S. G. Tilden, Inc.

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. G. Tilden , Inc., Tilden Bayshore , Inc., and Tilden Huntington, Inc. and General Automotive, Elec- tronics, Synthetic and Specialty Products, Drivers, Helpers and Warehousemen , Local 239 , Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 29-CA-674, 29-CA-673, 29-CA-675, and 29-CA-745 June 28, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 19, 1967, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled cases, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Counsel and Respondent S. G. Tilden filed exceptions to the Trial Examiner's Decision and supporting briefs, and a request for oral argument.' 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. Respondent S. G. Tilden operated a chain of 13 automotive repair shops in New York, New Jersey, and Connecticut. On August 30, 1965, S. G. Tilden entered into a collective-bargaining contract with the Union covering the employees in its New York and New Jersey shops. The agreement was to ter- minate on August 5, 1967, and provided in material part that the Employer should make monthly con- tributions to a union pension fund and that the agreement should be binding on successors. On June 30, 1966, Tilden, for reasons which the Trial Examiner found were economically justified, sold to Huntington and Bayshore, corporations newly formed by the former managers of Tilden's Huntington and Bayshore branches, respectively, the equipment, fixtures, and inventories of their respective shops for $45,000, and at the same time entered into franchise agreements with them for the continued operation of these shops under the Til- den name .2 Prior to the sale and franchise agree- ments, the then managers of the Huntington and Bayshore branches of Tilden offered their em- ployees an opportunity to transfer to shops under Tilden ownership. On July 6, Tilden advised the Union of the sale and franchise agreements and in another letter also advised the Union that it was making no pension fund payments for the em- ployees who had elected to continue in service with the new corporations. Similarly, in response to the Union's demands of Huntington and Bayshore for contributions to its pension fund on behalf of the employees who had elected to go with Huntington and Bayshore, the latter replied in effect that they considered themselves new enterprises, that they had not assumed Tilden's contract, and that their employees did not wish to be represented by the Union. The complaint alleged that Respondents violated Section 8(a)(5) by failing to recognize the Union as the collective-bargaining representative of the em- ployees at Huntington and Bayshore and by failing to honor the provisions of the existing contract. On the foregoing facts, the Trial Examiner, not relying on any specific provisions, but on the sales and franchise agreements as a whole, found that Bayshore and Huntington were joint employers with, and successors of, Tilden with respect to the branches of the same name and bound by Tilden's 'The Respondents ' request for oral argument before the Board is hereby denied as the record and briefs adequately present the issues and positions of the parties ' The sale agreements between S G Tilden and Huntington and Bayshore, respectively , provided in material part for the sale by S G Til- den of the fixtures , equipment, and inventories to each of them for the sum of $45,000, payable in monthly installments , with interest Bayshore and Huntington were not required to make any cash payment at the inception of the agreement and had 15 years to pay the full purchase price Tilden retains title to the property until the full amount is paid It was further pro- vided that upon the cancellation of the accompanying franchise agreement, the entire unpaid balance becomes due and payable The franchise agree- ments provided in material part that Huntington and Bayshore were to be bound by certain "special " prices set by Tilden and by Tilden's servicing guarantees, and were not to advertise their services or sublet any part of the premises without Tilden 's consent They were required to observe Tilden's pricing policies , public relations, road testing, building maintenance, and housekeeping standards , and the appearance of the premises and signs were likewise to be regulated by Tilden The agreements further provide that Huntington and Bayshore are to remain open 6 days per week, from 8 a in to 5 30 p in , and that the employees be dressed in prescribed uniforms It is also provided that at Huntington's and Bayshore 's request, Tilden will screen , test, and indoctrinate new employees , and no former employee of Tilden or another franchisee may be employed by Huntington or Bayshore for at least 2 years without the consent of Tilden or the respec- tive franchisee 172 NLRB No. 83 S. G. TILDEN, INC. 753 contract with the Union. He concluded that Bayshore and Huntington took over the property and continued to carry on the same business which they had previously conducted as branches of Til- den with knowledge of the provisions of Tilden's contract with the Union; that they used the same name, premises, and equipment to supply the same products to the public with the same manager and practically the same personnel; and that in addition they gave no notice to the public of any change in operation or management. Respondents in general contended before the Board that the Trial Examiner erred in finding a joint employer relationship as well as successorship. In addition, Respondents Bayshore and Huntington based their attack upon the alleged inconsistency of the Union's position in regard to its contentions of joint employership. They argued that the Union consented to the fragmentation of the unit and al- leged that in July 1967 the Union signed a contract with an association of all Tilden franchisees exclud- ing Bayshore and Huntington. They moved that the record be reopened to admit evidence in support of these allegations. Their argument was substantially that the Union, by contracting as it did with the other franchisees, without notice to Bayshore or Huntington and without attempting to include them, thereby impliedly conceded that the franchised branches were independent entities. In the light of Huntington's and Bayshore's al- legations, to which no answering brief was sub- mitted, the Board, on March 29, 1968, issued its order to show cause why, in view of the effect of these allegations on the unit and jurisdictional is- sues involved herein, the complaint should not be dismissed. In its response, the Union conceded that it had in fact signed a new agreement with an as- sociation of 11 Tilden franchisees which did not in- clude Huntington and Bayshore. The General Counsel, in his response, contended that the Union's signing of the aforesaid contract should have no effect on the Trial Examiner's findings or on the obligations of the Respondents. On the record as a whole, including the responses of all parties to the Order To Show Cause, we are of the opinion that the record does not support the Trial Examiner's finding that the sale and franchis- ing of Respondent Tilden's Bayshore and Hunting- ton branches resulted in a joint employer relation- ship. The franchise and sales agreements upon which the Trial Examiner relies are insufficient in the circumstances herein to constitute Respondents joint employers.3 While there are many elements of the business relationship that are regulated by the franchise agreement, we find no clear indication, nor can we so infer from the provisions of the said agreement itself, that Respondent Tilden intended to, or in fact did, exercise direct control over the labor relations of Bayshore and Huntington. The requirement that the franchisees observe the pric- ing and housekeeping standards set by Tilden was merely to keep the quality and goodwill of the Til- den name from being eroded, and the requirement that the employees wear prescribed uniforms amounts to nothing more than an implementation of Tilden's advertising policy. The offer by Tilden to train prospective employees of the franchisees was an offer of help by Tilden and not the exercise of any authority over Respondents Bayshore's and Huntington's hiring policies. Nor can the specifica- tion that the shops remain open from 8 a.m. to 5:30 p.m., 6 days per week be viewed as a significant element in control of labor relations. The provision in no way prescribes the hours that a particular em- ployee must work, and along with many other provisions, its purpose is only to eliminate unfair competition among franchisees. Moreover, we agree with Respondents' contention that the Union, by the acts of contracting with I I franchisees, not including Bayshore and Huntington, has impliedly conceded that the franchised branches were inde- pendent entities. Accordingly, and as neither Bayshore nor Huntington reach the $500,000 ju- risdictional requirement for the Board to take ju- risdiction,' we shall dismiss the complaint.-' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. 3 The Southland Corporation, dlbla Speedee 7-Eleven, 170 NLRB 1332 4 For the period July I to December 31, 1966, Bayshore 's gross revenues were $46,432 and Huntington 's amounted to $63,000 s In view of our conclusion that the Board should not assert jurisdiction in this proceeding, it is unnecessary to consider the Trial Examiner's find- ing that Respondents Huntington and Bayshore violated Section 8(a)( I) by soliciting the resignation of their employees from the Union TRIAL EXAMINER'S DECISION SIDNEY D. GOLDBERG, Trial Examiner: The prin- cipal question in this case is whether Respondent, S. G. Tilden, Inc., by converting two branches of its chain of automotive repair shops into franchised operations, terminated its obligation to bargain, concerning the employees involved, with the labor organization representing its employees. The consolidated amended complaint in these proceedings,' pursuant to Section 10(c) of the Na- ' Issued October 26, 1966, on charges filed July 27 and September 30, 1966 354-126 O-LT - 73 - pt. 1 - 49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Act, as amended (herein called the Act), alleges that S. G. Tilden, Inc. (herein called Tilden), notwithstanding its sale-and- franchise agreements with the former managers of the two branches and the corporations they created (herein called Bayshore and Huntington), con- tinues to be the joint employer, with the franchise holders, of the branch employees, and that all three Respondents continue to be bound by Tilden's col- lective-bargaining contract with General Automo- tive, Electronics, Synthetics and Specialty Products, Drivers, Helpers and Warehousemen, Local 239, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (herein called the Union). It alleges that Respon- dents have refused to bargain with the Union in violation of Section 8(a)(5) of the Act and that they have otherwise interfered with their em- ployees' rights of self-organization in violation of Section 8(a)(1) thereof. Respondents answered, admitting the creation of the franchise arrangements but denying any viola- tions of the Act. A trial of the issues so raised was held before me on March 1 and 2, 1967, at Brooklyn, New York, at which all parties were represented, afforded an opportunity to adduce evidence, cross-examine witnesses , and argue upon the facts and the law. Briefs filed by the General Counsel, by counsel for Respondent Tilden, and by counsel for Respondents Bayshore and Huntington have been considered. For the reasons hereinafter set forth in detail, I find that the franchise arrangements between Til- den and Bayshore, and between Tilden and Huntington were insufficient to remove the em- ployees of those branches from the coverage of the collective-bargaining contract between Tilden and the Union and that, with respect to such employees, Respondents Tilden and Bayshore, for the Bay Shore branch, and Respondents Tilden and Huntington, for the Huntington branch, are joint employers of the employees at these branches. Ac- cordingly, their refusal to recognize the Union as the collective-bargaining representative of these employees violated Section 8(a)(5) and their in- volvement of these employees in the arrangement constituted interference with the employees' rights in violation of Section 8(a)(1) of the Act Upon the entire record herein, and the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE EMPLOYERS INVOLVED Respondent S. G. Tilden, Inc., a New York cor- poration, operates a chain of automotive repair shops in New York, New Jersey, and Connecticut. It admits that its annual gross revenues exceed $500,000. I find that it is an employer engaged in commerce and that it would effectuate the pur- poses of the Act to exercise jurisdiction over it. On June 30, 1966, Respondent Bayshore, a New York corporation, purchased from Tilden the equipment, fixtures, and inventory at the Bay Shore branch of the Tilden chain and entered into a franchise agreement with Tilden for its operation. Its gross revenues, for the period July 1 to December 31, 1966, amounted to $46,442. On June 30, 1966, Respondent Huntington, a New York corporation, purchased from Tilden the equipment, fixtures, and inventory at the Hunting- ton branch of the Tilden chain and entered into a franchise agreement with Tilden for its operation. Its gross revenues, for the period July 1 to December 31, 1966, amounted to $63,000. In view of the finding herein that Bayshore and Huntington are joint employers, with Tilden, of the employees at these branches, it is not necessary to make findings or conclusions concerning the separate status of Bayshore and Huntington as em- ployers engaged in commerce. II. THE LABOR ORGANIZATION The Union is a labor organization. III. THE UNFAIR LABOR PRACTICES A. Background and Chronology The material facts concerning the relationship between the Respondents are not seriously in dispute. The employees of the Tilden chain of automobile repair centers were organized by the Union in 1965. On August 30, 1965, after the Board's certifi- cation of the Union and a short strike, Tilden en- tered into a collective-bargaining contract with the Union which,2 under its terms, may be renegotiated or terminated on August 5, 1967.3 Article XXX of this contract reads as follows: SUCCESSORS AND ASSIGNS This agreement shall be binding upon the parties hereto, their successors and assigns, and all branch establishments of the Employer which may hereafter be opened during the term of this agreement, provided that said branch establishment is within a county where the Employer has an establishment. If for any reason the Employer shall change its name or legal status, or the Union shall change its af- filiation, it is agreed that such a change shall in no manner modify or affect the binding obliga- tions of this agreement. P The unit set forth in the Board's certification consisted of stated em- ployees in Tilden's New York shops The employees covered by the con- tract are the same employees in Tilden's New York and New Jersey shops ' Termination of the contract would have no effect on the principal issue herein , viz, the extent of Respondents' obligation to bargain with the Union S. G. TILDEN, INC. 755 Both John B. Stoner and Joseph Montefusco, who were the managers of the Bay Shore and Huntington branches, respectively, prior to June 30, and who were, immediately thereafter, the pres- idents and sole stockholders of the franchised cor- porations, admitted knowledge of this provision of the contract. As of June 30, 1966, Tilden entered into con- tracts with Respondents Bayshore and Huntington, corporations newly formed by the managers of the Bay Shore and Huntington branches, whereby Til- den sold to each of them the fixtures, equipment, and inventories of their respective branches for the sum of $45,000, payable in monthly installments, with interest , beginning September 15, 1966. At the same time , Bayshore and Huntington entered into franchise agreements, as "Associates," with Tilden for the continued operation of these shops as parts of the Tilden chain. Prior to making this change in legal relationship with Tilden, John B. Stoner, the manager at Bay Shore, and Joseph Montefusco, the manager at Huntington , informed the employees under them of the impending change and told them that they could, if they wished, be transferred to other branches under Tilden's direct operation. William Gilliam, the foreman at Bay Shore, and John Doyle, the foreman at Huntington, transferred to other shops, leaving two employees at each of these branches. On July 6, Tilden, in making its monthly re- mittance to the Union's pension fund, wrote it that employees Clarence Arsenault, Douglas Ketcham and Jean Esquerre 4 at Bay Shore, and Joseph DiLascio and Jack Nelson at Huntington, had "resigned as of June 30th, 1966." On the same date, Tilden wrote a letter to the Union stating that, on June 30, it had sold "certain of its assets" at the Bay Shore and Huntington locations to Tilden- Bayshore and to Tilden-Huntington, respectively, and that it was "no longer operating these facili- ties." The Union replied, on July 13, by writing letters to Bayshore and Huntington , calling their attention to the fact that the collective- bargaining contract between Tilden and the Union "is binding upon their successors and assigns," so that, therefore, it was applicable to the purchasers, and requesting re- mittance of the welfare and pension fund payments due under the contract. On July 15, the Union wrote a letter to Tilden, stating that the change came as a "complete surprise" to the Union; that good-faith bargaining would have required con- sultation with the Union prior to the change and that, to protect the employees and the Union, it was requesting copies of the pertinent documents. The record contains nothing to show that Tilden com- plied with the Union's requests or that it sub- sequently communicated with the Union on this subject .5 On July 15, Huntington wrote the Union, acknowledging receipt of its letter dated July 136 and stating that it could not complete the forms therein enclosed because it had "been informed by the men involved, that they no longer feel to be af- filiated with Local Union 239." It also "advised" the Union that "Tilden Huntington Inc., is a newly formed corporation and does not assume prior col- lective-bargaining agreements made by S. G. Til- den, Inc." Stoner, the former manager at Bay Shore, testified that "it could have been" in the third week of July when he sent his undated letter to the Union stating that Tilden-Bayshore had taken over that branch as of July 1. At the same time, Ketcham and Arsenault, the two remaining employees at the Bay Shore branch, signed letters resigning from the Union. There is nothing in the record to show that either of the Respondents thereafter made the contract payments into the pension or welfare funds of the Union on behalf of the employees at the Bay Shore and Huntington branches. On July 18, DiLascio and Nelson, the two remaining employees at Huntington, signed identi- cal letters to the Union, each stating that he was resigning as of that date; that he was "now a stockholder of Tilden Huntington Inc., and very satisfied with present conditions." By agreements bearing the date July 8,' Stoner and Montefusco, each of whom owned all the stock in their newly formed corporations, sold shares to the men working at their shops.8 The stated price is $200 per share, to be paid at the rate of $1 per week for each share, beginning September 1, 1966. Montefusco testified, however, that it was expected that payment for the stock would come out of the "kitty" in which the men at the shop put their tips and other miscellaneous incomes; that the "kitty" normally amounted to about $150 per year for each man and that they usually divided it up at Christ- mas time. ' This is the only mention of this man in the record S Both Max Sherman, president of the Union, and Leonard L Berliner, counsel for Tilden, testified that they had many conversations, both before and after June 30, in which the franchise arrangement was mentioned, but their testimony is in wide disagreement concerning what was said Since the complaint does not allege that Tilden had committed an unfair labor prac- tice by entering into the sale -and-franchise agreements without bargaining, it is unnecessary to resolve this issue "The record contains only one letter from the Union dated July 13 and that one was addressed to Bayshore However , the president of the Union testified that he wrote a similar letter to Huntington ' Montefusco testified that they were executed "approximately in the second or third week in July " Their probable date of execution is discussed below " Stoner sold five shares to Ketcham and five shares to Arsenault Mon- tefusco sold one share to Nelson with an option to purchase four more and sold three shares to DiLascio with an option to purchase two more They sometimes bought a wrecked car, repaired it in their spare time, and sold it at a profit 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Contentions of the Parties and the Issues The General Counsel contends that Tilden, not- withstanding the sale-and-franchise agreements, continued to be the joint employer, with Bayshore and Huntington , respectively, of the employees at those branches and that their refusal to continue to recognize the Union as the representative of those employees constitutes a refusal to bargain, on the part of all respondents, which is violative of Section 8(a)(5) of the Act. Tilden contends that the change in its relation- ship to the Bay Shore and Huntington branches was dictated by economic necessity; that the Union was notified of the impending change and did not ob- ject; that the branch employees were offered trans- fers to Tilden-retained branches and that it has con- tinued to recognize the Union for the employees in the retained branches. It also contends that, after the sale of these branches to Bayshore and Huntington, its control over the branch operators was minimal and insufficient to make it the em- ployer of the branch employees, either directly or jointly with the purchasing companies, and that therefore it cannot be directed to honor the con- tract in conjunction with them.10 Since the complaint herein does not allege that Tilden's refusal to bargain is based upon a failure to notify the Union concerning its intention to franchise the Bay Shore and Huntington branches or a refusal to discuss the proposed franchising with it, Tilden's contentions, that it notified the Union of the proposed change in its relationship with these branches and that the Union did not object, are ir- relevant. The issues posed by Tilden, therefore, are: (i) whether the control it retained over Bayshore and Huntington through its franchise agreement-both documentary and in operation-is sufficient to make it a joint employer with them and subject, with respect to their employees, to the contract with the Union," and (ii ) whether the conduct of Respondents toward the Union and the branch em- ployees constituted unfair labor practices which it can be required to remedy. Bayshore and Huntington rely on Tilden's brief and, in addition, contend that they did not induce the branch employees to resign from the Union. Nowhere in Tilden's brief, however, is there any ar- gument that Bayshore and Huntington are not the "successors" of Tilden at these branches. Ac- cordingly, the adoption, by Bayshore and Hunting- ton, of Tilden's brief on the questions of relation- ship and bargaining leaves this point unbriefed and unargued with respect to these Respondents. This question is , nevertheless, an issue herein. Whether Respondents interfered with the branch employees' rights of self-organization is the remain- ing issue herein.12 C. Discussion and Findings 1. The status of Bayshore and Huntington The General Counsel does not contend, and there is nothing in the record to show, that the transfer of these branches to the Bayshore and Huntington corporations was a device to destroy the bargaining unit or that it was not dictated by sound business reasons. On the other hand, neither Bayshore nor Huntington has contended, in their brief or by argument, that they are not the succes- sors of Tilden, at the respective branches, under the terms of the collective-bargaining contract with the Union. Both Stoner and Montefusco testified that they had actual notice of the existence of the con- tract and it provides, in so many words, that it shall be binding upon successors of Tilden. It is clear and undisputed on this record that Bayshore and Huntington, at these branches, took over the property and continued to carry on precisely the same business which they had thereto- fore conducted as branches of Tilden-using the same name, premises, and equipment to supply the same products and services to the public with the same manager and practically the same personnel. There is nothing in the record concerning any notice to the public of a change in operation or management; every indication is to the contrary. Regardless of the statements by Stoner and Mon- tefusco, that they had not taken over the union contract when they acquired these branches, there is no question but that, although one owner replaced another, the business entity remained the same and I so find.13 As a matter of law, therefore, Bayshore and Huntington became the successors of Tilden with respect to these branches and bound by Tilden's contract with the Union.14 Their refusal to recognize the Union as the collective-bargaining representative of their employees constituted an unfair labor practice violative of Section 8(a)(5) and (1) of the Act. 15 10 Although the unit covered by the contract is not identical with that certified by the Board , Tilden conceded that the contract unit ( which is similar to the one alleged in the complaint ), without the Bay Shore and Huntington branches , is an appropriate one for the purposes of collective bargaining 11 If they are such joint employers , they would be required to bargain as such, notwithstanding the expiration of the contract 12 Although some evidence was taken concerning an arbitration proceed- ing brought by the Union to recover welfare payments due under the con- tract , no issue involving it was presented by the pleadings or briefed by counsel 13 1 also find that the unit set forth in the complaint, which includes these two branches, is an appropriate one for the purposes of collective bargain- ing 14 John Wiley & Sons, Inc v David Livingston, 376 U S 543 15 Overnice Transportation Company, Inc , 157 NLRB 1185, enfd 372 F 2d 765 (C A 4, 1967), Delhi-Taylor Refining Division, Hess Oil and Chemical Corporation, 167 NLRB 115, Hackney Iron & Steel Co , 167 NLRB 613, Valleydale Packers, Inc , of Bristol, 162 NLRB 1486, Quaker Tool & Die Inc , 162 NLRB 1307, Johnson Ready Mix Co, 142 NLRB 437 2. The status of Tilden S. G. TILDEN, INC. 757 General Counsel , viz, that no money passed with There is, as stated above, no claim in this proceeding that Tilden's transfer of its Bay Shore and Huntington branches to Respondents Bayshore and Huntington, respectively, was for other than legitimate business reasons or that either of these Respondents constitutes a "disguised continuation" of Tilden at these locations. Accordingly, any lia- bility of Tilden herein must rest upon a relationship with these successor employers sufficiently close to justify a finding that they are joint employers of the branch employees within the meaning of decisions in the field of labor-management relations.'6 Although there is, fortunately, no factual dispute[' in the evidence upon which this finding is to be made, its evaluation without consideration of its history would be improper: the interests of the Union and its members, for whose protection the Act was passed, forbids it. Moreover, both the change in relationship and the mechanics by which it was accomplished, originated with and were car- ried out exclusively19 by Tilden. This corporation must recognize, therefore, that any resulting am- biguities should properly be resolved against it. a. The sale and security agreements The General Counsel argues that Tilden "relinquished nothing" by operation of the sale and security agreement because it retained title to the property until payment of the purchase price shall have been completed, and that this will not occur until the end of 15 years, when the franchise agree- ment also terminates. This argument overlooks the fact that the sales agreement, although it provides that Tilden shall retain title, also provides that Til- den shall have a "security interest" in the property "under the Uniform Commercial Code."19 Section 1-201, par. 37, of the Code, in turn, provides that a contractual provision for the retention of title by a seller shall be limited in its effect to a reservation of a "security interest"; i.e., to secure payment. Ac- cordingly, there is no substance to this argument. The only element which I find notable in this otherwise routine document is its provision that the entire unpaid balance shall become due and pay- able upon the cancellation of the franchise agree- ment. This connection between the two documents, however, confirms the status of the franchise agree- ment-and the conduct of the parties under it-as the more reliable determinant of the relationship of Tilden to its franchised branch operations. The other factors in the sales agreement noted by the 19 That their relationship for other purposes may be quite different is ob- vious See Boire v Greyhound Corp , 376 US 473,481 11 All of the relevant documents are in evidence and uncontroverted testimony concerning the manner of operation under them was given by both the branch managers and Tilden 's chief officer 19 The only relevant transactions in the record which are not shown to have originated with Tilden are the sales of stock by the branch managers to the employees the inception of the new arrangement and that the first monthly payment would not become due until the end of 2-1/2 months, do not have, in my opinion, sufficient weight to cast significant light on the relationship created by these transactions. b. The franchise agreements The General Counsel's argument that "The niagra [sic] of documentary evidence and testimony clearly and unequivocally demonstrate that Respondent Tilden, Inc., reserved control over the operations and labor policies of the employees in Bayshore and Huntington" must be regarded as somewhat of an overstatement. The franchise agreement, which is necessarily a document of considerable length and detail, places extensive limitations upon the freedom of the operator (called, in the agreement, "Associate") to conduct business and it imposes liabilities that could reduce his income to the vanishing point. For example: although the operator is required to pay Tilden, as the license fee, 6 percent of his gross sales20 and up to 1 percent additional for advertis- ing, he is nevertheless required to abide by the prices advertised by Tilden as "specials" and to ac- cept, for servicing guarantees issued by Tilden or other Tilden-franchised operators, the amounts set by Tilden. Moreover, the operator may not place any other advertising without Tilden's consent, may not sublet any part of his premises, and may not conduct any other business there without Tilden's consent but is nevertheless required to observe Til- den-prescribed standards in pricing policies, public relations, road-testing, building maintenance, and housekeeping. In addition, the operator is required to purchase from Tilden all the parts and supplies which Tilden carries'21 and to purchase other parts and supplies subject to Tilden's approval as to quality. The ex- terior appearance of the branches, with respect to both general appearance and distinguishing signs, are subject to Tilden's approval and the operator agrees to make any changes in them which Tilden may require. The branches are required to be open for business at least 6 days each week and the hours of 8 a.m. to 5:30 p.m., Monday through Saturday, are prescribed. No person formerly employed by Tilden or another Tilden-franchised operator may be employed by the operator for a period of 2 years after such employment without the consent of Til- den or the other operator. The agreement requires that all branch em- 19 N Y Laws 1962, ch 553, effective September 27, 1964 20 Seven percent where the sales are on Tilden charge accounts and eight percent on Tilden " budget" accounts " Tilden is one of a group of commonly owned and interrelated corpora- tions in the automotive supply business 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees "shall be dressed in uniforms ... established by Tilden" and also provides that: Prior to the commencement of operations and anytime thereafter TILDEN will screen and test the prospective employees of the AS- SOCIATE at its request and will indoctrinate the key personnel of the ASSOCIATE, all without cost to the ASSOCIATE, but without any liability on the part of TILDEN in respect of such activities . TILDEN will advise the AS- SOCIATE of its schedules for such screening, testing and indoctrination. After the com- mencement of operations, the ASSOCIATE agrees to attend, and cause its employees to at- tend, upon reasonable advance notice and at reasonable times, instruction periods which TILDEN may conduct for the training in TIL- DEN methods and techniques. Tilden retains the right, in its supervision of the franchise, to inspect the operator's premises or records and to confer with branch personnel, and it may terminate the franchise relationship should the operator default in performing any obligation under it, should the operator encounter financial difficulty or should the operator's annual gross sales drop below $60,000. Limitations are placed by Tilden on the right of the operator to assign any interest in the legal entity holding the franchise without the consent of Tilden (except in a few situations based upon family relationships or death of an interest holder) but the operator agrees that the franchise "shall inure to the benefit of the successors and as- signs of Tilden." Upon the termination of the agreement , by expiration or otherwise, the operator is required to sell to Tilden, at cost, any of its equipment and stock which Tilden may choose to purchase. The testimony of Stoner and Montefusco shows that the employees continued to do the same work, while wearing the same uniforms, which they had done when Tilden operated these branches. Work- men's compensation and other insurance , formerly supplied by Tilden was, after June 30, obtained by Bayshore and Huntington instead. There were other changes in money handling, recordkeeping, and similar services reflecting the shift of ordinary em- ployer status from Tilden to Bayshore and Hunting- ton, but the Tilden system for obtaining parts and material for the operation of these branches ap- pears to have been continued without noticeable al- teration. The General Counsel, in support of his conten- tion that Tilden and the branch operators are joint employers of the employees at these branches, re- lies principally upon the Board's decision in Thrif- town, Inc., d/b/a Value Village, 161 NLRB 603, and cites, among other cases, Jewel Tea Co. Inc., et al., 162 NLRB 508, and K-Mart Division of S. S. Kresge Company, 161 NLRB 1127. These three cases in- volve unit determinations in multiple-employer establishments engaged in the sale of merchandise under a single roof, the entire group being presented to the public as a single retail department store through uniformity of packaging, consolida- tion of billing, etc., and in which the lessor or licen- sor retained various controls over the leesee's em- ployees through the prescription of hours, conduct, dress, suitability for employment, and similar condi- tions. These were held to be joint employers, with their lessees, for the purposes of collective bargain- ing concerning the employees of the lessees, on the basis of the physical, financial, and managerial rela- tionships between them, which placed the lessor "in a position to influence the labor relations policies of the lessee." Another line of cases, in which the Board has found that several employers constituted a joint employer for collective-bargaining purposes, in- volves taxicab owners-of single cabs or fleets of them-who combine under a single name, or a few names, to serve the public through the use of com- mon facilities for dispatching and general control over drivers' qualifications and conduct.22 A third type of relationship justifying a finding of joint employer status was that involved in The Greyhound Corporation (Southern Greyhound Lines Division ) and Floors, Inc. of Florida, 153 NLRB 1488, enfd. 368 F.2d 778 (C.A. 5, 1966), in which the bus company contracted out the porter and janitorial tasks in its terminals, retaining however, a large measure of control over the performance of these functions and, at least implicitly, holding the employees of the contractor out to the public as its own. The Board determined that, under the circum- stances, both Greyhound and the contractor were joint employers of these employees and that a refusal to bargain with the union certified as the collective-bargaining representative for them was violative of Section 8(a)(5) of the Act. While there is not, in this case, a common place of business with the attendant opportunity of presenting to the public the appearance of a single enterprise, as there was in Thriftown, supra, there is nevertheless, in the franchise relationship between Tilden and the branch operators, both a reservation of substantial managerial control in Tilden and a concerted effort by all parties to the arrangement to continue to present each of the branches to the public as integral parts of the Tilden chain. Moreover, there is here-as there was not in Thrif- town -a bargaining history with the Union, includ- ing a collective-bargaining contract specifically made binding upon the successors of the parties. As stated in The Greyhound case supra, by both the Supreme Court23 and the court of appeals24' "whether Greyhound possessed sufficient indicia of 22 Checker Cab Company and its Members, 141 NLRB 583, 153 NLRB 651, enfd 367 F 2d 692 (C A 6), cert denied 385 U S 1008, Supreme, Victory and Deluxe Cab Companies, 160 NLRB 140 " 376 U S 473,481 24 368 F 2d 778, 781 S. G. TILDEN, INC. 759 control to be an 'employer' is essentially a factual issue." Upon the above-described facts concerning the relationship between Tilden and the branch operators, as well as the successorship provision in Tilden's contract with the Union, I find that Tilden is the joint employer, for collective-bargaining pur- poses, with each of the branch operators, of the employees at those branches, and that, as far as Til- den is concerned, the unit set forth in the contract continues to be the unit for which it is obligated to bargain, notwithstanding the conversion of these branches to franchised operations. To permit Til- den to evade this responsibility-both contractual and statutory-by a self-dictated change of rela- tionship that really changed little or nothing would not contribute to industrial stability. The brief of Respondent Tilden, which is adopted by Respondents Bayshore and Huntington, argues that its "only duty upon the sale of two of its shops was to bargain with the union." If the word "upon" is used here, as the context indicates, to refer to bargaining prior to the sale, this question is not an issue in this case and no findings of fact or conclu- sions of law are required on it. Moreover, it can have no applicability to Bayshore or Huntington since prior to the date of sale they neither existed nor had any relationship to the Union. Insofar as the period after June 30 is concerned, the duty of Bayshore and Huntington has been set forth above. Respondent Tilden, in addition to arguing several propositions not within the issues herein, relies strongly on Site Oil Company of Missouri v. N.L.R.B., 319 F.2d 86 (C.A. 8, 1963), in which the court denied enforcement of a Board Order on the ground that Site Oil Company was not the em- ployer of the employees involved. I find this deci- sion partially applicable to this case but, in its ef- fect, the reverse of that argued by Respondents. The evidentiary facts in that case-"virtually un- disputed," as the court notes-were that Site Oil Company, on the same day that it completed the construction of a gasoline service station, leased it for operation to a man named Vaughn, who was then one of its supervisory employees, with the un- derstanding that he could return to Site's employ when and if he discontinued operating the station; and that "the station started to pump gas" the fol- lowing day.25 Shortly thereafter, four of the five attendants em- ployed at the station designated a union as their bargaining representative and the union sent a de- mand for contract negotiation, directed to an offi- cial of Site Oil at the address of the station. On the day following receipt of the demand, Vaughn told the Site Oil official that he no longer wished to operate the station and suggested that it be leased to a man who had expressed interest. The next day, Site Oil negotiated a new lease with the suggested party: it was signed and operation commenced under it 1 day later. After considering these facts and the details of the operating procedure prescribed by Site, the Board held that "the leasees were not independent contractors but were employees of Site so that the individuals under their control were also Site's em- ployees": in other words, that Site had been the ac- tual operator of the station throughout this period. The court, after stating that "there are many businesses in which management may make a choice as to the manner in which the business shall be conducted, and that choice will be respected," pointed out that Site had chosen to operate that service station by leasing it to an independent con- tractor. There is a decisive difference between the facts in this case and those in Site Oil which makes the court's rationale in that decision inapplicable here. The statement that "management may make a choice as to the manner in which its business shall be conducted" was made with respect to a situation in which management had done nothing which restricted its freedom of choice. The service station had just been built: Site Oil could choose to operate the station itself or it could elect to do so through an independent operator: it chose an arrangement which, it believed, made the operator independent. The Board, however, held that the facts showed that the operation was really not that of an inde- pendent leasee but that of Site Oil itself. The court, declining to enforce the Board's Order, simply held that the facts did not justify the Board's conclu- sion.26 Here, on the contrary, Tilden had originally made its choice, i.e., to operate the branches directly, and they were being operated on that basis when intervening rights, both contractual and statu- tory, became vested in the employees and their col- lective-bargaining representative. Tilden, therefore, when it franchised these two branches, did not have the freedom of decision, noted by the court, which Site possessed. On the contrary, having established these branches as part of its own organization and having entered into a contract with the Union covering the employees there, Tilden has placed it- self in a position where its status must continue to be that of an employer of the branch employees, al- beit a joint employer with Bayshore and Hunting- ton, so long as these franchised operators continue as "successors" of Tilden or, differently stated, so long as these branches continue to constitute a con- tinuation of the "employing industry."27 Finally, Tilden argues that it could not comply 25 Site Oil Company of Missouri, 137 NLRB 1274, 1283 that the limitations on its power to make business decisions were so severe 26 Conversely, in Howard Johnson , Inc , of New Jersey, 135 NLRB 1260, as to make it no more than the alter ego of the Authority, a government cor- enfd 317 F 2d I (C A 3, 1963), where the New Jersey Turnpike Authors- poration not subject to the Act, was rejected ty, from the opening of that road in 1951 , operated the restaurants through 27 Hackney Iron & Steel Co , 167 NLRB 613. a contract with the Howard Johnson chain , the operating company's claim 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a bargaining and posting order in this case, "in view of its relinquishing all rights with respect to labor relations at Bay Shore and Huntington .... "28 In N.L .R.B. v. The Greyhound Corporation, 368 F.2d 778 (C.A. 5, 1966), the court enforced the Board 's Order directed at both Greyhound and its contractor , notwithstanding that the district court, in an earlier aspect of the same case , had written:29 It is impossible to comprehend how an em- ployer could bargain in good faith about wages with employees who are not paid by said em- ployer and over whom the said employer can- not exercise the power of hiring or firing. Furthermore , the change in relationship between Tilden and these branches was effected , voluntarily and deliberately , by Tilden for its economic ad- vantage . Tilden placed Bayshore and Huntington in the position where they could and did repudiate the contract obligation which Tilden had agreed would be binding upon its successors . Accordingly, any problems that may arise from Tilden 's obligation to continue to observe the contract and to bargain jointly with its franchisees must be cast into that same balance of economic advantage. 3. Interference, restraint, and coercion a. Bay Shore John B. Stoner, the manager of the Bay Shore branch, testified that in June, prior to his execution of the sales and franchise agreements, he told the employees there that there was a deal pending • hereby he might purchase and operate the branch. He discussed their continued working at that branch and told them that arrangements could be made to transfer them to another Tilden branch if they desired, Gilliam, the working foreman, transferred to another branch but Ketcham and Arsenault said they would remain at Bay Shore. Upon taking over the branch, Stoner testified, he gave Ketcham an unsolicited raise in pay. Stoner had difficulty in fixing the time and sequence of the relevant actions and conversations with the employees subsequent to Bayshore's taking over the branch .31 From his testimony, and that of Ketcham and Arsenault, I find that it was about July 14, when he received the letter from the Union, that Stoner told them that, in taking over the branch, he had not taken over the union con- tract: that there was no reason why they had to remain members of the Union and that, "if they didn't want to belong, they could resign ." At about the same time , Stoner also told them that he would provide them with health and hospitalization in- surance. Both Ketcham and Arsenault said that they would quit the Union, whereupon Stoner had his wife write out letters of resignation which they signed and sent to the Union.31 Furthermore, it was about the same time when, according to Ketcham's testimony, Stoner said that part owners could not be members of the Union and asked him whether he wanted "to buy stock and become a part owner." Ketcham testified that he agreed and sub- sequently signed a document whereby he purchased 5 of the 100 shares owned by Stoner for $1,000, payable at the rate of $5 per week, with the profits of the branch to be divided in proportion to the stock ownership. Arsenault also testified that Stoner talked with him about his purchasing Bayshore stock but that he believed it was a "cou- ple of months" after Bayshore took over. The agreement whereby Arsenault also purchased 5 shares from Stoner is identical with that of Ketcham and they are both dated July 8. On the foregoing testimony, however, I find that they were executed no earlier than July 14. Stoner claimed that he did not solicit the em- ployees' resignations from the Union because they had never been in favor of the Union and had joined only to keep their jobs. He conceded, how- ever, that he "might have" asked Ketcham "if he wanted the union, now that I have the franchise?" and that he told Ketcham that, by purchasing stock, he became a "part owner" and that part owners need not be members of the Union. Both Ketcham and Arsenault were evasive witnesses but Ar- senault, when asked who first mentioned his getting out of the Union, answered, "Maybe Bernie did,"32 and Ketcham's denial that anyone "induced" him to resign from the Union came in the form of a sim- ple "no" to a leading question by Bayshore's coun- sel. Based upon all of the testimony by and concern- ing the Bay Shore employees, and upon the demeanor of the witnesses while testifying, I find 19 The final words in this phrase "with the full agreement of the Union" are a simple ipse dixit, since this was not an issue in the case 19 Greyhound Corporation v Botre, 205 F Supp 686 , 689 (D C Fla ), affd per curtam on opinion below , 309 F 2d 397 (C A 5), reversed 376 U S 473. 90 When asked whether several matters had been discussed in a single conversation , Stoner stated that the discussion of these matters "could have been in the process of a whole day's conversation " Accordingly, although reference is made herein to several subjects of conversation in a somewhat logical order, it cannot be found that the discussion between Stoner and the branch employees proceeded in precisely the same logical sequence Since, however, the three men spent practically all day in a rela- tively small establishment and their discussions probably covered all of the several subjects at practically the same time, findings concerning state- ments by Stoner, related to specific acts and documents, are justified " These letters are undated but Stoner testified that his wife wrote them out at the same time as she wrote the undated letter to the Union stating that Tilden no longer operated the Bay Shore branch This letter, in turn, was in answer to the Union 's letter of July 13 requesting remittance of union dues and welfare payments covering the branch employees Stoner testified that these letters were written and sent during the "first or second week in July" or , possibly,,the third week . Since the Union's letter was writ- ten on July 13, the Wednesday of the second full week in July , Stoner's letter answering it could not have been written before that time Moreover, Huntington 's similar letter to the Union is dated the 15th and the union resignations of the employees of that branch were dated the 18th Ac- cordingly , I find that the letters of Stoner , Arsenault, and Ketcham were all written not earlier than July 14 12 Arsenault identified "Bernie" as Stoner S. G. TILDEN, INC. 761 that, about July 14 or 15, Stoner suggested to Ketcham and Arsenault that, since he would no longer recognize the Union as the representative of the employees at the Bay Shore branch, their obligation to maintain their union membership would no longer exist; that he told them that Bayshore would provide them with medical and hospital insurance in place of that provided by the Union; and that at the same time he suggested that they purchase stock in Bayshore to become "part owners," ineligible for membership in the Union. This conduct by Stoner, as president of Bayshore and managing agent of Tilden at that branch,33 con- stituted interference with the employees' rights of self-organization and an unfair labor practice viola- tive of Section 8(a)(I) of the Act. b. Huntington Joseph Montefusco, manager of the Huntington branch, also testified that he talked with the em- ployees there in June, telling them of the possibility that he might take over the branch on a franchise basis. He told them of their option to stay at the branch or transfer to another Tilden station and Doyle, the working foreman, chose to transfer. After July 1, Montefusco testified, he told the two remaining employees, Joseph DiLascio and Jack Nelson, that he had purchased the branch but had done it without money because he had none; that to keep the place going would require "a full effort" by everyone in the shop; and that, to make everyone-feel that he had "a part of_the company" so that he would "work a little harder for it," he would issue each of them a portion of the stock of the Company. The stock-purchase agreements described above were prepared and executed. Montefusco also told the men, according to DiLascio, that "everything would be the same" as it had been under Tilden and that Huntington would supply medical and hospitalization insurance in place of that formerly provided by the Union. Montefusco testified that he neither threatened the employees nor made any promises to get them to resign from the Union; that he gave them "the privilage of remaining in the union"; but that DiLascio and Nelson resigned from it of their own free will. DiLascio tried hard, in his testimony, to support this claim. Montefusco, however, admitted having told DiLascio that it would "save some com- plications later" if he resigned from the Union. DiLascio, moreover, did not dispute the testimony of Union Representative Beller that, when he spoke with him on July 13, DiLascio said nothing about an intention to resign from the Union but simply said that he had a "good deal" with Montefusco and that he did't want to get "on the bad side" of either the Union or. Montefusco. Neither Montefusco nor DiLascio impressed me as a frank and dependable witness and each of them, by their evasive answers and their demeanor while testifying, convinced me that their effort was to sustain Respondents' position rather than to give responsive answers to the questions. DiLascio, who had been active in the Union's organizing campaign and was the shop steward at the Huntington branch before June 30, was particularly evasive. He in- sisted that he was unable to remember the details of any of the conversations he had with Montefusco about resigning from the Union, even after reading the pretrial statement which he admitted having read and signed, but he was definite in stating, in response to leading questions by Huntington's counsel, that Montefusco had not offered him anything to resign. He also stated, more than once, that it was he who said that it would "save compli- cations later" if he resigned from the Union, although Montefusco had admitted that the expres- sion was his. Based upon the testimony of these witnesses, and their demeanor while testifying, I find that, about July 14 or 15, Montefusco advised DiLascio that it would be to his advantage to resign from the Union and that the offer to permit the employees to buy stock in Huntington, made at the same time, was also a device to get them to resign from the Union. These activities by Montefusco, as president of Huntington and managing agent of Tilden at that branch, constituted interference with the em- ployees' rights and an unfair labor practice violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of Respondents set forth in section III, occurring in connection with Respondents' operations described in section I, have a close and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondents are joint em- ployers as set forth above and that they have en- gaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action to ef- fectuate the policies of the Act. Having found that Respondents have failed and refused to bargain with the Union as the collective- bargaining representative of the employees at the Bay Shore and Huntington branches, I shall recom- mend that they do so. In addition, I shall recom- mend that the employees at these branches be " Having found that Tilden and Bayshore are joint employers of the em- ployees at that branch , I find that Stoner is the managing agent of Tilden there 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made whole for any loss they may have suffered by reason of Respondents' failure to accord them the same benefits accorded the employees at the other Tilden branches,34 by payment to them of a sum of money equal to that which each of them would nor- mally have earned as wages, to be computed in the manner prescribed by the Board in F. W. Wool- worth Company, 90 NLRB 289, and with interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In addition to the possibility that the wage rates of the branch employees were lowered, Respon- dents have also unilaterally reduced the compensa- tion of these employees by failing to make, in ac- cordance with the contract, the welfare and pen- sion payments on their behalf. Accordingly, I shall recommend that they make these payments for the period commencing July 1, 1966, under the August 30, 1965, to August 4, 1967, contract,35 and for the period subsequent thereto in accordance with the contract, if any, which was or is in effect between Tilden and the Union covering the unit.36 Upon the foregoing findings of fact and upon the entire record herein, I reach the following: CONCLUSIONS OF LAW 1. S. G. Tilden, Inc., together with Tilden Bayshore, Inc., for the employees at the Bay Shore branch, and together with Tilden Huntington, Inc., for the employees at the Huntington branch, con- stitute an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Automotive, Electronics, Synthetic and Specialty Products, Drivers, Helpers and Warehousemen, Local 239, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time employees in the New York and New Jersey establishments of S. G. Tilden , Inc., in- cluding those at Bay Shore and Huntington, New York, including mechanics, stock clerks, delivery men, power brake rebuilders; excluding clerical employees, sales employees (other than mechanics and specialists), professional employees, part-time employees who work on Saturdays or holidays, part-time employees who work 10 hours or less a week, Monday through Friday, and employees hired only for the summer months or during the weeks following Easter and Christmas, also the sons and daughters of officers, and guards and super- visors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the above-men- tioned labor organization has been the exclusive representative of the employees of S. G. Tilden, Inc., in the unit described above, for the purpose of collective bargaining with respect to wages, hours of work, and other terms and conditions of employ- ment. 5. By refusing to recognize the above labor or- ganization as the collective-bargaining representa- tive for, and by unilaterally changing the wage rates, hours of labor, and terms and conditions of employment of, the Bay Shore and Huntington em- ployees in the aforesaid unit, S. G. Tilden, Inc., Til- den Bayshore, Inc., and Tilden Huntington, Inc., have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By suggesting to and urging the employees at the Bay Shore and Huntington branches to cease remaining members of the above labor organiza- tion, S. G. Tilden, Inc., Tilden Bayshore, Inc., and Tilden Huntington , Inc., have interfered with, restrained, and coerced the employees in the exer- cise of rights guaranteed them in the Act and have committed unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. By offering and obtaining hospital and medi- cal insurance covering the employees at the Bay Shore and Huntington branches and by offering to sell, and selling, to said employees shares of the capital stock of Tilden Bayshore, Inc., and Tilden Huntington, Inc., to induce them to cease remain- ing members of the above labor organization, S. G. Tilden, Inc., Tilden Bayshore Inc., and Tilden Huntington Inc., have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in the Act and have committed unfair labor practices within the meaning of Section 8(a)(I) of the Act. 8. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publica- tion. ] 'd See Overnite Transportation Company Inc , 157 NLRB 1185, enfd 372 F 2d 765 (C A 4, 1967) w George E Light Boat Storage , Inc , 153 NLRB 1209, enfd 373 F 2d 762 (C A 5, 1967) '8Ibid Any such contract would be one which has been made by the parties and covers the unit which properly includes these employees