipped with 2-way radios which are effective only so long as they are within range. It is readily apparent that during the larger part of the workweek Vice President Baumgartner and his assistant are not on the premises and supervising operations of the garage. Furthermore, of the no more than 20 percent of Baumgartner's time spent on company premises, about 20 percent is spent in the garage . Stated otherwise, Baum- gartner is in the garage not over 4 percent of the time. Thus, if Respondent's position is accepted, the garage operates 96 percent of the time with no supervision directly at hand, hardly a tenable claim. Moreover, in a pretrial affidavit to the General Coun- sel, Baumgartner deposed that "Hambley's duties include the full operation of our garage, which include the assign- ment of work, scheduling of days off and complete super- vision of all garage employees. He has the authority to hire." At the hearing, Baumgartner claimed that he should have qualified his affidavit in this respect so that it would read that Hambley "does not have full authority to hire and fire, but he does have authority to where he passes on the final qualifications ...." I do not consider this a sufficiently substantial departure from the affidavit so as to constitute a repudiation thereof. In the final analysis, the very testimony of Hambley is quite significant. He testified that Respondent advertised for a man in 1965, that he interviewed Tuttle and that he put him to work on a temporary basis. He decided to make Tuttle a permanent employee and spoke with and obtained the approval of Baumgartner. He testified also that Baumgartner knew that he, Hambley, wished to hire a man prior to his doing so. I do not regard this as refuting Hambley's authority to do the actual hiring. Hambley testified that he nad been told he had the authority to fire men and imagined that this instruction had come from Baumgartner. He claimed that he hired mechanics Johnson, Tuttle, Coleman, and Pendergraft. Hambley scheduled days off for the men and gave them permission to leave early. On occasion, he would reshuf- fle a schedule so that a man could have the day off and he did not check this with Baumgartner. He made decisions about working overtime and did not clear this with Baum- gartner particularly where a few hours of work could complete a job. Returning to the absence of Baumgartner and his assistant from the plant 80 percent of the time, with at least some overlap, this is entirely consistent with the fact that the line department has a number of projects employ- ing from 116 employees up in various locations. Again, on Respondent's theory, this would leave the garage em- ployees with negligible supervision. In view of all the foregoing considerations, I find, on a preponderance of the evidence, that Garage Foreman Hambley is a supervisor within the meaning of Section 2(11) of the Act and that his conduct herein is attributable to Respondent. See Furr's, Inc. v. N.L.R.B., 381 F.2d 562 (C.A. 10). C. Sequence of Events Pursuant to a request by an employee of the garage, representatives of Machinists visited the garage on Au- gust 22, 1966. They initially cleared the visit with Garage Foreman Hambley, a member of Electricians. The representatives spoke with the employees and distributed authorization cards and membership applications. Hambley immediately telephoned Business Agent Joe Duffey of Electricians on August 22, advised him of this turn of events, and asked Duffey to "speak to the boys in the shop about a union." All five full-time employees in the garage signed Machinists' authorization cards and membership applica- tions, four on August 23 and one on August 25. On Au- gust 26 Business Agent Duffey of the Electricians visited the garage, spoke with the men, and espoused the cause of Electricians. On September 2, Duffey wrote to Vice President Baumgartner with respect to "Contract Negotiations for Garage Employees of Sturgeon Electric Company" as follows: To confirm our conversation of August 26, 1966 on the conditions I am attempting to remedy for your garage employees, I find it will be necessary to meet with you again at a future date. Due to the information that has come to me from the employees I am sure that one or two alternate proposals will achieve the ultimate purpose in up- grading these conditions. It is interesting to note that this communication, as well as a later communication on September 19 to Baum- gartner, do not bear a stamp of receipt by Respondent, in contrast to the presence of such stamps on communica- tions from Machinists on September 14 and 24 to Pre- sident Johnson. Be that as it may, I base no findings ad- -'erse to Respondent on this facet I do find, however, contrary to the position of Respon- dent, that Electricians never proved its majority prior to September 15, and, more particularly, that Respondent never recognized Electricians as the bargaining represen- tative of its garage employees prior to September 15. The most that can be said for the position of Respondent is that Duffey had previously spoken to Baumgartner of his STURGEON ELECTRIC CO. 215 interest in organizing these employees; Baumgartner told him "have at it"; and the matter was not pushed further until Machinists commenced its organization campaign. It seems readily apparent that Baumgartner's response evisaged organization of the garage prior to recognition and did not rise to the stature of recognition. I find, there- fore, that Section 8(f) of the Act may not be relied on herein by Respondent. On September 16, Respondent took steps to foist Elec- tricians upon its employees as their bargaining represen- tative. On the morning of September 16, Duffey, who had previously heard of the campaign by Machinists, telephoned Baumgartner and asked to meet with him about a contract. They met later that morning, with Foreman Hambley and mechanic Duane Pendergraft also in attendance. Duffey and Baumgartner agree that Baum- gartner asked who should be present and that Baum- gartner their suggested Hambley and Pendergraft because of their long tenure and familiarity with garage opera- tions. I also note that they were the only full-time garage personnel who belonged to Electricians and that Re- spondent knew this. It is also undisputed that Baumgartner asked Pen- dergraft earlier that morning if the men had decided which way they would turn because he had heard that the men were interested in Machinists, adding that "[Local] 111 was so well represented with the company that we would receive wage increases along with the other members." Pendergraft informed him that the men had gone so far as to apply for membership in Machinists. This request by Baumgartner further demonstrates that recognition had not as yet been accorded Electricians because the query was pointless if this was the fact. Moreover, Foreman Hambley, as will appear below, distributed cards for Electricians later that afternoon. This too is not con- sistent with a situation where recognition had already been granted. At this meeting, Baumgartner and Duffey came to an agreement on the terms of a contract, subject to approval by President Johnson. Later that day, Respondent, through Hambley, took direct steps to sign up the em- ployees in Electricians. While his testimony is not entire- ly clear, it, appears that Hambley had previously been given some cards by Duffey. But, in any event, he had these cards in his possession on September 16 and took steps to get them signed. As Dallas Coleman testified, and I so find, Hambley told him at quitting time on September 16 that "We are going [Local] 111, and here's the card to sign." The card was on Hambley's desk and Coleman immediately signed.2 George Tuttle testified, and I find, that Hambley told him that the card was on the desk; that he, Tuttle, was holding up things; and that "he [Hambley] wanted me to sign it because they all had to go into it." Tuttle testified that he signed "some time the week of the 10th or some time along in there." He also testified that Hambley said that he wanted him to sign "Saturday morning." I find that the conversation probably took place on September 16, but not earlier. Mark Pazen , a gas boy, signed a card a month or a month and a half after signing a card for Machinists on August 23. As Pazen testified, Hambley told him on this occasion, that he had to have the card in by a certain date and that if Pazen wished, he could sign the card.3 Within 5 days after September 16, Duffey brought a rough but not final draft of a contract to President John- son. Johnson made some changes and they agreed that a final contract should be prepared . This was done and it was executed on September 30.4 On September 19, Duffey sent or delivered the follow- ing letter to Baumgartner: In response to our last meeting in your office on September 16, 1966 at which time you approved the rough draft of the proposed contract for garage em- ployees, I am submitting a copy of this letter for your signature. The receipt of same in this office will in- dicate complete accord with Local # 111, of the I.B.E.W. and Sturgeon Electric Company on the contract as discussed. I will finalize the draft in the week coming and present it for your signature in the very near future. The effective date as previously discussed will be Friday, September 16, 1966 and shall then and for- ever after be effective as per the conditions of the N.E.C.A. contract with Locals # 111, 969 , 113 and 12 of the I.B.E.W. On September 20, President Johnson wrote to Machin- ists in reply to the demand of September 14 as follows: Needless to say, we are anxious for a situation such as we have with our garage personnel to be han- dled properly and with dispatch, but our attorney, Mr. Wayne Williams is out of town and will be until about October 5. We hope it will be agreeable with you to postpone any further action on this matter until he returns, if it is not, we will endeavor to work something out to your satisfaction. As is readily apparent, President Johnson said nothing about the pending negotiations with Electricians. On Sep- tember 21 , Business Representative Waggoner replied, pointing out that Machinists had filed ' a representation petition on September 19 [Case 27-RC-3084] , that it was prepared to prove its majority representation and that it wished to meet and bargain collectively with Respondent. On September 22, Johnson replied to Waggoner, point- ing out that Respondent had become signatory to a "working agreement" with Electricians on September 16 covering the garage personnel. He also said that "Much of their work is performed on the job in the field, and since all of our field personnel in this division are mem bers of Local Union 111, it is essential to pursue this course." This, according to Respondent, raised the ap- propriateness of the smaller unit. z This is Hambley's desk, it is the only desk in the garage, and is also used by the other men. 3 While George Johnson signed a card for Electricians subsequent to signing a card for Machinists on August 23, he was quite vague as to the date, testifying "I imagine, I couldn't really say whether it was a week or two weeks." In any event, there is no evidence linking Hambley with his signing of the card. This is also true in the case of Pendergraft. Hambley was directed to Coleman's testimony about being given a card to sign and replied, "I probably asked him, and told him what direction we were going or what it looked like, but in no definite form of an order." Hambley did not remember telling Tuttle he was holding up matters, but then did re- member asking him if he wished to sign a card, "because I believe he was the last to sign." He was not questioned about the statement attributed to him by Pazen. 4 There is some variation in the testimony as to the contacts between Electricians and Respondent after September 16. This finding is based upon the ultimate testimony of Duffey. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 8-day union-shop clause in the original contract has been duly enforced and garage employees Coleman. Tuttle, and Johnson have paid initiation fees and dues. As a matter of union policy, Electricians have not applied the union-security provisions of the contract to gas boy Pazen and to part-time employee Mosconi. As noted, Pendergraft and Winckel already were members of Elec- tricians. Although the existing contract applicable to Respond- ent was between four locals of Electricians and Moun- tain States Line Contractors Chapter, NECA, the agree- ment of September 30, 1966, is solely between Respond- ent and Local 111 and is captioned "Supplemental Agreement." Among other things, it establishes new clas-' sifications and wage rates which are lower than those in the area contract; these wage rates did constitute in- creases for the garage employees. Business Representa- tive Duffey testified, and I find, that it was also necessary for him to obtain the approval of the three other locals signatory to the area contract as well as the employer as- sociation. This was done in the period after September 16 and prior to September 30. D. Conclusions 1. Unlawful assistance ; interference, restraint, and coercion It is readily apparent that Respondent unlawfully inter- jected itself into the organizational activities of its em- ployees. Thus, on August 22, 1966, Foreman Hambley telephoned Business Representative Duffey of the Elec- tricians and asked him to come to the garage and speak with the men about a union. This Duffey did on August 26.5 Hambley thereafter took an active role in obtaining signatures to authorization cards for Electricians. On September 16, he informed employee Coleman that "the shop was going [Local] 111" and instructed him to sign the Electricians card. He similarly instructed employee Tuttle to sign a card because everyone "had to go into it." He also told Mark Pazen that he, Hambley, had to have the card by a certain date. In sum,.the immediate super- visor of the garage employees pressured them to designate Electricians as their bargaining representative. That same morning, Vice President Baumgartner asked employee Pendergraft which union the men would choose, in effect stated his preference for Electricians and then told Pendergraft that because Electricians was "so well represented" the garage employees would receive wage increases. This, significantly, was prior to the procurement of authorization cards for Electricians by Foreman Hambley that afternoon. This clearly was a promise of improved working conditions for support of Electricians.6 The General Counsel urges that Hambley's participa- tion in the negotiations for a contract on September 16 is further violative of the Act. This is predicated upon the fact, as Vice President Baumgartner testified, that Hambley appeared, not as a representative of manage- ment, but in behalf of Electricians. Indeed, even Hambley 5 While Hambley wore two hats, both as a union member and a super- visor, there is no basis for assuming that he wore only the former on this occasion. The fact is that a representative of management introduced a labor organization to its garage employees 6 While Pendergraft already was a member of Electricians, I note that he saw fit to promptly obtain an authorization card from the desk of testified that he was present only for himself. Moreover, Respondent has at no time disavowed the conduct of Hambley except, as discussed above, to contend that he was not a supervisor. I find that Hambley appeared on this occasion as a representative of Electricians and that this constituted interference with the administration of Electricians. See Mt. Clemens Products Co., 126 NLRB 1297.7 It is also entirely clear that when Respondent recog- nized Electricians on September 16 as the representative of the garage employees, Electricians did not represent a majority. Out of a total of seven, five full-time and two part-time garage employees, only Pendergraft and part-time employee Winckel were members of Electri- cians. Thus, Electricians was a minority union on Sep- tember 16. This is highlighted by the fact that Respond- ent then was on notice of the demand for recognition by Machinists, disregarded said claim, recognized Electri- cians, and then pressured some of its employees into signing membership applications for Electricians. I find that by the foregoing delineated conduct, Respondent has interfered with the administration of Electricians and has contributed support thereto within the meaning of Section 8(a)(2) of the Act. I further find that by such conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Connie Jean, Inc., 162 NLRB 1609, and Dura Corp. v. N.L.R.B., 375 F.2d 707 (C.A. 6). 2. The alleged refusal to bargain a. Appropriate unit The complaint alleges that all mechanical, main- tenance, and garage employees at the company garage, excluding all office, clerical and professional employees, supervisors and all employees presently represented by another labor organization, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. This Respondent denies. Normal criteria for the establishment of an appropriate unit would seem to include work at a common site, com- mon supervision, common skills and educational tests, in- tegrated work processes, and similarity of working condi- tions. The unit endorsed by the General Counsel includes five full-time and two part-time garage employees. While Respondent has formally denied the appropriateness of a separate garage unit, its conduct would seem to belie this. For, in the fact of an associationwide contract with four locals, Respondent and Electricians executed a sup- plemental contract covering these and only these garage employees. While it would seem that Respondent is estopped from challenging the appropriateness of this unit, the findings below are made on a broader basis. As Respondent urges, there are factors which demon- strate the appropriateness of a larger unit, viz, the garage employees joined to the 116 in the line construction de- partment. For approximately 90 percent of the garage work is performed on vehicles of the line construction de- partment with the remainder on vehicles for the other two Foreman Hambley and sign it. 7 Though the complaint may not have raised this specifically, the matter was developed by the General Counsel and thereafter explored and developed by Respondent on cross-examination. I find that the issue was litigated and that findings may be predicated thereon. STUB GEON ELECTRIC CO. departments. While the garage employees are physically separate from the line department employees, they will, on occasion, go to the field to repair line equipment but not that of the two other departments. And, Respondent has uncontrovertedly stated that it would not operate a garage but for the existence of the line department. Be that as it may, and, as noted, despite the fact that they occasionally perform repair work in the field on line department vehicles, the fact is that the work of the garage department is directed to the maintenance of equipment as contrasted with construction work. They have separate immediate supervision. The pay scales are markedly lower than those of the line department em- ployees. They would seem to have a community of in- terest apart from their fellow employees. In addition, they have been unrepresented in the pact and their inclusion in the larger unit has been resisted by management. Thus, there is substantial evidence to warrant the conclusion that the smaller unit is appropriate and I find that it is within the meaning of Section 9(b) of the Act. Nevertheless, there is substantial evidence to support the contention of Respondent that the broader unit would also be appropriate. Indeed, the General Counsel flatly concedes' that such a unit would be appropriate.8 As will appear below, this finding as to the appropriateness of the smaller unit is not dispositive of the alleged refusal to bar- gain. b. Majority representation The five full-time employees in the garage voluntarily signed authorization cards for Machinists, these including Coleman, Johnson, Pazen, and Pendergraft on August 23, and Tuttle on August 25, 1966. The cards authorized Machinists to represent the signers for the purposes of collective bargaining. These signers also executed appli- cations for membership in Machinists on the same occa- sions. I find that on August 23 and at all material times thereafter Machinists was the representative of the seven employees in the above-described appropriate unit within the meaning of Section 9(b) of the Act.9 Conclusions Respondents admits that it refused to bargain with Machinists on and after September 15, 1966, but chal- lenges the appropriateness of the smaller unit. As noted, the General Counsel concedes that either unit could be appropriate but contends that the demand and refusal need take place only in an appropriate unit. While the foregoing discussion would seem to dictate a finding of refusal to bargain, the matter is not so simple. The General Counsel has pointed out that Electricians was at best a minority union representing two out of seven employees, a figure insufficient to provide an ad- ministrative showing of 30 percent representation in sup- port of a petition for an election. While this is quite correct, the question does not arise in that posture. The petition herein was filed by Machinists on September 19 and not by Electricians. If I understand representation case procedure correctly, 8 See Food Employers Council, Inc., 163 NLRt3 426, fn. 6. 8 Respondent contends that Pazen, Johnson, and Tuttle also signed cards for Electricians and that the dual designations vitiate their authorizations for Machinists. Having found that the signatures of Tuttle and Pazen were unlawfully obtained by Foreman Hambley, this conten- tion is rejected. 217 Electricians and its sister local who enjoy recognition in several existing units in the plant would be duly notified and would be permitted to intervene on the basis of any showing; and this showing they already enjoyed. Indeed, again if I still understand representation procedure correctly, it takes but a 10-percent showing of strength by an intervenor to block a consent election. Stated otherwise, if the election procedure were per- mitted to run its gamut, Electricians would have its day in court after an appropriate period to remedy the unfair labor practices heretofore found. The General Counsel has argued that this is not a two-union situation within the meaning of Midwest Pip- ing & Supply Co., Inc., 63 NLRB 1060. He points to the assistance to the Electricians and to the above-described lack of a 30-percent showing to support a petition. Coronet Manufacturing Co., 133 NLRB 641. But, as noted, Electricians is not a petitioner here and it does have an antecedent and existing interest.10 Moreover, an order to bargain with Machinists is in es- sence the same thing that has been denied to Electricians. In view of all the foregoing considerations, I do not be- lieve that it would effectuate the purposes of the Act to find a refusal to bargain with Machinists in this instance and I shall therefore recommend dismissal of this allega- tion of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section 111, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Finding that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has interfered with the administration of and given support to Electricians, it will be recommended that Respondent (1) withdraw and withhold all recognition from Electricians as representa- tive of its garage employees; (2) give no force or effect to the contract executed with the Electricians on September 30, 1966, this, however, not requiring Respondent to vary or abandon wages, hours, or other substantive provi- sions set forth in said contract; and (3) reimburse those employees who joined Electricians pursuant to the union-shop clause in said contract for all dues and initia- tion fees paid by them. This is not intended to apply to employees Pazen and Mosconi who were not subjected to said union-security provisions and to employee Pen- dergraft, who already was a member of Electricians. It does apply to employees Coleman and Tuttle who were coerced into signing by Foreman Hambley. While George Johnson signed a card for Electricians, his 10 True, Respondent opposes a self-determination election and the General Counsel in effect does likewise, but for a different reason Respondent urges that the only appropriate unit is the larger one in which Electricians enjoys a minority and with equal directness, the General Counsel stresses the majority of Machinists in the smaller unit. 218 DECISIONS OF NATIONAL testimony does not warrant a finding that he signed sub- sequent to the recognition of Electricians and I do not in- clude him among those to be reimbursed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Sturgeon Electric Company, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. International Association of Machinists and Aerospace Workers and its District Lodge 86, AFL-CIO, and International Brotherhood of Electrical Workers, Local 111, are labor organizations within the meaning of Section 2(5) of the Act. LABOR RELATIONS BOARD 3. By interfering with the administration of and con- tributing support to Electricians and by executing, main- taining, and enforcing an unlawful union-security agree- ment, Respondent, Sturgeon Electric Company, Inc., has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By the foregoing , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. [Recommended Order omitted from publication.]