Penn Building Maintenance Corp.

PENN BLDG MAINTENANCE CORP. Penn Building Maintenance Corp. and National Union of Hospital and Nursing Home Employees, Local 1199-P, a Division of RWDSU, AFL-CIO, and Ser- vice Employees International Union, Local 29, AFL-CIO, Party to the Contract. Case 6-CA-5325 January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 19, 1971, Trial Examiner Lloyd Bu- chanan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief, and the General Counsel filed cross-excep- tions and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings,' findings,' and conclusions' and to adopt his Respondent's request for oral argument and full Board consideration is hereby denied. In our opinion, the record, including Respondent's excep- tions and supporting brief, adequately presents the issues and positions of the parties We do not adopt the Trial Examiner's rulings made at the hearing, wherein he excluded evidence bearing on the appropriateness of the unit In this connection, however, Respondent's offer of proof was limited to a showing of the geographic location of its other operations and the incidence of interchange among employees at those locations The rejected evidence, even if accepted, is insufficient to establish the inappropriateness of the separately certified unit See Columbus Janitor Service, Division ofServisco, 191 NLRB No 125 Accordingly, the Trial Examiner's erroneous rulings were nonprejudicial and do not require a reopened hearing The Trial Examiner found that Respondent independently violated Sec- tion 8(a)(5) and (1) of the Act by bypassing the Union and dealing directly with employees In adopting this finding we rely solely on the evidence of posthire direct dealing and therefore find it unnecessary to decide whether Respondent's direct negotiations with employees before they were hired also violated Section 8(a)(5) as any such finding would in no event affect the remedy The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(2) by granting wage increases of $20 per month to employees as an inducement to join Local 29 The General Counsel excepts to his failure to find that the subsequent withdrawal of these increases because the employees failed to join Local 29 also violated Section 8(a)(1),(2), and (3) We find merit in the General Counsel's exceptions Respondent contends that the wage increases were intended to reimburse employees for the amount they would have to pay Local 29 in dues and initiation fees and, inasmuch as the employees did not join Local 29, it should not be found in violation for withdrawing the wage increases Even if we were to adopt Respondent's position we would not find it applicable here as the increase was not for reimbursement since it amounted to a sum far in excess of that required for repayment of dues and initiation fees The wage increase amounted to $20 per month whereas the dues payable to Local 29 only amounted to $4 a month While the employees also had to pay a $20 initiation fee, this obligation would be liquidated in four payments of $5 each, leaving the employees thereafter with a net increase of $16 a month over what would be required to reimburse dues payment. Here Respondent granted the wage increase in order to induce employees to join Local 29. Having granted the wage increase, it withdrew the increase as a further recommended Order as modified herein. ORDER 183 Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Penn Build- ing Maintenance Corp., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in National Union of Hospital and Nursing Home Employees, Local 1199- P, a Division of RWDSU, AFL-CIO, or any other labor organization by: (1) Aiding or supporting Service Employees In- ternational Union, Local 29, AFL-CIO, or any other labor organization, by recognizing, main- taining, or enforcing a collective-bargaining agree- ment with such labor organization when Local 1199-P is the exclusive bargaining representative of the employees in an appropriate unit; (2) Requesting employees to sign dues checkoff forms for Local 29 or deducting such dues from wages of employees who did not authorize such deductions; (3) Withdrawing wage increases from em- ployees because of their refusal to join Local 29 or any other labor organization; and (4) Discriminating against employees in any like or related manner in respect to their hire or tenure of employment or any other term or condition of employment, provided, however, that nothing herein shall require Penn to rescind, withdraw, or modify any benefits granted to its employees. (b) Refusing to bargain collectively with National Union of Hospital and Nursing Home Employees, Lo- cal 1199-P, a Division of RWDSU, AFL-CIO, as the exclusive representative of the Respondent's employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment. (c) By passing National Union of Hospital and Nurs- ing Home Employees, Local 1199-P a Division of RWDSU, AFL-CIO, and dealing directly with said employees concerning matters subject to collective bar- gaining. inducement for these employees to join Local 29 as is amply demonstrated by its subsequent reinstatement of Vargo's increase when Vargo agreed to join Local 29 In our opinion the withdrawal of these increases for dis- criminatory reasons constituted a change in the employees' terms and con- ditions of employment as well as unlawful assistance to Local 29 See 2520 Madison Corporation d/b/a Lillian Abrahmson Nursing Home, 174 NLRB No 86 Chairman Miller does not agree In his view, if it was improper to grant the increase, he would not find it improper to take it away The Chairman therefore dissents from this additional finding 195 NLRB No. 29 Igo DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Unilaterally changing or eliminating any term or condition of employment of said employees without first negotiating in good faith with National Union of Hospital and Nursing Home Employees, Local 1199- P, a Division of RWDSU, AFL-CIO, concerning such changes. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make its employees in the unit noted herein whole for any loss sustained because of unauthorized checkoff of dues or initiation fees or any unilateral changes in wages, hours, or other terms or conditions of employment and, upon request , rescind any unilat- eral changes in the terms and conditions of employ- ment effectuated by it. (b) Withdraw and withhold, until certified, all recog- nition from Local 29 as the representative of any of its employees in the unit herein. (c) Upon request, recognize and bargain collectively with Local 1199-P as the exclusive representative of the employees in the appropriate unit and embody in a signed agreement any understanding reached. The appropriate unit consists of: All service and maintenance employees at the office of West Penn Power Company in Greens- burg, Pennsylvania (Cabin Hill), excluding all other employees and guards , professional em- ployees and supervisors as defined in the Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports , and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its place of business in Pittsburgh, Penn- sylvania, copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the National Labor Relations Board" shall be changed to read "POSTED PUR- SUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " (f) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Na- tional Union of Hospital and Nursing Home Em- ployees, Local 1199-P, a Division of RWDSU, AFL-CIO, or any other labor organization by: (1) Aiding or supporting Service Employees In- ternational Union, Local 29, AFL-CIO, or any other labor organization, by recognizing, main- taining, or enforcing a collective-bargaining agree- ment with such labor organization when Local 1199-P is the exclusive bargaining representative of the employees in an appropriate unit; (2) Requesting employees to sign dues checkoff forms for Local 29 or deducting such dues from wages of employees who did not authorize such deductions; (3) Withdrawing wage increases from em- ployees because of their refusal to join Local 29 or any other labor organization; (4) Discriminating against employees in any like or related manner in respect to their hire or tenure of employment or any other term or condition of employment, provided, however, that nothing herein shall require the rescission, withdrawal, or modification of any benefits granted to employees. WE WILL NOT refuse to bargain collectively with National Union of Hospital and Nursing Home Employees, Local 1199-P, a Division of RWDSU, AFL-CIO, as the exclusive representa- tive of employees in the unit described below, con- cerning rates of pay, wages, hours of employment, and other conditions of employment. WE WILL NOT bypass National Union of Hospi- tal and Nursing Home Employees, Local 1199-P, a Division of RWDSU, AFL-CIO, and deal di- rectly with employees concerning matters subject to collective bargaining. WE WILL NOT unilaterally change or eliminate any term or condition of employment of em- ployees without first negotiating in good faith with National Union of Hospital and Nursing Home Employees, Local 1199-P, a Division of RWDSU, AFL-CIO, concerning such changes. WE WILL NOT, in any like or related manner, interfere with, restrain , or coerce employees in the PENN BLDG . MAINTENANCE CORP 185 exercise of their rights guaranteed in Section 7 of the Act. WE WILL make our employees in the unit noted below whole for any loss sustained because of checkoff of dues or initiation fees or any unilateral changes in wages, hours, or other terms or condi- tions of employment and, upon request, rescind any unilateral changes in the terms and conditions of employment effectuated by us. WE WILL withdraw and withhold all recogni- tion from Local 29 as the representative of any of our employees in the unit herein. WE WILL, upon request , recognize and bargain collectively with Local 1199-P as the exclusive representative of the employees in the appropriate unit and embody in a signed agreement any under- standing reached . The bargaining unit is: All of our service and maintenance employees at the office of West Penn Power Company in Greensburg, Pennsylvania (Cabin Hill), ex- cluding all other employees and guards, professional employees and supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining , members of this Union or any other labor organization , except to the extent that such right may be affected by an agreement requiring membership as a condition of employment as authorized in Section 8(a)(3) of the Act. PENN BUILDING MAINTENANCE CORP (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222 , Telephone 412-644- 2977. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN , Trial Examiner : The complaint herein (issued March 17, 1971; charges filed January 4 and February 9, 1971), as amended, alleges that Penn has violated Section 8(a)(5) of the National Labor Relations Act, as amended, 73 Stat. 519, by failing to recognize and refusing to meet with Local 1199-P for the purpose of bargaining collec- tively with it as the certified representative of the employees in the established unit, by bargaining individually with its employees, and by unilaterally instituting changes in benefits, hours of employment , and other terms and conditions of employment; Section 8(a)(2) of the Act by requesting em- ployees to sign dues checkoff forms and deducting dues from their wages, and by recognizing and entering into and main- taining a collective-bargaining agreement with Local 29 as an exclusive bargaining representative when that local did not represent an unassisted and uncoerced majority of the em- ployees in the unit, another labor organization having been certified ; Section 8(a)(3) of the Act by said latter acts and by entering into and maintaining a union-security clause in the collective-bargaining agreement referred to; and Section 8(a)(1) of the Act by all of the acts noted above. The answers, as amended , put in issue the allegations that Penn has provided the same services which had been per- formed by McGinley Maintenance Inc., for West Penn Power Company and is McGinley's successor, that Penn's em- ployees constitute an appropriate unit, and that Penn bar- gained individually with its employees in derogation of 1199- P's status, and generally deny the allegations of violation The case was tried before me at Pittsburgh , Pennsylvania, on April 27 and 28, 1971. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and Penn, the time to do so having been extended. A motion by the General Counsel to correct transcript and place Respondent's exhibit in evidence has been marked Trial Examiner's Exhibit 1 and received in evidence . The motion to correct the transcript is hereby granted, without objection. Also granted is the motion to remove Respondent 's Exhibit 1 from the rejected exhibit file and place it in evidence. Re- ceipt of the exhibit to the extent noted on the record was at that time indicated. The reporter 's notation on the exhibit and index that it was rejected is hereby changed to indicate receipt in evidence. Upon the entire record in the case and from my observa- tion of the witnesses , I make the following. FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I PENN' S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED The facts concerning the Company's status as a Pennsyl- vania corporation , the nature and extent of its business of providing janitorial service, and its engagement in commerce within the meaning of the Act are admitted , I find and con- clude accordingly . I also find and conclude that, as admitted, Local 1199-P and Local 29 are severally labor organizations within the meaning of the Act. II THE UNFAIR LABOR PRACTICES A. Successorship and Unit If, as counsel declare and as I believe , this is a case without precedent, there appear to be reasons and analogous situa- tions which point the way to the decision. After a Board-conducted election on September 14, 1970, the Board on September 22 certified 1199-P as the exclusive bargaining representative of the employees in the following unit: All service and maintenance employees employed by McGinley Maintenance , Inc. at the office of West Penn Power Company in Greensburg, Pennsylvania (Cabin Hill), excluding all other employees and guards, profes- sional employees and supervisors as defined in the Act. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McGinley thereafter gave to West Penn a notice to cancel its maintenance contract. West Penn thereupon called for bids from six service and maintenance contractors, the Re- spondent Penn among them, and on December 4 informed Penn, as it did the other contractors, that during the course of its maintenance contract with McGinley, which the latter had prematurely terminated, 1199-P had been certified by the Board as the exclusive bargaining representative of McGin- ley's maintenance employees at Cabin Hill, and that negotia- tions with 1199-P were in process when McGinley served West Penn with the notice of termination.' West Penn issued to Penn on December 7 a formal request to bid and sometime between that date and December 14 a list of specifications for the work to be done. On December 14 Penn submitted its bid pursuant to the specifications, and on December 18 West Penn issued its order to Penn for the work. With reference made to prior agreements, it was agreed that an overall union-security and checkoff agreement be- tween 29 and an association of cleaning contractors, which includes Penn, has been in effect since September 1, 1969. It was stipulated further that the employers in the association had an average of approximately 310 employees under checkoff during the first 4 months of 1971, that during that period Penn employed between 106 and 112 employees who were on checkoff for 29, and that Penn has other employees on this and other jobs who are not members of 29 and are not on checkoff for that Union. There is no suggestion that the specifications' listed by West Penn and the work which it wanted done by whoever followed McGinley differed from what had been done by McGinley or that, in submitting its bid thereafter or in ac- cepting West Penn's award and order, Penn undertook to perform or accomplish a different task,' whatever its later adopted methods. I have not overlooked but deem of little significance such testimony as that, whereas (and this about a month after Penn took over the job, there being no changes in January) female employees picked up trash in some sections and men got the carts for the women, all of the trash is now picked up by the men. Any indicated changes in methods, as distinguished from the job performed, effected by Penn as an improvement over McGinley's and its own initial operation on this job certainly do not affect Penn's status as successor under the cases. Even with respect to a commitment to hire or continue employment of three men for only 1 month because of a suggested difference in Penn's operations and requirements, such employment was thereafter continued without change. Were company knowledge necessary or relevant, it might be noted that Penn came into this situation with its earlier overall contract covering employees at its other locations, which it now cites, after and with knowledge that the Board had certified 1199-P with respect to the limited unit here. The question now is not the binding effect of a contract on a successor: The issue is continuance of an appropriate unit found by the Board 3 months before. The significant facts are that the employing industry and the job to be performed are the same. We are not concerned with possible difference be- tween Penn's overall "enterprise" and McGinley's. Were there "peril" in recognition of the certified bargaining representa- tive, Penn could readily have avoided it 3 We were told without contradiction that the specifications given by West Penn to Penn were the same as those given to McGinley ' What is here said is of course limited to the issues before us in this case The Company's right to raise before the Board the issues of appropriate unit and certification have been preserved, I would not presume to pass on nor even to consider those issues As for change in procedure or method of operation, it does not appear that even one employee experienced a single diffi- culty in following Penn's methods. Change from a short- handled duster or brush to a long-handled one, for example, does not preclude a finding that the Company here succeeded to and performed the work which had been done by McGin- ley. Hardly determinative of the question of successorship is the fact that Penn, entering upon a new contract, assigned top supervision to its own production manager and did not retain or rehire McGinley's supervisor although the latter applied for the job. The employing industry' is the same; the job to be performed is the same; there has been the same (identically not merely substantially) work force: The business is the same. We do have a detailed narrative of differences in method of operation adopted by Penn after it took over this job, but we must not let language numb our intelligence. We were regaled if not edified with what I referred to on the record as an impressive description of work, methods, and operation of daily office cleaners, with a list of changes in such operations. Penn continuing to maintain that the work done by it is different from that done by McGinley and that it is done with some different tools and different procedures, it was stipu- lated that of the 16 employees of McGinley at West Penn all were hired by Penn when the latter took over this job on January 4 and have continued to constitute Penn's entire work force in this building except for one employee who quit in April and was replaced by Penn in the same month and that a relief employee was hired in March. When Penn took over this work, it remained the same job to be performed, and by the same people, apparently with a minimum of new instructions. It is unusual in cases where successorship is recognized to the extent of continued opera- tion of the same business not to find changes in methods and procedures, greater in extent and more complicated and seri- ous than the changes testified to here. To the extent that this case be deemed removed from the decision in the representation proceeding because Penn was not a party there although it later acted with knowledge of the certification, so that de novo consideration may be claimed on behalf of Penn, we distinguish between accretion to an existing operation on one hand and accretion to a company's assets on the other. We have here an instance of the latter, an extreme example of which would lie in a corpo- rate conglomerate and would fall within the Respondent's reference to its overall "enterprise" as distinguished from this single self-contained operation. The operation here is wholly separate from Penn's operations elsewhere whether those are covered by the contract with 29 or not.' The acquisition of McGinley's business by Penn did not serve to extend the contract, whatever its terms, with 29 to include those who had been McGinley's employees. The latter are not in any such fashion to be deprived of their own choice of collective bargaining representative. The argument that Penn bid (ignoring its knowledge of the certification of 11 99-P) on the basis of wages and other terms which it had negotiated with 29 and that it could not main- tain the West Penn contract and agree with 1199-P to assume greater expenses does not lessen Penn's obligation to bargain with the collective-bargaining representative of its employees. Perma Vinyl Corporation, 164 NLRB 968, 969, cf Geronimo Services Co, 191 NLRB No 88 ' If, as we were told and despite the union-security provision in 29's overall contract, some Penn employees elsewhere are not members of 29, it would be strange indeed to impose a membership requirement on the employees at West Penn PENN BLDG. MAINTENANCE CORP That argument also overlooks the fact that West Penn's invi- tation to bid and its authorization to Penn contained a 30-day cancellation clause similar to that which McGinley had uti- lized. I find and conclude that Penn has been a successor employer to McGinley on this operation since January 4, 1971. The decision to be represented by 1199-P was that of the employees in the unit. Penn makes no claim of collusion between McGinley and 1199-P in connection with the certifi- cation of the latter. To the extent that Penn might deem an amendment, even withdrawal of the certification, necessary, its reason therefor can be submitted for the Board's consider- ation With successorship found, the unit of employees was now identical (not merely a majority) with the unit certified, Penn standing in place of McGinley and the former's name sub- stituted for the latter in the certification. Since January 4, 1971, when Penn succeeded McGinley as employer,' the appropriate unit has been: All service and maintenance employees employed by Penn Building Maintenance Corp. at the office of West Penn Power Company in Greensburg, Pennsylvania (Cabin Hill), excluding all other employees and guards, professional employees and supervisors as defined in the Act. Since September 14, 1199-P has been the collective-bar- gaining representative of the employees in the two units de- scribed above, i.e., successively of McGinley's and then Penn's employees at the West Penn Cabin Hill office, and the certification of West Penn employees on September 22 applies to those employees as they are now employed by Penn. I so find and conclude. Emerald Maintenance, Inc.,' differs from the instant case in that there the same union represented the employees of the first employer and of the successor. Since we do not here question the Board action in certifying 1199-P as the collec- tive-bargaining representative, that Union is as definitely such representative as if it had been certified before the change in employer identity (as it had been) and had in fact been recognized and bargained with by the predecessor em- ployer (as it also had been), as West Penn informed all bid- ders on December 4. Whether or not 29 had notice of the proceeding which led to certification of 1199-P does not here appear. While notice could hardly have been given to Penn before the certification, the latter, we recall, did have notice of the certification before it bid on and was awarded the work contract. The situation thus becomes similar to that in Emerald, where the successor was found to have unlawfully refused to bargain. As in Emerald, so here, "Respondent reckoned without the [certified] Union." As in Emerald "the bargain- ing unit had been fragmented by successive contractors ... each of whose employees were [sic] represented in sepa- rate units," so was the overall association unit here frag- mented by the certification of 1199-P as representative of McGinley's (now Penn's) employees. The contention in Eme- rald that separate units were inappropriate is certainly unten- able here in the face of the Board's September certification. Nor do we have the possibly extenuating circumstance of an expected higher price to be paid by West Penn to Penn and reliance on that expectation in agreeing to wage increases: We have neither higher price expectation nor wage increase. At most Penn might have anticipated a request for increased benefits. Penn entered upon the job on that day 188 NLRB No 139 187 The instant case and Emerald diverge at this point. But if, unlike Emerald, the contract with West Penn is "subject to refinement through negotiation ," Penn is here asked to bar- gain with 1199-P, not to apply to it and the employees which it represents the contract with the Contractor's association.' The desideratum being stability of labor relations, as coun- sel for Penn argues and the cases hold, the question is whether stability is maintained where an employer , with knowledge of certification, attempts to extend an existing contract covering employees other than those in the newly certified unit, par- ticularly where there is no evidence or suggestion of transfer- ability insofar as the employees are concerned . We may not argue, as does Penn , that its contract with 29 covers the employees here because, if they were so included, there might be transferability , and transferability would suggest a compa- nywide unit. B The Alleged Violation of Section 8(a)(5) The denial in Penn's answer of the allegation of request to bargain and the admission of refusal to bargain stem from the reference to the unit of employees of McGinley. With tes- timony concerning an oral request on December 15 or 16 and a telegram on December 24, we can accept as fact that about the middle or latter part of December 1199-P demanded that Penn bargain with it collectively with respect to its employees at West Penn . It is also clear that, for the reasons stated by it, Penn has refused to meet and bargain with 1199-P. With respect to the oral request mentioned , Penn promised to call back but did not ; it did not reply to the telegram. The refusal to bargain with the representative of the employees in an appropriate unit violates Section 8(a)(5) of the Act; I so find and conclude. Beyond this, we have allegations that Penn further refused to bargain in that it bargained individually with its employees with respect to terms and conditions of employment and that it unilaterally instituted changes in benefits , hours, and other terms and conditions of employment . Except that employees were now given 1 instead of 2 weeks ' vacation, it does not appear generally that the changes unilaterally imposed were less beneficial to the employees than the terms and conditions which they supplanted ; indeed it will be specifically declared herein that Penn is not required to rescind or withdraw any benefits. We should not major in minors . With an order to bargain with one union as exclusive bargaining representative, it ap- proaches redundancy to direct that a contract with another union not be maintained with respect to the same unit. True, restitution must be made of monies withheld for 29. Not only could this be directed on the basis of an order to withhold recognition, but the total amount is so small that a settlement could have been made , certainly attempted , of that limited issue. Instead, witnesses were called and questioned concern- ing it and, while little will be said herein in disposing of those allegations, the findings can themselves be made the subject of extended argument and review . Of course, not until the testimony was received could it be seen at the trial how little it involved and how little it added to the principal issues. 8 The William J Burns International Detective Agency, Inc, 182 NLRB No 50, where the Board considered the issue whether a successor employer must give effect to a preexisting bargaining contract The case is further authority on the question of successorship Going beyond the Respondent's position in Burns, the Company here presumably would not only deny that it is bound by the terms of a contract had one been entered into between McGinley and 1199-P before the former stepped out of the picture, but it denies that it is even obliged to recognize and bargain with the latter 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found a basic refusal to bargain, we should not spend an inordinate amount of time on relatively unimpor- tant additional manifestations. But a direct approach to the employees rather than through their bargaining representa- tive has been noted; this is forbidden, and we must pass on it and formally prohibit it lest it be claimed that we have overlooked or slighted it-as if it were not encompassed in an order to bargain, so that further allegation, proof, finding, and order are unnecessary except in that weak case where such an allegation alone can be sustained and the case would fall completely without it. But who ever heard that it is unnecessary to beat a dead horse or, to raise the figure to the anthropomorphic level, that an extra nail in the coffin is quite unnecessary? Certainly not assiduous counsel or, more likely, superiors who must play safe or establish records.' We proceed therefore to note that, in anticipation of its entry on the job on January 4, Solanik, Penn's operating manager, telephoned Kline, one of the three male employees on the job, during the last week in December and told him among other things that all of Penn's employees worked part time. When Kline remonstrated that they could not live on part-time wages, Solanik proposed a "deal": He would keep the three men full time at the same salary that McGinley was paying, would pick up their hospitalization, and would in addition provide for each a $1,500 life insurance policy Sola- nik asked Kline to speak to the other two and said that he would want to meet with them. A meeting was thereafter arranged and held on December 31. When, in connection with the proposed hospitalization benefits, Kline stated that he had been carrying his own Blue Cross and Blue Shield coverage, Solanik explained that the Company was paying approximately $9.15 for each employee and that, in lieu of such coverage for Kline, it would add that amount to his pay once a month. In March, Solanik told the three that he would give them a $20-a-month raise and the same nine holidays for which they had been paid by McGinley and in addition would give each a holiday on his birthday. He had previously told them that they would get a 1-week vacation each year instead of 2 weeks which they had previously received and would be paid for sick leave provided they did not abuse it. Also in March, Solanik told the three" that they would have to join 29 and that the Company would hold their dues and initiation fees in escrow until the instant case was de- cided; they would receive the benefits under the contract with 29. Solanik testified further that "by accident" the three were given a $20-per-month increase which was thereafter re- tracted. He stated that this increase was to cover their union dues deduction but that it was retracted because they had not yet signed; the increase would stand if they joined 29 and signed checkoff authorization. (This was of course violative of Section 8(a)(2), although not alleged, and need not be referred to again when we consider that section.) Only one of the three men, Vargo, and one other, whose status as a super- visor was disputed, signed cards for 29; the two other men and all of the other employees were given 29 cards but none ' Whatever the attitude at that level, I am still jealous for my own time and that of a reviewing Board and trust that a cry in the wilderness may yet be heard '° We are now poaching on an 8(a)(2) violation signed. In April Vargo was given a $20 increase, presumably to cover his union payments. It thus appears that the $20 increase promised to the three men and "by accident" given to the two who did not sign cards for 29 may not in fact have been a wage increase but rather reimbursement for payments to be made to 29. I shall not recommend payment of such increase; further evidence may indicate that it is warranted." Solanik also told us that early in February there was dis- tributed to each employee a four-page document, the first three pages of which were referred to as "Employees Orienta- tion." (To what extent the working rules and conditions set forth differed from those previously in effect, we do not know; certainly it was not negotiated with 1199-P.) The fourth page was headed "Pittsburgh Local No. 29 Service Employees' International Union AFL-CIO" and listed provisions requir- ing new employees to join 29 and describing dues and initia- tion fees, holidays, vacations, a welfare program, and life insurance. Submission of this latter by the Company to the employees was also of course violative of Section 8(a)(2), but it will not be referred to further. At the same time a "Stan- dard Work Schedule" was also distributed to all of the em- ployees. Whether this modified any of the existing work procedures (we recall the testimony concerning differences in method of operation) we do not know. One of the female employees testified that, at a meeting approximately in the middle of February, Solanik told all of the female employees that they would be going on a 5-hour day and would have paid holidays. Up to that time, for both McGinley and Penn, they had been working 6 hours a day. Solanik also told them that they could not work for him if they did not join "his union." It is clear that, in addition to its refusal to bargain with 1199-P, Penn bargained individually with its employees and unilaterally instituted changes in terms and conditions of employment, " all in violation of Section 8(a)(5); I so find and conclude. C. The Alleged Violation of Section 8(a)(2), (3), and (1) The evidence noted to this point makes it superabundantly clear that, at a time when 1199-P represented a majority of the employees, Penn recognized 29 and maintained and en- forced a collective-bargaining agreement with it, even to the extent of soliciting membership for 29 and attempting to collect and collecting dues for it. We recall that the agreement between Penn and 29 contains a union-security clause. I find and conclude that Penn violated Section 8(a)(2) and (3) of the Act. This finding of violation does not cover the entry into or signing of the contract, which antedated the statutory 6- month period. The various violations found also constitute violations of Section 8(a)(1) of the Act, and I so find and conclude. [Recommended Order omitted from publication.] " Granted that it is easier to assert a claim , and more impressive some- times to litigate it, this can be considered at the compliance stage although the situation clamors for informal discussion or negotiation " Presumably under the heading of change in conditions of employment and in method of operation, but hardly to be dignified by mention, much less indicative of a change which required consultation with the bargaining representative, is such testimony as that, whereas under McGinley only one female employee cleaned restrooms, a second, who had cleaned blinds, desks, and chair bottoms, now joined the first