A & P Iron Works, Inc.

A & P IRON WORKS, INC. 291 A & P Iron Works, Inc. and A & P Iron and Railing Corp. and Shopmen's Local Union No. 455, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO and Local No. 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 29-CA-1164-1, -2 October 23, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 4, 1969, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that certain other unfair labor practices alleged in the complaint were not properly included therein and should be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 that 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. The Respondents, a single employer for purposes of the Act, were alleged, inter alia , to have violated Section 8(a)(1), (2), and (3) of the Act during the period of July-September 1967, by unlawfully assisting Teamsters Local 819 in gaining representative status among Respondents' employees and by thereafter entering into a collective-bargaining agreement, containing a union-security clause, with Local 819. The Trial Examiner found that these violations occurred as alleged and recommended that Respondents be ordered to withdraw recognition from Local 819 and cease giving effect to the bargaining agreement. The Respondents have not excepted to these findings and recommendations, and we shall adopt them. The complaint also alleged that, by withdrawing recognition from the incumbent representative, Shopmen's Local Union No. 455, during this same period, the Respondents violated Section 8(a)(5), the provision which requires employers to bargain collectively with the representative of their employees. In considering this portion of the complaint, the Trial Examiner concluded that Section 10(b) of the Act' applied so as to prohibit inclusion of an 8(a)(5) allegation in the complaint. The grounds for the Trial Examiner's decision on this point will be described in more detail below. The General Counsel has excepted to the Trial Examiner' s ruling that Section 10(b) precludes a finding of an 8(a)(5) violation, and he urges that, in any event, Respondents should be ordered to bargain with Local 455 on the basis of the other violations here found. We shall set out the relevant facts briefly, and then deal with the issues of law. A & P Iron Works, Inc., manufactures and sells structural iron, steel, and related products. A & P Railing Corp. manufactures and sells ornamental iron railings and related products. As previously noted, Respondents constitute a single integrated business enterprise. Since 1959, Iron Workers Local 455 has been the exclusive bargaining representative in separate, admittedly appropriate, production and maintenance units at each Respondent. Iron Works' unit is composed of about five employees, and Railing's of about 20 employees. Local 455's last contracts covering the above employees expired on June 30, 1967, on which date Local 455 struck Respondents and approximately 200 other companies in the industry. Although the industrywide strike lasted until October, Respondents' employees began to abandon it early on, so that most had returned by the end of the second week. Some returned in response to calls from Arthur Wile, who had been shop steward for 455 at Railing for several years, and Thomas Thompson, who was the shop steward at Iron Works. On July 11, Wile and Thompson initiated the signing of an anti-455 petition. Wile used the services of an office employee to type the petition, which stated that" ...the undersigned .. . no longer wish to be represented by Iron Workers Local UnionNo. 455 in any collective bargaining." The petition was left on a table in the shop and a majority of the employees in the two units signed it on July 11. According to the testimony of Respondents' Vice President Forelli, Wile then showed him the document and Forelli told Wile to get in touch with the Board office and find out what to do with it. Forelli denied knowing anything about the origin of the petition, other than admitting that he "felt" something was going on in the shop. On July 12, Forelli drove Wile and Thompson to the Board's Brooklyn office where the latter two filed decertification petitions, and Forelli filed a refusal-to-bargain charge against Local 455. By Friday, July 14, approximately 19 of the 25 or 26 employees in the two units had returned to work, and the strike was effectively abandoned. 'Section 10(b) states, in part - [N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board 179 NLRB No. 50 29 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Monday, July 17, Forelli posted a notice on the bulletin board to the effect that Arthur Wile had been made a foreman. The evidence supports a finding that Wile thereupon became empowered to, and did, exercise supervisory powers, and, furthermore, that Respondent held Wile out to the other employees as possessing supervisory status. On this same day, Arthur Wile placed authorization cards for Teamsters Local 819 on a desk in the shop and told a number of employees that the cards were there and they could "do what they wanted" with them. About 20 employees, which constituted a majority of the unit, signed cards; these were turned over to Marvin Hafter, business agent for Local 819. Some of these cards were returned to Hafter by Wile.: On July 18, the incumbent Local 455 filed a petition for certification in the two units, and also filed charges of 8(a)(1), (2), and (5) against the Respondents, alleging a refusal to bargain in good faith based on the Employer's alleged efforts to bring in Local 819 and oust Local 455. On July 19, Local 819 filed petitions for certification based on the signed authorization cards. On July 27, the employees met with Local 455. There is testimony in the record that, at this meeting, the employees expressed dissatisfaction about 455's handling of the strike issues; agreed to form a separate committee for bargaining with Respondents, the employees to have the final say as to the terms of any proposed contract; and expressed a desire to remain with Local 455 and to withdraw their decertification petitions. There is contrary testimony as to the latter issue, to the effect that the employees did not express a desire to remain in 455, but the Trial Examiner does not discuss the conflict in testimony. The following day, July 28, Local 819 held a similar meeting which a number of the employees attended, but about which the record sheds no light. On September 12, the Regional Director suggested to Local 455 that it withdraw its 8(a)(1), (2), and (5) charges. The Union withdrew all the charges. On September 15, the Regional Director consolidated the cases concerning the petitions for certification filed by 819 and the decertification petitions filed against 455. On September 20, requests by the parties to withdraw the four petitions were granted by the Regional Director. Local 819 contended to the Trial Examiner that it withdrew its petitions for certification in reliance on the Regional Director's action in finding Local 455's 8(a)(5) charge to be unsubstantiated. On September 22, following a strike of a few hours, Local 819 was recognized by Respondents on The Trial Examiner found that the conduct of Forelli and Wile on July I I and 12, and the action of Wile on July 17, constituted violations of Section 8(a)(2) The Respondent has not excepted to these findings, and we adopt them pro forma the basis of the aforementioned authorization cards. Local 819 and Respondents entered into a bargaining agreement on the same day. On November 29, 1967, having previously withdrawn the 8(a)(1), (2), and (5) charges which it had filed on July 18, Local 455 again filed charges, this time alleging violations of 8(a)(1), (2), (3), and (5). The 8(a)(5) charge alleged that the refusal to bargain consisted of bargaining and signing a contract with Local 819 in September "while there was a valid outstanding claim of representation by Local 455." The charge also alleged that Respondents had, by coercion and promises, caused their employees to join Local 819. On the basis of this charge, the Regional Director, on February 28, 1968, issued a Consolidated Complaint, but it included only the 8(a)(l), (2), and (3) charges. The Regional Director recommended that Local 455 withdraw the 8(a)(5) charge, and this was done. Respondents filed an answer to the complaint. On May 13, 1968, after expiration of the 10(b) period running from the signing of the September contract, the 8(a)(5) charge was reinstated by Local 455 on the Regional Director's recommendation that 455 rescind its February 1968 withdrawal of its November 1967 8(a)(5) charge. On May 22, the Regional Director issued an Order Rescinding Approval of Request for Partial Withdrawl of Charges, which in effect reinstated the charge as originally filed on November 29. He further issued an Amended Consolidated Complaint which added the now-approved 8(a)(5) allegation to the aforementioned Consolidated Complaint. As indicated, the Trial Examiner found that Respondent violated 8(a)(1), (2), and (3), based upon Wile's efforts on behalf of Local 819, and upon the union-security contract entered into with an assisted union. However, he dismissed the 8(a)(5) allegation on the ground that it was based on a charge filed outside of the 10(b) period. In addition, the Trial Examiner, while finding that the aforementioned 8(a)(5) finding was closely related to the 8(a)(2) activities, refused to issue a bargaining order as a remedy for the 8(a)(2) violations, on the ground that doing so would circumvent Section 10(b) and unduly harass Respondents In the Trial Examiner's view, once the November 1967 8(a)(5) charge was withdrawn in February 1968, it could not be later reinstated at a date outside of the 10(b) period (which ended in March 1968) without a showing of equitable considerations favoring such reinstatement, citing Silver Bakery Inc. of Newton, 150 NLRB 441, revd. 351 F.2d 37 (C.A. 1), and Koppers Company, Inc, 163 NLRB No. 64 Finding that no such equities were present in this case, the Trial Examiner ruled that Section 10(b) required the exclusion of the 8(a)(5) allegation of the complaint. The General Counsel contends to the Board that the Section 8(a)(5) allegation may be included in the complaint because the alleged failure to bargain in A & P IRON WORKS, INC. good faith is "closely related" to the Section 8(a)(2) charge which was filed in November 1967, within the 10(b) period, and never withdrawn by Local 455. He maintains that the fact that the 8(a)(5) charge was "initially alleged, then withdrawn, then reinstated," in the words of the Trial Examiner, did not prejudice the Respondents and is not material in a situation in which related charges were timely filed and continuously pending thereafter. Cf. N.L.R B. v. Dinion Coil Company, Inc., 201 F.2d 484 (C.A. 2), N.L R B v Pecheur Lozenge Co., Inc , 209 F.2d 393 (C.A. 2) The General Counsel argues further, citing H.L H Products, 164 NLRB No. 61, enfd. 396 F.2d 270 (C.A. 7), that even if Section 10(b) proscribed the finding of an 8(a)(5) violation, a bargaining order running to Local 455 would nonetheless be justified here, in order to remedy the 8(a)(2) violations committed by the Respondents. After reviewing all the evidence of record, however, we have concluded that a determination of the 10(b) issue would serve no useful purpose in this case, for we do not believe that a bargaining order would be an appropriate remedy on these facts. We note the following evidence: (1) that on July 11, a majority of Respondents' employees signed a petition stating that they no longer desired the incumbent Local 455 to bargain for them, and that although Respondents, through Wile, at that time not yet elevated to supervisory status, may have lent some technically unlawful assistance in the preparation of this petition, there is no indication in the record that any of the employees who signed were aware of such assistance or were otherwise coerced into signing; (2) that by July 14, most of Respondents' employees had abandoned Local 455's strike, which persisted throughout the industry until October; and (3) that the employees appear to have been uniformly dissatisfied with the manner in which Local 455 had been representing them, to a point where that Union, on July 27, offered to allow Respondents' employees to form their own negotiating committee with ultimate authority over contractual terms. These facts indicate both that Respondents had an objective basis for doubting the continued allegiance of their employees to Local 455 in July 1967, and that the presumption of majority status arising from Local 455's status as the incumbent bargaining representative has been effectively rebutted. Frito-La v, Inc, 151 NLRB 28; cf. Laystrom Manufacturing Co., 151 NLRB 1482. In these circumstances, there is no warrant for finding a violation of Section 8(a)(5) or for issuing a bargaining order to remedy other unfair labor practices. We shall, however, as noted, adopt pro forma the Trial Examiner's recommendations with respect to the violations of Section 8(a)(1), (2), and (3), and we shall order that Respondents comply with his Recommended Order. ORDER Pursuant to Section 10(c) of the National Labor 293 Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondents, A & P Iron Works, Inc., and A & P Iron and Railing Corp., Copiague, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Delete the period at the end of paragraph l(b) of the Trial Examiner's Recommended Order and add to said paragraph the following- ; provided, however, that nothing herein shall require the Respondents to vary or abandon any wages, hours, or other substantive features of their relations with their employees which have been established in such contract, or to prejudice the assertion by employees of any rights they may have thereunder " TRIAL EXAMINER'S DECISION Statement of the Case HORACE A RUCKEL, Trial Examiner On July 18, 1967, Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called Local 455, filed an unfair labor practice charge (Case 29-CA-1053) against A & P Iron Works, Inc, and A & P Railing Corporation, herein jointly called the Respondent, alleging violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C Sec. 151, et seq ), herein called the Act. Simultaneously, Local 455 filed a representation petition (Case 29-RC-822). After investigation by the Regional Director for Region 29, no complaint was issued against Respondent Instead, on September 12, 1967, Local 455 requested and the Regional Director granted, withdrawal in its entirety of the charge in Case 29-CA-1053, and the petition in Case 29-RC-822 Concurrently, Respondent withdrew an unfair labor practice charge (Case 29-CB-379-I-2) which it had filed on July 12, 1967, a week prior to the filing of Local 455's charge in Case 29-CA-1053 Thereafter, until November 29, 1967, there was no pending charge of unfair labor practice affecting Respondent. On that date Local 455 filed another charge against Respondent alleging violation of Section 8(a)(1), (2), (3), and (5) of the Act, the last based on the same activities set forth in the 8(a)(5) charge previously filed and withdrawn, but including the signing of a contract on September 22, 1967. Specifically, the charge asserted that the Respondent signed a collective-bargaining contract with Local 819, the party to the contract in the instant case, while there was a "valid claim of representation by Shopmen's Local Union No 455 " After investigation of this charge, the Regional Office on February 26, 1968, approved another Withdrawal Request from Local 455, this time solely of the 8(a)(5) portion of the charge (Case 29-CA-1164, -1, -2). Thus the original consolidated complaint which had issued on February 28, 1968, alleged only violation of 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1), (2), and (3) of the Act. Respondent filed its answer and issue was joined Before proceeding to trial, however, Local 455 on May 13, after the 10(b) period, filed a first amended charge (in each of the two cases) which restated in identical language the 8(a)(5) allegation whose withdrawal the Regional Director had approved the previous February 26 Accordingly, on May 22 the Regional Director issued an Order Rescinding Approval of Request for Partial Withdrawal of Charges This, it is contended, serves to reinstate the 8(a)(5) charge of failure to bargain withdrawn on February 29. This Order was issued "by the undersigned (the Regional Director), upon review of the evidence"' following which he concluded that "a violation of Section 8(a)(5) occurred and that a complaint thereon was warranted." Accordingly, the amended consolidated complaint was issued The hearing before me on the amended consolidated complaint, dated May 22, 1968, now including an 8(a)(5) allegation (whether based upon the first amended charge of May 13, 1968, or the original 8(a)(5) charge filed on November 29, 1967, withdrawn on February 26, and the withdrawal "rescinded" on May 22, is not clear),' was held at Brooklyn, New York,'from June 24 to July 2, 1968, at which all parties were represented by counsel and participated in the hearing. At the conclusion of the hearing the parties argued orally The General Counsel has filed a timely brief. Upon the entire record of the case and my observation of the witnesses, I make the following. FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent A & P Iron Works, Inc , is a New York corporation maintaining its principal office and plant at 20 Marconi Boulevard in Copiague, New York, where it is engaged in the manufacture and sale of structural iron and steel and related products During the year preceding the issuance of the Amended Consolidated Complaint it purchased and transported to its plant, iron and steel and other materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were The Order does not allege newly discovered evidence The evidence reviewed , pertaining to the Respondent 's alleged failure to bargain, resulted in the specific 8(a)(5) allegations in the original complaint , with the added allegation of signing a contract with Local 819 , which was done on September 22 These activities, including the signing of the contract, were known to Local 455, to Local 819, to the Respondent, to the employees, and to the Regional Office when it issued the complaint of February 28, and when the withdrawl of the 8(a)(5) charge was approved by the Regional Director 'During oral argument counsel for the General Counsel characterized the First Amended Charge as "surplusage " Nevertheless, upon filing of the charge the Regional Director advised Respondent of its filing , stated that he was investigating the matter, and asked Respondent to "state [its] position with respect to the allegations of the amended charge," and to "submit all documents, records , memoranda, affidavits, etc , which support [its] position " It seems apparent that misgivings arose as to whether this charge, setting forth matters occurring more than 6 months prior to its filing, would support a complaint , since shortly thereafter, on May 22, the Regional Director, as has been found , "rescinded" his action of the previous September approving Local 455's withdrawal of its original charge of refusal to bargain Though invited to do so, counsel for the General Counsel failed at any time to state whether he was proceeding on the alleged 8(a)(5) violation pursuant to the amendment to the original consolidated complaint based upon the original charge, or upon the amended consolidated complaint dated May 22, 1968, and based, so far as the alleged 8(a)(5) violation is concerned , upon the first amended charge dated May 13, 1968 transported to its plant in interstate commerce directly from States of the United States other than the State of New York Respondent Railing Corp. is a New York corporation having its office and plant at 1104 Marconi Boulevard in Copiague, New York, where it is engaged in the manufacture and sale of ornamental iron railings and related products During the year preceding the Amended Consolidated Complaint it purchased and transported to its plant iron and steel and other materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported in interstate commerce from States of the United States other than the State of New York Respondent Iron Works, Inc., and Respondent Railing Corp are affiliated businesses ' with common officers, ownership, and directors, and constitute a single integrated business enterprise, with a common labor policy II THE LABOR ORGANIZATIONS INVOLVED Local 455 and Local 819, herein designated as Party to the Contract, are labor organizations admitting employees of Respondent to membership. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background From about 1959 Local 455 has been the collective-bargaining representative in two units, both admittedly appropriate, namely the production and maintenance employees at Iron Works and at Railing, and has entered into successive, separate union shop contracts with the Respondent Iron Works, at times material herein, had 5 employees in the appropriate unit, and Railing 20 Local 455's last contract with Respondent expired on June 30, 1967, at which time Local 455 called a strike against Respondent and all other employers in the industry with whom it had contracts similarly expiring, covering 4-5,000 employees in more than 200 shops Respondent's employees accordingly ceased work B. Respondent's Assistance to Local 819 I The status of Arthur Wile, and his activities Wile had for 12 years prior to the hearing been employed as a finisher at Railing and for several years prior to the strike was shop steward for Local 455, as was Thomas Thompson, a mechanic, for the unit employees at Iron Works The record shows that for some time previous to July 17, 1967, Clyde Wile, Arthur Wile's brother, had been shop foreman while Arthur Wile worked as a finisher The "working foreman" under Clyde Wile was one Dick Penny. On July 17, it is conceded that a notice was posted on the bulletin board by Andrew Forelli, Respondent's vice president, stating that Arthur Wile was as of that date a foreman. Clyde Wile was transferred to the sales department, where he spent half of his time, though he continued to work the other half as shop foreman, according to Forelli's credited testimony From the beginning of the strike various of Respondent's employees abandoned it and returned to work, so that all had returned by the end of the second week, although the industrywide strike continued until the A & P IRON WORKS, INC. following October. The return of these employees was accompanied by telephone calls to some of the strikers by Wile and Thomas, suggesting that they should come back to work. On July 11, Wile used the services of one of the clerical employees to type a "petition" to the Board's Regional Office, in the following style. We, the undersigned, who are employed by A & P Iron & Railing Corp. no longer wish to be represented by Iron Workers Local Union No 455, in any collective bargaining. Wile left a copy of this document on a table in the shop, and on the same day 16 employees in the unit signed it I find that supervision knew of these activities and did nothing to discourage them. On the following day, July 12, Wile and Thomas, together with Forelli, drove 60 miles in the latter's car to the Board's Regional Office in Brooklyn where Wile and Thomas filed petitions to decertify Local 455 at Respondent's two plants, and Forelli filed a charge of unfair labor practices (refusal to bargain) against Local 455 Later, the three drove back to the plant. On the following Monday, July 17, the day that Respondent posted the notice announcing that Arthur Wile had been made a foreman, Wile placed application cards for membership in Local 819 on a desk in the shop, and told several of the employees that they were there and that they could do what they wanted with them Twenty employees, a majority in the unit, signed these cards, and they were turned over to Marvin Haftner, business agent for Local 819' On July 19, Local 819 filed petitions with the Regional Office for certification of Local 819, using these cards as the basis for the petitions. About the first week in August a meeting of the employees was held at which both Haftner and Forelli were present Various questions were asked concerning the situation following the expiration of the contract with Local 455 One allegation of the complaint is that Forelli on this occasion promised the employees medical and hospitalization insurance to induce them to abandon Local 455 and support Local 819 This turns out to have been a question put to Forelli by an employee as to what would happen to the existing insurance program, if Local 819 got a contract, and a reply by Forelli that the coverage under any other insurance policy would be "the same as what we had with 455, if not just a little better." I find that under the circumstances this did not constitute interference, restraint, or coercion in violation of Section 8(a)(1) of the Act There is no evidence in this record of any other violation of Section 8(a)(1). On September 15, 1967, the Regional Director, pursuant to the decertification petitions filed by Wile, and the two certification petitions filed by Local 819, issued an order consolidating the cases for hearing, and scheduled them for hearing September 21 On September 20, however, the Regional Director cancelled the hearing and granted requests for the withdrawal of the two certification petitions filed by Local 819, and the two decertification petitions filed by Wile pertaining to Local 455. On September 22, 1967, Local 819, when there was no charge of unfair labor practices and no representation petition pending, and following a short strike called by Local 819, submitted its 20 cards to Respondent and 'Haftner's testimony is that Local 819 first began the distribution of cards to Respondent's employees during the first 2 weeks in July, after the beginning of the strike 295 requested recognition Respondent, after checking the cards against its payroll, granted it On the same day a contract between the parties including a union-shop provision and checkoff of dues,' was executed 2. Conclusions as to Arthur Wile's Employment Status and Respondent's Assistance to Local 819 Concededly, Arthur Wile was named a foreman, and a notice to that effect posted on July 17, 1967, by Respondent. For some time prior thereto he had been performing some supervisory functions as a "working" foreman Regardless of the extent of his authority as a working foreman, or as a foreman after July 17, it seems clear that he was regarded by the other employees as having supervisory status. However, the finding which I make attributing to Respondent responsibility for his activities does not rest solely upon his role as a supervisory employee It is not disputed that he was permitted by management, both prior to and following his formal designation as "foreman," to encourage and assist the efforts of Local 819 to supplant Local 455 as the bargaining representative of the employees in the appropriate unit The petition drafted by him for submission to the Board's Regional Office was typed by one of Respondent's clerical force on a company typewriter and placed by Wile in a conspicuous place in the shop for signing by employees Admittedly, Forelli observed it and told Wile to get in touch with the Board's Office and find out what to do with it. As a result, Wile filed the petition, and shortly thereafter a petition for decertification at Railing of Local 455, at the same time Thomas, Wile's counterpart, filed a similar petition to decertify Local 455 at Iron Works. Wile and Thomas were driven by Forelli to the Board's office in Brooklyn, where Forelli, on behalf of Respondent, filed a charge of unfair labor practices against Local 455 while Wile and Thomas filed their decertification petitions against Local 455 Shortly thereafter Wile was made "foreman" and both he and Thomas continued as shop stewards, but now for Local 819 instead of Local 455 In view of the above facts I find that Respondent rendered assistance and support to Local 819 in violation of Section 8(a)(2) of the Act. C Alleged Refusal to Bargain 1. The 6-month statute of limitations Section 10(b) of the Act having to do with the issuance of a complaint following the filing of charges of unfair labor practices, contains the following proviso Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months before the filing of the charge with the Board . unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces . As has been found, the original charges of unfair labor practices consisted of alleged violations of Section 8(a)(1), (2), (3), and (5) of the Act. The alleged refusal to bargain was said to consist of Respondent's negotiating with Local 819, beginning in July 1967, after the expiration of the charging party's (Local 455) contract with Respondent, and during negotiations for a new contract. This came to 'Similar provisions had been included in the previous contracts with Local 455 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the attention of the Regional Director by reason of the charges filed on July 18, 1967. This case was given the number 29-CA-1053. It is not in dispute that these charges were filed within a 6-month period following the commission of the alleged unfair labor practices, including the alleged refusal to bargain with Local 455 In accordance with the provisions of the Act and the Board's Rules and Regulations, the Regional Office investigated these charges and found them to be without sufficient substance to warrant the issuance of a complaint Consequently, Local 455, on September 12, 1967, asked to withdraw these charges in their entirety, and the Regional Director, on the same date, complied The 8(a)(5) charge, as well as the other charges, were out. The charges in the case at bar (29-CA-1164-1-2) were filed by Local 455 on November 29, 1967 They reiterated precisely the charges previously withdrawn, alleging violations of Section 8(a)(1), (2), (3), and (5) of the Act These charges, too, were filed within the 6-month statute of limitations. The events said to constitute a failure to bargain and illegal assistance to Local 819 (bargaining with Local 819, and signing a contract), occurred during the month of September 1967 The 8(a)(5) charge was in again for the second time. The Regional Director investigated the charges This time he issued a complaint entitled "Consolidated Complaint," in the instant cases (29-CA-1164-1-2), dated February 28, 1968, alleging violations of Section 8(a)(1), (2), and (3) of the Act. Section 8(a)(5) was not included in the complaint because, as the Consolidated Complaint recites, the Regional Office, after investigation, recommended to the charging party the "partial withdrawal" of its charges, namely the charge of refusal to bargain. The charging party complied. The 8(a)(5) charge was out again. The complaint as then issued alleged only violation of Section 8(a)(1), (2), and (3) of the Act Answers were filed and issues joined Before proceeding to trial, however, the Regional Director recommended that another charge be filed, to include a violation of Section 8(a)(5) This was filed on May 13, 1968, and on May 22 the Regional Director issued an "Order Rescinding" his approval of requests for the previous withdrawal of the 8(a)(5) charge. The charge was in again On the basis of this Order the Regional Director issued the Amended Consolidated Complaint dated May 22, 1968 The 8(a)(5) charge was in again, but the statute of limitation imposed by Section 10(b), had, it would seem, expired It must be remembered that the content of these several charges of refusal to bargain is identical, namely negotiation of a contract with Local 819 at a time when Local 455 was seeking a renewal of its own contract I have found that Respondent assisted Local 819 in obtaining the membership application cards upon which the recognition of Local 819 was based, in violation of Section 8(a) (2) of the Act It is additionally contended by the General Counsel that Respondent acted in violation of Section 8(a)(5) of the Act Respondent and Local 819, on the other hand, contend that the Board is barred from making such a finding because the charges on which the amended consolidated complaint is based were filed, as to the 8(a)(5) matter, more than 6 months after negotiations with Local 819 had been concluded and a contract signed, facts known to all parties since September 22, 1967, and for some time previously The charges of refusal to bargain, upon which the 8(a)(5) section of the complaint were issued, to come within the 6-month statute of limitations period, would have had to be filed by March 22, 1968 They were not filed until May 13, when the Consolidated Complaint became the amended consolidated complaint, and issue joined. Respondent moves that this section of the complaint should therefore be dismissed The General Counsel, although conceding this continuum, points out that although the Regional Director dismissed the 8(a)(5) charge of refusal to bargain, and then "rescinded" this dismissal, both more than 6 months after the alleged refusal to bargain, timely filed charges of 8(a)(l), (2), and (3) remained. Hence the limitation imposed by Section 10(b) is not applicable, and the rehabilitation of Section 8(a)(5) of the charge is legitimized According to the General Counsel so long as any timely filed charge of violation of any section of the Act is on file in a Regional Office, a complaint concerning any or all sections of the Act may be filed According to this theory, if the sole extant charge is, for example, an interrogation by a supervisor of an employee's interest in a union, this is sufficient foundation for the subsequent erection of the entire edifice of Section 8(a)(2), (3), (4), and (5) charges at any time in the future and no matter how unrelated it may be to the 8(a)(1) charge on file. The General Counsel offers in support of this contention Silver Bakery, Inc of Newton,' asserting during oral argument that this case is "the last word in this matter," and that "if there are equitable considerations present' and if a charge timely filed is totally withdrawn, it may be refiled or reopened effectively and viably to support a complaint." The "last word," in Silver Bakery, however, was spoken by the Court, which reversed the Board, saying that Section 10(b) is an ordinary statute of limitations, and that the "Board's broad proposition that once a complaint has been filed and dismissed only so-called equitable principles determine when it can be revived" was "created out of whole cloth " The court cited N L R B v. Electric Furnace Co , 329 F 2d 373; and Olin Industries, Inc , 97 NLRB 130 It went on to say that the Board has no "roving discretion to determine that so-called equities warrant the reinstitution of the proceedings without limit of time." But Trial Examiners follow Board, not court, decisions, until the Supreme Court speaks. The board declares that in Silver Bakery "The General Counsel acting in the public interest - has virtually unlimited discretion to proceed on charges as he deems fit in the exercise of his office And there is nothing in the Act limiting his authority to issue a complaint, once a charge is filed " It is upon this language that the General Counsel bases his contention, previously quoted The General Counsel, however, qualifies his position by adding "If there are equitable considerations," as does the Board which speaks of "the equities of the case " The charging party in Silver Bakery was the victim of an administrative foul-up, and was prejudiced in finding a forum and a remedy through no fault of his own and in spite of his best efforts '351 F 2d 37, (C A I), reversing 150 NLRB 441 'In the Silver Bakery case the Charging Party filed a charge which the Regional Office , after investigation, dismissed without prejudice for lack of jurisdiction because the employer's business did not meet the Board's commerce standards Thereupon the aggrieved employee filed a charge with the Massachusetts State Labor Relations Commission Subsequently, evidence turned up showing that the employer's business did meet the Board's standards, and the Massachusetts Commission granted a motion to dismiss the proceedings on the grounds that the Commission had no jurisdiction and that the Board did have The Regional Director reinstated the charges and reopened the case This was done 7 months after the alleged commission of unfair labor practices A & P IRON WORKS, INC. There is no such situation in the case at bar. There are here no "equities" on the side of the charging party. The Regional Office on three different occasions, at the instance of Local 455, investigated the facts It dismissed the first case, including a charge of a failure to bargain (29-CA-1053), in its entirety When the charges in the case at bar were filed, the Regional Director again investigated them and granted an order permitting Local 455 to withdraw the 8(a)(5) charge, and issued a complaint omitting this allegation. Finally, the Regional Director attempted to "rescind" this action, and to "reinstate" the refusal to bargain issue - but after the statute of limitation had run There is no showing of hardship here, at least on the part of the charging party, or any claim of newly discovered evidence. During this entire period Respondent was negotiating with Local 819, a fact known to all the parties. It is here, in my opinion, that this case is to be distinguished from Silver Bakery The General Counsel has not demonstrated what equities should, under Silver Bakery, allow the reinstatement of this particular 8(a)(5) As I read the Board's decision in Silver Bakery, it is narrowly drawn so that the equity of the situation is the controlling factor in Koppers Company, Inc (163 NLRB No. 64), the charging parties filed a charge which was served on December 22, 1964, making the Respondents liable for activities occurring after July 22, 1964, but freeing them from acts preceding that date On January 27, 1965, however, the Regional Director approved the withdrawal of the charge, but reinstated it on May 28, 1965. The Board held that on January 27, or any date thereafter, the Respondents "had the right under the statute to be assured that they would not be held liable for activities occurring more than six months past," and that "to permit the May 28 reinstatement of the December 22 charge to revive the Respondent Union's liability would amount to a circumvention of the proviso to Section 10(b)," citing Olin Industries, supra If this reasoning can be applied to assure a party that "on my given day his liability under the Act is extinguished for any activities occurring more than six months prior thereto" when the entire charge is withdrawn, would not the same principles apply when there is only a partial withdrawal of the charge as relates solely to the part withdrawn9 Thus, in the case at bar, when 6 months from the September date of the alleged refusal to bargain there was no 8(a)(5) on file, was not Respondent's liability extinguished for these 8(a)(5) activities occurring more than 6 months prior9 The cases cited by the General Counsel (except for Silver Bakery where certain "equities" existed) are not concerned with the reinstatement of a charge after the 10(b) period, but rather with the later inclusion of a violation that was not previously alleged in the charge In the case at bar the 8(a)(5) was initially alleged, then withdrawn, then reinstated, a situation not present in Silver Bakery and one which serves to fortify the observation by the Court that the mere filing of a charge which is withdrawn . . . so that no proceedings are pending,"' should not confer "a roving discretion . to reinstate proceedings without limit of time " 'The General Counsel selects out this phrase from the Court 's decision, and says that this means that if something were pending before the Board the court would reach a different conclusion I read it only as a simple statement of the facts of the case To infer more is to engage in sheer speculation 297 It is noted further that in Silver Bakery, as the Board pointed out, the Regional Director when he approved the withdrawal of the charges stated that he did so "without prejudice " In the case at bar the Regional Director, when he granted Local 455's request to withdraw the 8(a)(5) portion of the charge on which the complaint here issued, did not state that he did so without prejudice The conclusion is that approval was with prejudice The effect of the words, "without prejudice" is to prevent the dismissal from operating as a bar to a subsequent suit on the same state of facts. When the dismissal is silent on the subject I take it that the dismissal is with prejudice, unless, perhaps, in the meantime equities have built up which indicate that the matter should be considered on its merits As has been seen, the Board in Silver Bakery emphasized the equities of the matter together with the fact that prior dismissal had been "without prejudice," using them on February 25, 1967 in this case when approving Local 455's request to dismiss the 8(a)(5) portion of its charge Conclusions I conclude that the 8(a)(5) allegations of the complaint are not properly before me because the charge upon which that part of the complaint is based was not properly filed within 6 months of the completion of the contract negotiations upon which the charge is founded I shall recommend that the complaint in that respect be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY I have found that the Respondent recognized Local 8 19 and entered into an agreement with it on October 1, 1967, during the pendency of a question of representation, and that by such conduct Respondent has interfered with, restrained and coerced its employees in the exercise of their right freely to select their own bargaining representative and has accorded unlawful assistance to Local 819 in violation of Section 8(a)(2) and (1) of the Act. In order to dissipate the effect of the unfair labor practices, I shall recommend that Respondent withdraw and withhold all recognition from Local 819, and to cease giving effect to the aforementioned agreement, or to any renewal, modification or extension thereof, until such time as Local 819 has been certified by the Board as the exclusive representative of the employees in question Nothing herein shall, however, be construed to require that Respondent vary or abandon any existing term or condition of employment.' 'It is apparent that the 8 (a)(5) matter here is closely related to the 8(a)(2) activities which I have found violated that section of the Act There is authority for recommending an 8(a)(5) remedy, that is that Respondent bargain with Local 455, to restore the status quo existing before the strike I make no such recommendation here since to do so in the circumstances 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because of the narrow scope of the unfair labor practices found herein, I shall recommend a narrow cease and desist order Upon the basis of the foregoing factual findings and conclusions, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW I Respondents A & P Iron Works, Inc , and A & P Iron and Railing Corp are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Local 455 and Local 819 are labor organizations within the meaning of Section 2(5) of the Act 3 Respondents' production and maintenance employees, including finishers, mechanics, experienced shop helpers, inexperienced shop helpers and apprentices, exclusive of office clerical employees, salesmen, guards, professional employees and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 4. A question concerning representation existed among Respondents' employees during the period from June l to September 22, 1967, when Respondents signed the agreement with Local 819 5 By recognizing and entering into a contract with Local 819, while there was pending a question concerning representation, and by enforcing and maintaining such contract, which contained a union-security clause, Respondents engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that A & P Iron Works, Inc , and A & P Iron and Railing Corp , its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Recognizing or contracting with Local No 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any successor thereto, as the statutory representative of Respondents' employees until such labor organization shall have been certified by the Board (b) Enforcing or maintaining its collective-bargaining contract with Local 819, entered into on or about September 22, 1967, or any modification, extension, supplement, or renewal thereof unless and until said labor organization shall have been certified by the Board as the exclusive representative of Respondents' employees (c) In any like or related manner interfering with, restraining, or coercing Respondents' employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act of this case , including the repeated filing, withdrawing , refiling, reinstating, and amending of the charges, would amount to a circumvention of the 6-month statute of limitations and an harassment of the Respondents (a) Withdraw and withhold all recognition from Local No 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any successor thereto, and cease giving effect to its contract with Local 819, unless and until such labor organization shall have been certified by the Board as the statutory representative of the Respondents' employees in the appropriate unit. (b) Post at appropriate places in Respondents' plants, copies of the attached notice marked "Appendix "9 Copies of said notice, to be furnished by the Regional Director for Region 29, shall, after being signed by Respondents' representative, be posted by Respondents immediately upon receipt thereof and maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Recommended Order, what steps Respondents have taken to comply herewith 10 IT IS RECOMMENDED that the allegations in the complaint alleging a violation of Section 8(a)(5) of the Act be dismissed IT IS FURTHER RECOMMENDED that unless on or before 20 days from the receipt of this Decision and Recommended Order, Respondents notify the Regional Director that they will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring Respondents to take the action aforesaid 'In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be 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 be adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES 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 discourage membership in Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization by discriminating as to the hire, tenure, or other terms or conditions of employment of any of our employees. WE WILL withdraw and withhold all recognition from Local No 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of our employees, and WE WILL NOT enforce the contract entered into with such union on or about September 22, 1967, unless and until such union is certified by the National Labor Relations Board as the exclusive A & P IRON WORKS, INC. 299 bargaining representative of our employees Dated By WE WILL NOT In any like or related manner interfere (Representative) (Title) with the rights of our employees as guaranteed by Section 7 of the Act This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, A & P IRON WORKS, INC defaced, or covered by any other material AND If employees have any question concerning this notice or compliance with its provisions, they may communicate A & P IRON AND RAILING directly with the Board's Regional Office, 16 Court Street, CORP Fourth Floor, Brooklyn, New York 11201, Telephone (Employer) 212-596-5387