Home Furniture Co., Inc.

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Home Furniture Co., Inc. and Local 3, Allied Woodworkers Union of America, Inc. Local 467, Upholsterers' International Union of North America, AFL-CIO and Local 3, Allied Woodworkers Union of America, Inc. Cases 4-CA-4532 and 4-CB-1474 February 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 17, 1968, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Home and Respondent Upholsterers filed exceptions to the Trial Examiner's Decision and supporting briefs; and the General Counsel filed cross-exceptions and a brief in support thereof and in answer to the Respondents' exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, briefs, and the entire record in the proceedings,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted below. We agree with the Trial Examiner's conclusions, for the reasons discussed herein, that Respondent Home violated Section 8(a)(1), (2), and (5) of the Act, and that Respondent Upholsterers violated Section 8(b)(1)(A) and (2) of the Act. We also find that Respondent Home violated Section 8(a)(3) of the Act.2 Home has two plants in York, Pennsylvania, where it is engaged in the manufacture of furniture. Since 1964, the approximately 300 employees at these plants have been covered by a collective-bargaining contract with the Upholsterers. On September 22, 1967, Home entered into an agreement with Bethlehem Furniture Manufacturing Corporation, herein called Bethlehem, of Red Lion, As the record and briefs adequately present the issues and the positions of the parties, Respondent Home ' s request for oral argument is hereby denied It appears that the Trial Examiner has inadvertently omitted making an 8(a)(3) finding herein. Pennsylvania (approximately 10 miles from York), to purchase Bethlehem's land, buildings, and about two-thirds of the furniture manufacturing machinery. The sale was not consummated until December 15, 1967, but Home's representative addressed all 41 Bethlehem employees in October 1967, at which time he informed them of Home's intention to take over Bethlehem's plant, assured- them that there would be no layoffs, and stated that Home would continue recognition of Local 3, Allied Woodworkers Union of America, Inc., herein called Allied, which for many years had represented Bethlehem's employees. Bethlehem's last contract with Allied was executed on September 28, 1967. It contained a 30-day union-security clause and provided for the checkoff of dues as in previous contracts. As in the past, Bethlehem continued to deduct dues on behalf of all its employees. On December 15, Home notified Allied by letter that it "adopts the contract in its present form and fully intends to honor it and you may assure your members that we plan to retain the Bargaining Unit personnel." On December 15, Home assumed full management of the Red Lion plant. It retained all Bethlehem employees and assigned them to plant renovation and maintenance work in preparation for production. Until Janurary 25, 1968, Home honored the contract with Allied, including the deduction of dues for all employees. However, on that date, Home notified Allied that its prior recognition of Allied as the bargaining representative for the Red Lion employees was revoked. As noted above, the Upholsterers was the recognized bargaining representative for Home's employees at the two York plants. During negotiations between these parties for a new contract which began on December 21, 1967, the Upholsterers demanded that the employees at the Red Lion plant be included in the York bargaining unit. Home replied that the newly acquired plant was a separate operation and that it was already under contractual relations with Allied. Home suggested that the Upholsterers should, if it persisted in its claim, file a representation petition with this Board to avoid the commission of any unfair labor practices by any of the parties. The Upholsterers engaged in a 1-day strike at the York plants on about January 11, 1968, to enforce its demand for recognition at Red Lion. As previously noted, on January 25 Home revoked its recognition of Allied and it notified the Upholsterers of this fact, advising the latter that it might be entitled to recognition, but that Home must "abide by whatever determination is made by the Board and hope that any question concerning recognition can be resolved quickly." None of the parties to the proceeding has filed a representation petition with the Board. Negotiations between Home and Upholsterers reached an impasse by February 1, 1968, the 174 NLRB No. 113 HOME FURNITURE CO., INC. expiration date of their contract. Between February 2 and 25., the Upholsterers engaged in a strike which resulted in a work stoppage at all three plants. Shortly thereafter, Home and the Upholsterers entered into a new contract, effective February 26, which accorded the Upholsterers recognition for all of Home's employees, including those at the Red Lion plaint. The contract contains a union-security clause and a dues checkoff provision. It resulted in loss of seniority status of the former Bethlehem employees with respect to layoffs and job bidding; some employees also received a cut in wages. 1. We find that Respondent Home violated Section 8(a)(5) and (1) of the Act on January 25, 1968, when it revoked its recognition of Allied as the bargaining representative for the employees at the Red Lion plant. In all the circumstances of this case, we find no merit in the contention of Home and Upholsterers that the employees of Red Lion were merged into or accreted to the bargaining unit of York employees represented by the Upholsterers. The Red Lion employees constituted a separate appropriate unit while employed by Bethlehem and continued as such when Home became their employer. Upon acquiring the plant, Home retained all the employees, recognized Allied as their bargaining representative, adopted the existing contract covering them, and continued to check off their dues in favor of Allied, as Bethlehem had done. At all times, it is clear, Allied was the bargaining agent for the Red Lion employees. As of January 25, therefore, it was incumbent upon Home to continue its recognition of Allied for the employees at Red Lion, whether or not it was a "successor" to Bethlehem.3 It follows that, by withdrawing such recognition, Home violated the Act.4 2. We find that Respondent Home also violated Section 8(a)(2) and (1) of the Act on about February 26, 1968, when it granted recognition and a contract to the Upholsterers as the bargaining representative of the employees at the Red Lion plant. Such conduct constituted unlawful assistance to the Upholsterers which did not represent a majority of the employees and was thus not entitted to recognition. Respondent Upholsterers violated Section 8(b)(1)(A) of the Act by executing and maintaining the aforesaid contract.s 3. As the aforesaid agreement between the Respondents contained union-security and dues-checkoff clauses which pertained to the Red Lion employees, and in view of Respondent Home's duty to bargain with Allied as the exclusive representative of these employees, we find that, by executing and maintaining such agreement, Respondent Upholsterers violated Section 8(b)(I)(A) and 8(b)(2) of the Act, and that Respondent Home 'In our view of the case, we need not decide this question 'DeGeorge Transfer & Storage Co., 143 NLRB 83, 85 'Bernhard-Altmann Texas Corp, 122 NLRB 1289, enfd -280 F.2d 616 (C.A D.C.), affd. 366 U.S 731 (1961). 789 violated Section 8(a)(1) and (3) of the Act.6 4. Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, in the manner recommended by the Trial Examiner, as modified herein. CONCLUSIONS OF LAW 1. Respondent Home is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Upholsterers and Allied are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Home's production and maintenance employees at its Red Lion, Pennsylvania, plant, excluding executives, - foremen, office clerical employees, salaried employees, professional employees, plant protection employees, guards, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing to recognize and bargain with Allied on and after January 25, 1968, Respondent Home has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By recognizing Respondent Upholsterers as the bargaining representative of the employees at the Red Lion plant and by entering into and maintaining the collective-bargaining agreement, effective February 26, 1968, Respondent Home has violated Section 8(a)(1), (2), and (3) of the Act. 6. By entering into and maintaining said agreement, Respondent Upholsterers has violated Section 8(b)(1)(A) and 8(b)(2) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) 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: A. Respondent, Home Furniture Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 3, Allied Woodworkers Union of America, Inc., as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Home Furniture Co., Inc., at its Red Lion, Pennsylvania, plant, excluding 6) 'Downtown Bakery Corp, 139 NLRB 1352, enfd 330 F 2d 921 (C.A 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD executives, foremen, office clerical employees, salaried employees, professional employees, plant protection employees, guards, and all other supervisors as defined in the Act. (b) Recognizing or dealing with Local 467, Upholsterers' International Union of North America, AFL-CIO, as the bargaining representative of its employees in the aforesaid unit, unless and until the Upholsterers shall have been certified by the Board as the exclusive representative of such employees. (c) Giving force or effect to its collective-bargaining agreement with the Upholsterers, dated February 26, 1968, or to any amendment, supplement, or addition thereto, insofar as it affects its employees in the aforesaid unit. (d) Assisting the Upholsterers in any other manner to become the collective-bargaining representative of its employees at the Red Lion plant. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Resume its bargaining relationship with Allied as the exclusive bargaining representative of its employees at the Red Lion plant, and honor the contract, excepting section 4 of article I thereof, entered into between Bethlehem Furniture Manufacturing Corporation and Allied on September 28, 1967, which it adopted on December 15, 1967. (b) Withdraw and withhold recognition of Respondent Upholsterers as the bargaining representative of its employees at the Red Lion plant, and revoke its collective-bargaining agreement with said union insofar as it affects the employees at that plant. (c) Jointly and severally with Respondent Upholsterers reimburse employees of the Red Lion plant who became members of Respondent Upholsterers in accordance with the aforesaid agreement of February 26, 1968, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in Respondent Upholsterers, together with interest at the rate of 6 percent per annum. (d) Restore to its employees at the Red Lion plant the seniority held by them prior to its unlawful recognition of Respondent Upholsterers as their representative, make them whole for any loss of earnings or benefits which they may have lost or been denied by reason of its rescission on January 25, 1968, of its agreement with Allied, together with interest at the rate of 6 percent per annum. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the moneys or benefits due under the terms of this Decision. (f) Post at its plants in Red Lion and York, Pennsylvania, copies of the attached notices marked "Appendix A" and "Appendix B."' Copies of said notices, on forms provided by the Regional Director for Region 4, shall, after being signed by the respective representatives, be posted by Respondent Home immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Home to insure that said notices are not altered, defaced', or covered by any other material. (g) Mail to the Regional Director signed copies of "Appendix A" for posting by Respondent Upholsterers, as hereinafter directed. (h) Notify the Regional Director, in writing, within 10 days from the date of this Decision and Order, what steps Respondent Home has taken to comply herewith. B. Respondent, Local 467, Upholsterers' International Union of North America, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of Respondent Home's employees at its Red Lion plant for purposes of collective bargaining, unless and until it shall have been certified by the Board as the exclusive representative of such employees. (b) Giving any force or effect to its collective-bargaining agreement with Home, dated February 26, 1968, or- to any -amendment, supplement, or addition thereto, insofar as it affects the employees at the Red Lion plant. (c) Causing or attempting to cause Respondent Home to discriminate against employees at the Red Lion plant in violation of Section 8(a)(3) of the Act and in any other manner restraining or coercing these employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Home reimburse employees of the Red Lion plant, who became members of Respondent Upholsterers in accordance with the aforesaid agreement of February 26, 1968, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership, together with interest at the rate of 6 percent per annum. (b) Post at its business office and meeting hall in York, Pennsylvania (or, if there are none in York, 'In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " HOME FURNITURE CO., INC. then in Philadelphia), copies of the attached notices marked "Appendix A" and "Appendix B."8 Copies of said notices, on forms provided by the Regional Director for Region 4, shall after being signed by the respective representatives, be posted by Respondent Upholsterers immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent Upholsterers to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director signed copies of "Appendix B" for posting- by Respondent Home, as heretofore directed. (d) Notify the Regional Director, in writing, within 10 days from the date of this Decision and Order, what steps Respondent Upholsterers has taken to comply herewith. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United Slates Court of Appeals Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the 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 our employees that: WE WILL resume recognizing and bargaining collectively with Local 3, Allied Woodworkers of America, Inc., as the union- authorized to represent our employees at the Red Lion, Pennsylvania, plant in the following unit: All production and maintenance employees at our Red Lion, Pennsylvania, plant, excluding executives, foremen, office clerical employees, salaried employees, professional employees, plant protection employees, guards, and all other supervisors as defined in the Act. WE WILL NOT recognize or deal with Local 467, Upholsterers' International Union of North America, AFL-CIO, as the representative of any of our employees at the Red Lion plant, unless and until it has been certified as the exclusive representative of our Red Lion employees by the National Labor Relations Board . WE WILL NOT give any force or effect to the agreement made with the Upholsterers, insofar as it applies to the employees at the Red Lion plant WE WILL NOT assist the Upholsterers in any other manner to become the representative of the employees at the Red Lion plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL resume honoring the bargaining contract made between Bethlehem Furniture Manufacturing Corporation and Local 3, which we cancelled on January 25, 1968. We will not honor the dues-checkoff provision of the contract, however, until it is amended 791 to conform with the law. - WE WILL jointly and severally with the Upholsterers reimburse our employees at the Red Lion plant for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in the Upholsterers. WE WILL restore to our employees at the Red Lion plant the seniority held by them prior to our wrongful recognition of the Upholsterers as their representative; make them whole for any loss of wages and certain other benefits which they may have lost or been denied by reason of our cancellation of our bargaining contract with Local 3 on January 25, 1968. HOME FURNITURE CO., INC. (Employer) Dated By (Representative ) , (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 1700 Bankers Securities Building, Walnut & Jupiter Streets, Philadelphia, Pennsylvania 19107, Telephone 215-597-7601. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 467, UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO Pursuant to the 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 act as the collective-bargaining representative of the employees at the Red Lion, Pennsylvania, plant of Home Furniture Co., Inc., unless and until we have been certified by the Board as the authorized representative of such employees. WE WILL NOT give any force or effect to our collective-bargaining agreement with Home, dated February 26, 19'68, or to any amendment, supplement, or addition thereto, insofar as it relates to the employees at the Red Lion plant. WE WILL NOT cause or attempt to cause Home to discriminate against its employees at the Red Lion plant in violation of Section 8(a)(3) of the Act or in any other manner restrain or coerce these employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with Home reimburse the employees at the Red Lion plant, who became members of our organization in accordance with the aforesaid agreement of February 26, 1968, for moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in our organization. LOCAL 467, UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO (Labor Organization) 792 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut & Jupiter Streets, Philadelphia, Pennsylvania . 19107, Telephone 215-597-7601. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN TOCKER, Trial Examiner: This cause came on to be heard before me in York, Pennsylvania, on June 4 and 5, 1968, upon the complaint of the General Counsel issued April 9 following charges filed February 2 and March 8 by Local 3, Allied Woodworkers Union of America, Inc., charging union, against the employer, Home Furniture Co., Inc., and on March 8, against Local 467, Upholsterers' International Union of North America, AFL-CIO, respondent union, and upon the answers of the employer and the respondent union filed April 19. It was alleged in the complaint that Home had become a successor employer at a plant in Red - Lion, Pennsylvania, and had recognized Allied as the bargaining representative of the employees in that plant in consequence thereof but, at a later time, had withdrawn such recognition and had refused to bargain with it because of the subsequent recognition of Upholsterers followed by alleged unilateral changes of existing wage rates and job classifications resulting from the alleged wrongful recognition of Upholsterers and the withdrawal of recognition of Allied. It was alleged further that, following Home's recognition of Upholsterers, Home and Upholsterers have maintained and enforced a labor relations agreement extending to and including the employees of the Red Lion plant, in which agreement there is included a union-security clause requiring Red Lion employees to become members of Upholsterers on the 30th day following execution of the agreement or the beginning of their employment at Red Lion. Thus, Home was charged with violations of Sections 8(a)(1), (2), (3), and (5) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, and Upholsterers was charged with violations of Sections 8(b)(1)(A) and 2(6) and (7) In short, the position of the charging union, Allied, and of the General Counsel is that Home was a successor employer at the plant in Red Lion, rightfully became bound by a contract between Allied and the former employer there, rightfully adopted that contract and recognized Allied, wrongfully thereafter rescinded that contract, and wrongfully recognized the respondent union, Upholsterers, which had been and was the union representing Home's employees in two other plants in York, Pennsylvania, the nearest of which was approximately ten miles from the Red Lion plant. It is further their position that Upholsterers violated the Act when it caused Home to withdraw recognition from Allied and recognize it as the representative of the employees at Red Lion, enter into a collective-bargaining agreement with it, and required by that agreement that employees at Red Lion become members of Upholsterers. Home, the employer, and Upholsterers, the respondent union, take the position that Home was not a successor employer, that it was not bound by the contract between Allied and Red Lion's former operator, that when Home ultimately commenced operating Red Lion its operation there was an accretion to the operations at its two plants in York and, because it was an accretion, Upholsterers, the recognized union at those plants, became the rightful representative of any employees at Red Lion and Home was required to and therefore properly did recognize and contract with Upholsterers as the exclusive bargaining representative of all its employees, both in York and at Red Lion. The Issues I do not regard the mayor issue at this lime to be whether Home's acquisition and operation of the factory in Red Lion was as a successor employer there or whether the result merely was an accretion to the operations theretofore conducted and continuing at its two plants in York. If that were the real issue, and Home's acquisition of the factory in Red Lion was as a successor to the former operator there and that former operator had a valid and proper contract with Allied, there would be no problem about the propriety of Home's recognition of Allied. Its subsequent withdrawal of such recognition and imposition upon Red Lion employees of the contract terms with Upholsterers unquestionably would have constituted interference with the guaranteed rights of the Red Lion employees under Section 7 of the Act, wrongful support of Upholsterers and wrongful refusal to bargain, collectively with Allied. Similarly, under these circumstances, the demands and enforcement of those demands by Upholsterers would have been a wrongful interference with the rights guaranteed to Red Lion's employees under Section 7 of the Act and a wrongful compulsion of Home to discriminate unlawfully against such employees. At the very least, if Home was not truly a successor employer, the employees at Red Lion might have been entitled to a self-determination election. Conversely, and still speculating upon successorship versus accretion, if Home's operation at Red Lion had been a true accretion and therefore an extension of its operations at the neighboring plants and if no other union had either a valid or reasonably arguable claim to represent the Red Lion employees, Home's recognition of Upholsterers as the bargaining representative of its employees at all three plants would have been proper and neither it nor Upholsterers would be regarded as having engaged in the unlawful conduct alleged against them in the complaint. Although I shall make findings on the successorship versus accretion issue, I view the real issue as being the propriety of the contract between Home and Upholsterers at a time when there was a genuine dispute and issue whether Allied or Upholsterers was to represent the employees at Red Lion which dispute and issue could be settled only by resort to the established procedures of the National Labor Relations Board for determining representation questions. I have been favored with briefs submitted by counsel supporting the complaint, counsel for the employer, and counsel for Upholsterers, the respondent union. These have been quite helpful and have been given careful consideration. HOME FURNITURE CO., INC. Now, on the basis of the entire record, consisting of oral and voluminous documentary evidence, and after my observation of the witnesses during the giving of their testimony, I hereby make the following Findings of Fact A. The Business of the Employer and Jurisdiction Respondent, Home Furniture Co., Inc., is now, and at all times material herein has been, a corporation duly organized and existing under and by virtue. of the laws of the Commonwealth of Pennsylvania. It is engaged in the manufacture and sale of wood institutional furniture at plants in York and Red Lion, Pennsylvania, all in York County. It has admitted that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended. The National Labor Relations Board has jurisdiction of this proceeding and of it B. The Labor Organizations Involved Local 3, Allied Woodworkers Union of America, Inc., the charging union, has represented employees in the furniture industry in Red Lion, Pennsylvania, for more than twenty years It has dealt, on their behalf, with several employers in at least three plants there. It has reported as a "labor organization" to the Office of Labor-Managment and Welfare-Pension Reports of the Labor-Managment Services Administration of the United States Department of Labor. (See January 1, 1964, Register of Reporting Labor Organizations.) Respondent union, Upholsterers, has sought to create an issue as to Allied's capacity as a labor organization under the Act. Allied's affirmative testimony and the public records support the conclusion that it has that capacity. Upholsterers' arguments in opposition may be regarded at best as assaults upon the quality of representation afforded by Allied to its members. That, however, has no bearing on the question whether Allied is in fact a labor organization. Upholsterers cites, as additional reason for finding that Allied is not a labor organization, that Allied's failure to produce various records suggests there were none, that no grievances were processed, and that, if anything, its activities were social. In another case, that Sacramento Seven Up Employees' Union initially was established to keep out the Teamsters, had no office, kept only sporadic records, never processed any grievance, and its infrequent meetings were primarily social did not deter the Board from finding that it was a labor organization within the meaning of Section 2(5) of the Act. Seven Up Bottling Co. of Sacramento, 147 NLRB 401, 158 NLRB 1223. I find that Local 3, Allied Woodworkers Union of America, Inc., is a labor organization within the meaning of Section 2(5) of the Act. It is conceded generally and there is no issue that Local 467, Upholsterers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Both said labor organizations are subject to the jurisdiction of the National Labor Relations Board in this proceeding. C. The Alleged Unfair Labor Practices 793 The nature of the business conducted at Red Lion before Respondent, Home, acquired that property is of some importance. It is one of the factors resulting in my conclusion that Home should not be regarded as a successor of Red Lion's former operator. For many years prior to September 1967 Bethlehem Furniture Mfg. Corp. had operated the factory at Red Lion. This was a custom furniture building business in which was manufactured what is known in the trade as a "decorator line." It is quality residence furniture normally sold directly to home owners by interior decorators either from pictures or after visits to showrooms at which model pieces are displayed. It was not a volume business but appears to have been a special order business whereby Bethlehem would sell and deliver finished pieces either directly to the ultimate customer, the homewowner, or indirectly through an interior decorator. It certainly did not involve either assembly line or mass production. The woodworking employees there appear to have been more or less skilled furniture craftsmen capable of performing varying functions in the manufacture of a complete living room or bedroom set or individual pieces to be placed in homes. Their work had not been placed in different classifications. Many of them probably had been long-term employees of Bethlehem and all seem to have had personalized rates of compensation. On the other hand, Home Furniture Co., Inc., the Respondent, maintained at its two plants in York a completely different sort of operation. This involved mass production of what is known as "institutional furniture ... as opposed to household furniture---furniture that goes in dormitories, hospitals, hotels, motels, nursing homes, restaurants [and] libraries." It was "specially constructed and designed to withstand that kind of [institutional] use." Home concentrated on the production of furniture for the categories other than libraries but engaged also in a limited amount of direct manufacture of tables, chairs, and carrels for libraries It was content, prior to its intended acquisition of the factory at Red Lion, to contract out or subcontract its major requirements for the fulfillment of library contracts. For many years prior to September 19, 1967, Allied, the charging union, was the duly recognized and exclusive bargaining agent of the Red Lion employees both during its operation by Bethlehem and prior thereto while it was operated by another company, Ebert. There were, it is asserted, written labor relations contracts executed by and between Bethlehem and Allied. These contracts (other than the last) were not produced on demand of respondent union, Upholsterers. When Allied's president was asked about contracts existing before September 1967 he testified that there had been "such a contract" but claimed he did not know where it was. It never was produced. I find it difficult to believe (regardless of the stipulation during the hearing) that if there had been a prior written contract between Allied and Bethlehem, Allied would not have had it at a time only', months after its alleged expiration. The failure to produce such a contract or any contract previous to the one in evidence creates all sorts of questions as to whether in fact there had been a written contract or contracts and what the contents of such contracts might have been. Such questions become unimportant when this case is viewed in its entirety. Bethlehem came upon hard times. There were cash and bank difficulties. It decided to discontinue its operations 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Red Lion and advertised that plant for sale. This came to Home's attention and, after negotiations between Home and Bethlehem, a contract was executed September 22, 1967, by those two companies. This contract definitely was not for the sale of a business. It was not concerned with good will, customers, furniture manufacturing, lines of merchandise, accounts receivable, trademarks, business affiliations, restrictions on competitive operations, or any of the other usual matters included in contracts for the purchase and sale of a business. On the contrary, it was merely a contract for the sale and purchase of a plot of land containing 4.730 acres, more or less, together with rights in a railroad siding serving that land, located in Red Lion, York County, Pennsylvania. The price for the land was $325,000. In addition, and in connection with the sale of the land, there was provision for the sale of some machinery, equipment, fixtures, apparatus, supplies, parts, 'tools, and other equipment listed on an exhibit attached. Other items of machinery, which at the time of the making of the contract were on the premises, were excluded temporarily from the sale but were subject to be included upon payment of prices to be agreed on at time of settlement. Bethlehem's intended divorcement from the Red Lion factory was emphasized by the fact that the contract of sale contained a provision to the effect that fire or other casualty following its execution was "not in any way [to] void or impair any or' its contents. The nature of this transaction, as evidenced by this contract, is another reason why I conclude that Home is not to be regarded as Bethlehem's successor. The settlement date was to be and actually became December 15. Apparently unbeknownst to Respondent Home, the vendee under said contract, Bethlehem, on September 28, 6 days after executing the sales agreement whereby it signified its intention to terminate the business of furniture manufacturing at Red Lion, entered into a written agreement with Allied, the charging union, in which it recognized that union "as the sole collective-bargaining agency for all its employees at its Red Lion, Pennsylvania plant." This contract has a valid union-security clause (Milwaukee Gas Light Company, III NLRB 837, Paragon Products Corporation, 134 NLRB 662), but its checkoff clause was illegal in that it went beyond what was permissible under Title III, Sec. 302 (c)(4) of the LMRA. This was and is severable from the rest of the contract and does not render it invalid as a collective-bargaining agreement. One of the contract clauses is stressed as being relevant to the disposition of the issues herein. That clause is, "This agreement will be assigned to any successor to the Company." This is preceded by another clause, "This agreement is not transferable or assignable to any other bargaining agency." Other than the action of Respondent Home's vice president when he wrote Allied, as will be brought out below, there is no suggestion that the Bethlehem-Allied contract ever became the subject of a formal assignment to Home under the quoted "assignment to successor" clause . Such an assignment was not a prerequisite to Home's becoming bound by it. On December 15, in accordance with the terms of the sales contract, Home took title to the land, buildings, and some of the equipment. Such equipment as it did not acquire was moved out by Bethlehem, the vendor. As the change in ownership progressed, leading ultimately to Bethlehem's final departure, Bethlehem's work was phased out, it continued to pay employees who continued working for it and, as any employees became surplus to it, Home took them on, paid them their previous regular hourly rates, and made checkoff deductions for Allied from their pay. Ultimately, and before the beginning of any production at Red Lion several months later, all Red Lion employees willing to work for Home were transferred to its payroll. For months they engaged in no furniture production of any kind and were assigned only to clean up and refurbishing work or rearrangement of equipment and general maintenance. On the very day that the sales contract went to settlement (December 15), Home, by Karl J, Reifman, its vice president and secretary, wrote Allied, the charging union, as follows: This is to advise that on Friday, December 15th, at the close of business hours, Home Furniture Company, Inc., purchased the land, building and some of the equipment from Bethlehem Furniture Manufacturing Corporation, designated as the Red Lion plant. Our attention has been directed to your current labor agreement (which became effective September 28, 1967 and runs through September 28, 1969) with the above company and more particularly, to the Successor Clause. We wish to advise that Home Furnishing Company, Inc., adopts the contract in its present form and fully intends to honor it and you may assure your members that we plan to retain the Bargaining Unit personnel. In order to continue the amicable relationship that your organization and members have had with the former management, we would like to meet with you and the Union Bargaining Committee at your earliest convenience so that we may make appropriate introductions to one another and answer any questions you may have regarding the change in management. The "successor clause" to which reference was made in the letter is the same clause quoted above. Although the time of the writing of this letter suggests that it was written in haste, I am unwilling to read into this factor that there was a nefarious motive as charged against Home by counsel for Upholsterers. I believe that when Reifman wrote the letter he was under the impression that the so-called "successor clause" required him to recognize Allied and that Home had inherited a work force represented by it. Having observed Reifman on the witness stand I am firmly of the opinion that there was nothing guileful about him or his conduct and that he wrote the letter with all sincerity. I ascribe no importance to that portion of the sales contract wherein it was provided, "Upon the execution of this contract the Seller's list of available employees will be furnished to the Purchaser, together with job classifications." There was a tight labor market in the area at that time. At its existing plants, Home had difficulty in obtaining adequate labor. It was beleaguered by large and constant labor turnover problems. Its interest in procuring such a list of employees and their classifications is quite understandable. It is to be noted further that nothing in this clause or elsewhere in the contract imposed on it the obligation to Hire the employees named on the list. Home nevertheless expected to do so and its plant manager personally addressed Bethlehem's employees and so assured them. This was repeated in the last sentence of the second paragraph of the December 15 letter to Allied. Home continued, even after the complete departure of Bethlehem, to make the HOME FURNITURE CO., INC. 795 7 dues checkoff for Allied, continued contributions to Allied's insurance plan, paid the Christmas bonus, and made no changes in any wage rates payable to the old employees, all in accordance with the September 28, 1967, contract between Bethlehem and Allied. (See Shamrock Dairy, Inc., 119 NLRB 998, 1002.) Home had made an inchoate decision to :manufacture library furniture at Red Lion but it never materialized. This was because a subsequent study of the market indicated the inadvisability of embarking on full-line production of library furniture and devoting an entire plant to such production. There may be some significance in the question whether, if Home actually had gone through with its initial idea of producing a full line of library furniture at Red Lion, that would have been an accretion within the meaning of Borg-Warner Corporation, 113 NLRB 152, or a new venture which would have resulted in a genuine question whether (absent Allied's status) the Red Lion employees were or were not entitled to a self-determination election as opposed to being covered into Local 467 of the Upholsterers, the union representing Home's employees at its two existing plants. Home's vice president, Reifman, in his testimony seems to have regarded library furniture production as "a totally new production and sales approach that [his} company was taking." But he had testified previously, as an adverse witness called by counsel supporting the complaint, that Home had made tables, chairs, and carrels for libraries even though it did not make a complete line and had "subcontracted out" "everything else." Putting all his testimony together, he said, aptly, "We did not make a complete package of library furniture at that time." '(Emphasis supplied.) Of course, even if the initial idea of manufacturing library furniture at Red Lion had been carried out, that operation would not have been as a successor to Bethlehem's operation. So, for the third time, I say that there should be no application of the successor concept here. The question of law here involved cannot be decided on the basis of Reifman's thinking. What he thought at the time or what his view of the law is now or was at that time is not controlling. In my consideration of what had been intended to happen (library production) and of what ultimately did happen (a clear-cut expansion and continuation of the identical manufacturing which always had been conducted at Home's plants in York) I find Borg-Warner (above) most instructive. In Borg-Warner the employer received an order for the production of automatic transmissions which it had not manufactured before. For the purpose of performing that order it acquired additional acreage in August 1953, hired a work force, and the employees first went to work in March 1954, with actual production not beginning until May. If, in Borg-Warner, a company, which never had manufactured automatic transmissions but merely had been engaged in manufacturing a variety of automotive, electrical household appliances, and other products, was held to have taken on a business qualifying for classification as an accretion because similar or identical skills and equipment were necessary and utilized in the manufacture of the automatic transmissions, then certainly the extension of the manufacture of library furniture to a full line by a plant which was engaged in the manufacture of institutional furniture and, as part of that activity, had manufactured library tables, chairs, and carrels, even though it had subcontracted out other library items, should be similarly regarded. For this reason I do not rule out the accretion concept merely because of the initial but subsequently abandoned library furniture idea. Had it been carried out I believe that such an operation definitely would have been acceptable as one of the factors, among others, which could add up to a conclusion that there was an accretion here, as in Borg-Warner. While the cleanup and refurbishing activities were being conducted at Red Lion, Upholsterers' union learned of the acquisition, its nature, and the conditions involved. In a letter dated December 26, 1967, its attorney wrote Home that it had been misled as to the nature of the operation to be conducted by Home at Red Lion. It stated that for the first time on December 21, it had become aware that only the physical plant and some of the machinery had been purchased and that there was to be no connection or affiliation of Home with Bethlehem but that on the contrary, "Products the same as or similar to products being manufactured at Princess (the Home factory ten miles away) will be manufactured at Red Lion." It charged that Red Lion was "merely an expansion of the production unit at Princess Street. . [and] it is clear that Red Lion unit is an accretion to the Princess Street unit." It accordingly demanded that its existing contract with Home be applied to Red Lion, that Home recognize it as the bargaining agent for Red Lion's employees, and that Home cease recognizing and bargaining with Allied. By letter dated December 30, 1967, Home, by Reifman, replied to Upholsterers, informing it that it was Home's intention to operate Red Lion as a separate facility for the manufacture of a complete line of library furniture, that Red Lion's supervisory staff would enjoy "local and autonomous decision making power," that Red Lion had not been acquired for the mere expansion of the Princess Street production, that there was a recognized union which had represented the employees at Red Lion for approximately twenty-five years and had a contract running to September 28, 1969, "with a successor clause," that Home's Red Lion management had informed Allied's officers and members of Home's intention to honor that agreement, that not only had it met with but it had been required under NLRB rules to meet with and recognize Allied, that the Allied contract constituted a legal bar to Upholsterers' claim and, if Home acceded to Upholsterers' claim, it would be violating the Labor Management Relations Act, and finally it suggested to Upholsterers that it apply to the National Labor Relations Board for certification to the end that neither the union nor the company would be charged with violation of law or an unfair labor practice. In another letter dated January 6, 1968, Home, by Reifman, again rejected Upholsterers' claim to represent the employees at Red Lion and reasserted that Allied was an existing union acting as the bargaining agent for those employees. It informed Upholsterers that under the law it could not grant representation status to it for the Red Lion employees and again suggested that it file a petition with the Board. During the time that these letters were being exchanged, Home and Upholsterers were engaged in bargaining negotiations for renewal or extension of the existing contract covering the two old plants, due to expire at the end of January 1968. Also, in the early part of January, possibly January 11, Upholsterers' Local had engaged in a 1-day wildcat strike, without permission of its International, in support of its position that Red Lion should be part of the bargaining unit and had filed unfair labor practice charges against Home, making the same contention. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The old contract between Home and Upholsterers due to expire at the end of January 1968 provided for recognition of Upholsterers by Home "at its York, Pennsylvania Plant." It had a union-security clause which required that "new employees covered by this Agreement and hired on or after its execution date shall, on the thirtieth day following the beginning of such employment become and remain members in good standing in the Union."' During the hearing I questioned whether the reference in this contract only to Home's "York, Pennsylvania Plant" limited its effect to a single plant in York but I understand now that the agreement did cover the two existing plants in York and also that both Red Lion and York are in York County. For this reason I now ascribe no significance to the superficially limiting nature of the words "at its York, Pennsylvania Plant," and I do not rely on that in reaching my ultimate conclusions. Home ultimately was compelled to capitulate to Upholsterers' 'demands that it be recognized as the bargaining representative of employees at Red Lion. This was done in two major steps: First, Home's rescission of its initial recognition of Allied accompanied by its simultaneous but tentative recognition of Upholsterers. Second, its formal recognition of and agreement with Upholsterers as the collective-bargaining representative of the Red Lion employees. By letter dated January 25, 1968, Home wrote Allied: Please be advised that upon full consideration of all the circumstances surrounding the acquisition by Home Furniture Company, Inc., of some of the property and equipment of Bethlehem Furniture Manufacturing Corporation in Red Lion, Pennsylvania, this company is not in a position to recognize your Union as the bargaining representative for the former employees of Bethlehem who have elected to become employed by this company at Red Lion. You may therefore disregard our letter of December 15, 1967. (Compare this procedure with the Board's view of the special nature of a labor relations contract as distinguished from an ordinary legal contract. While the latter, if improper for any legal reason, may be rescinded unilaterally, the former is subject to restrictions imposed by statute and labor law concepts. Carpenters District Council of Denver (Rocky Mountain Prestress, Inc.), 172 NLRB No. 87.) At the same time, Home wrote Upholsterers' attorney: We have today sent the enclosed letter to the President of Local No. 3, Allied Woodworkers Union of America. As you know, the ultimate determination of the bargaining rights of Home Furniture Company, Inc., employees who will be employed at its Red Lion plant rests with the National Labor Relations Board. It would appear under all circumstances that your Union is entitled to recognition as the bargaining representative of those employees. We must, of course, abide by whatever determination is made by the Board and hope that any question concerning recognition can be resolved quickly. I regard this letter as having been only a tentative recognition and that there was reserved for future resolution by the Board the issue whether Allied or Upholsterers was the proper union to act on behalf of the Red Lion employees. Following the writing of this letter negotiations continued for a new contract because the old contract covering the two plants in York was due to expire February 1, 1968. A new contract became effective February 26. In it 'Home formally recognized Upholsterers, not only as the union, for its two plants in York but also for the Red Lion plant. It contains a union-security clause requiring Red Lion employees not yet members of Upholsterers to become members on the 30th day following its execution and new Red Lion employees to become members on the 30th day following the beginning of their employment. It provides also for a checkoff of union dues. This contract was executed following a 3-week strike which shut down all plants, including Red Lion, until February 25, 1968. In support of the rcontention that Home's ultimate recognition of and its contract with Upholsterers extending to and including Red Lion employees were valid and,proper, both Home and Upholsterers assert that Red Lion merely was an accretion to Home's activities' in York and for that reason Home was required to recognize Upholsterers as the representative of Red Lion employees. Whether I am correct in concluding that' the manufacture of library furniture at Red Lion would have been an accretion or whether, as I also conclude but, do not find necessary to discuss in detail, the abandonment of the initial intention to manufacture library furniture there followed by the ultimate expansion to Red Lion of Home's prior and continuing activities in York was, an accretion, is not determinative of the real issue involved in this proceeding. The real issue was recognized and stated by Home's vice president, Reifman, in his letter of January 25, 1968, to Upholsterers' attorney: (T)he ultimate determination of the bargaining rights of Home Furniture Company, Inc. employees who will be employed at its Red Lion plant rests with the National Labor Relations Board. We must, of course, abide by whatever determination is made by the Board and hope that any question concerning recognition can be resolved quickly. Home's good intentions were frustrated by Upholsterers' unwillingness to let the Board decide the question of representation and its coercion of Home, by its exercise of the strike weapon, to. capitulate to its demands and enter into the contract covering the Red Lion employees into Upholsterers. The question concerning representation was a very real question for the determination of which the National Labor Relations Board has established procedures which were available to Home, Allied, and the Upholsterers. Home could have resorted but did not resort to one of these procedures. Allied had not been faced with the necessity for so resorting to them because it had been recognized promptly by Home. It was not dilatory or chargeable with laches in the protection of its rights because, immediately upon Home's ^ rescission of its recognition agreement, it filed an unfair labor practice charge against Home and followed it up by filing a similar charge against Upholsterers. Upholsterers' position was different. It was confronted not only with Allied's prior and presumptive continued status as representative of Red Lion employees and Home's recognition of Allied (Shamrock Dairy (above) and Ref-Chem Company, 169 NLRB No. 45) but also with Home's admonition that the issue was one for the Board to decide. It chose to ignore all this and, although it had filed an unfair labor practice charge against Home, it did not apply to the Board to resolve the issue. It chose instead to take the law, into its own hands and enforce its demand on Home by resorting to the strike weapon. This was the law of the jungle and HOME FURNITURE CO., INC. not that of a country with a labor policy such as expressed in Section 1(b) of the LMRA. Thus,' this appears to be a typical case within the rule of Midwest Piping & Supply Co., Inc., 63 NLRB 1060. The rationale of the rule there was that there had been an utter disregard of the Board's representation procedure while there were pending with it at the time of the happening of the events "conflicting petitions . . alleging the existence of a question concerning the representation of the employees covered by the agreement." While in our case no petitions for determination by the Board of the issue of representation had been filed, the issue was very real. Neither Upholsterers, as the demanding union, nor Home as the employer confronted with this demand after its prior recognition of Allied, already the representative of employees at Red Lion, had the right to take it upon themselves to bypass the Board and make this determination independently. To do this was to disregard Allied's superficial but not sham position and the possible preferences of the employees at Red Lion. This seems to me to be more a case for invoking the Midwest Piping rule (63 NLRB 1060) than was Spartan-Atlantic Dept. Stores, 169 NLRB No. 47. In Spartan, the employer, after avowing neutrality with respect to recognition affecting a new store because in some of its stores Amalgamated was the bargaining agent and in others Retail Clerks was such agent, recognized Retail Clerks at the new store while Amalgamated's representation petition covering the employees there was pending before the Board. It did so on the stated ground that it regarded the new store as an accretion to a two-store unit already represented by Retail Clerks. It did this after Amalgamated had filed its representation petition and without notifying Amalgamated of its abandonment of neutrality. In our case, Home did precisely the same but not merely by ignoring a petition pending before the Board. It summarily brushed aside the contract which it had adopted and the recognition it had accorded voluntarily to Allied, the presumptive and continuing representative of its Red Lion employees. This was done not in May 1968, when Red Lion finally was in full operation, but in February while it still was being maintained and refurbished by the same employees who had been employed by Home's predecessor and had been represented by Allied. Allied's position was not "a `bare' claim without substantiation." Its position as the initially recognized bargaining agent was very real. To quote the law as stated by the Examiner in Brittany Dyeing and Printing Corp (where the Board held that a specific request for recognition was not necessary), 126 NLRB 785, 793: Where an employer is confronted with rival union claims for exclusive recognition, one of which is substantial, reliably supported by reasonable evidence, and the other no more than a "bare" claim without substantiation, the employer is free to recognize and deal with the union which in fact represents the majority of the employees. Where instead he extends recognition to a union which ostensibly evidences majority status, at a time when a rival labor organization is also claiming exclusive recognition in circumstances which raise a "real" question of representation, or a substantial issue as to which union is the true choice of the employees, the employer violates the general proscription of the statute which guarantees to all employees freedom of choice in the matter when he himself resolves the question by according exclusive recognition to one of the competing 797 unions. The issue in our case never reached the question of freedom of choice because Home and Upholsterers took it upon themselves to decide the unit issue, which might have been single plant or multiplant, and to ignore Allied's previously recognized position and the possible preference of employees at Red Lion. These were real issues the determination of which by the Board should have been awaited under the circumstances of this case. Bonwit Teller, Inc., 170 NLRB No. 55; The Globe Machine and Stamping Co., 3 NLRB 294. In coming to this conclusion I do not overlook Northwest Galvanizing Co., 168 NLRB No. 6, which involved a true expansion of Northwest's business, a complete integration of the former employer's employees into the Northwest operation, and a consistent refusal to recognize the former owner's union, all followed by the eventual close-down of the newly acquired site and transfer to or merger of the entire activity begun at the acquired site to Northwest's main plant. Our case differs in many respects - particularly the survival of the Red Lion plant, the initial and apparently good-faith recognition by Home of the resident, established union, Allied, prior to the raising of any issue as to the possible rights of Upholsterers, and the fact that the single-plant unit at Red Lion might have been held appropriate and the employees there might have preferred to be represented by Allied in a Globe type of election (3 NLRB 294). In accordance with the contract which Home, the employer, had negotiated with Upholsterers, Home required all its employees to become members of Upholsterers. Among these were included both old and new employees at the Red Lion plant. These employees, also in accordance with the contract, were subjected to the dues checkoff procedure whereby Home checked off the dues owing to Upholsterers and forwarded them to Upholsterers and to reclassification. The following are my CONCLUSIONS OF LAW 1. Home Furniture Co., Inc., the employer, is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Managment Relations Act, 1947, as amended. 2. Local 3, Allied Woodworkers Union of America, Inc., and Local 467, Upholsterers' International Union of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. The National Labor Relations Board has jurisdiction of the subject matter of this proceeding and also of the said employer and the said unions. 4. A unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act could be either all production and maintenance employees of Home Furniture Co., Inc., employed at its Red Lion, Pennsylvania, plant, exclusive of all supervisors as defined in the Act - or all production and maintenance employees of Respondent, Home Furniture Co., Inc., employed at its three plants in York County, Pennsylvania, the two plants in the city of York and the third in Red Lion, exclusive of all supervisors as defined in the Act. 5. By withdrawing its previous recognition from Allied which had been the authorized collective-bargaining representative of Red Lion employees, refusing and continuing to refuse to bargain collectively with Allied as such exclusive bargaining representative of all employees 798 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD in the Red Lion plant, by changing, without negotiating and bargaining with Allied, existing wage rates, job classifications, and other terms and conditions of employment of the employees in the Red Lion plant, and by refusing to abide by and to implement the collective-bargaining contract with Allied previously adopted by it at the time of its acquisition of the Red Lion plant, Respondent, Home Furniture Co., Inc., did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing employees in the exercise of rights guaranteed to them in Section 7 of the Act and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By withdrawing recognition from Allied and granting recognition to Upholsterers as the exclusive bargaining representative of employees in the Red Lion plant, entering into a contract with Upholsterers the provisions of which extended to and included the employees at the Red Lion plant, by informing the employees at the Red Lion plant that it had recognized Upholsterers as their bargaining representative and requiring such employees to become members of Upholsterers and to submit to a dues check-off by Home on behalf of Upholsterers at a time when, -so far as the record shows, Allied was the apparent and presumptive exclusive bargaining representative for employees at the Red Lion plant and none of the employees there had designated Upholsterers as their bargaining representative, Respondent breached its obligation of neutrality and unlawfully assisted and supported Upholsterers within the meaning of Section 8(a)(2) and (1) of the Act. 7. By so requiring its employees at the Red Lion plant to become members of Upholsterers and so checking off dues on behalf of Upholsterers from the wages payable to employees at the Red Lion plant which dues were thereafter transmitted by Home to Upholsterers, Home furnished further unlawful assistance and support to Upholsterers in violation of Section 8(a)(2) and (1) of the Act. 8. By withdrawing recognition from Allied, by refusing and continuing to refuse to bargain collectively with Allied as exclusive bargaining representative of all employees in the Red Lion plant, and by changing existing wage rates and job classifications and other terms and conditions of employment of employees of the Red Lion plant and otherwise refusing to abide by and to implement the collective-bargaining agreement in effect at the Red Lion plant at the time when it acquired that plant, Home did refuse to bargain collectively and is refusing to bargain collectively with the representative of the employees at the Red Lion plant and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 9. By compelling Home to enter into and perform the terms and conditions of the contract between it and Upholsterers whereby the employees of Home at the Red Lion plant were required to become members of Upholsterers, to pay dues to Upholsterers and to submit to a dues-checkoff procedure on its behalf, Respondent Upholsterers thereby did restrain and coerce and continue to restrain and coerce employees in the exercise of rights guaranteed to them by Section 7 of the Act and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 10. By compelling Home Furniture Co., Inc., to recognize Upholsterers and to enter into the contract with it and thereby require employees at the Red Lion plant to become members of Upholsterers and to pay dues to it at a time when Allied had an apparent, not sham, exclusive right to represent such employees, Respondent Upholsterers thereby did, engage in and is engaging in unfair labor practices within the meaning of 8(b)(2) of the Act. 11. All the acts thus set forth in the Conclusions of Law hereinabove stated were committed at a time when there were legitimate issues as to (a) whether, the employees at the Red Lion plant constituted or would constitute a separate unit appropriate for collective bargaining, or were to be part only of a unit composed of all employees of Home Furniture Co., Inc., at its three plants, (b) whether Allied had a good and subsisting contract under which it was the authorized collective- bargaining representative for employees in the unit at the Red Lion plant; (c) whether Home, once having recognized Allied as such collective-bargaining representative on behalf of the employees at Red Lion and having adopted the contract which at that time was in effect, could rescind unilaterally that contract and reject Allied as the authorized and ' exclusive bargaining representative of those employees; and (d) whether the acquisition by Home of the Red Lion plant and the operation there to be and ultimately actually conducted was an accretion to the operations theretofore conducted by it at its two previously owned plants in the city of York, Pennsylvania, by reason of which it could be required to cover those employees into one unit consisting of all the employees in the three furniture plants in York County, Pennsylvania, and thereby cause them to be subject to the terms of whatever col)ective-bargaining agreement might have been or was to be in effect with Upholsterers as the exclusive bargaining representative of the employees in the two previously owned plants in the city of York, Pennsylvania. These were issues which could have been and should have been decided by the National Labor Relations Board under its regularly established procedures for the resolution of such issues. Both Home Furniture Co., Inc., and Upholsterers, by entering into the agreement whereby Upholsterers became the exclusive collective-bargaining representative on behalf of Home's employees at the Red Lion plant, disregarded the procedures so available to them for the determination of the issues hereinabove set forth, did interfere with, restrain, and coerce and are interfering with, restraining, and coercing employees of the Red Lion plant in the exercise of rights guaranteed in Section 7 of the Act and are engaging in unfair labor practices within the meaning of Section 8(a)(1) and 8(b)(1), respectively, of the Act. 12. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Occurring and having occurred in connection with the activities in commerce of Home Furniture Co., Inc., they have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Since I have found that Respondent Home Furniture Co, Inc., and Respondent Local 467, Upholsterers' International Union of North America, AFL-CIO, have engaged in unfair labor practices within the meaning of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act. This will require special provisions in addition to those conventional in HOME FURNITURE CO., INC. routine unfair labor practice proceedings. Among the routine provisions Home should not be subjected to the broad form restraining order but Upholsterers should. Home, though legally culpable, was not willingly so. Upholsterers was. The contract made by Home with Upholsterers, to the extent that it affects employees at the Red Lion plant, should not be honored. This will require the reimbursement to Red Lion employees of any dues collected from them for the purpose of remittance by Home to Upholsterers. Inasmuch as it appears from the facts of this case that Home was compelled by Upholsterers' conduct to enter into the contract, the order should provide that Home merely cease the checkoff for Upholsterers of dues from Red Lion employees, refrain from transmitting any dues already collected but not yet remitted, and refund such dues to the employees from whom they were collected. However, Upholsterers, which has received dues from Red Lion employees by reason of its conduct in compelling Home to enter into the said contract with it and to check off dues from Red Lion employees, should be required to refund all such dues previously received from or on behalf of Red Lion employees to those Red Lion employees from whom such dues were received or collected. Home should be required to reinstate the recognition heretofore accorded by it to Local 3, Allied Woodworkers 799 Union of America, Inc., and honor (excepting the checkoff clause which I hold is not legal) the contract which it adopted at the time that it acquired the Red Lion plant. Any benefits or privileges acquired by Red Lion employees by reason of Home's contract with Upholsterers excepting such benefits or privileges as are inconsistent with the Allied contract or are not available to persons not members of Upholsterers, shall not be reduced or withdrawn from employees at the Red Lion plant. (Exceptions such as I have in mind are the UIU Health and Welfare Fund and National Pension Program.) On the other hand, any Red Lion employee who, by reason of the events following Home's rescission of the Allied contract, has suffered a reduction of wages shall be restored to the wage rate to which he would have been entitled under the Allied contract and should be made whole for any loss suffered by him. Both the recognition by Respondent Home of Allied and its withholding of recognition from Upholsterers as the representative of employees of the Red Lion plant shall continue unless and until the National Labor Relations Board determines that Allied is not to be the exclusive collective-bargaining representative on behalf of the employees of the Red Lion plant or certifies that Upholsterers is such a collective-bargaining representative [Recommended Order omitted from publication ]