Western Building Maintenance Co.

KINNEY NATIONAL MAINTENANCE SERVICES Kinney National Maintenance Services, a Division of Western Building Maintenance Company and Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Service and Maintenance Employees Union, Local 399, Building Service Employees International Union, AFL-CIO, Party to the Contract Service and Maintenance Employees Union, Local 399, Building Service Employees International Union, AFL-CIO ( Kinney National Maintenance Services, a division of Western Building Maintenance Company) and Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Kinney National Maintenance Services, a Division of Western Building Maintenance Company and Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 31-CA-927, 31-CB-330, and 31-CA-997 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On November 14, 1968, Trial Examiner Maurice Alexander issued his Decision in the above-entitled proceedings, 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, the Respondents filed exceptions to the Decision and supporting briefs, the General Counsel filed cross-exceptions and a supporting brief, and Respondent Kinney filed a brief in opposition to the cross-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 these cases 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 cross-exceptions and the briefs in support thereof and opposition thereto, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications:' 379 Although the Trial Examiner's Recommended Order appropriately remedies the violations of Section 8(a)(1), (2), and (3) by Respondent Kinney, and the violations of Section 8(b)(1) (A) and (2) by Respondent Local 399, following the issuance of the Trial Examiner's Decision, upon Board acceptance of an appropriate stipulation, and at Board direction, the Regional Director for Region 31 conducted a representation election among the subject employees. Pursuant to the results of that election, Respondent Local 399 has been certified as the exclusive bargaining representative of the employees involved herein. In light of these developments, certain portions of the Trial Examiner's Recommended Order are now no longer necessary to effectuate the policies of the Act, and, accordingly we shall modify the Recommended Order in the manner set out below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Kinney National Maintenance Services, a Division of Western Building Maintenance Company, Los Angeles, California, its officers, agents, successors, and assigns, and Respondent, Service and Maintenance Employees Union, Local 399, Building Service Employees International Union, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraph I, A, 2, 3, 4, and 5 and substitute the following: "2. Encouraging membership in Local 399, or in any other labor organization, either by conditioning the hire or tenure of employment or any term or condition of employment of its Parklabrea maintenance employees upon membership in, or dues payments to, any such labor organization, except as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended, or by refusing to reinstate unfair labor practice strikers. "3. Discouraging membership in or activities on behalf of Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other labor organization by terminating the employee status of unfair labor practice strikers by denying them reinstatement upon their unconditional application to return to work. "4. In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act." 'The Respondent Kinney has requested oral argument . This request is hereby denied as the record, the exceptions and briefs adequately present the issues and positions of the parties. 177 NLRB No. 53 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Delete paragraph I, B, 1, and renumber succeeding paragraphs accordingly. 3. Delete paragraph II, A, 1 and 2, of the Trial Examiner's Recommended Order; renumber paragraph II, A, 3, as paragraph II, A, 2; and substitute the following as new paragraph II, A, 1: "Causing or attempting to cause Kinney to discriminate against its employees by conditioning their hire or tenure of employment upon membership in, or dues payments to, Local 399, except as authorized by Section 8(a)(3) of the Act." 4. Delete the second, third, and fourth indented paragraphs from Appendix B. 5. Delete the first and second indented paragraphs from Appendix C, and substitute the following: WE WILL NOT cause or attempt to cause Kinney to discriminate against its employees by conditioning their hire or tenure of employment upon membership in Local 399, except as authorized by Section 8(a)(3) of the Act. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case' was heard at Los Angeles, California, on March 26 through 29 and on July 25, 1968, upon an amended consolidated complaint' alleging that Respondents Kinney and Local 399 have violated Sections 8(a)(1), (2), and (3) and 8(b)(I)(A) and 8(b)(2) of the National Labor Relations Act, as amended . Respondents deny the commission of unfair labor practices.' The principal and pivotal issue is whether certain newly acquired employees constituted an accretion to an existing collective-bargaining unit. Upon the entire record, my observation of the witnesses, and the briefs filed by the General Counsel, by the Charging Party and by each Respondent , I make the following: FINDINGS AND CONCLUSIONS' 1. THE UNFAIR LABOR PRACTICES A. Sequence of Events Respondent Kinney is one of the six wholly owned subsidiaries, doing business in the Los Angeles 'The above caption reflects a correction in the designation of Local 399. 'The original consolidated complaint, issued on February 15, 1968, was based on a charge filed on December 7, 1967 in Case 31-CA-927, an amended charge riled in that case on February 7, 1968, and a charge filed in Case 31-CB-330 on the latter date. On February 23, 1968, a charge in Case 31-CA-997 was filed and, based on that charge , the General Counsel was permitted to amend the consolidated complaint at the hearing so as to allege additional unfair labor practices by Respondent Kinney related to those already alleged. 'Following amendment of the complaint, Kinney filed a document, entitled Amendment to the Answers to the consolidated complaint, setting forth several affirmative defenses . Thereafter, in a second amendment to its answer, Kinney withdrew one of the affirmative defenses and orally withdrew several other affirmative defenses. No issue of commerce is presented . The complaint alleges, the answer admits, and the parties stipulated to, facts which , I find, establish that Kinney at all times material has engaged in commerce and in operations affecting commerce within the meaning of the Act. I further find that Local 399 and Local 986 are labor organizations within the meaning of the Act. Metropolitan area, of a parent corporation, Kinney National Services, Inc., which also has subsidiaries doing business in other parts of the United States. Kinney and the other subsidiaries are all engaged in the business of furnishing building cleaning, operation and maintenance services. The dispute in this proceeding involved Kinney's operations and employees at a large Los Angeles residential apartment complex owned and operated by Metropolitan Life Insurance Company, and commonly known as Parklabrea. Prior to December 5 , 1967, Metropolitan Life performed the cleaning and maintenance functions at Parklabrea through its own employees . So far as the record shows, such employees were not represented by a majority collective-bargaining agent, although a few had signed Local 986 authorization cards sometime between July and November 1967. In the middle of the latter month, Metropolitan Life and Kinney entered into an oral contract under which Kinney agreed that on December 5, 1967, it would take over the cleaning and maintenance functions at Parklabrea, and it was apparently contemplated that Kinney would take over Metropolitan's maintenance employees . At that time, Kinney and its affiliated subsidiaries in the Los Angeles area were parties to a master collective-bargaining agreement covering their employees, entered into with Local 399 and certain of its sister locals on February 17, 1967 . Local 399 insisted upon making certain changes in the master agreement insofar as it would apply to Parklabrea employees and Kinney thereupon made proposals for other modifications. Kinney and Local 399 held about six meetings, the terms of a supplemental contract governing the Parklabrea maintenance employees were finally agreed to on December 2, 1967, and a written supplemental contract was signed by the parties on December 5, 1967. On the day before execution of the contract, i.e., on December 4, Metropolitan Life called a meeting of its approximately 150 Parklabrea maintenance employees. About 130 attended . Metropolitan Life informed the employees that Kinney would take over the maintenance and service functions on the following day, and that their employment by Metropolitan would cease as of 12:01 a.m. on December 5. Raskin , the president and general manager of Kinney and its Los Angeles affiliates, then invited the employees to apply for employment with Kinney at the same rate of pay they were receiving, and outlined other benefits they would receive. At the close of his remarks, Raskin introduced Conroy, the new project manager for Kinney at Parklabrea, and a number of Kinney representatives who would conduct employment interviews. These representatives, who wore badges bearing the name Kinney, proceeded to distribute packets of literature to each employee. In addition to a Kinney employment application, each packet included the following documents: a notice to new employees, copies of the master collective-bargaining agreement and the supplemental contract, an application for membership in Local 399, an authorization for payroll deduction of Local 399 dues and initiation fees, and a form for designation of beneficiary under the Local 399 health and welfare trust fund. Among other things, the Notice stated that Kinney was a party to a collective-bargaining agreement with Local 399 which required new employees to become and remain members in good standing of that union after 30 days as a condition of employment; that if they did not become and remain members in good standing , Kinney would be required to discharge them at the request of Local 399; and that Kinney was providing them with KINNEY NATIONAL MAINTENANCE SERVICES 381 Local 399 application and checkoff cards which, if signed, would be transmitted by Kinney to Local 399. Approximately 95 of those present signed Local 399 application and checkoff cards and gave them to Kinney representatives at the meeting on December 4. On the following day, 29 additional signed applications and checkoff cards were turned in to Kinney. Apparently Kinney hired all of those applicants. Kinney transmitted the membership applications and checkoff cards to Local 399 and, pursuant thereto, thereafter deducted and paid over dues to Local 399. Thereafter, Kurnick, one of the Parklabrea employees who had been taken over by Kinney and who was a member of Teamsters Local 986, expressed to other employees the view that they had a right to select their own union. A number of Kinney's Parklabrea maintenance employees met several times with representatives of the Teamsters Union; and at a meeting on January 31, 1968, more than 60 of the 70-odd employees present voted to strike. On February 5, 1968, some 35 to 40 of Kinney's Parklabrea maintenance employees went on to strike and began picketing at Parklabrea. On the same day, Local 986 filed a petition to certification as bargaining representative of Kinney's Parklabrea maintenance employees.' On various dates between February 9 and March 7, 1968, a number of strikers unconditionally applied to Kinney for reinstatement . On March 5 and 6, some of the strikers were permitted to return to work, but others had not been reinstated at the time of the hearing. B. Contention , Analysis, and Conclusions The General Counsel and Charging Party contend that Kinney and Local 399 entered into their supplemental contract covering the Parklabrea maintenance employees at a time when Local 399 was not the majority representative of such employees, i.e. that the contract was agreed to on December 2 and that a majority did not join Local 399 until December 4; but that even if the contract were regarded as having come into existence when it was formally executed on December 5, the Local 399 membership cards signed at the December 4 meeting were invalid because obtained through coercion. For these reasons and since the contract contained a union-security provision, it is contended, Kinney violated Section 8(a)(1), (2), and (3) of the Act, and Local 399 violated Section 8(b)(1)(A) and (2) of the Act. The General Counsel and Charging Party further contend that the strike by Kinney's Parklabrea maintenance employees was caused by the unfair labor practices; and that as unfair labor practice strikers, those who unconditionally applied therefor are entitled to reinstatement. Asserting that the Parklabrea project was merely an accretion to the existing unit covered by the master collective-bargaining agreement, a claim contradicted by 'Case 31-RC-763. On February 19, 1968 , i.e., several days after issuance of the complaint herein on February 15, Local 986 filed with the Regional Director a request to proceed with its petition notwithstanding the unfair labor practice charges which it had filed, together with a letter containing a commitment that it would withdraw those charges if Local 399 should be certified as the bargaining representative of such employees . A hearing was held on the petition on March 13 , 1968. The transcript of testimony and the exhibits received in Case 31 -RC-763 were made a part of the record in the instant proceeding , and the parties stipulated that the witnesses in that case would, if called as witnesses in the instant proceeding , repeat their testimony. The parties further stipulated that they adopted the stipulations received in Case 31-RC-763. the General Counsel and the Charging Party, Kinney and Local 399 contend that it was lawful for them to enter into the supplemental contract. Asserting that it lawfully requested the Parklabrea employees to join Local 399, and that a majority did join without coercion, Kinney further contends that it was not only authorized, but obligated, to recognize Local 399 as representative of its Parklabrea maintenance employees. Finally Kinney contends that the strike was violative of the master collective agreement and was opposed by Local 399; that the employees who struck accordingly did not engage in activities protected by Section 7 of the Act; and that they were not entitled to reinstatement. I agree with the General Counsel and the Charging Party. 1. Assistance An employer violates Section 8(a)(1), and (2), and (3) of the Act, and a union violates Section 8(b)(1)(A) and (2), where the employer recognizes and enters into a contract containing a union-security provision with the union at a time when it does not represent a majority of his employees in an appropriate unit. Food Employers Council, Inc., 163 NLRB No. 58, enfd. 399 F.2d 501 (C.A. 9). This does not preclude recognition of an incumbent union as the representative of a newly acquired group of employees who are merely an "accretion" to the existing bargaining unit. Ibid. It is undisputed that Kinney and Local 399 reached final agreement upon the terms of their supplemental contract covering the Parklabrea maintenance employees on December 2, 1967, and that Local 399 did not represent a majority of such employees on that date. By such conduct, Respondents violated the Act unless those employees can properly be considered an accretion to the existing unit of employees already covered by the master agreement between Respondents, or unless recognition was authorized on some other basis. (a) The defense based on accretion (1) The evidence Kinney and its five affiliates employ a total of about 1,800 employees at about 500 job locations in the Los Angeles Metropolitan area. These job locations include one other apartment complex,' several commercial buildings, a sports arena known as the Forum , airport passenger terminal facilities of various airlines, and a television studio.' Kinney and its affiliates have a single payroll department, one chief executive officer and general manager, one controller, and one overall labor policy for all the job locations. As already noted, the employees at these job locations have been covered by a master collective-bargaining agreement between Kinney and its affiliates on the one hand, and Local 399 and certain sister locals on the other hand.' Among other things, that agreement provides as follows: `The Wilshire-Comstock, which consists of 200 apartments in two 20-story buildings situated on about one and one-half acres of land, where Kinney employes 12 to 15 maintenance employees. 'Of these, the airport job is geographically larger than Parklabrea, and Kinney employs a greater number of employees at the Forum project than at Parklabrea. The agreement continues until February 28, 1969, and from year to year thereafter , unless modified or cancelled upon 60 days' notice 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WHEREAS, the Employer recognizes the Union as the sole collective bargaining agent for its employees within the industry within the area of Los Angeles and vicinity; * s • s • NOW THEREFORE, the parties hereto agree as follows: s s * s s ARTICLE II - UNION RECOGNITION Section 1 . Scope of Bargaining Unit A. The Employer hereby recognizes the Union signatory hereto as the sole collective bargaining representative for all the employees coming under the classification of this Agreement and within the jurisdiction of each of the respective unions signatory hereto. The agreement also contains a union -security provision. In addition, Appendix C of agreement, entitled "Schedule for Newly Organized Establishments," contains provisions governing the wage rates and other benefits in situations where the Employer acquires a job and takes over the employees already working at an establishment where no collective-bargaining agreement between the employer and Local 399 is in effect, but where the wage rates or other benefits are in excess of those provided in the master agreement. The employees of 10 to 15 of the jobs locations covered by the master agreement are also covered by supplemental contracts.' Parklabrea consists of 18 high -rise towers and a number of garden-type buildings occupying about 170 acres and containing more than 4,000 apartments. The complex also includes recreation areas, garage facilities, and a maintenance building containing specialized maintenance shops. At Parklabrea, Kinney employes about 150 employees who are roughly divided into three categories of specialization : porters, grounds-keepers, and semiskilled handymen. These employees perform substantially similar duties at Parklabrea as Kinney's employees do at its other locations, i.e, the porters pick up and haul trash, and clean and wax floors; the grounds-keepers cut grass and do trimming ; and the handymen perform light repair work such as carpentry, electric maintenance, plumbing, repair of stoves, venetian blinds, and sprinklers, and automotive maintenance. Metropolitan Life has made 20 to 25 automobiles available to Kinney for use exclusively in connection with its maintenance functions at Parklabrea. About 90 percent of Kinney's other job locations are located within a 10-mile radius of Parklabrea. The television studio is located less than a mile , and the Wilshire-Comstock is located about 2-1/2 miles, from Parklabrea. When Kinney took over the Parklabrea operation, it brought in its own project manager, Controy, who confines himself to management of that operation. He supervises the day to day activities of the employees and and has authority to hire and fire at Parklabrea without consulting Kinney's .central office. Kinney, however, 'Raskin, the president of Kinney and its Los Angeles affiliates, testified that the "reason that the supplements arc necessary is because of special conditions that anse from time to time on a given plant or industrial consideration that calls for it" as for example , the wage structure of the job; and that some of the supplements "have deleted the substantial part of all sections" of the master agreement. brought in no other permanent supervisory employees, but either retained Parklabrea employees already occupying supervisory positions or filled vacancies by promotion of rank and file employees. Since the time Kinney took over the nonsupervisory employees at Parklabrea, there has been no interchange of such employees between Parklabrea and Kinney's other job locations, except on two occasions. On February 5, 1968, when the strike began, about a dozen porters and handymen were transferred to Parklabrea as replacements for strikers. About March 5, when some of the strikers were reinstated, a few porters who had served as replacements were transferred out of Parklabrea. Raskin testified that Kinney interchanges its employees as the need arises, e.g., when it acquires a new job which has no employees or requires competent and experienced employees; but that because Kinney has serviced Parklabrea for only a short time, there has been no need for interchange of nonsupervisory employees. Raskin further testified that he had planned to apply the master agreement to Parklabrea; but that Local 399 insisted upon certain modifications of the agreement, particularly in the wage structure; and that Kinney accordingly made proposals for other modifications. Their supplemental contract, agreed upon December 2 and executed December 5, 1967, provided that it shall constitute a supplement to the master agreement, that the terms of such agreement shall remain in full force and effect except as modified in the supplement, and that the supplement shall apply only to Kinney's maintenance employees at Parklabrea. It further provided that a number of the provisions in the master agreement shall not apply to such employees. These included a provision permitting Local 399 to take strike action if Kinney failed to check off dues or otherwise breached the contract; a lengthy provision regulating maintenance of working conditions, such as employee speed-up, layoff, termination, and subcontracting; and provisions relating to employee leaves of absence because of illness or injury. The supplement also made a number of changes in the provisions of the master agreement. It established four job classifications which do not appear in the master agreement. Whereas that agreement fixes hourly pay rates ranging from $2.08 to $2.53 for the classifications contained therein, the supplement fixed weekly rates ranging from $91.50 to $129.50 for the said four classifications. It also made changes in the provisions relating to overtime and vacation pay, and added one paid holiday. Raskin testified that there are about 100 maintenance and service companies of significant size in the Los Angeles Metropolitan area, of which about 15 may be considered major companies; that there are approximately 5,000 to 6,000 maintenance employees in that area who are covered by the master agreement; that it is industry practice to apply the master agreement to employees at newly acquired job locations; and that Kinney has followed that practice.'' Finally, Raskin testified as follows: Q. (By Mr. Cooper) Just one more question, Mr. Raskin. What would the relationship be between the company-wide unit of employees for purposes of bargaining and the operational organization of Kinney in the Greater Los Angeles area? "Raskin testified that Kinney loses about 5 contracts and acquires an average of 10 to 15 contracts a month KINNEY NATIONAL MAINTENANCE SERVICES A. Well, as I explained before, we operate on what I have described as a unitized type of consideration with myself as general manager, having various operating and department heads reporting directly to me, the controller, operations manager , sales manager. And within our organizational structure we almost by necessity , almost absolute necessity, have to treat this as a companywide unit. As I would visualize it, anything else would almost be-well , very, very difficult . You'd have chaos. I can't imagine us taking on a new job, as an example, and having one or two employees and having to go out and negotiate, having to go out and having the possibility of competing unions vie with one another , possibilities of jurisdictional problems. As I would see it, it would almost be one of total chaos. It would lead to lack of stability. Also the security of the employees I think would be very much in jeopardy. Q. (By Mr. Cooper) Mr. Raskin, in your opinion, what would be the result of separate collective bargaining for each job project in the building service and maintenance industry? * * * * * THE WITNESS: No. It 1 interpret the question correctly, this would involve almost a company to man type of negotiation, or a job by job type, involving , one, partial people, many people between them and the company, and I could visualize utter chaos in our industry to the extent that we would have no pattern of being able to bid our job. We would have no pattern of being able to offer stability. It would further seem to me that in terms of stability and security relating to the employees, they would be completely at the mercy of the employers, if this went on in a man to company type of basis, and the things that had been worked out in terms of a wage structure, working conditions, fringes, health and welfare and pension benefits that have resulted from a stabilized procedural type of thing would just be thrown out the window. I don' t see how else you could look at it, if we have to go man to man, and company to man type of thing, and we would all be in a contest trying to get work and the respective companies would be in a contest between themselves and their employees. It would just be total chaos. How else can you thing of it? (2) Concluding findings Respondents predicate their claim that its Parklabrea maintenance employees are an accretion to the existing contract unit upon the following factors. The work done by such employees is the same type of work as that performed by Kinney employees at its other job locations. Geographically, Parklabrea is very close to some of the other projects. Kinney has centralized administrative management of all its projects and a single labor policy. Since Kinney has operated at Parklabrea for only a short period, the need for interchange of employees between that operation and its other jobs has not arisen. But in view of the interchangeability of skills of its employees and the geographical proximity of its job locations, there is a potential for employee interchange which is expected 383 to occur with varying frequency. The pay scale and fringe benefits for Kinney's employees at Parklabrea and at its other locations are "substantially" the same. The master agreement provides that it shall cover the employees at newly acquired job locations, and Kinney and other major employers in the industry have followed the practice of accreting such employees . To prohibit such practice would allegedly result in chaos in the industry for several reasons. Maintenance contracts are usually terminable on short notice. Price competition is keen and job locations are lost and acquired by employers with some frequency. To establish each location as a separate unit and require an election therein would result in different wage rates, fringe benefits and working conditions which would lead to labor unrest and strife. In some cases, it would also effectively deny employees any representation since the job location may have been awarded to another employer by the time the election results were determined. The General Counsel and Charging Party point to a number of other considerations which , they assert, show that there was no accretion. There was no interchange of nonsupervisory employees between Parklabrea and other Kinney projects until February 5, 1968, when the strike began. Parklabrea is unique in that Kinney services no residential apartment complex of similar size and scope in Southern California . Parklabrea is a self-contained unit: it can be and is operated wholly independently of Kinney's other job locations; its employees, some of whom have worked at Parklabrea for many years, are functionally specialized; and the employees have their own immediate supervision, which does not simultaneously supervise other Kinney operations. Although the criteria used in resolving unit and accretion issues are very similar, the considerations involved are not identical. Where there are competing claims for a single-plant and multi-plant unit, the resolution of such claims does not deprive the employees of their right to vote. The determination, which may decide that one or either is an appropriate unit, merely decides in which grouping or groupings the employees should be permitted to vote in order to assure to them "the fullest freedom in exercising the rights guaranteed by this Act." Section 9(b) of the Act. Where, on the other hand, the claim is made that a group of employees constitutes an accretion to an existing unit, a determination in favor of accretion forecloses a vote and thus restricts the employees in the exercise of their basic right to select their bargaining representative . That right "is the controlling and dominant factor under Section 7 of the Act and thus is to be restricted only under compelling condition." Sunset House, 167 NLRB No. 132. I find that the considerations relied on by Respondents are outweighed by other factors. Kinney's Parklabrea project is a completely self-sustaining and autonomous operation with its own independent supervision and its own facilities. Kinney's 150 Parklabrea employees constitute a sizable group . Whether or not they may in the future be interchanged with those at Kinney's other job locations, the only ,such interchange shown by the record occurred as a result of the strike, not because of any normal integration of the Parklabrea work force with Kinney's other employees. In addition, as Respondents admit in their briefs, the wages provided in the supplemental contract covering Kinne !s Parklabrea employees are higher than those set forth in the master agreement . Although Respondents seek 'to minimize the wage differences, they are oral insubstantial. The employees also receive an additional paid holiday. For 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these reasons, I find that such employees have a community of interest apart from Kinney's other employees and should not be required to accept Local 399 as their bargaining representative without their consent. Cf. Food Employers Council, Inc., supra; Beacon Photo Service, Inc., 163 NLRB No. 98. A different conclusion is not required by the fact that Kinney and others in the industry have customarily followed the practice of accreting newly acquired job locations. Cf. Super Markets General Corp., 170 NLRB No. 61. Respondents have themselves recognized differences between Kinney's employees at Parklabrea and those at most of its other job locations by adopting a supplemental contract which made significant changes in the master agreement insofar as it applied to the Parklabrea employees. Moreover, the employees at 10 to 15 of Kinney's job locations are covered by supplemental contracts which modify wage and other provisions of the master agreement. That fact greatly weakens the argument that lack of uniformity of wages and other benefits would bring chaos to the industry. I find that Kinney's Parklabrea maintenance employees were not an accretion to the contract unit " This is not to say that an election must be held whenever a claim is made that Kinney's employees at a newly acquired job location constitute a separate unit Each situation must be decided on its own facts (b) The defense of majority based on authorization cards As noted, Local 399 was not the majority representative of the Parklabrea maintenance employees on December 2, 1967, when Respondents reached final oral agreement on the terms of their supplemental contract, inasmuch as a majority of such employees did not sign Local 399 application cards until December 4, 1967. Thus, even if they signed the cards voluntarily and without coercion, a defense based on that majority necessarily presupposes an accretion. But since I have found that no accretion occurred, the defense is without merit. Perhaps Kinney is implying that it had a majority by the time the supplemental contract was signed on December 5. The difficulty with that position is that it disregards the Respondents' oral agreement of December 2. But even if such agreement had not occurred, the defense of majority would fall. Since, as I have found, there was no accretion, the contents of the notice included in the preemployment packet of papers distributed by Kinney representatives at the December 4 meeting "in their briefs, Respondents rely upon the following decisions in which accretions were found : N L R B v. Illinois Malleable Iron Co , 298 F 2d 202 (C.A 7), Alaska Steamship Co, 172 NLRB No 124, Revach Construction Co, 161 NLRB 1269, Great A & P Tea Co, 140 NLRB 1011, Safeway Stores, Inc, 137 NLRB 1741, Local No 32. Industrial Union of Marine & Shipbuilding Workers ( Rawls Brothers Contractors. Inc), 133 NLRB 1077; Daniel Construction Co , inc , 133 NLRB 264; Red Ball Freight, Inc, 118 NRLB 360, and Haddon Bindery, 101 NLRB 208. All of those cases are distinguishable from the instant proceeding Daniel did not involve the issue of accretion. In Illinois Malleable, the Court pointed out that the newly acquired foundry had been integrated into the employer's other plants , which also utilized virtually the entire production of the foundry. In A & P, the new department had been integrated into the the employer's other operations and was not an autonomous and separate operation In Red Ball, the new employees had been reclassified under the employer's systemwide classification and had been placed on a systemwide seniority list. In Alaska Steamship. Rexach, Local No 32, and Haddon, the employees had been transferred or interchanged. contained incorrect information which could reasonably lead those present to believe that if they wished to work for Kinney they had no ultimate choice but to join Local 399. Those present were thus subjected to unlawful coercion to join Local 399. Kinney compounded such pressure on them by distributing Local 399 application and checkoff cards and then accepting signed cards for transmittal to Local 399. Although there is no direct evidence that copies of the notice were also distributed to Parklabrea employees who signed Local 399 cards and gave them to Kinney after December 4, it is reasonable to infer either that such employees attended the December 4 meeting and received preemployment packets containing the notice and Local 399 cards, or that in the case of those who did not attend the meeting, Kinney followed a uniform hiring procedure and furnished such employees with packets identical with those distributed at the December 4 meeting, and hence that such employees were also subjected to unlawful coercion to join Local 399. Cf. Mr. Wicke Ltd. Co., 172 NLRB No. 181. In such circumstances, I find that the Local 399 application and checkoff cards signed on and after December 4 by Parklabrea maintenance employees hired by Kinney did not reflect the free and untrammeled choice of the signers, and hence that Local 399 did not have a majority even at the time the supplemental contract was executed.'2 Cf. Department Store Food Corp. of Penna, 172 NLRB No. 129; S. D. Cohoon & Sons, 101 NLRB 966." (c) Concluding findings respecting assistance I find that by distributing the misleading Notice and the Local 399 application and checkoff cards to Parklabrea maintenance employees on and after December 4, 1967, by accepting signed cards from such employees for transmittal to Local 399, and by checking off their dues thereafter, Kinney unlawfully assisted Local 399, in violation of Section 8(a)(1) and (2). I further find that by reaching agreement respecting the terms of their supplemental contract on December 2, 1967, by executing the contract on December 5, by extending the union-security and other provisions of their master agreement to the Parklabrea maintenance employees, and by maintaining and enforcing such supplemental contract and master agreement as to such employees, all at a time when Local 399 did not represent a free, unassisted and uncoerced majority of such employees, Respondent Kinney violated Section 8(a)(1), (2), and (3) and Respondent Local 399 violated Section 8(b) (1)(A) and (2). 2. The reinstatement issue (a) The evidence After signing the Local 399 application and checkoff cards, Kinney employees held several meetings with "I note that in its brief, Kinney merely asserts. As far as Kinney is aware, the cards were uncoerced expressions of the desires of the employees for representation. "In view of the findings and recommended order herein, it is unnecessary to decide whether, as the General Counsel also contends, Kinney representatives exerted further pressure at the December 4 meeting by refusing to accept the employment applications of two applicants unless accompanied by Local 399 application cards, and by conveying to two other applicants the impression that they were required , as a condition of employment, to sign Local 399 applications cards immediately ; i.e., within the 30-day grace period KINNEY NATIONAL MAINTENANCE SERVICES Teamster representatives between December 14, 1967 and January 31, 1968. One was an organizational meeting and at another, the status of the charges filed in this proceeding was discussed. At the meeting held on January 31, at which time about 70 employees were present, there was further disucssion of the charges, a Teamsters representative asked the employees whether they wanted Local 399 or Local 986 as their bargaining representative, the employees voiced their desire for Local 986, and some called for a strike. The Teamsters representative then explained that resolution of the charges could take a long time, that those who struck could lose their jobs, and that they should carefully consider the problem before deciding to strike. The employees then voted overwhelmingly to strike. Thereafter, on February 5, 1968, some 35 to 40 Kinney employees struck and began picketing at Parklabrea, carrying two picket signs. One read "Kinney Operations at Parklabrea Unfair, Teamster Local 986." The other sign used the phrase "On Strike" in place of the word "Unfair." During the first week of the strike, some of the pickets passed out handbills stating, among other things, that the men were on strike because they had been forced to join Local 399, a union they did not want, and because they desired an election by secret ballot. The strikers included the 25 Kinney employees listed in Appendix A attached hereto. On February 29, 1968, Local 986 sent a telegram to Kinney making an unconditional offer to return to work on behalf of "all" the strikers. On March 4, 1968, 20 of the 25 strikers listed in Appendix A, together with a number of others, personally appeared at Parklabrea and again unconditionally offered to return to work. On March 5 and 6, 1968, Kinney returned a number of strikers to work but, with one possible exception," the 25 strikers listed in Appendix A had not been reinstated at the time of the hearing." (b) Concluding findings I find that the employees struck in protest against Kinney's conduct in imposing Local 399 upon them as their bargaining representative. Since, as found above, such conduct constituted unfair labor practices, the strike was an unfair labor practice strike. And since the 25 strikers made unconditional offers to return to work, they were entitled to reinstatement. Accordingly, Kinney's refusal and failure to reinstate them violated Section 8(a) (3) and (l) of the Act. Kinney does not dispute the reason for the strike or the offers to return to work. Its sole defense is that the employees are not entitled to reinstatement because the strike did not constitute protected acvity, i.e., it was contrary to the wishes of and opposed by Local 399, and it was violative of the limited right to strike contained in the master agreement . This argument is without merit. The strike was not a "wildcat" strike since Local 399 was not the lawful bargaining representative of Kinney's "rho parties stipulated that they were without present knowledge as to whether Mitchell Smith had been returned to work , and were willing to defer the determination of that fact to any backpay proceeding. "In addition to his offers to return to work as aforesaid, one of the strikers, Skarbowicz, made two other offers to return to work, once in person on February 9 and once by telephone on March 7 . None of those offers were accepted. 385 Parklabrea maintenance employees. It did not violate the master agreement because those employees were not lawfully bound by the agreement. Accordingly, I find that the strike constituted protected activity." 11. THE REMEDY I shall recommend that Respondents cease and desist from their unfair labor practices, and that they take certain affirmative action designed to effectuate the policies of the Act. More specifically, I shall recommend that Respondent Kinney withdraw and withhold recognition from Local 399 as the collective-bargaining representative of Kinney's Parklabrea maintenance employees and that Local 399 cease acting as such representative, unless and until Local 399 is certified as such representative by the National Labor Relations Board. I shall also recommend that Kinney and Local 399 cease giving effect to their master agreement of February 17, 1967 with respect to Kinney's Parklabrea maintenance employees, to their supplemental contract agreed to on December 2 and signed on December 5, 1967, and to any extension, renewal or modification thereof. However, nothing herein shall be construed as requiring Kinney to vary or abandon any wage, hour, seniority or other substantive features of its relations with employees established in the performance of such master agreement and supplemental contract. Since I have found coercion as to Kinney's Parklabrea maintenance employees who joined Local 399 on and after December 4, 1967, i.e., after the unlawful oral supplemental contract of December 2, 1967, I shall recommend that Kinney and Local 399, jointly and severally, reimburse such employees, past and present, for all dues and other monies illegally exacted from them by or on behalf of Local 399 pursuant to the oral contract, the written contract signed on December 5, and the master agreement which was extended to them. Mr. Wicke Ltd. Co., supra. Reimbursement shall include interest at 6 percent per annum. I shall also recommend that Kinney offer to the unfair labor strikers named in Appendix A immediate and full reinstatement to the positions which they held at the time of the discrimination against them or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. I shall further recommend that Kinney make each of them whole for any loss of earnings suffered because of its discrimination against them by paying to each a sum of money equal to that which would have been paid by Kinney from the date of the discrimination against him to the date on which Kinney offers reinstatement as aforesaid, less his net earnings, if any, during the said period. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. "In its brief, Kinney relies upon Simmons, Inc. v. N.L.R.B., 315 F.2d 143 (C.A. 1); N.L.R.B v. Sunbeam Lighting Co., 318 F.2d 661 (C.A. 7); and Packers Hide Association. Inc. v. N L.R B., 360 F 2d 59 (C.A. 8). These decisions are inapposite The decisions in Simmons and Packers held that the strikes violated binding bargaining agreements ; and in Sunbeam, the court held that the strike was not authorized by the strikers' certified bargaining representative. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. By recognizing Local 399 as the exclusive bargaining representative of Kinney's Parklabrea maintenance employees, by agreeing to the provisions of the supplemental contract on December 2, by executing the contract on December 5, 1967, by extending to such employees the union-security and other provisions of the master agreement of February 17, 1967, and by maintaining and enforcing such master agreement and supplemental contract as to such employees, all at a time when Local 399 was a minority union and not the freely designated bargaining representative of a majority of such employees, Kinney has engaged in unfair labor practices within the meaning of Section 8(a) (1), (2), and (3) of the Act. 2. By agreeing to and executing the supplemental contract, and by extending the master agreement, under the circumstances referred to above, Local 399 has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. 3. By unlawfully assisting Local 399 in obtaining signed application and checkoff cards, Kinney has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 4. The employee strike which began on February 5, 1968 was an unfair labor practice strike. 5. All the strikers named in Appendix A made unconditional offers to Kinney to return to work. 6. By refusing to reinstate such strikers, Kinney has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER I. Respondent Kinney, its officers, agents , successors, and assigns, shall: A. Cease and desist from: 1. Unlawfully assisting Local 399 or any other labor organization in obtaining application and checkoff cards, and from granting exclusive recognition to and executing a collective-bargaining agreement with any labor organization which does not represent a free , unassisted and uncoerced majority of its employees in an appropriate unit. 2. Recognizing Local 399 as the exclusive bargaining representative of its Parklabrea maintenance employees unless and until the National Labor Relations Board shall certify Local 399 as such representative. 3. Maintaining or giving any force or effect to the master agreement of February 17, 1967, with Local 399 with respect to Kinney's Parklabrea maintenance employees, or to the supplemental contract with Local 399 agreed to on December 2 and executed on December 5, 1967, or to any extension, renewal, or modification thereof; provided, however, that nothing in this order shall require Kinney to vary or abandon any wage, or other substantive feature of its relations with its Parklabrea maintenance employees which have been established in the performance of the said master agreement or supplemental contract, or to prejudice the assertion by the said employees of any rights they may have thereunder. 4. Encouraging membership in Local 399, or in any other labor organization, either by conditioning the hire or tenure of employment or any term or condition of employment of its Parklabrea maintenance employees upon membership in, or dues payments to, any such labor organization, except as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended, or by refusing to reinstate unfair labor strikers. 5. In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. B. Take the following affirmative action: 1. Withdraw and withhold all recognition from Local 399 as the exclusive bargaining representative of its Parklabrea maintenance employees unless and until Local 399 has been duly certified as such representative by the National Labor Relations Board. 2. Jointly and severally with Local 399, reimburse all of its former and present Parklabrea maintenance employees who joined Local 399 on or after December 4, 1967, for all dues and other monies illegally exacted from them by or on behalf of Local 399, in the manner provided in the section herein entitled "The Remedy." 3. Offer to the employees named in Appendix A attached hereto immediate and full reinstatement to their former or substantially equivalent positions, and make each of them whole for any loss of earnings suffered by reason of its discrimination, in the manner set forth in the section herein entitled "The Remedy." 4. Preserve and made available to the Board or its agents on request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, checkoff cards, and all other records necessary to analyze the amount of backpay, dues and other monies payable under the terms of this Recommended Order. 5. Notify the employees named in Appendix A if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 6. Post, at such places in Parklabrea where notices to its employees are normally posted, copies of the attached notice marked "Appendix B."" Copies of said notice, on forms provided by the Regional Director for Region 31, shall, after being duly signed by an authorized representative of Kinney, be posted as aforesaid in conspicuous places by Kinney immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Kinney to insure that said notices are not altered, defaced, or covered by any other material. 7. Notify the Regional Director for Region 31, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith." II. Respondent Local 399, its officers, agents, representatives, successors, and assigns, shall: A. Cease and desist from: 1. Acting as the exclusive collective-bargaining representative of Kinney's Parklabrea maintenance "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify the Regional Director for Region 31 , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " KINNEY NATIONAL MAINTENANCE SERVICES employees unless and until duly certified as such representative by the National Labor Relations Board. 2. Giving effect to the master agreement of February 17, 1967, with Kinney with respect to Kinney's Parklabrea maintenance employees , and to the supplemental contract with Kinney agreed to on December 2, 1967, and signed on December 5, 1967, or to any extension , renewal or modification thereof. 3. In any like or related manner interfering with, restraining, or coercing Kinney' s Parklabrea maintenance employees in the exercise of rights guaranteed by Section 7 of the Act. B. Take the following affirmative action: 1. Jointly and severally with Kinney, reimburse all of Kinney's former and present Parklabrea maintenance employees who joined Local 399 on or after December 4, 1967, for all dues and other monies illegally exacted from them by or on behalf of Local 399, in the manner set forth herein in the section entitled "The Remedy." 2. Preserve and make available to the Board or its agents, for examination and copying, all membership, dues and other records necessary to analyze the amount of dues and other monies referred to above. 3. Post at its offices and meeting halls in Los Angeles, California, copies of the attached notice marked "Appendix C." 19 Copies of such notice, on forms provided by the Regional Director for Region 31, shall, after being duly signed by an authorized representative of Local 399, be posted by Local 399 immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places , including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 399 to ensure that said notices are not altered, defaced, or covered by any other material. 4. Mail to the Regional Director for Region 31 signed copies of Appendix C for posting by Kinney in such places at Parklabrea where notices to Kinney's employees are normally posted. Copies of said notice, on forms provided by the Regional Director for Region 31, shall after being signed by a representative of Local 399, be forthwith returned to the said Regional Director for such posting. 5. Notify the Regional Director for Region 31, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.30 "See In . 17, supra. "See In . 18, supra. Medoro Ambrosini John L. Brown Morris Armand Joseph R. Brown Luis Casali Frank Kurnik Joaquin Casanas George Lagadere Eustacio Dorado Antonio Negrillo Mike Doyle Kas. Piernikowski Shelbey E. Elias Stanislaw Pokora Manuel Fernandez John Sanchez Leon Gilbean Piotr Skarbowicz Haskell E. Jackson Mitchell Smith Machiel W. Keijzer Tedring Tagalicod Frantizek Kunsl Curtis Tisdell Willie Wheeler APPENDIX A Medoro Ambrosini Morris Armand Luis Casali Joaquin Casanas Eustacio Dorado Mike Doyle Shelbey E. Elias Manuel Fernandez Leon Gilbean Haskell E. Jackson Machiel W. Keijzer Frantizek Kunsl Curtis Tisdell Willie Wheeler John L. Brown Joseph R. Brown Frank Kurnik George Lagadere Antonio Negrillo Kas. Piernikowski Stanislaw Pokora John Sanchez Piotr Skarbowicz Mitchell Smith Tedring Tagalicod APPENDIX B NOTICE TO ALL EMPLOYEES 387 Pursuant to The Recommended Order of a Trial Examiner 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 NOT unlawfully assist Service and Maintenance Employees Union, Local 399, Building Service Employees International Union, AFL-CIO, or any other union. WE WILL NOT recognize Local 399 as the exclusive bargaining representative of our Parklabrea maintenance employees, unless and until it has been certified as such representative by the National Labor Relations Board. WE WILL NOT apply our master agreement of February 17, 1967, with Local 399 to our Parklabrea maintenance employees, or give any force or effect to our supplemental contract with Local 399 agreed to on December 2 and signed on December 5, 1967, or to any modification, extension or renewal thereof. WE ARE NOT required to change or abandon any or other terms or conditions of employment which we have given to our Parklabrea maintenance employees under the master agreement and supplemental contract. WE WILL NOT withhold or deduct from the wages of our Parklabrea maintenance employees any monies pursuant to checkoff cards unlawfully obtained from such employees. WE WILL, jointly and severally with Local 399, reimburse our former and present Parklabrea maintenance employees who joined Local 399 on or after December 4, 1967, for any dues or other monies unlawfully obtained from them by or on behalf of Local 399, with interest at 6 percent a year. WE WILL NOT unlawfully discriminate against the employees named below , and WE WILL offer them immediate and full reinstatement to their old jobs, and WE WILL,pay them for all back earnings lost as a result of the discrimination against them. The National Labor Relations Act gives all employees these rights: To organize themselves To form, join or help unions To bargain as a group- through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with any of these rights. All our employees are free to become or remain, or refrain from becoming or remaining , members of either Local 399 or any other union. KINNEY NATIONAL MAINTENANCE SERVICES, A DIVISION OF WESTERN BUILDING MAINTENANCE COMPANY (Employer) Dated By (Representative) (Title) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 215 West Seventh Street, Los Angeles, California 90014, Telephone 688-5850. APPENDIX C NOTICE Pursuant to the Recommended Order of a Trial Examiner 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 exclusive bargaining representative of the Parklabrea maintenance employees of Kinney National Maintenance Services, A Division of Western Building Maintenance Company, unless and until we are certified as such representative by the National Labor Relations Board. WE WILL NOT apply our master agreement of February 17, 1967 , with Kinney to Kinney's Parklabrea maintenance employees, or give any effect to our supplemental contract with Kinney agreed to on December 2 and signed on December 5, 1967 , or to any modification, extension or renewal thereof. WE WILL NOT in any like or related manner violate any of your rights under Section 7 of the National Labor Relations Act. WE WILL jointly and severally with Kinney, all present and former Parklabrea maintenance employees of Kinney who joined Local 399 on or after December 4, 1967, for all dues and other monies illegally obtained from them by or on behalf of Local 399, with interest at 6 percent. Dated By SERVICE AND MAINTENANCE EMPLOYEES UNION, LOCAL 399, BUILDING AND SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO (Labor Organization) (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 , 215 West Seventh Street, Los Angeles, California 90014 , Telephone 688-5850