Centac Corp.

CENTAC CORP 313 Centac Corp. and Production, Distribution and Maintenance Employees Union, Local 719 and Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Party to the Contract Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Production , Distribution and Maintenance Employees Union , Local 719 and Centac Corp., Party to the Contract. Cases 29-CA-1479 and 29-CB-578 October 24, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On April 30, 1969, Trial Examiner George Turitz, issued his Decision in the above-entitled proceeding, finding that 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. He also found that Respondent Centac Corp. had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed Thereafter Respondent, Local 806, and the General Counsel filed exceptions to the Trial Examiner's Decision and the General Counsel filed a brief in support of his exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein 1. The Trial Examiner found, and we agree for the reasons fully set forth and discussed in his decision, that the newly built Centac plant at Bohemia, New York, was not an accretion to the Century plant' and that Respondents' application to Centac's employees of the 3-year contract which Respondent, Local 806, had entered into in August 1966 with Century, and the discharge by Respondent Centac of Douglas Flynn, Albert Hattem, and Martin Shatz, under the union-shop provisions of that contract, upon the demand of Local 806, were violative (in the case of Centac) of Section 8(a)(1), (2), and (3), and (in the case of Local 806) of 8(b)( 1)(A) and (2) of the Act. The Trial Examiner also found, and we agree, that Respondent, Local 806 further violated Section 8(b)(1)(A) of the Act by threatening Centac's employees ^ti ith physical violence and loss of employment for not joining Local 806, and that Respondent Centac violated Section 8(a)(1) and (2) by assisting Local 806 in soliciting employees to join that union and by threatening its employees with discharge if they did not do so 2. The Trial Examiner found that Respondent Centac did not, as alleged in the complaint, violate Section 8(a)(5) by failing to honor the bargaining request made upon it by Local 719, the charging union For the reasons stated below, we find merit in the General Counsel's exceptions to the Trial Examiner's dismissal of the allegation. The complaint alleges, the Trial Examiner found, and we agree, that the unit described in the complaint' constitutes a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act. On September 24, 1968, five of Centac's seven employees in that unit signed cards designating Local 719 as their collective-bargaining representative. On September 25, Local 719 sent a telegram to Centac, stating that it represented a majority of Centac's employees and asking for recognition. On the same day it filed a petition for certification with the Board's Regional Office Centac did not respond to Local 719's telegram. Instead, William Enzensperger, Jr., Centac's Secretary-Treasurer, advised James Isola, business agent for Local 806, of these events , and, on October 3, a conference relating to Local 719's request for recognition took place at the Century plant between Enzensperger, Isola, and Rutigliano, Local 806's shop steward Following this conference the three men went to the Centac plant. This was the first time a representative of Local 806 had visited that plant. There Isola told Centac's employees that they were covered under Century's contract with Local 806, and advised two of them, Kaye and Flynn, that since they had already been employed more than 30 days they would have to join Local 806 immediately or quit their jobs At the same time he informed the other employees that they would have to join after they had worked 30 days or they too would be subject to discharge. Prior to the October 3 visit, no intimation had been given Centac's employees by either Respondent that the Century contract was applicable to them, and, as found by the Trial Examiner, the provision of that contract had never in fact been applied to Centac's employees. 'Centac is a corporation whose stock is owned by William Enzensperger, Sr Century Fabrics Inc is wholly owned by his two sons William Enzensperger, Jr, and Helmuth Enzensperger The plants are 40 miles apart At the time of the events in question Century had about 39 employees and Centac 7 Centac was incorporated in March 1968 'All production and maintenance employees and truckdrivers employed by Respondent Centac at its Bohemia plant, exclusive of office and clerical employees, guards, watchmen , professional employees , and all supervisors as defined in Sec 2(11) of the Act 179 NLRB No. 46 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Despite Isola's warning, only one employee signed up The subsequent discharge of three employees, Flynn and Hattem on October 7, and Shatz on October 9, at the demand of Local 806, because of their failure to join Local 806,' is fully discussed by the Trial Examiner, who held that the discharges, as well as certain related conduct by Respondents aimed at forcing Centac's employees into Local 806 membership, were violative of the Act.' We agree with the Trial Examiner's findings that the Centac plant was not an accretion to the Century plant, but a separate bargaining unit to which Local 806's contract with Century could not apply. Centac never challenged Local 719's claim that it was the designated representative of a majority of Centac's employees. And it is not in controversy that Local 806 never claimed to represent Centac's employees by virtue of employee designation cards. The Trial Examiner found, and we agree, that Respondent Centac refused to bargain with Local 719, by ignoring Local 719's September 25, 1968, telegraphic request for recognition and proceeding instead to apply the Century contract to the Centac plant, thereby recognizing Local 806 as the representative of its employees Notwithstanding that finding, and his further findings that Centac unlawfully assisted Local 806, discouraged membership in Local 709, and restrained and coerced its employees in their freedom of choice, by applying to its employees the Century contract on October 3 and engaging in other conduct adverted to above, including threats of reprisal and discriminatory discharges, the Trial Examiner concluded that Centac's refusal to recognize Local 719 was not violative of Section 8(a)(5). The Trial Examiner reached the above conclusion essentially by relying on the Board's majority holding in Weather Seal, Incorporated, 161 NLRB 1226, 1228, that a colorable and substantial competing claim of representation, untainted by any conduct of the employer when first made, is sufficient to raise a real question concerning representation, justifying a 'One of the discharged employees, Hattem , had not worked 30 days He was told he was being discharged because "it seemed like he gave them [Local 806] too much lip " 'Contrary to his colleagues, Member Jenkins does not agree that the Respondents' letters to Shatz and Hattem on October 15 , 1968, asking them to " report for work as soon as possible ," constituted valid good- faith offers of reinstatement In view of the fact that Shatz and Hattem were discharged because of their refusal to join Respondent Local 806 and because of their membership in and activities on behalf of Local 719 and inasmuch as Respondent Centac discharged employees Shatz and Hattem pursuant to Respondent , Local 806 ' s request, he would find that the offers in question were not unequivocal and that the employees rejection of offers was not an unequivocal rejection of employment In the circumstances Member Jenkins would require that the Respondents' offer of reinstatement specifically indicate that the discriminatee in question would return to the positions or substantially similar positions which they held at the time of their discharges , and further assure the employees that they would not have to join Respondent Local 806 upon returning to work Accordingly, Member Jenkins would not find that such offer tolled the running of backpay and the remedial order would be revised thereto See Laminating Services, inc, 167 NLRB No 31, California Lingerie, Inc, 129 NLRB 912, 914 refusal to recognize another union with a majority card designation - and this even though the competing claim is based solely on an assertion of accretion found unsupported In dismissing the 8(a)(5) allegation in Weather Seal, however, the Board's majority stressed, inter alia, that the competing claim of accretion there involved had preceded the bargaining demand of the charging union and had been asserted and pressed from the time the new plant began operations. We distinguish the instant case from Weather Seal in that critical respect The Trial Examiner, it is true, did find that prior to Local 719's bargaining demand, "Centac had been presented with a claim by Local 806 of representation of Centac's employees and had accepted the claim as valid." But this finding has been challenged by the General Counsel as unsupported by a preponderance of reliable evidence. We are satisfied on the strength of our own review of the record that the General Counsel's exception in this regard is well taken The Trial Examiner predicated the challenged finding upon the testimony of William Enzensperger, Jr.,' whom he credited, concerning a conversation which Enzensperger states he had with Local 806's recording secretary, Isola, in late August or September 1968 Enzensperger testified that on that occasion, Isola, referring to the new plant at Bohemia , said he would go there and "take care of matters" and sign up the employees. Enzensperger further testified, however, as the Trial Examiner found, that Isola did not ask him to apply the Century contract to Centac, although he (Enzensperger) "thought that Isola had made the assertion that it [the Century agreement] did apply and that he acquiesced in that assertion." (Emphasis supplied ) In the same connection Enzensperger on cross-examination testified: Q Prior to October 1968, did you ever orally agree with Mr. Isola to apply the Local 806 Century contract to the Centac Corporation on these terms'? A I believe I may have. Q Do you recall the fact that you did say that" A. These conversations are a long time ago Q You don't recall, is that your testimony? A Not exactly. We had discussions and he was going to go out to the plant and sign it up. That's as far as I am involved in it. Q And that was your full understanding of his conversation, that he was going to go out and attempt to sign up the employees, is that right? A Not attempt. He was going to go out and sign up the employees. The Trial Examiner's finding that Local 806's claim was a prior one rests solely upon the testimony of Enzensperger as quoted above.6 The indefiniteness and equivocation inherent in 'William Enzensperger , Jr , is an officer of both Century and Centac 'The Trial Examiner specifically refused to credit Isola concerning CENTAC CORP 315 Enzensperger's testimony, that he thought Isola asserted the applicability of the Century contract to Centac and that he might have orally agreed with that assertion, must be measured both against the certainty of Enzensperger's other testimony that Centac was first asked to apply the Century contract on October 3' and against the crucial fact, not disputed by either Respondent, that no attempt was made to apply any of the conditions of the Local 806 Century contract to Centac until after Local 719 had presented its bargaining demand. It appears to us incredible that Local 806 would have asserted the applicability of the contract without at the same time requesting that its terms and conditions be applied to the employees who had already been hired. Nor do we think it likely, if, as the Trial Examiner found, Centac had earlier agreed with Local 806 that the latter's contract with Century was applicable to its employees, that Centac would have refrained from advising its employees until after Local 719 had made its appearance that they were subject to the union-security provisions of that contract. Though we accept Enzensperger's testimony, credited by the Trial Examiner, that Isola informed him in August or September that he intended to go out to the Centac plant to sign up employees, we, unlike the Trial Examiner, are unable to infer from this that Local 806 and Centac must then have been in agreement that the union-security provisions of the Century contract extended to the Centac plant. Standing alone, Isola's statement implies no more than a declaration of Local 806's intent to organize Centac employees. On all the record, and after giving due weight to the Trial Examiner's credibility appraisals, we are of the view that the evidence relied upon by the Trial Examiner is of insufficient probative force to support his finding that Centac was confronted with a previously asserted competing claim of representation when Local 719 made its bargaining demand. Accordingly, we reject his finding in that respect, as well as his accompanying finding of Centac's acquiescence therein Elsewhere in his Decision, the Trial Examiner found that when Centac received Local 719's bargaining demand, "Enzensperger called Isola and informed him that another union was organizing the plant, and that since he assumed the Century contract applied, he thought Isola would like to know." Bearing in mind that Respondent had not theretofore seen fit to apply the Local 806 Century several other conversations which Isola testified he had with Enzensperger on the telephone and in which , according to Isola, he claimed and Enzensperger agreed , that the Century contract applied to Centac Isola in his testimony did not specifically advert to the conversation which Enzensperger testified he had with Isola in August or September "'Q Just so the record is perfectly clear at any time prior to October 3 , had Mr Isola or any other official of Local 806 asked you to apply the terms and provisions of its Local 806 contract with Century9" "A No" contract to Centac's employees, and considering also Centac's unlawful assistance and support of Local 806 which shortly followed, we think it reasonable to infer, and we find, that Centac upon receipt of Local 7 19's bargaining demand solicited an accretion and contract-bar claim from Local 806 in order to ward off organization of its employees by Local 719 to which it was opposed. For this reason, and also because, unlike the Trial Examiner, we regard Respondent's unit accretion contention as so patently without merit as not to support a colorable and substantial claim of representation, we further find that the belatedly asserted accretion claim did not give rise to a genuine question concerning representation which justified Centac on that basis alone to refuse to honor Local 719's bargaining demand. Thus the record is clear that Centac did not assert any valid basis for its refusal to bargain with Local 719, never challenged Local 719's supported claim of majority designation, and, following Local 719's bargaining demand, engaged in unfair labor practices which we find were of a kind tending to undermine Local 719's majority status and of such a serious and substantial character as to preclude the holding of a fair election and to make Local 719's majority card showing a more reliable indicator of employees desires We conclude therefore, that Respondent's refusal to bargain with Local 719 was violative of Section 8(a)(5), and that a bargaining order is required not only to remedy Respondent Centac's refusal to bargain, but also to remedy adequately the other unfair labor practices found and to restore Local 719 to the representative status it would have enjoyed but for such unfair labor practices. N L.R B v. Gissel Packing Company, 395 U.S. 575.8 THE REMEDY In accordance with the above finding we shall order that Respondent Centac, on request, bargain collectively with Local 719 as the exclusive 'Chairman McCulloch, while joining in the findings and conclusions herein , notes that, consistently with his dissenting position in Weather Seal Inc , supra, he would reach the same result in this case even if it had been found that Local 806's accretion claim antedated Local 713's bargaining demand or was a colorable one Since the facts in this case are such as otherwise to support an 8(a )(5) finding and bargaining order (N L R B v Girsel Packing Company supra ), it is sufficient for him that the accretion claim has been found to be erroneous At the time of the refusal to bargain Local 806 was not the designated representative of any of Centac's employees, nor was it engaged among such employees in an organizational campaign The sole basis for Local 806's asserted competing representational claim is that the unit herein found appropriate was part of a larger appropriate unit allegedly already represented by and under contract with Local 806 In this factual posture, as the Chairman sees it, the issue presented is in effect no more than a contention of unit inappropriateness urged as a defense to a refusal to bargain And , like an erroneous contention of unit inappropriateness , it provides , even if urged in good faith , no defense to an otherwise supported refusal to bargain charge Cf Owego Street Supermarkets . 159 NLRB 1735, 1742 United Aircraft Corporation v N L R B, 333 F 2d 819 (C A 2), cert denied 380 U S 10, N L R B v Pembeck Oil Corp, 404 F 2d 105 (C A 2) 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of all production and maintenance employees and truckdrivers employed by Respondent Centac at its Bohemia plant, exclusive of office clerical employees, guards, watchmen, professional employees, and all supervisors as defined in Section 2(1 1) of the Act, and if an understanding is reached, embody such understanding in a signed agreement 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 below, and orders that Respondent Centac Corporation, Bohemia, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified 1. Change paragraph I(f) by inserting after the words "other conditions of employment" the phrase "until after it has first complied with the provisions of this Order requiring it to bargain with Production, Distribution and Maintenance Employees Union, Local 719, and thereafter 2 Change paragraph 1(g) by deleting the phrase "unless and until said organization shall have been certified by the Board as representative of the employees" 3. Change paragraph 1(i) to subparagraph 0) and insert as subparagraph (i) the following language: "failing or refusing to bargain collectively, upon request, with Local 719 as the collective-bargaining representative of its employees at its plant in Bohemia, New York, in the unit found to be appropriate " 4. Change subparagraph (c), (d), and (e) of paragraph 2 of the Trial Examiner's Recommended Order, to subparagraphs (d), (e), and (f), respectively, and insert as subparagraph (c) the following language- "(c) Bargain collectively with Local 719 as the exclusive representative of all production and maintenance employees and truckdrivers employed by Respondent Centac at its Bohemia plant, exclusive of office clerical employees, guards, watchmen, professional employees, and all supervisors as defined in Section 2(11) of the Act and, if an understanding is reached, embody the understanding in a signed agreement." 5. Insert as the final indented paragraph in the Appendix attached to the Trial Examiner's Recommended Order, the following- WE WILL bargain collectively with Production, Distribution and Maintenance Employees Union, Local 719 as the collective-bargaining representative for all our production and maintenance employees and truckdrivers at our Bohemia plant, exclusive of office clerical employees, guards, watchmen, professional employees, and all supervisors. If an understanding is reached we will embody the understanding in a signed agreement TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner On October 4 and 22, 1968, Production, Distribution and Maintenance Employees Union, Local 719 ("Local 719"), filed a charge and an amended charge, respectively, in Case 29-CA-1479 which were served on said dates upon Centac Corp ("Centac"), and on December 4, 1968, Local 719 filed a charge in Case 29-CB-578 which was served on December 5, 1968, upon Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 806") Centac and Local 806 are jointly referred to at times in this Decision as Respondents On December 26, 1968, the General Counsel of the National Labor Relations Board ("the Board"), through the Regional Director for Region 29, issued an order consolidating cases, consolidated amended complaint, and notice of hearing in said cases against Respondents. Respondents filed their respective answers in which they denied all allegations against themselves of unfair labor practices A hearing was held on January 21, 22, 23, 24, and 30, 1969, before the Trial Examiner named above The General Counsel and Local 806 were represented at the hearing by their respective counsel, Centac was represented by its secretary-treasurer, and the Charging Party by its secretary-treasurer The General Counsel and Local 719 have filed briefs with the Trial Examiner.' Upon the entire record, and from his observation of the witnesses the Trial Examiner makes the following FINDINGS OF FACT 1. THE BUSINESS OF CENTAC Centac is a New York corporation having its principal office and plant in the town of Bohemia, Suffolk County, Long Island, State of New York It is engaged in performing the service of bonding and joining fabrics used in the manufacture of dresses, coats and other outer garments During the 5-month period from the inception of its operation to the opening of the hearing Centac purchased and caused to be delivered to its plant in Bohemia supplies and materials valued at in excess of $40,000 which were transported and delivered to said plant directly from States of the United States other than the State of New York During the same period Centac performed services valued at in excess of $25,000 for customers located outside the State of New York On the basis of its past and anticipated sales and purchases Centac's purchases of materials from outside the State of New York during the first year of its operations will exceed $100,000 and it will perform services for customers On March 24, 1969, in the United States District Court for the Eastern District of New York, Judge George Rosling issued an order, pending final disposition of this case , enjoining and restraining both Respondents from engaging in the various acts alleged in the Complaint and requiring Centac to reinstate Hattem and Shatz and to bargain with Local 719 The Court had before it the present transcript 'After the close of the hearing the parties entered into a stipulation which has been submitted to the Trial Examiner setting forth further facts with respect to Centac 's business The stipulation has been made part of the record herein as G C Exh 8 CENTAC CORP. 317 located outside the State of New York valued at in excess of $125,000 It is found that Centac is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act ("the Act") 11 THE LABOR ORGANIZATIONS INVOLVED Production, Distribution and Maintenance Employees Union, Local 719, and Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are each a labor organization within the meaning of Section 2(5) of the Act 111. THE UNFAIR LABOR PRACTICES The principal issues litigated were (a) whether the Centac plant was an accretion of the Century plant, (b) whether application of the Century contract to the Centac plant was violative of the Act, (c) whether Local 806 illegally caused Centac to discharge three employees, (d) whether Local 806 threatened employees with physical violence and loss of employment for not joining, and (e) whether Centac's refusal to bargain with Local 719 was violative of the Act A The Accretion Issue Centac was wholly owned by Williams Enzensperger, Sr ,' Century was wholly owned by his two sons, Williams Enzensperger, Jr , and Helmuth Enzensperger. The two corporations had common directors and officers and both leased their premises from the same realty corporation, which was owned by Enzensperger, Sr. The two plants were 40 miles apart. Day-to-day management of the operations of Century was by the two sons, that of Centac was by the William Enzenspergers, Sr and Jr Both corporations had accounts with the same bank, but at different branches. They also had separate payrolls, kept at their respective offices, maintained separate seniority lists, and they did their billing and purchasing independently. Century started its business in 1946, operating a plant at Whitestone, Borough of Queens, City and State of New York, where it was engaged in the coating of fabrics and the laminating of fabrics The coating consisted of applying plastic chemicals directly to the fabric to make it waterproof, or so that it could be used, when cut up, as iron-on patches The laminating was of two types The first consisted of bonding a fiber filler to a face fabric by use of adhesives together with heat and pressure, the product was used in the manufacture of brassieres The second, also known as transfer coating, consisted of placing a film on a specially treated "release paper," applying this film-coated paper to an adhesive-coated fabric, laminating the film to the fabric by heat and pressure, and then removing the special paper ° The products were used, depending upon the film employed, for the manufacture of such things as luminous tapes, baby pants, garden gloves and childrens' clothing of urethane leather At the time of the events here in question Century had 39 employees. In this Decision when the name Enzensperger without Sr or Jr appears, it will refer to William Enzensperger, Jr The transcript erroneously refers to William Enzensperger, Jr , on p 39, I 17, and p 40, I 14, the witness said William Enzensperger, Sr 'Enzensperger explained that while both types were at times referred to In about December 1967 Enzensperger, Sr , who was not actively engaged in the operation of the Century business, contracted for the erection of a 57,000-square-foot building on a tract of land he had acquired in Bohemia, Long Island The Century plant had only 20,000 square feet While his original idea had been to lease the Bohemia building, in early 1968 he decided to use the building for a bonding or laminating business, and he took steps to acquire the appropriate machinery Centac was incorporated in March 1968 and in about April the installation and erection of machinery was begun Operations started in about August or September 1968 As Centac had no credit standing at its inception, its purchases of materials were at first made through Century, which then billed Centac.s Subsequently, however, Centac did its buying through its own personnel Centac's business consisted entirely of bonding face fabrics to a backing material for use in the manufacture of outerwear garments, such as dresses and coats The basic process was the same as that used at Century for the manufacture of brassiere material, i e bonding two fabrics together by means of an adhesive applied under pressure However, the equipment and procedures used were more complex than were used by Century The reason was that face materials for outerwear are patterned, and it was therefore necessary to use machinery which, unlike the machinery used by Century, could regulate the speed at which the materials passed through and keep them in perfect alignment. At the time of the hearing Centac was installing a new machine designed for the manufacture of "expanded vinyl," a simulated leather with porosity, used for jackets, upholstery, and handbags. Enzensperger testified that the machine could be used for the production of baby-pants material, but that Centac had no intention of doing so. Centac hired its first employee on April I, 1968, two others were hired the following week They assisted in the setting up of the machinery and to some extent in answering the telephone. In August Centac hired a shipping foreman, however, as production had not started he agreed to work temporarily at the Century plant, which he did for about 3 weeks, after which he came to Centac In about December 1968 two men, Hickson and Milazzo, who had worked for Century since July 1968, requested that they be given work at the Centac plant, which was more convenient to their homes Their request was granted While most jobs at the two plants were basically similar, the equipment and product requirements were so different that experience at one was of little use at the other, and a transferred employee would have required substantially as much training and experience as a completely new employee None of the jobs were skilled Centac used the same salesman as Century, but he handled only part of the Century work He also had one other client, a firm unconnected with the Enzenspergers, Century or Centac With the exception of one manufacturer of childrens' clothing, Century and Centac had different customers Centac stored material for Century, and on one occasion, before it was in production, washed lint off a indiscriminately as bonding or laminating , the industry also used the word bonding to refer only to joining two related materials, such as two fabrics, and used the word laminating to refer only to joining two unrelated materials, such as a fabric and a vinyl film The major materials, the face fabrics, were furnished by, and belonged to, the customers Except for the manufacture and sale of urethane leather by Century on its own account both corporations were engaged in what was primarily a service to their customers 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD large quantity of urethane leather belonging to Century Century paid for the washing by applying a credit against materials purchased for Centac's account, the storage had not yet been paid at the time of the hearing but Enzensperger testified that a similar credit would be applied eventually From time to time, but not as a regular course, materials were transported from one plant to the other; this was done for the most part by Century trucks and drivers, but Centac trucks and drivers were also employed At times, also, when trucks were temporarily inoperative, they lent trucks to each other. Concluding findings as to accretion The Centac operation was organized to be a completely self-sustaining, autonomous operation, with its own bank account and office, its own payroll, and purchasing, billing and shipping facilities. It was fully equipped to render its own particular kind of service for its own particular customers The credit lent by Century to Centac at the beginning, the occasional lending of a truck, and the washing of urethane leather by Centac for Century, do not detract from this conclusion, nor do the few instances of transfer of employees from one plant to the other None of these things were part of normal operations and they do not reflect a functional integration of operations The storage of Century material at the Centac plant, and the occasional transfer of merchandise or material from one plant to the other were independent of regular operational activity The use of a common salesman was not significant, since sales activities, in the usual case, also function quite independently of production In any event there is no evidence that the salesman was an employee rather than an independent contractor, and the fact that he also represented another company, not connected with the Enzenspergers, tends to negate an employment relationship The only factor tending to establish a unity between the two plants was William Enzensperger, Jr's participation in the day-to-day management of each, but that is not sufficient to establish that the two plants constituted a single appropriate unit or that the Centac plant was an accretion to the Century plant Compare The Black and Decker Manufacturing Company, 147 NLRB 825, 827-828 Nor does the contract bring about that result. See Pullman Industries, inc , 159 NLRB 580. On the other hand, the marked difference of products, the much more complex processing at Centac, and the 40-mile distance between the two plants, along with their complete self-containment and organizational independence from one another, establish that Centac was not an accretion to the Century unit. See Pullman Industries, Inc , supra, Beacon Photo Service, Inc, 163 NLRB No 98, Dura Corporation, 153 NLRB 592, 593, enfd 375 F 2d 707 (C A. 6) B Sequence of Events On or about August 1, 1966, Century and Local 806 entered into a collective-bargaining agreement which was to expire by its terms, in the absence of countervailing notice, on August 1, 1969 The agreement required membership in Local 806 as a condition of employment after the 30-day statutory grace period It also required Century to contribute on behalf of each employee covered by the agreement stated monthly sums to the Local 806 health and welfare fund and to a pension fund In about December 1967 or January 1968 Enzensperger met with Isola, Local 806's recording secretary who, as a business agent, handled the collective-bargaining relationship at Century, to discuss problems relating to the Century plant In the course of the meeting Enzensperger informed Isola that his father was building a new plant in Bohemia In May 1968 Isola called Enzensperger to make arrangements to visit the new plant sometime when he would be in the area Enzensperger told him that the new plant was not yet in production, that they were merely erecting equipment, and that only two employees were there at the time. Isola dropped the matter In August Enzensperger informed Isola that employees were making sample runs and some production runs at the Bohemia plant. They made an appointment for Isola to visit the plant but he became ill and did not keep the appointment On one occasion during that month at the Century plant Isola told Rutigliano, the shop steward, in Enzensperger's presence, about the Centac plant and he told Rutigliano "that everything was taken care of." In late August or in September 1968 Enzensperger had a conversation with Isola in which Isola said that he would go out to Bohemia and "take care of the matters" and sign up the employees, telling Enzensperger that the Century contract applied to Centac Enzensperger acquiesced 6 Enzensperger testified that the wages paid at Centac were "substantially" or "approximately" the same as those called for by the contract, but he did not claim that he followed its exact terms Peterson testified to a wage rate and an increase not in conformity with the contract Kaye testified that 3 or 4 months after he was hired, i e in about August, he received a 25-cents-per-hour increase This was not in conformity with the contract, which provided only for 5-cent, 10-cent, and 12 1/2-cent increases, and also provided "A) No increase other than those specified in the collective bargaining agreement and the attached schedule 'A' shall be discussed with or paid to any employee unless it is first discussed with the Union " In view of this clause and of Kaye's and Peterson's testimony, it is inferred that if Centac did pay wages "substantially" those provided for in the contract, that was a reflection of the wage market and, thus, a coincidence, rather than the result of application of the terms of the contract There is affirmative evidence that the contract was not applied to Centac. Prior to October 3 no representative of Local 806 or of Centac ever informed any employee that the contract was applicable Until that date, moreover, Local 806 never made demand for pension-fund or health-and-welfare payments or for union dues, no such payments were made, and no Local 806 representative even visited the plant In view of the foregoing it is found that Respondents did not apply the Century contract to the Centac plant prior to the advent of Local 719 hereinafter described On September 24, 1968, five of the seven production and maintenance employees at Centac signed cards applying for membership in Local 719 and authorizing it to represent them in collective bargaining ' The cards were solicited by Martin Shatz, a Centac employee since September 9 On September 25, Local 719 sent Centac the following telegram. 'Enzensperger testified that Isola did not ask him to apply the contract or its provisions to Centac, but he also stated that he thought that Isola had made the assertion that it did apply and that he had acquiesced in that assertion Isola testified to other conversations with Enzensperger about the Centac plant, and said that Enzensperger and he agreed that the Century contract applied, but the Trial Examiner has not credited Isola Enzensperger, while indefinite as to detail, impressed the Trial Examiner as a truthful witness 'The employees signing cards on September 24 were Buonacore, CENTAC CORP 319 THIS UNION REPRESENTS A MAJORITY OF YOUR EMPLOYE[E] S WE DEMAND IMMEDIATE RECOGNITION AS THE SOLE COLLECTIVE BARGAINING AGENT. Enzensperger called Isola and informed him that another union was organizing the plant, and that since he assumed that the Century contract applied, he thought Isola would like to know Isola advised Enzensperger not to do anything, promising to go out and see Enzensperger Enzensperger did not reply to the telegram. On September 25 Local 719 also filed a petition for certification in Case 29-RC-1112. The Regional Office notified Centac of the petition and scheduled an informal conference for October 3 Enzensperger informed Isola and both men appeared at the conference, where they met with a Board agent and with Sullivan, the Local 719 representative Local 806 presented the Century contract and claimed that by virtue of Section XXX and the fact' that the Centac plant was an accretion to the Century plant, the contract was a bar to an election Enzensperger took no position. After the conference Enzensperger and Isola met at the Century plant, where they picked up Rutigliano and the three proceeded together to the Centac plant There Isola asked Enzensperger which employees had been working more than 30 days and were told of Flynn and Kaye, employed, respectively, since May 13 and April 28 At Isola's request the two employees were summoned to an office to speak with Isola and Rutigliano. Isola told them who he was, said that they were covered by the Century contract, and, when asked, he explained his failure to appear previously by saying that he had been ill and that he had been told that no production was going on. He explained to the two men the benefits under the contract and called Enzensperger in and told him that Centac would have to pay retroactively for them to Local 806's health and welfare and pension funds, as well as all other contractual benefits He obtained from Enzensperger an admission that he had been aware that the Century contract covered the Centac employees but nevertheless had not advised the employees to that effect. Isola explained to Kaye and Flynn that since they had been employed more than 30 days, they would have to join Local 806 or leave. They signed cards Isola said that one of them would have to be shop steward and Kaye, with Flynn's acquiescence, accepted the office. The supervisors then summoned the other employees and Isola informed them that Local 806's contract with Century covered them and their own wishes did not matter, since the contract was "iron clad." Isola was met with hostility and shouting, and the men demanded to know if Century employees would have seniority over them Isola replied that they would, since the Centac employees were new Hattem said that he would not be forced to join a union he did not want to join. Isola warned that heads had been broken to get Local 806 into Century and that if need be the same would happen at Centac before Local 806 would allow people at Centac to take away Century employees' jobs. He also said that membership in Local 806 was a condition of employment after 30 days Shatz demanded to hear that from Enzensperger, who, upon being summoned, was asked by Shatz, "Bill, are we going to be let go if we don't join 806." Enzensperger confirmed Isola's warning. Isola also Schortemeyer, Shatz, Peterson, and Hattem See G C Exh 5 A through E The two remaining employees in the unit were Flynn and Kaye told the employees of the holidays, health and welfare, pension and other benefits they would have under the Century contract. After the meeting ended Flynn requested his card and, when Isola returned it, tore it up. Isola warned him that that meant that under the provisions of the contract his employment would have to be terminated. Hattem asked how it had happened that the employees had not been informed earlier about Local 806 and Isola explained that he had been ill After the meeting Isola spoke to some of the employees. Shatz told him that he had been responsible for bringing Local 719 into the plant The entire meeting on October 3, took place during working hours It is inferred that the employees were not docked for the time. Sullivan, the organizer for Local 719, was immediately apprised of what was happening at the plant He warned Enzensperger that he would file charges and the next day, Friday, October 4, he did so Hattem and Shatz did not appear for work that day, going to the Regional Office, where they gave statements in support of the Charge. On October 4 Isola telephoned Enzensperger and ascertained that Flynn, Shatz, and Hattem had refused to sign Local 806 cards He told Enzensperger that they would not be allowed to work and requested their discharge. Enzensperger objected that Shatz and Hattem, both employed since September 9, had not yet been employed 30 days. Isola replied that he did not care and that he wanted them discharged, and he said that since they had not been employed for 30 days they could be discharged under the contract without any showing of cause He told Enzensperger that Hattem had given him "a lot of lip" at the October 3 meeting. Enzensperger agreed to discharge Hattem and Flynn. However, in that conversation or in another one between October 3 and 7 he asked Isola if he could retain Shatz, since he was needed to keep the plant running Isola consented that Shatz be allowed the full 30 days, after which he would be discharged if he still persisted in not joining Local 806. On October 7 Shatz and Hattem found that their timecards were not in the rack. They were instructed by the office manager to wait for Enzensperger. When Enzensperger arrived, he called a meeting of all the employees. He told Flynn that he had to discharge him because he had been employed more than 30 days and refused to join Local 806 He told Hattem that he had to let him go too, explaining, when asked, that "it seemed like he gave them too much lip," and he added, "I'm over a barrel " Shatz asked how he stood, and Enzensperger replied that his discharge had also been requested, but that he had persuaded Isola to permit him to remain since he was needed 8 On October 9 Enzensperger again called the employees together. He informed them that Shatz had not joined Local 806 even though employed 30 days and that he therefore had to discharge him 9 'Isola admitted requesting Flynn 's discharge, but categorically denied requesting the discharge of Hattem or Shatz He testified that on October 4 Enzensperger complained to him that certain employees , who he later learned were Hattem and Shatz, were absent without authority, but that when he had ascertained that they were still serving their 30-day trial period, he had told Enzensperger that he could do as he pleased with them Enzensperger denied complaining of the two employees ' absence on October 4 He testified specifically that Hattem had given no trouble and was a good employee and that a single day's absence without leave was a common occurrence and no reason for discharge He also stated that he needed Shatz and did not want to let him go Isola 's testimony has not been credited 'Shatz and Hattem testified that on October 7 or 9 Enzensperger told 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 15 Centac wrote identical letters to Flynn, Hattem and Shatz reading as follows Dear Mr [employee's name] Please report for work as soon as possible. Centac Corp E J Desmond Flynn returned to work and counsel for the General Counsel has withdrawn any request for his reinstatement in this proceeding Shatz and Hattem, who did not return, testified that they had not been offered reinstatement, but they did not deny receiving the letters. C Concluding Findings as to the Unfair Labor Practices 1 Application of the contract and recognition of Local 806 It has been found that in late August or September 1968 Isola claimed that the Century contract applied to Centac and that Enzensperger acquiesced, thereby agreeing with Isola. Prior to that time they had agreed, in effect, that, with no production going on, there were no bargaining-unit employees and, therefore, no reason to be concerned about Local 806's relationship to the Centac plant; and it has been found that the contract was not applied to the Centac plant before the advent of Local 719. It is unnecessary to meet the question of whether Enzensperger's agreement in August or September 1968 with Isola's claim that the Century contract was applicable to Centac constituted illegal recognition of Local 806; no party makes such a contention in this proceeding The issue litigated was whether there were illegal recognition and application of the contract on October 3.1 1 Local 806 makes no claim to have represented the Centac employees except as an accretion to the Century unit, and it is plain that the Centac employees had not designated Local 806 as their bargaining representative As it has been found that the plant was not such an accretion, Local 806 did not, and had no authority to, represent the employees Moreover, Enzensperger and, especially, Isola, were fully aware, as a result of the filing of the petition and the vehement opposition to Local 806 expressed by the employees at the October 3 meeting in the plant, that the employees did not desire representation by Local 806 In those circumstances their mere belief the employees that the Century contract did not cover Centac This testimony is at variance with other employees' testimony about the meetings and with the undisputed testimony that on October 3 Enzensperger specifically conceded at least to Flynn and Kaye that the contract did cover the Centac employees The Trial Examiner found Shatz' and Hattem's testimony as to this incident unconvincing and it has not been credited 1'Citing Local Lodge No 1424. International Association of Machinists v N L R B (Bryan Manufacturing Co ). 362 U S 411, Local 806 does contend that Section 10(b) of the Act prevents a finding of unfair labor practice based upon application of the contract to Centac since Section XXX B of the contract caused it to be automatically so applied on March 8, 1968, the date of Centac's incorporation, which was more than 6 months prior to the filing and service of the charge However, the contract was not applied to Centac at that time and, especially in view of the generality of Section XXX B, its mere maintenance was not an unfair labor practice The earliest that recognition might arguably have been requested or granted according to the credited testimony was August 1968, and the earliest possible conversation of any sort about the applicability of the contract to the Centac plant, was in May or June 1968, both dates were within the period of limitation prescribed in Section 10(b) of the Act ,that the Century contract was applicable could not serve as a defense to their interference with the employees' rights as to representation even if such belief was held in good faith They made no effort to ensure that their belief was legally sound On the contrary, after attending the conference in the representation case, which could have resolved the issue in the orderly fashion provided by Congress, they proceeded to the plant to set in motion a series of events which made the representation case a futility Centac's recognition of Local 806 as the employees' exclusive bargaining representative and the application to them of the Century contract constituted an unlawful denial of their right under the Act to choose their own bargaining representative free from interference, restraint and coercion and was violative of Section 8(a)(1) of the Act Centac, moreover, thereby rendered unlawful assistance to Local 806 in violation of Section 8(a)(2) and, in view of the application of the union-security clause, discriminatorily encouraged membership in Local 806 in violation of Section 8(a)(3) of the Act See Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v N L R B, (Dancker and Sallew, Inc ), 330 F 2d 46 (C A 2), enfg 140 NLRB 824 Further, by demanding and insisting upon recognition as the exclusive bargaining representative of the employees and upon application to them of the Century contract, including the union-security clause, Local 806 violated Sections 8(b)(1)(A) and (2) of the Act See Dancker and Sallew, Inc , supra; International Ladies Garment Workers Union, AFL-CIO v. N.L R B, and Bernhardt-Altmann Texas Corp , 366 U S. 731, Consolidated Edison Company of New York, Inc, 132 NLRB 1502, Welch Scientific Company v N L R B, 340 F 2d 199 (C A. 2), enfg in relevant part 146 NLRB 1551 2 The discriminatory discharges The record plainly establishes that the discharges of Flynn and Hattem on October 7, and of Shatz on October 9, were caused by Local 806, which insisted upon such discharges, in the cases of Shatz and Hattem over Enzensperger's opposition The record also establishes that the reason was that they refused to join Local 806. In the case of Shatz an additional reason, and the reason his discharge was requested before 30 days of employment, was that Isola knew he had organized the employees for Local 719 and that at the October 3 meeting he had challenged Isola's authority and insisted upon hearing from Enzensperger himself that membership in Local 806 was required as a condition of employment. In the case of Hattem an additional reason, and the reason his discharge was requested and insisted on before 30 days of employment, was that he had openly defied Local 806, saying that he would not join a union he did not want, thereby encouraging other employees to emulate his defiance. Enzensperger was aware that Isola demanded the discharge of the three men because of their membership in and opposition to Local 806, and he was also aware that an additional reason in the case of Hattem and Shatz was their loyalty to Local 719. It is found that Local 806 caused Centac to discharge Flynn, Hattem and Shatz because they refused to join or assist Local 806, and that it caused Centac to discharge Hattem and Shatz for the further reason that they joined and assisted Local 719 It is further found that Local 806 thereby violated Section 8(b)(1)(A) and (2) of the Act and that Centac, by discharging the three employees, violated Section 8(a)(1), (2) and (3) of the Act. CENTAC CORP. 321 3 Other restraint and coercion by Centac and Local 806 By giving Local 806 the use of its office to meet with the employees during working hours for the purpose of soliciting members, by having its supervisors summon the employees to such meeting for such purpose, and by paying the employees for the time so spent, Centac further violated Section 8(a)(1) and (2) of the Act By warning the employees that the Century contract and its union-security clause were in effect at the Centac plant and that employees who did not join Local 806 within 30 days of the commencement of their employment would be discharged, Centac further violated Section 8(a)(I) and (2) and Local 806 violated Section 8(b)(1)(A) of the Act; and Local 806 also violated Section 8(b)(l)(A) by threatening to inflict bodily injury upon employees in order to induce them to join Local 806 and to abandon their membership in, and support and assistance to, Local 719. 4. The refusal to bargain Request and refusal It is plain that by ignoring Local 719's telegram of September 25 requesting recognition, and proceeding instead to apply the Century contract, thereby recognizing Local 806 as representative of the Centac employees, and by its other actions on October 3 and thereafter, Centac refused to bargain with Local 719. Unit While Local 806 has denied the appropriateness of the unit alleged in the Complaint, it raises no issue as to its composition, which, the Trial Examiner notes, is substantially the same as that of the unit covered by the Century contract. As such a unit is appropriate and as the only issue raised, i.e as to the limitation of the scope to the Centac plant, has already been disposed of by the finding that it was not an accretion, it is found that the unit alleged in the Complaint is appropriate Majority, Local 719's status The record establishes that on September 24, 1968, a majority of the employees in the unit, namely five of the seven men employed, by signing appropriate cards designated Local 719 as their representative for collective bargaining The question remains, however, of whether, on September 25 or thereafter, Local 719 was entitled to recognition. By early September 1968 Centac had been presented with a claim by Local 806 of representation of the Centac employees and had accepted the claim as valid Isola's statement to Enzensperger that he would go out to the plant to sign up the employees did not mean, as contended by the General Counsel, that he was going to organize them in order to establish a majority. It meant, rather, that as the parties were in agreement that the Century contract was applicable, Isola was going to obtain compliance with the union-security clause These events occurred prior to any organizational activity among the Centac employees by Local 719, and Local 806's claim was up to that time untainted by any conduct of Centac towards the employees The General Counsel has not established that Enzensperger's acquiescence in Local 806's claim as to the effect of the Century contract was in bad faith. Centac was thus confronted with two conflicting claims of representation Centac's refusal to recognize Local 719, resting as it did upon an alleged accretion, was in a sense a refusal based on inappropriateness of unit. See N L R B v Food Employers Council, Inc, 399 F 2d 501 (C A. 9), enfg 163 NLRB No. 58. It is established Board law that when an employer refuses to bargain because he thinks a unit is not appropriate, he does so at his peril, even if acting in good faith. However, Local 719's demand involved more than a unit question Centac had two conflicting claims of representation to dispose of, so that recognition of either union constituted a refusal to recognize the other The Board has stated that it has imposed upon employers the burden of refusing to bargain on unit grounds at their peril because of the burdens placed upon unions in refusal-to-bargain situations, saying, "It seems both equitable and in conformity with the statute to impose the same risks upon the employer who denies his obligation " See Tom Thumb Stores, Inc, 123 NLRB 833, 835 The weight of the equities is different, however, when the employer's recognition of one union means a refusal to recognize another The Board has, therefore, held that a colorable and substantial competing claim of representation, untainted by any conduct of the employer when first made, is sufficient to raise a real question concerning representation which, standing alone, would justify a refusal to recognize the other union, even though such competing claim was based upon a claim of accretion found by the Board to be invalid See White Front Sacramento, Inc, 166 NLRB No 29, see also Weather Seal Incorporated, 161 NLRB 1226, 1228 " The General Counsel attempts to distinguish Weather Seal, averring that Local 719 demanded recognition before Local 806 had made any claim of representation It is unnecessary to pass upon the legal validity of this argument because Local 806's claim was made and acquiesced in by Centac before the employees joined Local 719. The Boys Market, Inc , 156 NLRB 105, cited by the General Counsel, is not apposite In that case the Board, dismissing an allegation of violation of Section 8(a)(2) of the Act, relied on the fact that prior to the allegedly illegal recognition the Board had held that the same multi-employer contract on which the competing claim was based did not apply to the employees as to whom recognition had been granted. The Board explained, 156 NLRB at page 107, that an employer could, without violating the Act, extend recognition to a union "where the rival union's claim is clearly unsupportable or specious, or otherwise not a colorable claim " As Century's and Centac's operations did have a degree of underlying similarity, as the two corporations had common officers and directors and one common operator, as the ownership of both was among a father and his two sons and both plants were rented from the father's real estate corporation, as there was a degree of cooperation between the two plants in some of their activities, and as they were sufficiently close to one another to make transfer or interchange of employees reasonably conceivable, Local 806's claim cannot, in the absence of a Board holding against it, be said to have been "clearly unsupportable or specious, or otherwise not a colorable claim." It is found that Centac's refusal to recognize Local 719 was not unlawful and it will be recommended that the allegation that Centac unlawfully refused to bargain with Local 719 be dismissed.' 2 "Chairman McCullough and Board Member Zagoria dissented in Weather Seal ''The question of whether an employer would be in violation of the Act under Midwest Piping and Supply Co , Inc, 63 NLRB 1060, if he recognized a majority union in the face of an unresolved claim based on accretion which, unlike the claim in The Boys Market, Inc , is colorable, albeit invalid , is not passed on in this Decision 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Centac and of Local 806 set forth above in section III, occurring in connection with the operations of Centac described above in section 1, have a close, intimate, and substantial relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY As it has been found that Respondents have engaged in certain unfair labor practices, it is recommended that the Board issue the Recommended Order set forth below requiring Respondents to cease and desist from said unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. It is recommended that Centac withdraw all recognition from Local 806 as representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until said labor organization is certified by the Board It is also recommended that Centac cease and desist from giving any force or effect to the collective-bargaining agreement entered into between Century and Local 806 However, this shall not be construed as requiring Centac to vary any wage, hour, seniority or other substantive feature of its relations with its employees which it has established pursuant to said contract. The General Counsel contends that Centac's letters to Shatz and Hattem asking them to " report for work as soon as possible" were inadequate as offers of reinstatement because they failed to specify that the work offered was the same as their previous employment or that they would not have to join Local 806. Enzensperger had indicated that he discharged Shatz and Hattem unwillingly and only because of Local 806's insistence In view of these facts, and as neither the letters nor the circumstances stated or implied any conditions or qualifications," the most reasonable interpretation of the letters was that Enzensperger was simply reversing his past position, so that (a) membership in Local 806 would not be required of Shatz or Hattem, and (b) they were to go back to work at their old jobs. If the men had doubt, they could have inquired. For these reasons it is not recommended that Centac be required to make any further offer of reinstatement to Shatz or Hattem. It is however recommended that Local 806 be required to notify Centac that it will not in any manner oppose the employment of Flynn, Shatz or Hattem" It is also recommended that both Respondents forthwith jointly and severally make whole Hattem, Shatz and Flynn for any loss of pay they may have suffered by reason of Centac's discrimination against them. The amount paid to each as backpay shall be a sum of money equal to what he would have earned from the date of his discharge to the date of Centac's offer of reinstatement, less his net earnings during said period, computed in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, to be computed in the manner described in Isis Plumbing & Heating Co , 138 NLRB 716. It is also recommended that Centac preserve and, upon request, make available to the Board and its agents payroll and other records to facilitate the computation of backpay Local 806's threats to use physical force to establish itself as the employees' bargaining representative, and its agent's boast of having used such tactics at Century indicate a disposition to disregard the policies going to the fundamental purpose of the Act, namely, the protection of employees' right to bargain through representatives of their own choosing. For this reason it is recommended that Local 806 be required to cease and desist from infringing in any manner on the rights of the employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and of the entire record in this case the Trial Examiner makes the following. CONCLUSIONS OF LAW I Respondent Centac Corp is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Centac is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Production, Distribution and Maintenance Employees Union, Local 719, are each a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily discharging Douglas Flynn, Albert Hattem, and Martin Shatz, and by applying the union-security clause of the Century contract to its employees, Centac has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act 5. By recognizing Local 806 as the exclusive bargaining representative of its employees at a time when said labor organization did not enjoy majority status, and by applying to its employees the agreement between Century Facilities, Inc. and Local 806, and by contributing other support to Local 806, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act 6. By interfering with, restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent Centac has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7 By accepting authority as exclusive bargaining representative of the Centac employees at a time when in fact it did not have the support of a majority of said employees, Respondent Local 806 has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 8. By demanding application to the Centac employees of its contract with Century Facilities, Inc and by insisting upon application to the Centac employees of the union-security clause of said contract, Respondent Local 806 has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act 9 By causing Centac to discharge Douglas Flynn, Albert Hattem and Martin Shatz in violation of Section 8(a)(3) of the Act, Respondent Local 806 has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act "Distinguish California Lingerie, Inc , 129 NLRB 912, where the purported offer of reinstatement had been preceded by several recalls for work which turned out to be temporary and without the employee's previously recognized right to be transferred to other jobs when work was not available on his primary job "At the hearing counsel for Local 806 stated that it did not intend to enforce the union-security provision pending disposition of this case CENTAC CORP 323 10 By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Local 806 has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 11 The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, A Respondent Centac Corp., its officers, agents, successors, and assigns, shall I Cease and desist from (a) Discharging or otherwise discriminating against employees because of membership in or activities on behalf of Production, Distribution and Maintenance Employees Union, Local 719, or any other labor organization, or because of nonmembership in or opposition to Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (b) Encouraging membership in Local 806 or any other labor organization by entering into, maintaining or enforcing an agreement requiring membership therein as a condition of employment, except as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. (c) In any other manner discriminating against employees in order to encourage membership in Local 806 or any other labor organization, except as authorized in Section 8(a)(3) of the Act, as amended, or in order to discourage membership in Local 719 or any other labor organization (d) Threatening employees with discharge or other reprisals if they do not become or remain members of Local 806, or if they oppose or fail to give assistance or support to said labor organization (e) Permitting Local 806 or any of its agents to hold meetings with employees, to solicit employees to sign designation cards, to recruit members, or to conduct other union business in its plant during working hours. (f) Recognizing Local 806 as the representative of any of its employees for the purpose of dealing with Centac concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until said labor organization shall have been certified by the National Labor Relations Board as the representative of such employees (g) Applying the agreement between Local 806 and Century Facilities, Inc., to the employees of Centac unless and until said labor organization shall have been certified by the Board as representative of the employees provided, however, that nothing herein shall require Centac to vary or abandon any wage, hour, seniority or other substantive feature of its relations with its employees which it has established in performance of said agreement. (h) In any other manner contributing support to Local 806 or to any other labor organization. (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which, it is found, will effectuate the policies of the Act (a) Withdraw and withhold all recognition from Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of any of its employees for the purpose of dealing with Centac concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until said labor organization shall have been certified by the Board as the exclusive bargaining representative of such employees (b) Jointly and severally with Local 806, make whole Douglas Flynn, Albert Hattem, and Martin Shatz for any loss of earnings they may have suffered as a result of the discrimination against them in the manner described above the section V of this Decision, entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll and personnel records and all other data necessary to analyze and compute the backpay required by this order (d) Post at its office and plant in Bohemia, Long Island, copies of the notice attached hereto marked "Appendix A."' 5 Copies of said notice, to be furnished by the Regional Director for Region 29, shall, after being duly signed by its representative, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced or covered by any other material (e) Notify the Regional Director for Region 29 in writing, within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith 11 B Respondent, Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents and representatives, shall 1. Cease and desist from: (a) Acting as the exclusive representative of any of the employees of Centac Corp. for the purpose of dealing with said employer concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until said Local 806 shall have been certified by the Board as the exclusive bargaining representative of such employees. (b) Attempting to enforce or apply with respect to Centac employees its agreement dated August 1, 1966, with Century Facilities, Inc (c) Causing or attempting to cause Centac to discharge or refuse to employ Douglas Flynn, Robert Hattem, Martin Shatz or any other employee because they refuse to join or assist Local 806 or because they join or assist Production, Distribution and Maintenance Employees Union, Local 719, or engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection "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 29, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Threatening to cause Centac to discharge employees or threatening employees with bodily injury or other reprisals to induce them to join, support or assist Local 806 or to discontinue membership in or support of or assistance to Local 719 (e) In any other manner restraining or coercing employees of Centac in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which, it is found, will effectuate the policies of the Act (a) Notify Centac and Douglas Flynn, Albert Hattem and Martin Shatz that it does not object to their employment by Centac (b) Jointly and severally with Centac make whole Douglas Flynn, Albert Hattem and Martin Shatz for any loss of earnings suffered by them as a result of the discrimination against them in the manner described above in section V of this Decision entitled "The Remedy " (c) Post at its business offices and meeting places copies of the attached notice marked "Appendix B "" Copies of said notice, to be furnished by the Regional Director for Region 29 shall, after being duly signed by an official representative of Local 806, be posted by said Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members of Local 806 are customarily posted. Reasonable steps shall be taken by Local 806 to ensure that said notices are not altered, defaced or covered by any other material. (d) Furnish to the Regional Director for Region 29 signed copies of said notice for posting by Centac, if willing, in places where notices to its employees are customarily posted Copies of said notice, to be furnished by the Regional Director, shall, after being signed by an official representative of Local 806, be forthwith returned to the Regional Director for disposition by him (e) Notify the Regional Director for Region 29 in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps 8 Respondent has taken to comply herewith." IT IS ALSO RECOMMENDED that the Board dismiss the allegation in the Complaint that Respondent Centac illegally refused to bargain with Local 7 19. "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 29, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " WE WILL withdraw and withhold recognition from Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America unless and until it is certified by the National Labor Relations Board WE WILL NOT permit IBT Local 806 to hold meetings with employees or recruit members in our plant during working hours WE WILL NOT apply to our employees Local 806's agreement with Century Facilities, Inc. WE WILL NOT discharge or discriminate against you in any other way because you are not members of Local 806 or because you join or assist Production, Distribution and Maintenance Employees Union, Local 719, or any other labor organization WE WILL NOT threaten to discharge you because you do not join Local 806 WE WILL NOT contribute support to IBT Local 806 in any other manner. WE WILL NOT in any similar manner restrain or coerce you in the exercise of your right to self-organization, to bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights might be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act LOCAL 806, INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535 APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 806, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA APPENDIX A Pursuant to the Recommended Order of a Trial NOTICE TO ALL EMPLOYEES Examiner of the National Labor Relations Board and in olicies of the National Labor order to effectuate the Pursuant to the Recommended Order of a Trial Re Examiner of the National Labor Relations Board and in p lations Act, as amended, we hereby notify you that- WE WILL make whole Douglas Flynn, Albert order to effectuate the policies of the National Labor Hattem, and Martin Shatz for any loss of earnings they Relations Act, as amended, we hereby notify our suffered as a result of their discharge by Centac Corp. employees that- on October 7 and 9, 1968 WE WILL make whole Douglas Flynn, Albert WE WILL notify Centac, Flynn, Hattem and Shatz Hattem, and Martin Shatz for any loss of earnings they that we do not object to Centac's employing these may have suffered as a result of their discharge. employees CENTAC CORP. 325 WE WILL NOT act as exclusive bargaining representative of any employees of Centac unless and until we are certified by the National Labor Relations Board. WE WILL NOT attempt to enforce or apply with respect to Centac employees our contract with Century Facilities, Inc. WE WILL NOT attempt to cause Centac to discharge or refuse to employ any employees because they refuse to join our union or because they join, remain members of, or assist Production, Distribution and Maintenance Employees Union, Local 719. WE WILL NOT threaten to cause Centac to discharge employees or threaten employees of Centac with bodily injury or other reprisals to compel them to join Local 806 or to refuse to assist, join or remain members of Local 719 WE WILL NOT in any other manner restrain or coerce employees of Centac in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights might be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act Dated By CENTAC CORP. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535.