Russell Motors, Inc.

RUSSELL MOTORS, INC. 351 Russell Motors, Inc. and Local 259, United Automo- bile, Aerospace, and Agricultural Implement Workers of America International Union Amalgamated Local Union 355 and Local 259, United Automobile, Aerospace, and Agricultural Imple- ment Workers of America International Union. Cases 29-CA-2136 and 29-CB-920 July 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 21, 1972, Trial Examiner Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent Amalgamated Local Union 355 filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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,2 and to adopt his recommended Order, except as modified herein. The Trial Examiner recommended, inter aka, that Respondent Local 355 jointly and severally with Respondent Russell: (1) reimburse each employee of Russell who has paid "or been charged," by checkoff or directly under the unlawful agreement dated September 10, 1970, any initiation fees, dues, or other charges, together with "interest at the maximum lawful rate under the law of the State of New York;" and (2) reimburse the Charging Party (UAW, Local 259) "for its organizing expenses incurred in connec- tion with the service employees of Russell Motors, Inc., on and since September 14, 1970, and for its reasonable attorneys' fees and disbursements in the consolidated proceeding...." Further, the Trial Examiner recommended, inter alia, that (3) Local 355 individually cease, for 3 years from the date of the final Order in this case, from representing employees of any employer unless and until it shall be duly certified by the Board following a Board election; and from issuing to any employer or employee any authorization or membership application card unless printed thereon were certain prescribed words stating that the Board had found Local 355 "guilty of collusion with employers to violate rights of employ- ees," and that Local 355 "had been adjudged to be in contempt of court." Finally, the Trial Examiner recommended that (4) Local 355 mail a copy of the "Notice to Members" to each member of Local 355; and (5) that it cease utilizing officials, supervisors, or agents of any employer to organize such employer's employees. Respondent Local 355 has excepted to the forego- ing provisions of the Trial Examiner's recommended Order on the ground that they are punitive and not remedial. We find merit in these exceptions for the reasons hereinafter set forth. 1. The Trial Examiner's Order would require Respondents, jointly and severally, to reimburse Respondent Russell's employees for all initiation fees, dues, and other payments paid by or "charged" to them, "plus interest at the maximum lawful rate under the law of the State of New York." The Trial Examiner did not specify whether the "maximum lawful rate" was to be that applied by the State of New York to retail installment sales, or commercial or personal loans, or any of the myriad other types of financial indebtedness. In our opinion, the effective administration of the Act is best served by remedies which, except as otherwise directed by Congress, are uniformly applicable throughout the Board's jurisdiction. That purpose cannot be achieved by tailoring a remedy to fit the laws regarding lawful interest rates of the various States and Territories within ourjurisdiction. Therefore, we find that the purposes of the Act can best be effectuated by requiring Respondents to make the reimbursements only for exactions actually paid, whether directly or by checkoff, with interest at i Respondent Local 355 has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3) We have carefully examined the record and find no basis for reversing his findings Respondent Local 355 also excepts to the Trial Examiner's finding that it and Respondent Russell did not execute their contract on September 10, 1970, on the ground, inter aha, that Russell's payroll records reflect that the employees were paid on Friday , September 18, the increased wages required by the contract, which wages were for the work week beginning September 10 and ending September 16 Therefore, Local 355 argues, the contract was executed and the new wage rates were put into effect on September 10 We do not agree The record does not reflect on what date the payroll records were made up, and therefore the payroll might have been calculated as late as September 18 Furthermore, we find substantial evidence that the contract was in fact executed on or after September 15, 1970 2 In adopting the Trial Examiner's conclusions with respect to Respon- dent Russell Motors , Inc , we note that Russell has filed no exceptions to the Trial Examiner's Decision 198 NLRB No. 58 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rate of 6 per cent per annum as explicated in the Board's Decision in Isis Plumbing & Heating Co., 138 NLRB 716, and we shall so order. 2. We find that the circumstances of this case do not justify requiring Respondents to reimburse the UAW for its organizing expenses incurred at Russell !Motors since September 14, 1970, and for its attorneys' fees and disbursements incurred because ,of this proceeding. The UAW appeared at Respondent Russell's plant (several days after Respondent Local 355 had begun its organizing campaign, and conducted a brief campaign of its own. The UAW thereafter demanded precognition of Respondent Russell, which the latter ,refused. Whatever expenses were incurred by the UAW would have been incurred even if Respondent '355 had not committed the unfair labor practices found. With respect to Respondent Russell, the Trial Examiner stated that Russell should bear the costs of the UAW's campaign because, despite the Board's earlier order and the subsequent consent decree entered by the United States Court of Appeals for the Second Circuit on March 22, 1968, following Russell's unlawful refusal to bargain with the UAW, Russell announced to its employees in September 1970 that it would not (and in fact did not) recognize ,the UAW as their representative. We do not adopt this reasoning. Particularly since Russell has not been charged with unlawfully refusing to bargain with the UAW in September 1970, there is no justification for requiring Russell to finance the UAW's renewed organizing efforts at that time. With respect to the reimbursement of the UAW for its attorneys' fees and disbursements, we find that such an order will not effectuate the policies of the Act. As the Board stated in Heck's, Inc: 3 Such protection of the public interest as may result from the charging party's participation in litigation must be regarded, we believe, as incidental to its efforts to protect its own private interests. Given this statutory framework, we conclude that the public interest in allowing the 3 191 NLRB No. 146. 4 Tiidee Products, Inc., 194 NLRB No. 198, and Tiidee Products, Inc., 196 NLRB No. 27, are inapplicable to the instant case. In those cases the Board found that the frivolous litigation by the Respondent in those cases justified an order for reimbursement of litigation expenses. In the instant case we do not find the Respondent's defenses to be frivolous because of the numerous credibility resolutions made by the Trial Examiner and the other relatively close factual and legal questions involved. 5 We rejected a similar recommendation in Raymond Buick, Inc., 173 NLRB 1292, as modified 182 NLRB 504. See also Vanella Buick Opel, Inc., 194 NLRB No. 123. 6 We note in this regard that, while Respondent Local 355 has been found by the Board and the courts in several prior cases to have engaged in this type of unlawful conduct, yet in N. L. R. B. v. Amalgamated Local Union 355, No. 69-C-1560 (D.C.N.Y., Oct. 23, 1970), U.S. District Judge Dooling, acting as Special Master for the Court of Appeals for the Second Circuit, !found that Local 355 represents some 5,000 members in approximately 275 units among automobile dealers and wholesale and retail oil distributors on iLong Island and Staten Island , New York, and New Jersey as far south as Charging Party to recover the costs of its participation in this litigation does not override the general and well-established principle that litigation expenses are ordinarily not recoverable. Therefore, we will not adopt this provision of the Trial Examiner's recommended Order.4 3. We find that the Trial Examiner's recommend- ed Order that Respondent Local 355 cease for 3 years from representing any employees (not already validly represented by it), unless and until it shall be duly certified by the Board,5 and from issuing membership application or authorization cards, unless they contain statements that it has been found guilty of collusion with employers in violating the statutory rights of employees and has been adjudged to be in contempt of court, are not appropriate affirmative provisions to achieve the purely remedial objectives of the Act. Neither of these provisions is addressed to the particular unfair labor practices committed by Respondent Local 355 in the instant case. Although we agree with the Trial Examiner that Respondent Local 355 has demonstrated a proclivity for repeating the type of unlawful conduct in the instant case, the employee rights violated herein will not be preserved or restored by requiring Respon- dent Local 355 to carry a scarlet letter.6 The objectives of the Act will be adequately served by a broad cease-and-desist order forbidding repetition of similar conduct, which may hereafter be enforced by a court of appeals, thereby subjecting Respondent Local 355 to contempt proceedings in the event it does not comply with such a court order. We shall, therefore, not adopt these provisions of the Trial Examiner's recommended Order. 4. Additionally, we reject the Trial Examiner's recommendation that Respondent Local 355 be required to mail a copy of the "Notice to Members" to each of its members. Aside from the several cases enumerated by the Trial Examiner, in which the Board and the courts of appeals have already established appropriate remedies,7 the instant case contains no evidence that Local 355's other 5,000 Camden. Presumably, these members were lawfully organized. 7 E.g., in N.L.R.B. v. Amalgamated Local Union 355, Nos. 28451, 30236, and 30405, (C.A. 2, July 12, 1971), the court, adopting the findings of its Special Master (see In. 6, supra ), adjudicated Local 355 and its representatives , Tolkow and Stirt, in contempt of its earlier decrees by engaging in conduct similar to that in the instant case and ordered, inter alia, that: In order to insure compliance with the foregoing provisions, it is further ordered that upon failure of the respondents to purge themselves of contempt as herein provided, this Court will deal further with the matter by imposing a compliance fine of $10,000 upon the respondent Local 355 and $2000 each upon the respondents Bernard Tolkow and Henry Stirt for each future violation of the decrees of the Court and if the violation is of a continuing nature, further compliance fines of $1000 per day against Local 355 and $200 per day against Bernard Tolkow and Henry Stirt for each day that such violation continues and by such means as the Court shall determine including the issuance of attachment against any Union officer or agent responsible for such non-compliance. RUSSELL MOTORS, INC. ;members, in some 275 bargaining units, were organized in violation of the Act. Without that evidence, no basis exists for this provision of the recommended Order inasmuch as it is not directed toward remedying any unfair labor practices. 5. Finally, we find that it is unnecessary to require Respondent Local 355 to cease using any employer's officials, supervisors, or agents to organ- ize that employer's employees. Such conduct is proscribed by the broad provision of the recom- mended Order requiring Respondent 355 to cease restraining or coercing any employee in the exercise of his statutory right to engage in, or to refrain from engaging in, protected concerted activities, which we find amply warranted in this case and which we shall therefore adopt. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified herein, and hereby orders that Respondents, Russell Motors, Inc., its officers, agents, successors, and assigns, Village of Roslyn, Nassau County, New York, and Amalgamated Local Union 355, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Delete from paragraph A 4a of the recom- mended Order the words "or been charged" and the words "the maximum lawful rate under the law of the State of New York," and substitute for the latter the words "6 percent per annum." 2. Delete paragraph A 5 from the recommended Order. 3. Delete from section C of the recommended Order paragraphs 2, 3, 5, and 7 and renumber the remaining paragraphs accordingly. 4. Substitute the attached Appendix A and Appendix B for those attached to the Trial Examin- er's Decision. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial at which we and all other parties had the opportunity to call witnesses and present evidence, the National Labor Relations Board had decided that Russell Motors, Inc., and Amalgamated Local Union 355 have violated the National Labor Rela- tions Act and it has ordered us to post this notice to our employees and. to live up to its terms. 353 The National Labor Relations Act guarantees certain rights, among them the right of employees to select a representative of their own free choice to bargain for them as a group with their employer. The National Labor Relations Board has decided that we violated this right of yours by assisting in bringing Amalgamated Local Union 355 into the shop to represent you, by our indicating to you that we prefer that union in the shop rather than UAW Local 259, and by saying that we would not deal with UAW Local 259 but would go out of business instead. The National Labor Relations Board has decided that these actions and statements by us violated the law. We will not do such things or say such things again. WE WILL withdraw recognition from Local 355 as your bargaining representative. WE WILL stop giving any effect to the "collec- tive agreement" entered into between Russell Motors, Inc., and Local 355, dated September 10; 1970. However, this will not affect your wage rates, holidays, hospitalization, or other benefits. WE WILL stop giving any effect to your membership cards in Local 355, signed at any time on or after September 8, 1970, and we will not recognize Local 355 as your representative unless Local 355 is officially certified as your bargaining representative after a secret ballot election held by the National Labor Relations Board. WE WILL stop giving effect to any pay deduc- tion checkoff authorization signed by you, at any time on or after September 8, 1970, for payment to Local 355 of any union initiation fees, dues, or other moneys; and we will return those cards to you. WE WILL, jointly and severally with Local 355, refund to you, with 6-percent interest, all moneys paid over by you to Local 355 or withheld by us from your wages at any time since September 10, 1970, for the purpose of being paid over to Local 355 for union initiation fees, dues, or other charges; and WE WILL make our books and records available to agents of the National Labor Relations Board to compute and to show that we have complied with this requirement. WE WILL NOT directly or indirectly give, contribute, promise, or hold out any financial or other support, aid, assistance, or preferential treatment to any labor organization. WE WILL NOT directly or indirectly authorize or allow any official, supervisor, or agent of Russell Motors, Inc., to enlist or solicit any of our employees to join any labor organization. WE WILL NOT in any manner interfere with, restrain, or coerce any employee in his choice of 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UAW Local 259, or any other labor organization, as his bargaining representative. WE WILL NOT threaten to refuse to recognize, negotiate, or deal with UAW Local 259 (or any other labor organization) in the event our employ- ees select UAW Local 259 (or any other labor organization so selected) as their bargaining representative. WE WILL NOT threaten to shut down our shop or business or any part of it if our employees select UAW Local 259, or if any other labor organization, as their bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the right to self-organization to form, join, or assist any labor organization, to bargain collectively through representatives of your own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. We give you our assurance that you are all free to join or not to join UAW Local 259 or any other union (or, if you prefer, no union), as you see fit, without any interference, restraint, coercion, threat, or reprisal from us in any way, shape, or form. RUSSELL MOTORS, INC. (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 compli- ance with its provisions may be directed to the Board's Office, Fourth Floor, 16 Court Street, Brooklyn, New York 11201, Telephone 212-596-3535. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial at which we and all other parties had the opportunity to call witnesses and present evidence, the National Labor Relations Board has decided that Amalgamated Local Union 355 and Russell Motors, Inc., have violated the National Labor Relations Act and it has ordered us to post this notice to our members and to live up to its terms. The National Labor Relations Act among other things guarantees employees the right to be repre- sented by labor organizations of their own free choice. The National Labor Relations Board has decided that Amalgamated Local Union 355 violated this requirement of law by entering into a "sweet- heart contract" with Russell Motors, Inc., in or about September 1970, after using Russell supervisors to get Russell employees to sign Local 355 membership cards. The "sweetheart contract" recognized Local 355 and required Russell employees to remain members of Local 355 with a wage "checkoff" of union initiation fees and dues to Local 355. The National Labor Relations Board has decided that these activities violated the law. We will not do such things again. WE WILL stop giving effect to the "collective agreement" entered into between Local 355 and Russell Motors, Inc., dated September 10, 1970. WE WILL stop giving effect to any Local 355 membership card signed by any service employee of Russell Motors, Inc., on or after September 8, 1970. WE WILL stop acting, purporting to act, or holding ourselves out as the representative of any service employees unit, or any member thereof, of Russell Motors, Inc., unless and until we are officially certified as bargaining representative after a secret ballot election held by the National Labor Relations Board. WE WILL stop giving effect or demanding that effect be given to any pay deduction checkoff authorization signed by any Russell Motors, Inc., service employee at any time on or after Septem- ber 8, 1970, for payment to Local 355 of any union initiation fees, dues, or other moneys; and WE WILL return all such authorizations to the employees involved. WE WILL, jointly and severally with Russell Motors, Inc., refund to each service employee of Russell Motors, Inc., with interest, all moneys received by us from Russell Motors, Inc., pur- suant to any checkoff authorization signed by him on or after September 8, 1970, as well as any moneys, with interest, for initiation fees, union dues, or other charges paid by any service employee of Russell Motors, Inc., based on any membership card executed by him on or after September 8, 1970. WE WILL make our books and records available to agents of the National Labor Relations Board to compute and to show that we have complied with this requirement. WE WILL NOT cause or attempt to cause any employer to discriminate against any employee in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner restrain or RUSSELL MOTORS, INC. 355 coerce any employee in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of his own choice, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. AMALGAMATED LOCAL UNION 355 (Labor Organization) 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 compli- ance with its provisions may be directed to the Board's Office, Fourth Floor, 16 Court Street, Brooklyn, New York 11201, Telephone 212-596-3535. TRIAL EXAMINER'S DECISION PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Trial Examiner: This consolidat- ed proceeding under the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq (Act), was heard by me in Brooklyn, New York, continuously from July 7 through July 23, 1971,1 with all parties represented by counsel, who were afforded full opportunity to adduce testimonial and documentary proof, cross-examine, argue orally, propose findings and conclusions, and submit briefs. Subsequent to the hearing, pursuant to time extension granted on application, a letter memorandum was filed on September 8, 1971, by counsel for the Charging Party. The principal issues presented are whether Respondent Employer (Russell Motors, Inc.; Russell) violated Section 8(a)(2), (3), and (1) of the Act and whether Respondent Union (Amalgamated Local Union 355; Local 355) violated Section 8(b)(1)(A) and (2) of the Act, through entering into and maintaining in effect between them an Employer-assisted or "sweetheart contract" granting recog- nition to Local 355 as the assisted and favored exclusive bargaining representative of Russell employees, who were thereby required to maintain their membership in Local 355 in order to retain their jobs, and required to pay union fees and dues to Local 355 through automatic "checkoff" payroll deductions by Russell, while at the same time I The proceeding is based on charges filed by Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America International Union (UAW Local 259) on September 28, 1970 (Case 29-CA-2136) and March 8, 1971 (Case 29-CB-920) with the Board's Regional Director for Region 29, who on March 8, 1971, issued a complaint in Case 29-CA-2136 and on March 31, 1971, consolidated the two cases and issued a consolidated amended complaint, which was superseded on April 15, 1971, by a second consolidated amended complaint That relinquishing their right to strike; and through Russell's threats to its employees to refuse to deal with, but instead to go out of business if called upon to deal with, UAW Local 259 (Charging Party here), a rival labor organization. Upon the entire record2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. PARTIES; JURISDICTION At all material times, Respondent Russell Motors, Inc., a New York corporation with its principal office and places of business in the county of Nassau, State of New York, has been in the business of retail selling, distributing, and repairing automobiles and related products. During the representative 12-month period immediately antedating issuance of the complaint, Russell derived gross revenues exceeding $500,000 from that business. In the course of those business operations in the same period, Russell purchased and caused to be transported merchandise valued in excess of $50,000 directly in interstate commerce to New York State from other States. I find that at all material times Respondent Russell Motors, Inc., has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that Respondent Amalgamated Local Union 355 has been and is a labor organization within the meaning of Section 2(5) of the Act; and that jurisdiction is properly asserted in this proceeding. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent Russell is a retailer and servicer of new Buick and Opel automobiles, and also retails and repairs used automobiles of American vintage. It has two places of business, each in the village of Roslyn, Nassau County, New York: one at 1039 Northern Boulevard (main office, new-and used-car sales department, "Make-Ready" de- partment, and body department and paint shop) and the other at 1900 Northern Boulevard (parts department and repair shop). The events to be described involved and occurred at both locations. Around nud-1966 Russell employees organized under UAW Local 259, which after a Board-supervised election was certified by the Board on July 20, 1966, as their exclusive collective-bargaining representative (Case 29-RC-516). Thereafter, on November 16, 1966, in a complaint proceeding instituted against Russell by the Board, Russell stipulated-without admission of violation of the Act-to the entry of a Board order and United States Court of Appeals decree requiring Russell to cease and desist from refusing to bargain collectively in good complaint was further amended at the hearing herein 2 Hearing transcript as corrected by order on unopposed motion at the hearing, and as further corrected in respect to certain obvious and typographical errors listed on attached "Appendix C [omitted from publication I" The voluminous transcript contains other obvious, typo- graphical, insubstantial or not directly matenal errors which, for reasons of practicality and in the absence of application by the parties, have been left uncorrected 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD faith with UAW Local 259; to cease and desist from making unilateral changes in wages and other terms and conditions of employment without bargaining with UAW Local 259 ; to cease and desist from refusing to furnish necessary bargaining data to UAW Local 259; to cease and desist from inducing employees to abandon or withdraw from membership in UAW Local 259 or otherwise undermine that Union's status as bargaining representative, such as by initiating or circulating or encouraging employees , to sign a petition rejecting that Union; and to cease and desist from "in any other manner interfering with, restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act." (Case 29-CA-744; G.C. Exhs. 7A and B.) The Board order (March 5, 1968) and court Decree enforcing that order also required Russell to bargain collectively with UAW Local 259 as Russell employees ' exclusive representative and to post notices to its employees to that effect . (Ibid.) According to Russell President Philpit , in the course of or subsequent to the foregoing there was a strike or attempted strike by UAW Local 259. B. Russell Supervisory Hierarchy Understanding of the events to be described requires knowledge of the supervisory status in Russell's organiza- tional hierarchy of various persons involved in those events. Accordingly, we initially consider that question in relation to the persons with whom we are here concerned.3 Section 2( 11) of the Act defines a "supervisor" to be: .. . any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [Empha- sis supplied.] Whatever a "supervisor" may otherwise be thought to be, it is of course this definition which is controlling for purposes of the Act and this proceeding. It is clear that the central feature of the definition is direct or effective recommenda- tory power over subordinates. Since Congress chose to enumerate the quoted powers in the disjunctive , possession of any of them is sufficient to constitute the possessor a supervisor. NLRB Twenty- fifth Annual Report (1960), p. 45; N.L. R.B. v. Elliott- Williams Co., 345 F.2d 460, 463 (C.A. 7); N. L.R.B. v. City Yellow Cab Company, 344 F.2d 575, 580 (C.A. 6). It has frequently been pointed out that, as succinctly capsulated in N.L.R.B. v. Swift and Company, 3 1 e, "service" employees-the same or substantially the same as the unit in the 1966 Board representation and complaint proceedings (Cases 29-RC-516 and 29-CA-744) alluded to above The instant proceeding involves no issue regarding the makeup or propriety of any appropriate bargaining unit However, the contract executed between Russell and Local 355, referred to below, by its terms covered a "bargaining unit consist[ing] of all service employees." 4 See also, e g, N L R B v Big Ben Department Stores, Inc, 396 F 2d 78, 82 (C A. 2) 5 Although the present tense is utilized here and elsewhere, unless otherwise specified what is said applies to the times material to this proceeding 292 F.2d 561, 563 (C.A. 1), quoted with approval in Marine Engineers Beneficial Association v. Interlake Steamship Co., 370 U.S. 173, 179, fn. 6, ". . . the gradations of authority `responsibly to direct' the work of others from that of general manager or other top executive to `straw boss' are so infinite and subtle that of necessity a large measure of informed discretion is involved in the exercise by the Board of its primary function to determine those who as a practical matter fall within the statutory definition of a `supervisor.' "4 1. Philpit, Joseph Nocella, James Guido, and Marquand The head of Russell Motors, Inc., is5 Russell O. Philpit, its president and principal, whose office is at the 1039 Northern Boulevard location. Immediately under him, with office at 1900 Northern Boulevard, is Josephs Nocella, who functions as chief of service personnel at both locations. Joseph Nocella's immediate subordinate is James Guido, who, as assistant service manager (with desk outside of Nocella's office) functions as Nocella's stand-in, exercising the latter's responsibilities (also at both loca- tions) in his absence. Orval C. Marquand is manager of the parts department (located at 1900 Northern Boulevard). It is either admitted by the pleadings or was conceded at the hearing7 that each of the foregoing is a Russell supervisor within the meaning of the Act. 2. George Guido Russell President Philpit described George Guido as the manager of Russell's new-and used-car "Make Ready" department, with the job title of "Foreman, New and Used Car Department and Leasing Servicing Department," located at 1039 Northern Boulevard, where George Guido has his office, According to Philpit, George Guido-who functions immediately under Service Manager Joseph Nocella-does not himself work on cars, but merely schedules and assigns the work to other employees, whose work he oversees. Credited testimony of Assistant Service Manager James Guido, called as General Counsel's witness, further establishes that his brother George Guido, who as manager of Russell's "Make Ready" department does not punch a timeclock, has the power to hire and fire employees under him .8 Credited testimony of George Guido himself (called as General Counsel's witness) indicates that on the date he signed a membership card for Local 355-elsewhere established as September 9, 1970- he does not believe he was yet the manager of the "Make Ready" department, but that he was such when, a few days later (September 14, 1970-G.C. Exh. 9), he signed a 6 Joseph is here emphasized because Richard Nocella-Joseph's brother -also figures prominently in events to be described r After much testimony, in the cases of James Guido (especially by witnesses Hugo Gruebel, Johnson, Turnll, Philpit, Joseph Nocella, and even James Guido himself) and Marquand (especially by witnesses Dester, James Guido, Johnson, Turnll, and Richard E Walker, as well as Marquand himself), upon the basis of which I would have so found Assistant Parts Department Manager Joseph van Lawrence, who takes Marquand's place in his absence, does not figure materially herein 8 In this capacity, George Guido replaced "Doc" Santini, Russell's former "Make Ready" department manager, who left its employ around July 1970 RUSSELL MOTORS, INC. 357 membership card for UAW Local 259. According to payroll records of Russell, George Guido was shifted on those records from a basis of $4 per hour to $195 per week in the payweek commencing September 10, 1970. Credited testimony of George Guido further establishes that as "New Car" or "Make Ready" department manager he has four men under him, who carry out his work orders and whom he supervises; unlike he, they punch a timeclock and are paid by the hour. It is clear from the foregoing, as well as from corroborating testimony of other witnesses9 that at least since September 10, 1970, or a day or two or so thereafter, George Guido has been a supervisor of Russell within the meaning of the Act,_and I accordingly so find. 3. Henry Mack During the testimony when called by General Counsel. as an adverse witness, Russell President Philpit conceded Henry Mack to have been the foreman of its body shop, including in September 1970, at its 1039 Northern Boulevard premises, where, directly under Service Manag- er Joseph Nocella, Henry Mack directed the work of the body and paint shop employees, who carried out his orders.10 In a later appearance, when testifying on behalf of Respondent Russell, Philpit characterized Henry Mack -along with Service Manager Joseph Nocella, Parts Manager Marquand, and Assistant Service Manager James Guido-as a person who "supervise[s ]" and "stimulate[s ]" men to work and to be "more productive." Also testifying on behalf of Russell, Service Manager Joseph Nocella, referring to service personnel who receive commissions in addition to salary, including Henry Mack-as well as himself (Joseph Nocella), Marquand, James Guido, and Hugo Gruebel-on direct examination characterized them (including Henry Mack) as "part of management . . . they are . . . considered supervisors...." A number of witnesses called by General Counsel further established the supervisory status of Henry Mack. Thus, Russell Assistant Service Manager James Guido-himself a supervisor- identified Henry Mack as the Russell body shop manager and foreman who, compensated on a commission as well as salary basis, while lacking the direct power to hire and fire, nevertheless does have the power effectively to recommend hiring and firing, and has effectively recom- mended hiring. Henry Mack himself, called by General Counsel and impressing me as a highly reliable witness, testified that he is indeed the foreman of the Russell body shop, having been promoted to that status in June 1970, by Service Manager Joseph Nocella, who instructed him that he no longer need punch the timeclock; that between June and September 1970 he not only received a weekly raise but also had commissions added and is the only person in the body shop thus compensated; that in his capacity as body shop foreman, although he himself works, he has under and subject to him three employees who carry out his orders. The testimony of Henry Mack further establish- es that, although he does not possess the authority himself to hire, fire, suspend, transfer, promote, or reward any employee, he has effectively recommended action of that nature to Service Manager Joseph Nocella, who has invariably followed those recommendations as well as Mack's overtime schedules; and that he (Henry Mack) also gives men time off, in Nocella's presence as well as in his absence. Body shop employees Palmer, Horace Mack, and Castano all identified Henry Mack as the body shop foreman under whom they work and from whom they take orders and who grants time off; and who, unlike they, does not punch the timeclock and has a desk. Upon the basis of the foregoing, I find that at the times here material Henry Mack was a supervisor of Russell within the meaning of the Act. 4. Richard E. Walker Richard E. Walker is carried on the Russell pay records, at the times here material, as a weekly paid employee, at $150-$175 per week. Testifying as General Counsel's adverse witness, Russell President Philpit characterized Richard Walker as a "Working Foreman ... directing the paper work to . . . the mechanics . . . partially," in August-September 1970, subsequent to which Philpit "guess[es]" he was taken off that status. Philpit conceded, however, that when the volume of work required, Richard Walker "direct[d] the work of" others. Testifying later, as Russell's own witness, Philpit accepted the characterization of Richard Walker, during at any rate the period from September 8-18, 1970, as the "shop foreman over the mechanics" who issued "work orders to the mechanics." Additional light was shed on the status of Richard E. Walker by other witnesses, including not only Walker himself but two of Russell's supervisors-Orval Marquand and James Guido. Thus, Russell Parts Manager Marquand -a Russell employee of 19 years' standing-expressly referred to Richard Walker as the "shop foreman" and "supervisor" of Richard Nocella, who figures prominently in events to be recounted. Russell Assistant Service Manager James Guido also identified Richard Walker as his (i.e., James Guido's) successor as (repair) shop foreman, Walker having been promoted to that job in 1969 and holding it into 1971 with about 10 mechanics under him and subject to his orders and supervision. (According to Richard Walker himself, however-no longer employed at Russell, having quit there in July 1971-it was not until February 1970 that he was promoted to repair shop foreman from his former position as service adviser, although he agrees that he continued to be the repair shop foreman until early 1971.) Richard E. Walker's testimony establishes that as repair shop foreman he was directly under Service Manager Joseph Nocella; that he discontin- ued punching the timeclock and was placed on a weekly salary of $170 plus 1-percent commissions on labor (no mechanics received any commission); that he supervised 10 to 11 mechanics and their work in the repair shop at Russell's 1900 Northern Boulevard premises; that he himself did no mechanical work, but functioned at a desk; that he exercised his independent judgment in carrying out his job and its responsibilities; that he had no power himself to hire or fire; and that he had the power, in the 9 E g, James Guido, Henry Mack, and J C. Mack 10 Philpit denied, however, that Henry Mack has hiring power As shown above, this is unessential to possession of supervisory status, in view of the disjunctive nature of the Act's definition 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absence of Service Manager Joseph Nocella, to give men time off. Russell mechanic James Turnll, an impressive witness presented by General Counsel, identified Richard Walker as his shop foreman who assigned and also reassigned or switched the jobs to be done by Turrill and the other mechanics, all of whom regarded Walker as their "boss" and carried out his orders. Turrill corroborated that Walker himself did no mechanical work, and pointed out that on duty Walker wore a white shirt and blue pants, unlike the mechanics, who wore uniforms. Turnll recalled that when Service Manager Joseph Nocella introduced Richard Walker to the mechanics, Nocella told them that Walker was their "boss" and ordered them to "do what he [Walker] says" in the same way as if Nocella himself were saying it. General Counsel's similarly highly impressive witness Robert Johnson, a mechanic for 20 years with Russell, likewise identified his supervisor, during at least the period here directly material-August-September 1970-to have been Richard Walker, as also did mechanic Hopkins and lubrication man Dester. Russell's present supervisor Hugo Gruebel further confirmed Walker's supervisory status at that time. Upon the basis of the foregoing I find that at the times here material Richard E. Walker was a supervisor of Russell within the meaning of the Act. this meeting and discussion was dissatisfaction among the employees concerning their existing hospitalization bene- fits.12 According to employee Guttilla, there was even strike talk. Richard Nocella-the brother of Service Manager Joseph Nocella-was concededly present at this meeting. At this time Richard Nocella was employed as a mechanic in the repair shop under Repair Shop Foreman Richard E. Walker. The unionization sentiment among Russell employees in August 1970 was known to the management of Russell. Employee Guttilla testified credibly that Service Manager Joseph Nocella spoke to him about the strike talk among the employees; this was undemed by Nocella. Russell President Philpit, on direct examination as a witness for Respondent Russell, testified that late in August-in connection with claims or indications of inadequate hospitalization coverage for the wife of employee Richard Walker-he (Philpit) was informed by Service Manager Joseph Nocella (as well as other supervisors) that there was "Union activity" and "Rumbling .... In other words, Union activity" and that his (Philpit's) expressed reaction to this was, "[There has] of course always been this, a little of it in our business and hands off. . . . Let' s see if we can take care of the things that are wrong." Nocella's response was, "I don't want a Union shop," with which Philpit agreed. 13 C. August-September 1970 The account which follows, constituting my findings, is based on a cumulation of testimony-extraordinarily massive and covering thousands of pages-to the extent credited, of witnesses who testified, as well as documentary proof. Although there are differences in details, such as precise dates and times-typically encountered during trials-in the main important aspects of the case, there is an impressive unanimity of testimony among General Counsel's witnesses (principally Russell employees), partic- ularly considering the large number, almost 25, brought to the witness stand and subjected to rigorous cross-examina- tion by extremely able counsel. 1. August 197011 There was unionization talk among Russell employees in August 1970. Around mid-August (1970), 15 to 20 Russell employees met in the shop (i.e., 1900 Northern Boulevard) locker room, on their own' time, in the absence of any foreman or supervisor, and discussed the subject of collective action through a union, without specific mention of any particular union. Figuring in and perhaps triggering 11 Credited testimony of General Counsel witnesses Stagnitta, Guttilla, and Hopkins ; as well as that of Russell President Philpit 12 It is said that one of the employees (Richard Walker) was confronted with the necessity of paying over $950 of an $1,100 hospitalization bill for his wife Russell President Philpit put the figure as high as $3,000 or $4,000 supposedly "not covered by insurance " 13 The foregoing is in essence corroborated by the testimony of Russell Service Manager Joseph Nocella, who-also as a Russell witness-stated that he reported to President Philpit in August that there was unionization talk among the employees stemming from their dissatisfaction over existing hospitalization benefits because of the adverse experience of employee Walker According to Nocella, Philpit told him to "bow out leave the 2. September 197014 Shortly after the foregoing August organizational activity and meeting of employees, which was concededly known to Russell management as shown, Richard Nocella -brother of Service Manager Joseph Nocella-stated to employees that he "had inquired about" a union and that "not that he personally got the union, but he had gotten cards for Local 355 for representation," which a few days later he undertook to distribute among Russell employees under circumstances to be described. Although, as will be recalled, at the August organizational meeting of employ- ees no foreman or supervisor was present, meetings following the distribution of the Local 355 cards by Richard Nocella were attended by Russell supervisors. a. Enlistment of Russell employees into (Local 355 Numerous Russell employees provided highly consistent accounts as to how they came to sign Local 355 membership cards. Invariably their accounts centered around Richard Nocella-the brother of Russell Service Manager Joseph Nocella, the top service supervisor of the Russell hierarchy-or one or another Russell supervisor as not only the source of their Local 355 cards or the decision up to the men " However, I prefer and accept the version of Philpit himself, who makes no mention of this remark Nocella now ascribes to him, at any rate, if Philpit made such a remark ("bow out," etc) to Nocella, the latter obviously did not follow it, as will be shown i4 Testimony, as and to the extent credited, of General Counsel witnesses Castano, Dester, Diamond, George Guido, James Guido, Hugo Grubel. Richard Gruebel, Guttilla, Hopkins, Jefferson, Johnson, Kennedy, Henry Mack, Horace Mack, J C Mack , Marquand, Palmer, Philpit, Renaldo, Stagnitta, Stirt, Turrill, James Walker, Richard E Walker, and Williams, of Respondent Employer ( Russell) witnesses Joseph Nocella and Philpit, of Respondent Union (Local 355) witnesses Bisciglie, Richard Nocella, and Stirt, and documentary evidence RUSSELL MOTORS, INC. instrument of their joining Local 355, but also as the leaders of the Russell unit of Local 355. The Local 355 cards were openly distributed, and the solicitations of employees to sign and join were openly made, almost entirely during paid working time, not only without objection or interference, but in many cases with the active encouragement, support, and even participation of Russell supervisory personnel.15 At no time did any Local 355 representative solicit any of those cards, nor apparently was any Local 355 representative observed on or off the premises, by rank-and-file employees other than Richard Nocella, until after these cards were signed. Since almost all of the Local 355 cards are dated September 9, 1970,16 and there is no contention that any Local 355 card was executed prior to that date, it would appear that almost all of the employees with which we are here concerned were solicited and executed the Local 355 cards on September 9, 1970. The employees' descriptions of the circumstances under which they signed the Local 355 membership cards is interesting and significant. Mechanic Turrill, a highly credible witness, testified that he signed the card only because Service Manager (i.e., top supervisor) Joseph Nocella's brother, Richard Nocella-then also employed in the Shop-"out of the clear blue sky" asked him to, saying, "Here, sign it"; and that when Turrill "had second thoughts after I signed it" and attempted the next day to get the card back, Richard Nocella refused to return it to him. Also solicited on September 9 by Richard Nocella to sign Local 355 cards were Service Adviser (assistant or associate to Assistant Service Manager James Guido) Hugo Gruebel, mechanics Dester, Guttilla, Hopkins, Johnson, Renaldo, and Stagnitta, parts department em- ployee James F. Walker, and pickup-deliveryman Richard E. Gruebel. Body shop employees Palmer, Horace Mack, and Castano received their Local 355 cards from their supervisor, Body Shop Foreman Henry Mack; 17 as did "Make-Ready" department porter Jefferson. When lubri- cation man Dester was handed a Local 355 card by Richard Nocella, during worktime, Nocella informed him that "we [are] going to get a union" and asked him to sign the card. When Richard Nocella gave mechanic Stagnitta a Local 355 card, also during worktime, Nocella told him that "They wanted to have a union in ... he knew this 355 union." (Emphasis supplied.) Stagnitta told Nocella that he was opposed to a union; he nevertheless signed it for Nocella. When Richard Nocella gave mechanic Renaldo a 15 Russell President Philpit in cautiously worded testimony stated that there is no "written," "strict," or "definite" oral rule against solicitation, so long as it does not "interfere with work," even though on worktime However, his immediate lieutenant, Service Manager Joseph Nocella, swore to the contrary that not only is there indeed a company rule (although not "posted") against solicitation on company time, but that he also "warned" employees-among them "may be" his brother Richard-that they were not to hand out union cards Although on an absolute basis it is difficult to choose between two interested witnesses of this caliber, on balance I prefer and credit Joseph Nocella's testimony, which is in the nature of an admission against interest, in this aspect, that there was indeed a company rule against solicitation during worktime 16 The cards were executed in duplicate Of 24 different persons' cards received in evidence (3 cards were received for Williams), 20 are dated September 9 Of the remaining four, Castano's card is dated "8-9," an obvious error for 9-9, the date on Bartolotta's card is changed from "10/8" to "9/8", Cnvello's card is dated "9-14", and J C Mack's card is dated 359 Local 355 card, Nocella told him he had obtained the cards "from a fellow employee that he knew at another dealership." 18 When handing mechanic Guttilla the Local 355 card for signature, Richard Nocella said merely, "Here is the union card." Nocella told mechanic Hopkins, also at work, "It is the union card, you know, you got to sign them and give them back." Various body shop employees obtained Local 355 membership cards from the desk of their supervisor, Body Shop Foreman Henry Mack. New car ("Make Ready") department porter Jefferson also obtained it from and signed and returned it to the same place after the body shop foreman "asked me [Jefferson] if I would like to have a union in the shop" and informing him that he had received the cards from Richard Nocella. Body shop painter Horace Mack similarly signed a Local 355 card which he obtained from the desk of the body shop foreman after the latter told him and other body shop employees, during worktime, that there were Local 355 union cards on his desk which had been "brought over . . . from the other shop . . . for a union," which the employees would have to fill out if they wanted a union in which case "you will be getting a little bit more benefits and plus I think you will be making a little bit more money, you know." Bodyman Castano likewise signed a Local 355 card after he was asked by his supervisor, Body Shop Foreman Henry Mack, "if you want to join the union with the majority of them?" Car polisher J.C. Mack of the "New Car" or "Make Ready" department signed the Local 355 card and handed it back to his supervisor, "Make Ready" Department Manager or Foreman George Guido. Hugo Gruebel is now and has been since about February 1971 a Russell supervisor. In September 1970, as a "Service Adviser"-the only such other than Assistant Service Manager James Guido-while not technically a supervisor, Gruebel was nonetheless closely allied with management and did not work on cars, merely estimating and pricing jobs, writing up orders, and checking out the work of mechanics, at his own desk, not punching a timeclock, and compensated on a straight salary plus commission basis. Called as a witness by General Counsel, Hugo Gruebel testified that he, as well as Assistant Service Manager James Guido, was handed Local 355 cards on September 9 at Gruebel's desk, during worktime, Gruebel signed at once, but-according to Gruebel-James Guido suggested that "Maybe we should hold off signing the cards until we check with another union." Nocella, however, said that "10-6 " Although one of Stagnitta's cards is dated "9-9," the duplicate bears no date, and although two of Williams' cards are dated "9-9," one of two of his cards produced by Respondent Local 355 bears the date "9-8" overwritten over "10-8 " 17 According to Palmer, after he heard from an unremembered "somebody" that there were "some union cards on the desk there for me to sign," he took a Local 355 card from the desk of Body Shop Foreman Henry Mack, signed it at home, and placed it on Henry Mack's toolbox Palmer denied that Henry Mack ever spoke to him about the card However, Body Shop Foreman Henry Mack credibly testified, as will be shown, that he did indeed ask Palmer to sign it I credit Henry Mack's testimony over that of Palmer, an evasive witness who prevaricated at the hearing regarding his signature is This was untrue, since according to Richard Nocella's own testimony he had obtained the Local 355 cards only from its official and representa- tive, Henry Stirt, who corroborated this. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "The men already had this union on the line, that we had the cards for this one and he didn't see any sense in getting another one." Gruebel and James Guido-still according to Gruebel, a most impressive witness-exchanged "won- der[ed]" about "why [Local 355 was] brought in." About a half-hour later, Gruebel heard James Guido report the union solicitation activity to Service Manager Joseph Nocella. At the hearing, Russell mechanics, Turrill and Johnson -highly credible witnesses, the latter a Russell employee for 20 years-swore that during a recess in the hearing they heard Repair Shop Foreman Richard Walker state, in the presence of Richard Nocella, that he (Walker) had been asked by Russell Service Manager Joseph Nocella to pass out Local 355 cards and that Walker refused to do so, at which point Richard Nocella entered Joseph Nocella's office.19 This testimony of Turrill and Johnson was in substantial effect corroborated by the testimony of Russell Supervisor Richard E. Walker himself; and it is also like that of Assistant Service Manager James Guido, who swore that toward the end of June (shortly before this hearing) Repair Shop Foreman Richard Walker had also stated in his presence-as well as in the presence of Hugo Gruebel and office clerk Melvin Cohen-that he (Walker) had been given Local 355 membership cards by Joseph Nocella notwithstanding the fact that Walker was a part of management. Neither Gruebel nor Cohen was called to dispute any of the foregoing. Furthermore, Mark Holt Kennedy, a university student employed at Russell, testified credibly that when he went to Service Manager Joseph Nocella's office to tell him that he (Kennedy) had missed a "meeting" of the employees, Service Manager Joseph Nocella himself thereupon gave him Local 355 cards (in duplicate, and also a blue card for the welfare plan or hospitalization) to sign. Kennedy signed and returned the cards to Joseph Nocella's desk. Although Kennedy's Local 355 membership card was not produced or accounted for, Kennedy produced a Local 355 member- ship card which he had obtained from Service Manager Joseph Nocella's desk, after Richard Nocella had told him that "Joe [Nocella] has them down on his desk ... for safekeeping"; Kennedy swore that when he took this Local 355 card off the pile on Joseph Nocella's desk, right underneath it was a similar card of Joseph Nocella.20 No less interesting or significant than the testimony of Russell rank-and-file employees is that of Russell supervi- sors and also its principal (Russell Philpit), regarding the circumstances under which Russell employees were enlist- ed into Local 355. Thus, Parts Department Manager Marquand-called as a witness by-General Counsel-testi- fied that during working hours early in September 1970 Richard Nocella took him to a parked Lincoln or Cadillac in the Russell parking lot, and there introduced him to 19 Although-still according to Turrill's description of the overheard conversation-Richard Nocella, who was present dunng the described statement by Walker during the hearing recess, denied it, Richard Nocella was hardly in a position to know what occurred between his brother (Joseph Nocella) and Walker before Richard Nocella entered Joseph Nocella's office Testifying as Respondent Local 355's witness, Richard Nocella conceded he was not in the office at the time 20 No Local 355 card for Joseph Nocella was produced at the hearing Because of numerous inconsistencies, hedging, evasiveness, and pretended or actual memory failures which characterized Joseph Nocella's testimony, Local 355 Representative Stirt. Although Marquand (employed at Russell for some 18 years) informed Stirt that he was manager of the parts department, Stirt told him he could belong to Local 355-in constrast to another union previously involved in organizational activity at Russell -and gave him a card. Stirt also gave Marquand three more Local 355 cards "because that's [your] department," after Marquand asked for them-"[You, Stirt,] give me three cards and Richie [Nocella], you take the rest." Returning to the Russell premises, Marquand distributed the cards to his subordinates van Lawrence (assistant manager of parts department) and probably James F. Walker, and after signing his own returned it to Richard Nocella. All of the foregoing was, according to Marquand, done during regular working time, as likewise was Richard Nocella's collection of signed cards to the extent observed by Marquand. Similarly, Assistant Service Manager James Guido-also called by General Counsel, and a most impressive witness 21-testified that on Friday, September 11, 1970, he was approached in the shop by Richard Nocella, who asked him to sign a Local 355 membership card, stating, "We want the union . That's it." Guido did not sign, but reported the matter to Service Manager Joseph Nocella, whose reaction was merely to indicate that the employees were acting within their rights, although Nocella reported the situation to President Philpit. Russell New-Car or "Make Ready" Department Manag- er George Guido-also called by General Counsel-testi- fied credibly in like vein that during working hours on September 8 or 9 he was approached by Richard Nocella to sign a Local 355 membership card. Nocella told Guido, "When you get a chance, sign the card and I'll pick it up." Guido returned the signed card to Nocella the next day, when Nocella "came around to pick up the rest of the cards" and asked him (Guido), "Have you got your card ready?" Richard E. Walker, formerly 22 the Russell repair shop foreman, also included in the General Counsel's over- whelming array of witnesses, testified credibly that early in the morning of September 9, during working hours, he received a Local 355 membership card from Service Manager Joseph Nocella in the latter's office in the presence of Joseph Nocella's brother Richard, who was then a subordinate of Walker in the repair shop. The circum- stances were that Walker had gone into Service Manager Joseph Nocella's office on business. There, on Joseph Nocella's desk, he observed a pile of cards, one of which Joseph Nocella handed to Walker. Both Nocellas informed Walker that they were "bringing the union in" and that this-a Local 355 membership card-was "the card." Walker remonstrated that he did not think that as shop foreman he should have a union card. Service Manager and because of my favorable impression of Kennedy's testimonial demeanor in contrast to that of Nocella, f prefer and accept Kennedy's account 21 That the testimony of such witnesses , still employed by Respondent Employer and thus in a sense testifying at considerable economic risk, may be considered to have added reliability, see, e g, Wirtz v B A C Steel Products, Inc, 312 F 2d 14, 16 (C A 4), Georgia Rug Mill, 131 N LRB 1304, 1305, fn 2, enfd. 308 F 2d 89 (C A 5) 22 Walker quit Russell's employ in July 1971 RUSSELL MOTORS, INC. Joseph Nocella's response was, "Everybody is going to have the cards." Later in the day, Walker gave his signed Local 355 card to Richard Nocella. Although Joseph Nocella flatly denied the foregoing episode or even having Local 355 cards on his desk,23 considering the elaborate framework of inconsistencies, evasions, and alleged memo- ry defects which characterized Nocella's testimony, and based on testimonial demeanor observations and compan- sons, I discredit Nocella's denial and credit Walker's testimony. Body Shop Foreman Henry Mack, in Russell's employ for some 12 years, was also called to the stand by General Counsel. He testified credibly that on or about September 9 during working time he was called on the Company's intercommunicating phone by Richard Nocella, who told him that he (Nocella) was sending Mack "cards for me and the guys that are in [my] shop." Upon receipt from Nocella of "a stack" of the Local 355 cards, Body Shop Foreman Henry Mack then told his subordinates "what the cards were for" and that he had received them from Richard Nocella, who, according to Mack, was well known around as Service Manager Joseph Nocella's brother. Thereafter, Henry Mack "reminded [the men] that the cards were still there on my desk" and he asked them whether they had signed them, telling them "the purpose of the union" and the benefit of a "good" union, Richard Nocella having told him how "good" a union Local 355 was. When Henry Mack obtained signatures on all of his subordinates' cards, he returned them, together with his own, to Richard Nocella, who-as testified by Mack-was pressing him to return them "as quick as possible ... it is better for the shop and better for the boys." As has already been indicated (testimony of J.C. Mack), Body Shop Foreman Henry Mack was also a source of supply of Local 355 cards to "Make Ready" department personnel. Foreman Mack readily admitted this in his testimony, conceding that he also "told them [in the `Make Ready' Department] that the cards were on my desk" in the body shop, what they were for, and that, based on what Richard Nocella had told him, Local 355 was a "good union." Called as a witness by Respondent Local 355, Richard Nocella testified that he is 33 and the brother and a subordinate of Russell Service Manager Joseph Nocella, who is 35, and that at some time previous to the events in September 1970 here involved, his brother Joseph was his immediate supervisor. According to Richard Nocella, following August (1970) unionization talk, at which he was present, among the men, looking toward better wages and benefits, he procured the telephone number of Local 355 from an unidentified "friend," and contacted Local 355 Representative Henry Stirt just before Labor Day. Stirt met Richard Nocella at the plant on the day after Labor Day, September 8. Stirt, who was also called as a witness for Respondent Local 355, conceded during his testimony that when he first met Richard Nocella (i.e., on September 8) he knew or learned that Richard Nocella was "the brother of the company's manager [Joseph Nocella]." Although on direct examination Richard Nocella testified that he brought Russell Parts Department Manager 23 It will be recalled that employee Kennedy also credibly swore to seeing those cards on Joseph Nocella's desk 361 Marquand with him to his meeting with Stirt at the plant on September 8, on cross-examination Nocella conceded that he first met with Stirt alone. Stirt confirmed such a brief prior private meeting with Nocella. After Nocella, in Parts Department Manager Marquand's presence, received from Stirt a supply of Local 355 membership cards, Nocella distributed the cards among Russell employees that day and possibly also the following day (i.e., September 8-9), concededly during working time . Richard Nocella testified that he conducted the Local 355 member- ship card solicitation at the 1900 Northern Boulevard premises, also giving some cards to Parts Department Manager Marquand and (conceded on cross-examination) possible also to James Guido (assistant service manager); and that for the 1039 Northern Boulevard location he left cards there with or for Body Shop Foreman Henry Mack. It is Richard Nocella's testimony that when handing out the Local 355 cards he said "to all the fellows" that "This is Union 355 that I am bringing in and these are the cards that have to be signed for it." According to Richard Nocella, by the following day, September 9, he had received 21 signed Local 355 membership cards and notified Stirt, who instructed him to "get together a four- man committee . . . to discuss[ed] the money and classifications of the men... . Called as Respondent Russell's witness, Service Manager Joseph Nocella, who is in charge of all service activities at both locations and functions directly under company head, Russell Philpit, denied knowing `from my brother " 24 that his brother Richard Nocella was distributing union cards on company time , and further denied (as did his brother Richard) any conversation with his brother on the subject of distributing union cards. I was extremely poorly impressed with the testimonial demeanor of this witness (as well as his brother) and accordingly do not credit his denial of knowledge that his brother Richard was distributing the Local 355 cards, preposterously unlikely as it is under the circumstances . Furthermore, this same witness (Joseph Nocella) also testified that when he learned from Assistant Service Manager James Guido-as, it will be recalled, testified to by the latter-that Richard Nocella was distributing union cards, he (Joseph Nocella) reported it to Russell Philpit, the head of the Company, who did not instruct him to do anything about it. This without more is a concession of knowledge on Joseph Nocella's part of his brother Richard's activities. As to Joseph Nocella's denial that he ever spoke to his brother Richard-or to Supervi- sors Marquand and Henry Mack-about distributing the Local 355 cards, I have no difficulty under the circum- stances in believing that Joseph Nocella indeed did not talk to them about not distributing those cards. Notwithstanding the testimony of Russell Service Man- ager Joseph Nocella that he expressly informed his chief, Company President Russell Philpit, about Richard Nocel- la's Local 355 membership card distribution activities, Philpit-testifying on his own behalf as Respondent Russell's witness-swore that he was unaware, prior to signing a collective agreement with Local 355, allegedly on September 10, as to who had solicited membership cards 24 Emphasis supplied. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Local 355. On cross-examination, however, Philpit conceded that he had indeed been informed by his immediate subordinate, Service Manager Joseph Nocella, that Richard Nocella was distributing union cards-these being the Local 355 cards dated September 9 upon the basis of which he promptly recognized Local 355 and allegedly executed a collective-bargaining agreement with it on September 10. Philpit conceded that he did not instruct Joseph Nocella to tell his brother (Richard) to desist from distribution of Local 355 cards-a statement which I fully accept, but which under all the circumstances is strongly consistent with the desire if not intention of raising no impediment to Russell employees being exclu- sively "represented" by Local 355. Perhaps particularly notable in this connection is the sharp contrast in Philpit's warning-by his own admission-to James Guido that he had violated a company rule by attempting to bung in a different union, namely, UAW Local 259 (as will be shown); Philpit conceded he uttered no such warning or statement in regard to Local 355. Based on my adverse reaction to Philpit's testimonial performance-which was characterized by inconsistencies, evasiveness, and exqui- sitely sharp semanticisms-as well my demeanor observa- tions, I reject Philpit's equivocating denial of awareness of any activity in his Company on behalf of Local 355 prior to being called upon to sign a collective agreement with it on September 10 (which he assertedly promptly did, as he claims). b. The Local 355 "Employees' Bargaining Committee" A substantial number of the Local 355 membership cards received by Richard Nocella from Local 355 Representative Stirt on September 8 were thus signed and back in Nocella's hands by September 9-some 21 of them. It will be recalled that, when Nocella so informed Stirt on September 9, Stirt instructed Nocella to "get together a four man committee . . . to discuss[ed] the money and classifications of the men." This Nocella proceeded promptly to do. According to Nocella's testimo- ny, the four-man committee he designated consisted of (in addition to Nocella himself) Parts Department Manager Marquand, "Make Ready" Department Manager George Guido, Body Shop Foreman Henry Mack, and Mechanic Renaldo-three out of the four supervisors. Nocella testified that he personally selected the "committee," and, 25 Testimony of Richard Nocella, in essence corroborated by Sint 26 This concession is of potential importance considering Respondents' contention that the collective agreement between them was signed on September 10, as discussed below The testimony of employee Dester also indicates that the "negotiating committee"-which he and some other employees were under the impression the employees "elected" (employee Guttilla thought about a dozen employees did so after Supervisor Marquand told them "we ought to have a little committee", although some employees swore they no time even heard about such a committee)-met with Stirt on September 15, on the day following two meetings of employees, one with Local 355 Representative Stirt and the other with UAW Local 259 Representative Diamond, on September 14 (Monday) Nevertheless , as will be shown, Respondents contend they signed their collective agreement on September 10, which would have been 5 days before any "negotiating committee" even met for the first time with Local 355 Representative Surti 27 Consider in this connection, again-see In 26, supra -Respondents' key contention , discussed below, that the collective agreement was signed by them on September 10 Marquand testified that when this "committee" during working time, so informed those he selected; he further testified, on cross-examination , that "just the committee" was to talk things over with Stirt. Such a meeting, of this "committee" with Stirt, took place thereafter at a local restaurant. Mechanic Renaldo-the only nonsupervisory employee on the "committee" of four designated by Nocella-declined to attend although notified.25 The date of this meeting with Stirt is in doubt-although Nocella testified on direct examination that it took place on September 9, on cross-examination he stated it was on September 9, 10, or thereafter; and then, after swearing he was unable to remember the date of the meeting, conceded that it could have occurred after the attempted interposition of UA W Local 259 into the situation, on September 14,26 as described below. According to Nocella's testimony, the only substantial thing he is able to remember about this meeting is that he gave Stirt the Local 355 cards and told him that if he "got what we wanted it was go ahead and sign for a contract." Parts Department Manager Marquand, a member of this "employees' negotiating committee," testifying concerning it, swore that he joined it a "couple of days" after signing the Local 355 card-i.e., a few days after September 9; 27 and that it was not an elected committee, but that it "kind of . . . form[ed] itself," seemingly named by Richard Nocella, who "asked me [Marquand] would I go on the committee." According to Marquand, although this "com- mittee" met with Local 355 Representative Stirt, neither it nor any other "employees' committee" at any time negotiated with the Company. Marquand also conceded at the hearing that Service Manager Joseph Nocella "became aware" of Marquand's actions.28 Still another "employees' negotiating committee" mem- ber, Body Shop Foreman Henry Mack, also swore credibly that the "committee" meeting with Local 355 Representa- tive Stirt occurred after the employees' meeting with UAW Local 259, which is definitely and undisputedly fixed as having taken place on September 14. 29 The only persons present at this meeting were Local 355 Representative Stirt, Richard Nocella, and three Russell supervisors (Marq- uand, George Guido, and Henry Mack). According to Henry Mack, Richard Nocella had invited him to the meeting-a lunch with Stirt-so that he (Henry Mack) could be told how much his men were going to get per hour.30 Renaldo-a highly impressive witness whose veracity impressed me as of high order-swore that met with Stirt, the latter said nothing to indicate a contract had been signed, and that "if the contract [i e, collective agreement ] had been signed [on September 10, as claimed by Respondents ], there wouldn't have been any reason to have a meeting " 28 Although Marquand also testified , on leading cross-examination by company counsel, that he had not been "authorize [d ] or encouraged ]" by Company President Philpit or Service Manager Joseph Nocella to do what he did, there is no showing of any objection on their part to Marquand's activities, despite at least Joseph Nocella's knowledge thereof 29 Again consider in this connection Respondents' insistent contention, discussed below, that their collective agreement was executed on September 10 See fns 26 and 27, supra 30 "Make Ready" Department Manager George Guido, who attended the meeting, added nothing in his testimony to the foregoing accounts of Nocella, Marquand, and Henry Mack As already stated, the only nonsupervisory member of the "committee" designed by Richard Nocella (i.e, mechanic Renaldo) did not attend. RUSSELL MOTORS, INC. 363 Richard Nocella called him to the meeting, telling him that he was "on the Negotiating Committee"; that Renaldo refused to go, stating, "I didn't like the way 355 was running, and that I wasn't going to go, that we should have a choice of either [of ] two unions," and that he was not alone in feeling this way since Nocella "was running the ball game" and "everything was going too fast for me on the committee." After the "committee meeting," Renaldo was told by Richard Nocella that the "committee" had met and that some purely tentative wage rates had been discussed, as to which Renaldo thereupon indicated he favored different rates. Renaldo, also,31 was certain that this occurred after the employees' September 14 meeting with UAW Local 259, and therefore on or about September 15. 32 Called as a witness for Respondent Local 355, its organizer Representative Henry Stirt33 testified that after Richard Nocella notified him on the morning of September 9 (Wednesday; Labor Day holiday was on Monday, September 7) that he had secured signed cards from a majority of employees, he instructed Nocella to select and bring a representative "group" to meet with Stirt that day for lunch. When Stirt met with Nocella and the aforemen- tioned three company supervisors (Marquand, George Guido, and Henry Mack), Nocella told Stirt that one man (i.e., Renaldo), "had refused to come"; according to Stirt he asked them "what any specific demands were" and stated he would seek to incorporate them into an agreement with the Company; and he indicated to them what current wage rates were under collective agreements to which Local 355 was a party. (Stirt conceded at the hearing that competing unions have different wage rates in Nassau County, New York, where Russell is located.) According to Stirt, the "committeemen" stated they "would be very happy and so would the men that they represented would be happy" with the Local 355 rates. Stirt conceded at the hearing that these "representatives" or "committeemen" were "actually [lust] picked by Richard Nocella." According to Stirt, he was not told nor did he ask whether any of the "committeemen" with whom he met was a supervisor; however, he also testified that when he noted that Marquand was attired differently than the others he asked Marquand whether he was "a supervisor," and that Marquand replied that he was not but that he was a "parts manager"-a reply which apparently satisfied Stirt, an experienced union organizer, that Marquand was not a supervisor. Stirt testified that he consulted with no company employee other than those on this "committee" as to what wage rates would be acceptable; and Stirt conceded that he conducted his "negotiations" with the Company personally with its president, Russell Philpit, with no "committee" or anybody else present. 31 See fns. 26, 27, and 29, supra 32 Again this should be borne in mind in connection with Respondents' important insistence , discussed below, that they executed their collective agreement on September 10 33 Stirt is also treasurer and was formerly secretary-treasurer of Local 355 He has also figured prominently in various proceedings like the present one before the Board and courts, as will be shown below 34 Based on the composite of testimony, to the extent credited, chiefly of General Counsel witnesses Dester, Richard E Gruebel , Guttilla, Johnson, Employees Guttilla and Hugo Gruebel credibly swore that they had not even heard about any such "committee. " c. The Local 355 "Employees' Membership Meetings"34 During lunchtime on Monday, September 14, 1970, Local 355 Representative Stirt held a Local 355 "member- ship meeting" with Russell employees at Russell's premis- es. Among those present, in addition to rank-and-file employees, Stirt, and Richard Nocella, were Assistant Service Manager James Guido, Parts Department Manager Marquand, "Make Ready" Department Manager George Guido, Body Shop Foreman Henry Mack, and Repair Shop Foreman Richard E. Walker .1 Addressing the group, Stirt said he knew Richard Nocella, and indicated to the group what Local 355 members "get", or "usually get." Before Stirt left with Richard Nocella, one of the employees in the assembled group remarked that they still had to hear from a representative of UAW Local 259 and to hear him out as well. Parts Department Manager Marquand urged the employees to go along with Local 355's "benefits," saying it was "a good idea." In his account of this noontime meeting on September 14, Local 355 Representative Stirt testified that he asked Richard Nocella to call the meeting after he told Nocella on September 10 that a contract had been signed with Russell, and that the purpose and content of the meeting was to describe the contract to the employees. In this version, Stirt is supported by Richard Nocella, who testified that Stirt said that "the men had got their classifications and the money that they had asked for and that we got all the benefits as far as dental goes, Blue Cross and Blue Shield." However, the many witnesses called by General Counsel were substantially unanimous in firmly denying that so much as mention was made concerning the signing of any contract. Upon the record as a whole, including comparative testimonial observations, I have no hesitation in preferring and accepting the testimony of General Counsel's witnesses that Stirt did not state or indicate on this occasion that a contract had been signed.35 Meanwhile, UAW Local 259 had been contacted to visit and speak to the employees, and did so-as will be shown below-after 5 p.m. quitting time on the same day as the foregoing meeting by Local 255 Representative Stirt (i.e., Monday, September 14). As the UAW Local 259 repre- sentative, Ralph Diamond, entered the Russell premises at 1900 Northern Boulevard, a meeting of employees was in process, and Diamond saw and heard an individual say to the assembled employees that "If [you] were to make up a committee and go to the boss that he would recognize .. . [Local] 355, and . . . [you] would get wage increases or benefits through this effort." When Diamond later asked the individual who had thus been addressing the employees Kennedy, Horace Mack, Marquand, Stagnitta, Turrill, James Walker, and Richard E Walker, of Respondent Local 355 witnesses Richard Nocella and Stirt, and of Respondent Russell witness Joseph Nocella Minor discrepancies, such as in dates and times, have also been reconciled or resolved 35 See also fns 26, 27, 29, 31, and 32, supra, and discussion under sec. 11, C, 2,e, The "Negotiation" and execution of the "Collective Agreement" between Local 355 and Russell, infra 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who he was, the latter identified himself as the service manager (i.e., Joseph Nocella). More will be said below concerning the ensuing meeting of the employees with UAW Local 259 Representative Diamond. Thus, when the UAW Local 259 representative (Dia- mond) arrived on the scene after 5 p.m. on Monday, September 14, an employees' meeting was in progress and being addressed by Service Manager Joseph Nocella. At that meeting, Local 355 Representative Stirt was also present. According to Stirt's version of what took place there, he (Stirt) discussed the new classifications and wage rates and inquired of the mechanics what level they each thought they belonged in; and at this point, since "there was a lot of confusion," Joseph Nocella was sent for to announce the "slotting" of the various mechanics for the new classification and wage rate purposes "and then we take it from there." According to Stirt, all mechanics with but a single exception (James Walker) "agreed unanimous- ly" with Nocella's "Slottings," and Stirt then left after "I [Stirt] asked also whether they were in agreement with the whole agreement . . . and they all unanimously agreed." Testifying on the same subject, also as a witness for Respondent Local 355-Richard Nocella professed to be unable to remember what Stirt said, other than that when the subject of employee "classifications" came up, since some employees were unaware of what these were or would be, Service Manager Joseph Nocella was called in and he announced the classifications of the mechanics. Richard Nocella (as well as his brother Joseph) agreed that, as the meeting was ending and UAW Local 259 Representative Diamond appeared on the scene, Local 355 Representative Stirt had already left. Also testifying on this subject-as Respondent Russell's witness-Service Manager Joseph Nocella stated that what he described to the assembled employees was classifications in a contract already signed,- on cross-examination, however, he swore he was unable to remember what he told the employees at this meetmg.36 According to General Counsel witness Stagnitta, howev- er, after Service Manager Joseph Nocella was called in to this meeting by Richard Nocella and described the classifications, Stirt then said, "If [you] all agree[d], [I will] see if [I] could get a contract for the men...." and that "he [Stirt] was going to take it up with Mr. Philpit."37 d. The attempted interposition of UA W Local 25938 As has already been indicated, on the heels of the described second (5 p.m.) September 14 Local 355 "membership meeting," another meeting of employees 36 For reasons already and elsewhere stated, as well as my adverse impressions of this witness' credibility in relation to the issues here, I do not credit his assertion that the contract had already been signed 37 Stagnitta's version, which I credit-particularly in view of the cumulatively consistent and credible testimony of various other General Counsel witnesses that there was no mention by Stirt or otherwise on September 14 that a contract had been signed See also fns 26, 27, 29, 31, 32, and 35, supra, and discussion under sec II, C, 2, e, infra 38 Based on the composite of testimony, to the extent credited, chiefly of General Counsel witnesses Dester, Diamond, Hugo Gruebel, Richard E Gruebel, George Guido, James Guido, Guttilla, Hopkins, Horace Mack, Marquand, Renaldo, James Walker, and Richard E Walker, Respondent Local 355 witnesses Richard Nocella and Stirt, Respondent Russell witnesses Joseph Nocella and Philpit, and relevant exhibits Minor took place, this one with UAW Local 259; or, in another way of looking at it, the employees who had been assembled to hear Local 355 Representative Stirt and Service Manager Joseph Nocella continued on to hear UAW Local 259 Representative Diamond. It will be recalled (A, supra) that UAW Local 259 had represented the Russell service employees prior to 1970, after its official certification by the Board following an election; and that, following that Board certification, there had been charges, a complaint, a Board order, and a court decree against Russell for unlawful refusal to bargain with UAW Local 259. When James Guido was approached by Richard Nocella on Friday, September 11, to sign a Local 355 membership card, as will be recalled he asked Richard Nocella whether the latter's brother, Service Manager Joseph Nocella, knew about it. Receiving a negative answer from Richard Nocella, Guido reported the incident to Joseph Nocella, who in effect defended Richard Nocella's action. Under these circumstances, about an hour later (on the same day, September 11, Friday), after talking it over with rank-and- file employees (e.g., Richard Gruebel, Hopkins, Johnson, Renaldo, Stagnitta, and Tumll, none of whom mentioned they had already signed a card for Local 355), Guido contacted UAW Local 259 Representative Diamond.39 Guido told Diamond that "there was something fishy going on" involving Local 355, with most of the men not satisfied with it, and he asked Diamond to come over and speak to the employees. It was for this reason that Diamond came over on Monday, September 14, to meet with the employees, just after shop quitting time (i.e., shortly after 5 p.m.). At this September 14 late afternoon meeting of the employees with UAW Local 259 Respondent Diamond, Guido said nothing about either union, but merely introduced Diamond and left the meeting to him. The employees expressed themselves as "very dissatisfied with Joe Nocella classifying the mechanics and they wanted to know . . . who did this." Diamond indicated that normally classifications are arrived at through collective bargaining; and he read them the UAW Local 259 wage classification standards applicable to some 80 shops in the industry, compared the UAW Local 259 benefits with those advanced by Local 355, and answered employees' ques- tions.40 Diamond then retired so as to permit the employees to talk privately. When he was called back, he was told that the men "wanted to go along with me [i.e., Diamond]." As testified by Dester, at the private discus- sion among the employees they decided to "abandon discrepancies, such as in dates and times, have also been reconciled or resolved 39 While it thus appears that it was James Guido, Russell's assistant service manager and one of its supervisors, who called UAW Local 259 in on September 11, that circumstances is not material in this proceeding, which does not involve any allegation that UAW Local 259 was an assisted labor organization Respondent Union's counsel "agree [s] that we are not trying [UAW Local ] 259 here " 40 According to Richard Nocella (testifying as Respondent Local 355's witness), Diamond described the UAW Local 259 pension plan and also explained that under the UAW Local 259 system all mechanics received $4 86 per hour (apparently substantially higher than the existing Russell and at least some of the proposed Local 355 rates) RUSSELL MOTORS, INC. [Local] 355 and back Local 259"; and the testimony of various employees who attended the meeting establishes that they did indeed there sign UAW Local 259 member- ship cards-according to Diamond, some 16 or 17, as indicated by James Guido all there present (including himself, Marquand, George Guido, Henry Mack, Hugo Gruebel, office clerk Cohen, and Richard Nocella)-not- withstanding that they had previously signed cards for Local 355 under the circumstances shown. When some of the men then told Diamond that they had signed cards for Local 355 and that its "negotiating committee" was scheduled to meet with the Company on the following day, Tuesday, September 15, Diamond told them to instruct the "negotiating committee" not to meet with the Company since they were being represented by UAW Local 259. Diamond thereupon immediately sought out Company President Philpit, but was informed by Service Manager Joseph Nocella that Philpit was not there. Diamond asked Joseph Nocella for recognition, but Nocella refused.41 Diamond then requested Joseph Nocella to notify Philpit. Additionally, that very evening (Monday, September 14) Diamond in the name of UAW Local 259 dispatched a telegram to Russell requesting recognition. It is noted that this telegram "confirms" the described earlier recognitional request of Diamond to Joseph Nocella and also asks that the status quo be maintained and that "all negotiations cease with the Amalgamated Local 355 until such time as an National Labor Relations Board election will be held to determine who is the collective bargaining agent for the service department employees." No response was received to this telegram. On September 16, UAW Local 259 filed a petition with the Board requesting an election. On the following morning (i.e., Tuesday, September 15)-Joseph Nocella conceded he may on that day have seen the UAW Local 259's telegram of September 14-James Guido was summoned into President Philpit's or Service Manager Joseph Nocella's office, where he was dressed down by Philpit in the presence of Joseph Nocella. It will be recalled that it was James Guido who had called UAW Local 259 Representative Diamond into the picture. Philpit angrily demanded to know from Guido why he, as "part of management," had called UAW Local 259 in, since he "had no right doing so," and accused Guido of having "broken a Company policy" by a "manager bringing in a union." Nocella chimed in with, "I don't know why you did it, Jimmy. You had no right to do it; you had no right to do it." (Philpit conceded that he took no comparable action and made no comparable accusation to those of his supervisors who were active on behalf of Local 355. Neither, of course, did Nocella.) Philpit stated to Guido that he could not afford the UAW Local 259 rates and would not enter into any collective agreement with UAW Local 259; and that the only way the employees would receive "benefits" from him was "to bring in the [Local] 355 " Philpit said he thought he (Philpit) "was doing something good by bringing the [Local 355] union in." 42 Philpit and Nocella were excited and angry. Philpit made no mention at this meeting (September 15) of any 41 1 discredit Joseph Nocella 's denial that such a conversation ever took place between him and Diamond I was well impressed with the testimonial demeanor of Diamond, who testified forthrightly, factually, and with 365 contract having been signed with Local 355; but he did threaten that he would "never sign a contract with [Local ] 2 5 9 . . . . . . 1 1 sell the business first ." To Guido's statement that Local 355 was "an employers' union"-he having learned that it was a "sweetheart union "-neither Philpit nor Nocella made any comment. Philpit's version of the foregoing episode is that when he called James Guido into his office on Tuesday morning, September 15, he merely told him, in the presence of Joseph Nocella, that Guido could not participate in union activities because of his job and that "I [Philpit] didn't want any more of it"; and that he also told Guido that he had signed a contract with Local 355 "a few days before." Philpit flatly denies making the other statements, recount- ed above, attributed to him by Guido. Joseph Nocella supports Philpit in these denials , but Nocella's version differs significantly from that of Philpit. According to Nocella, after Philpit queried Guido as to "why he [Guido] brought in [UAW Local] 259," Guido said he was "very disturbed about the fact that somebody [was] not telling him about what was going on upstairs in the shop with [Local] 355" and that he was unaware of what was going on in his own shop, to which Nocella remarked that he (Guido) should not have gotten involved since the Company has a "hands off policy." Nocella additionally testified-in response to leading questions-that Philpit stated that since "We have the contract signed by [Local] 355" why then "the involvement insofar as [Guido] was concerned," to which Guido responded that "it was for the good of the men and for the good of the Company... . that [UAW Local] 259 was a better Union than [Local] 355." Philpit replied-still according to Joseph Nocella- that "the contract was signed and that it was a good contract and that the men had agreed to the contract." Mention has been made several times of Respondents' present contention that they entered into a signed collective agreement on September 10.43 A flavor of the quality of Philpit's testimonial performance may be gleaned from the fact that he first-on direct examination -threw in that when he (Philpit) told Guido that a contract had already been signed with Local 355, Guido acknowledged that he was "aware of that." On cross- examination, however, Philpit contradicted this and expressly denied that Guido had remarked that he was aware of such a contract; and Philpit conceded (on cross- examination) that he did not tell Guido there was already a signed contract with Local 355. Still later, Philpit swore that he merely told Guido that Local 355 had given him a contract "to sign." (This was on September 15; Philpit now claims herein that the contract was signed on September 10.) As a result of leading redirect examination, Philpit attempted to return to his original version by stating that he told Guido there was a contract and that Guido "indicated" he knew . On recross-examination , however, he took the position that he had told Guido on the preceding Thursday or Friday (September 10 or 11) that a contract had been signed; but he again tossed in qualificational matter. With a persisting testimonial style of this genre, and candor and sincerity 42 Emphasis supplied 43 Supra, and discussion Infra 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indeed at times even worse (consider, for instance, his textbook example of evasion involving a written pretrial statement repeatedly initialed by him and on which he had crossed out his signature), I was left with an indelible impression of an extraordinarily evasive and canny witness. I have already had occasion to comment on the testimonial performance of Joseph Nocella, as to whose testimony in this particular aspect I received the strong impression that it was being tailored as he went along. Upon the record as a whole, including testimonial demeanor comparisons, I have no hesitancy in preferring and crediting the testimony of James Guido concerning the described September 16 episode in Philpit's office. Joseph Nocella concedes that, after he saw the UAW Local 259 recognitional request telegram of September 14, he called a meeting of all service employees on Wednes- day, September 16, after 5 p.m. According to Nocella, he there told the assembled employees about the UAW Local 259 recognitional request telegram and informed them that although they had signed membership cards for UAW Local 259 they had also signed cards for Local 355, that the Company had a "signed contract with Local 355," and that while he himself was "no Union man ... we have to go by the contract that was signed and agreed upon . . . with [Local]355." Local 355 Representative Stirt, who was apparently also present at this meeting, distributed Local 355 medical hospitalization ("Welfare Plan") cards for the employees' signatures, advising them-according to his testimony-that "they had to fill out the cards and that once the cards were in they are covered under the agreement.44 I mean the Welfare Fund and they are able to collect benefits." When-still according to Stirt-some employees pointed out that they had signed membership cards in UAW Local 259, Stirt further advised them that "we had an agreement with the Company, and that [UAW Local] 259 couldn't represent them, we [Local 355] had to represent them . . . you can sign cards for twenty different Unions and it means nothing, it doesn't have any weight. The first card that you sign you sign giving Amalgamated Local 355 the authority to represent them, these are the cards that I had and this is the representation and I proceeded with their authorization to proceed to get a contract, and the contract that we had would be valid." Several employees 45 who were present at this September 16 meeting and who testified provided a fuller and more convincing account, which I credit, regarding the antece- dents of this meeting and what was said at the meeting. Employee Dester-an extremely persuasive witness- swore that Richard Nocella told him on or after September 15 that he didn't "give a damn about the UAW" even though the employees had all signed up with the UAW. As to the meeting itself, employee James Walker testified that Joseph Nocella, in the presence of other company supervisors attending the meeting, informed the assembled employees that Philpit "could not afford the UAW's package, that it was too expensive and that he would close 44 Perhaps a "Freudian slip " 45 All were still employed at Russell when they testified herein See fn 21, supra 46 This could only have been an allusion to the Company's previous "trouble" with UAW Local 259, involving a Board order and court decree against the Company for unlawfully refusing to bargain with that union down the shop rather than sign a contract with the UAW"; and that Philpit and Nocella "wanted Local 355." Employee Kennedy testified to the same general effect. In like vein, employee Hopkins testified that at this meeting, which lasted almost an hour, Joseph Nocella, talking on the subject of unions, mentioned "the trouble" they had had before ; 46 that the Company "did not like unions .. . because of what happened before"; that Nocella "wanted 355"; and that "he would rather close the shop down than let that union [UAW Local 259] in." According to Kennedy, Richard Nocella said that "the only way we could get UAW in was to strike." e. The "Negotiation" and execution of the "Collective Agreement" between Local 355 and Russell As has been shown, almost without exception the Local 355 membership cards are dated September 9, 1970-i.e., 20 of 24; only I is dated September 8. Although there is substantial evidence-consisting of the credible insistence of certain card signers that they signed their Local 355 cards, now dated September 9, on a date subsequent to September 9-September 9) may nevertheless be regarded as the earliest possible date on which those cards were delivered signed. Notwithstanding this, Respondents now claim that they negotiated, entered into, and signed a comprehensive collective agreement by September 10. As will be shown, however, there is considerable indication to the contrary. The circumstances, as well as direct testimo- ny of numerous highly credible witnesses, strongly suggest that the agreement was actually "negotiated" and signed subsequent to the attempted September 14 interposition of UAW Local 259, and therefore-since it bears the date of September 10-backdated. The reason for such a backdat- ing would be apparent-namely, to establish that the parties had concluded an agreement before UAW Local 259 arrived on the scene.47 The circumstances surrounding the "negotiation" and alleged execution of this "collective agreement" will not be explored. According to Local 355 Representative and Official Henry Stirt, after he obtained 21 signed Local 355 membership cards from Richard Nocella on the afternoon of September 9 he visited Russell President Philpit, displayed the cards to him, and requested recognition; and Philpit examined the cards for about an hour and returned them to Stirt . This is what Stirt testified to when called to the witness stand, at the outset of the hearing, by General Counsel. However, when Stirt again testified, toward the end of the hearing, this time as a witness for Respondent Union, Stirt provided a substantially amplified and variant version of this meeting. Stirt then (as union defense witness) testified that after he requested recognition Philpit, after 10 or 15 minutes with the cards, agreed that 47 However , as acknowledged in closing argument by counsel for Respondent Union, even if the parties had in fact executed a collective agreement before UAW Local 259 arrived on the scene, this would still in no way rule out that Local 355 had been an employer-assisted union or otherwise introduced and recognized by Russell in violation of the Act as here charged RUSSELL MOTORS, INC. 367 they "looked legitimate" and that Stirt had "a clear majority,"48 and then and there orally received Stirt's demands as well as a "form contract" identical to the collective agreement which was ultimately signed between Local 355 and Russell.49 Stirt (continuing with the account he gave as Respondent Union's defense witness) added that he and Philpit then discussed the various provisions from beginning to end, including employee classifications and wage rates, to all of which Philpit agreed with Stirt. Although, according to Stirt, this discussion became "heated" on the subject of the proposed welfare benefits and holidays, Philpit "went along" with those as well and, in fact, made no changes in anything. Further according to Stirt's later version, this discussion lasted about 2-1/2 hours, with nobody there other than Stirt and Philpit. Stirt also testified that he told Philpit he would return the following day with the agreement in final form; when asked at the hearing what happened to the "draft" he had discussed with Philpit, Stirt's reply was that his office clerk had "destroyed" it and that he did not know what Philpit did with his copy.50 Continuing with Stirt's account as union defense witness, Stirt testified that he returned to Philpit with the "final" typed copy on the following morning, September 10 (Wednesday), at which time Joseph Nocella was also there; and that the only specific subject which came under discussion then was the actual classifi- cations into which specific mechanics would fall, but that this was never reduced to writing since "It was something that we had to discuss further." The contract was then signed, according to Stirt, just before noon of September 10, in duplicate, with Stirt himself writing "Russell Motor Inc." [sic] below Philpit's signature at the end. Notwith- standing his foregoing testimony, however, on cross- examination Stirt testified that the meeting of September 10 at which Joseph Nocella was present was merely like a "proofreading activity," and that a discussion regarding employee classifications did not essentially occur.51 Since Stint's testimony was characterized by much inconsistency and alleged memory lapses, as well as evasiveness and 48 It is interesting to observe in this connection, as set forth below, that Philpit testified he could "expressly" recall receiving only II cards from Stirt (A set of 21 of these cards was given by Surt to the Board's Regional Director's office on September 22 ) Other variations between the Surt and Philpit accounts of what took place will be apparent from a comparison of the two versions 49 Here, again, it is of further interest to note that according to Philpit's version-set forth below-Surf gave Philpit the draft about a day or two after he received the signed union cards from Stirt This would place Philpit's receipt of the draft at September I I-after the date of September 10-appearing on the signed document 50 See In 49, supra Philpit produced no such draft either 51 According to Stirt (on cross-examination as Respondent Union's witness), he gave Philpit and Philpit agreed to the Appendix A (classifica- tions and wage rates) portion of the contract in the very form in which it appears at the end of the signed contract dated September 10 When asked, however, where the parts department employees are shown there, Stirt, conceding they are not there listed, claimed they were intended to be included under "Helpers," base rated at $3 per hour Stirt then took the position that since Marquand, as a member of Local 355, is in the parts department, he would be considered under the classification of "Helpers" under Appendix A of the contract When it was thereupon pointed out to Stirt-still on cross-examination-that Marquand is the manager of the parts department and earns as much as a "B + Mechanic" under Appendix A (i e, $3 85 per hour), Stirt's response was that the rates on Appendix A were only "minimum" rates it is, of course, obvious that Job classifications and wage rates are usually the most basic features of collective bargaining some outright prevarication, and also considering testimo- nial demeanor as observed, I was left with a poor eventual impression of his veracity in relation to the matters here at issue. According to Russell President Philpit-when called to the witness stand first early in the case by General Counsel as his second witness, immediately following Local 355 official Stirt-Philpit expressly recalled receiving only 11 signed Local 355 cards from Stirt when Stirt first visited him, and it was "several" and possibly "even more than five days" later that he signed the collective agreement with Local 355. Since Stirt could not in any case have been in possession of even as many as I I signed cards before they were signed, and since the cards did not come into Stirt's possession before September 9, this would, accord- ing to this testimony by Philpit himself, place the signing of the contract no earlier than September 11 (Friday) and as late as even after September 14 (Monday), contrary to Respondents' current contention that the contract was executed on the date it bears, September 10. Philpit's testimony when he was recalled to the stand toward the end of the case, as Respondent Russell's witness, again indicates that there was an intervening period of some days between Stirt's visit to him with the signed cards (allegedly on September 9) and the execution of the collective agreement with Local 355-further negating Respondents' present contention that the agreement was executed on September 10. Thus, when he returned to the stand as Russell's witness late in the case, Philpit testified that after receiving the signed union cards from Stirt (i.e., September 9, allegedly, but certainly in no event before that date), he (Philpit) 1, 2, or 3 days later52 received from and discussed with Stirt a draft of a contract, telling Stirt that it was satisfactory without change. Finally, Philpit testified that he did not before September 15 tell Marquand, George Guido, or Henry Mack that he had signed a contract with Local 355.53 Ample comment has already been made concerning Philpit's testimonial style and quality. Philpit (as well as Stirt) conceded that Russell had had 52 In his typical testimonial style, Philpit subsequently attempted to obfuscate this earlier testimony by "offhandedly" suggesting that it "could have been 1 /2 hour later", subsequently he further blurred it by impatiently minimizing it as "Several hours Could be 40 hours " Further example has already been given of this witness' manner of testifying-of of which his extraordinary evasive feat at the hearing regarding his pretrial statement must be indelible upon any person who witnessed the performance 53 While I can well believe that Russell did not tell them before September 15 that he had signed a contract with Local 355, this by no means establishes or supports Philpit's current contention that he signed it on September 10, rather, in the context of the total circumstances, it supports the inference that he did not tell them until on or after September 15 because it was not signed until on or after September 15 It is quite unlikely that Philpit would not have told his own supervisors (and even the rank-and-file employees)-particularly considering the situation-that he had signed a contract with Local 355 Although Philpit states he did, however, tell James Guido and "possibly" also Hugo Gruebel prior to September 15 that he had signed a contract with Local 355, 1 discredit this in view of Guido's and Gruebel's testimony credibly to the contrary, and since there is no persuasive reason to believe (particularly considering the quality of the testimonial source) why Guido and Gruebel should have been singled out for such revelations It is further to be noted in this connection that according to Philpit's own testimony it was September 15 -on the occasion when he called Guido to Nocella's office to dress him down for having brought UAW Local 259 Representative Diamond in the previous afternoon-when Philpit allegedly (credibly disputed by James Guido) told James Guido that he had already signed a contract with Local 255. This (Continued) 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no contractual relationship with Local 355 prior to that here embodied in the agreement which they dated September 10. Philpit added that that agreement constitut- ed the only "collective bargaining" he had engaged in in 20 years, despite the fact that the Russell employees have been previously represented, as has been shown, by UAW Local 259 with the ensuing Board order and court decree against Russell for unlawfully refusing to bargain with UAW Local 259. Russell Service Manager Joseph Nocella's testimonial contribution on this subject was that he was present in Philpit's office on September 10 when Stirt said he "had ... all the cards for Local 355 and he was presenting a contract to Mr. Philpit." This again, it will be noted, is in contrast to the testimony of Stirt as well as that of Philpit.54 According to Joseph Nocella, they then (September 10)-once more in contrast to Stirt's version and also Philpit's version-discussed the terms of the "finally prepared contract," which was then and there signed without change, but with some things "in the relationship and insofar as the classification of the men . . . and benefits" filled in in Stirt's handwriting.55 On- cross- examination, however, Nocella spoke of a "collective bargaining session" which he attended with Philpit and Stirt prior to this; and he claimed inability to "recall" or "remember" anything that was said prior to the execution of the contract, including whether there was any disagree- ment about anything or whether nonunit employees were so much as mentioned. Finally, according to his testimony, Nocella allegedly first mentioned the signing of the card on September 14. Richard Nocella also testified in relation to this subject. Called as a witness for Respondent Local 355, on direct examination he was asked the question of whether, when Stirt spoke to a group of employees during lunchtime on September 14, "the word contract [was] mentioned." Nocella's reply took the form, "Yes ... that the men had got their classifications and the money that they had asked for and . . . the benefits...." According to Richard Nocella's testimony on direct examination, when he signed would seem to indicate that it was September 15, and not before, when, even according to Philpit, Philpit told Guido a contract had been signed, unless-and Philpit did not so claim nor here testify-he had also told Guido the very same thing before September 15 It is finally noted in this connection that on cross-examination Philpit altered his previous testimony by swearing that what he told Guido was merely that Local 355 had given him a contract "to sign." (Emphasis supplied) During leading redirect examination, Philpit sought to repair this testimonial slip by stating that he told Guido that "the contract was there"-thus obfuscating the question of whether it had been signed or not. Then sought to be pinned down on recross-examination, Philpit this time flatly stated that he told Guido on September 10 or I l that a contract had been "signed," but with renewed equivocation Philpit also testified that the Local 355 health -hospitalization ("Welfare Plan") "blue cards" were also distributed to "everybody" on September 10 or 11 This conflicts with the testimony of all other witnesses, including even Stirt and Respondents' other witnesses, and is patently untrue 51 It will be recalled, for example, that Stirt testified that it was on September 9 that he mentioned the Local 355 cards and that only he and Stirt were there, not Nocella Nocella's version is also in significant respects at odds with that of Philpit 56 Neither of the copies of the collective agreement here presented shows any such thing On cross-examination , Nocella qualified his earlier testimony by stating that did not "recall" when he first heard Philpit and Stirt discuss classifications and wage rates 56 A pretrial statement taken by a Board agent from Nocella, admitted a membership card for UAW Local 259 on September 14 he knew that Russell had already signed a contract with Local 355; but he is unable to remember when the contract was signed and unable to explain how he knows it was signed before September 14, conceding that he first saw it "in October sometime." On cross-examination, however, Richard Nocella conceded that on September 14 (the date of the UAW Local 259 meeting when he signed its card) he did not know (or does not remember knowing) whether a contract had been signed between Russell and Local 355, and that he does not remember when he learned that such a contract had been signed; and he also conceded-in seeming contrast to Philpit, Stirt, and Nocella-that as of September 14 the classification of the employees had not yet been worked out.56 A procession of employees-supervisors as well as rank- and-file--called by General Counsel as witnesses, provided highly convincing testimony throwing the gravest doubt on Respondents' contention that they entered into their collective agreement on September 10, the date it bears. Thus, rank-and-file employee Dester, an impressively credible witness, swore that at the September 14 meeting Local 355 Representative Stirt discussed wage rates with the employees, telling them what Local 355 members "get" or "usually get," and that Stirt in no way indicated a contract had already been signed. Dester further swore that Service Manager Joseph Nocella came in later and categorized each mechanic by name and his proposed classification slot and wage rate, but that some employees' classifications and rates were not so much as mentioned at this meeting; and that it was further indicated there that the "employees' negotiating committee" would thereafter negotiate with Philpit. Further, Richard Nocella, a member of that "committee," subsequently told Dester that-des- pite the fact that the employees later that day (September 14) had met and signed up with UAW Local 259-he (Nocella) "didn't give a damn about the UAW" even though the employees had all signed up with UAW, yet made no mention of any contract between Russell and Local 355. Dester first learned of such a contract around into evidence for impeachment purposes only, states At no time during the meeting on that day [September 10, 1970], did Stirt tell me [Richard Nocella I he had signed a contract with the boss I do not think he did because we still had to work out the wage classifications for each of the men The day after the [September 14, 1970 ] meeting with the UAW man , Henry Stirt of Local 355 came back to the shop [i e., on September 15, 1970 ]. . I do not recall him [Surt] saying he had already signed a contract with the boss, but I doubt it since we still had not worked out the classifications for each of the men with him A couple of days later , on a Wednesday or Thursday [September 16 or 179], myself, George Guido, Henry Mack & Orval Marquand met with Stirt at Howard Johnsons on Northern Blvd & Port Washington Blvd in Roslyn to work out the job classifications & wage rates for each of the men we wanted Stirt to present to the boss. Stirt said he would present our demands to the boss and report back to us A few days after the Howard Johnson meeting, Stirt did come back to the shop to tell us what the boss had agreed to What Stirt told us met with the men's approval I do not know when a contract was actually signed between the boss & Local 355 since I was not a witness to the signing. I do not recall when I first got a copy of the contract My copy does have a September 10, 1970 date on it for when the contract was signed Nocella conceded at the hearing that this statement-with the possible exception of some things he allegedly could no longer remember-although unsigned was accurate to the best of his knowledge and belief RUSSELL MOTORS, INC. November. Dester's testimony that Stirt said nothing to the employees on September 14 concerning a contract having been signed by Russell with Local 355 is borne out by the likewise highly credible testimony of employee witnesses Horace Mack and Turrill. In his similarly impressively delivered testimony, rank-and-file employee Renaldo recounted that when Richard Nocella told him on September 15-subsequent to the employees' meeting with UAW Local 259-that the "employees' negotiating com- mittee" (of which Renaldo was a designated "member" but had refused to participate in because he was leery of the situation) had met, and Nocella described its proposed tentative wage rates to Renaldo, the latter did not agree but suggested different rates; in no way did Nocella indicate that a contract had already been signed between Russell and Local 355. Still another extremely impressive rank-and-file employee witness, Stagmtta, swore that at the employees' meeting of September 1457 the employees were informed by Stirt that he "was going to take ... up" with Philpit the proposed new wage rates and that "If [you] all agree[d], [I, Stirt, will] see if [I] could get a contract"-clearly indicating no contract was yet in effect between Local 355 and Russell. Yet another highly credible rank-and-file employee, James Walker, swore that at the employees' September 16 meeting with Joseph Nocella and Stirt (described above)-where Joseph Nocella stated that Philpit and Nocella "wanted Local 355" and that Philpit "could not afford the UAW's package, that it was too expensive and that he would close down the shop rather than sign with the UAW"-neither Nocella nor Stirt gave any indication that there was already a contract between Russell and Local 355. To the contrary, Stirt stated that Local 355 would "match any package that UAW came up with"-strange talk for a union official already holding a signed contract in his pocket. Stagnitta, as well as James Walker, first heard that there was such a contract in October-from his supervisor, Marquand.58 Respondent Russell's own supervisors-produced as General Counsel's witnesses-threw additional light on the subject. Respondent's Parts Department Manager Mar- quand-who, it will be recalled, was an active member of the "employees' negotiating committee" designated by Richard Nocella-a highly credible witness, swore that a few days subsequent to the date (September 9) he signed his Local 355 card, the "employees' negotiating committee" met with Stirt and agreed on various features "that should be incorporated in a contract with Russell Motors. . . . If the contract had been signed, there wouldn't have been any reason to have a meeting " (Emphasis supplied.) Marquand further swore that at this meeting-subsequent to Septem- ber 10-Start gave no indication (to his own committee) that Local 355 already had a contract with Russell; and 57 Or September 16-at any rate subsequent to September 10 ss The testimony of rank-and-file employees Richard Gruebel and Guttilla indicates they were first told of a contract between Russell and Local 355 on or after September 16-also well after September 10 Hugo Gruebel, now a Russell supervisor and even in September 1970 management related, testified that when in the locker room a few days after September 9 Stirt in the presence of Joseph Nocella descnbed benefits under Local 355, Stirt made no mention of a contract with Russell, and that it was not until the following week that Stirt said he had a contract UAW Local 259 Representative Diamond was first told about such a contract about a week 369 that it was not until on or about September 21 that Stirt said he had signed a contract with Russell. Russell Assistant Service Manager James Guido, also a highly credible witness, swore that when Richard Nocella asked him on Friday, September 11, to sign a Local 355 card and he (Guido) reported this to his superior, Service Manager Joseph Nocella, neither of the Nocellas indicated that a contract had already been signed by Russell with Local 355. Guido further credibly testified that when Philpit called him to the office on September 15 to berate him for introducing UAW Local 259 Representative Diamond to the employees on September 14, Philpit made no mention of any contract between Russell and Local 355; as a contrary indication , Philpit stated that he would "never sign a contract with [Local ] 259.... I'll sell the business first." Also Respondent's "Make Ready" Department Manager George Guido testified credibly that when he signed the UAW Local 259 membership card at the end of the day of September 14, he had no knowledge of any contract between Russell and Local 355 ; and that he first learned of such a contract about 3 weeks later, in October. The "Collective Agreement" dated September 10, 1970 With regard to the "collective agreement" under discus- sion, it is noted that at the very beginning it bears the typewritten date "10th day of September, 1970"; that it is for a term of 2 years, to September 9, 1972; that it states at the beginning it is between Local 355 and "Russell Motors, Inc.," but is signed at the end "Russell Philpit" and thereafter is added-concededly in Stirt's handwriting -"Russell Motor Inc.," the word "Inc." being written over the word "Corp."; that by its terms Russell recognizes Local 355 as the "sole bargaining agent of all employees" in the bargaining unit consisting of "all service employ- ees"; that by its terms a Local 355 shop is created-i.e., "all service employees"59 are required to remain or join, and thereafter maintain membership "in good standing" in Local 355 as a condition of their employment; 60 job classifications and wage rates are specified in an Appendix A; the employer is required to contribute into the Union's "United Welfare Fund"; 61 it defines worktimes, holidays, vacations, and sick leave; under its terms employees or groups of employees are expressly declared to be not vested by virtue thereof with any rights or remedies enforceable "either at law, equity or otherwise, and whether as principal or third party beneficiary or other- wise, it being understood and agreed on the contrary, that all of the rights and privileges created or implied from this Agreement shall be enforceable only by the parties hereto or two after he filed an election petition on behalf of UAW Local 259 on September 16; he had been informed when he spoke to the assembled employees on Monday, September 14, that there was then "no contract They were going to meet for the first time with the boss on Tuesday [September 15 ] " ss 1 e, nonsignatones as well as signatories of Local 355 cards 60 1 e, Local 355 may compel the discharge of any employee notjoining Local 355 or not maintaining Local 355 membership in good standing Si Discussed infra 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [i.e., Local 355 and Russell], and only in the manner established by this Agreement"; 62 a shop steward maybe either "appointed or elected by the Union"; the shop steward's "duty ... shall be to see that there is no violation of this Agreement"; the shop steward "shall have top seniority," even to the extent of displacing another employee; the Employer may hire at will without regard for union membership, with the absolute right to fire during the first month of employment; all disputes and controversies are subject to a mandatory grievance-arbitra- tion procedure, with the final step being arbitration before a single arbitrator named by both parties; there is a mandatory "check off" pay deduction for "all Union membership dues and initiation fees" in such amounts "as may be established by the Union"; "During the life of this Agreement, there shall be no strike, stoppage of work, slow down, picketing, boycotting, lockout, or any other econom- ic pressure or activity of any kind by either party against the other for any reason or matter, controversy or grievance, or claim of breach of contract of any kind, nature or description, between the parties hereto"; the "reopener" provision provides that if the parties are unable to agree on contract revisions, "the disagreement shall become a dispute hereunder and shall be subject to the arbitration provisions of this Agreement"; and the agree- ment "automatically" renews itself from year to year unless formally renounced in advance by either party. It is noted that the "body" of the agreement-i.e., that portion before the signature-does not list any wages, but merely states "See Appendix `A' "; and that the annexed "Appendix 'A'," after listing certain classifications and rates, in turn states: "In the event agreement cannot be reached on any additional conditions, the disagreement shall become a dispute hereunder and shall be subject to the arbitration provisions of this Agreement."63 It is conceded that since its execution this "collective agreement" has been in full force and effect, and that under it Russell has made the payroll "checkoff" deduc- tions for union fees and dues required by its terms. Crediting the described testimony of the supervisory and rank-and-file employees and upon the record as a whole, I consider it most unlikely that this "collective agreement" was actually executed on September 10, but that far more likely it was executed at some time on or after September 15-that is, after the advent of UAW Local 259-and either backdated to September 10 or signed without changing the date of September 10 typed thereon. It seems most unlikely that Respondent Employer would not inform its own supervisors-particularly considering what was going on-that it had made a contract with Local 355; and at least as unlikely that Local 355 would not likewise promptly publicize such a fact to its newly "won" members. Particularly in view of conflicts between versions of 62 Under this provision, presumably, an employee could not even bring suit for wages-only the Union could on his behalf if it chose to This provision also appears to take no cognizance of the right preserved to employees by Sec 9(a) of the Act to present grievances directly to their employer 63 This final provision-particularly considering the fact that certain employees' (James Walker and Marquand) wages were raised beyond the rates listed in Appendix A subsequent to the execution of the contract-is Respondents' witnesses, as well as internal inconsistencies in the respective accounts which they individually put forth, and also my lingering major misgivings on the score of their veracity based on observed testimonial demeanor, I cannot bring myself to credit their contention that, under the circumstances described, the "collective agreement" which they entered into was actually fully negotiated by and signed on September 10, 1970, as they now assert. I am rather of the belief, and upon the entire record find, that that "collective agreement" was entered into after the advent of UAW Local 259 on the scene, that is after September 14, 1970, and that it was backdated to, or entered into as of, September 10, 1970, in an attempt to insure that its employees would be exclusively "represent- ed" by Local 355 and to forestall (1) its employees' being represented by UAW Local 259 or any labor organization of their own free choice, (2) the necessity for Russell to recognize, deal, or negotiate with UAW Local 259 or any labor organization of Russell's employees' own free choice, and (3) a Board-conducted election to determine by official secret ballot its employees' true representational desires. f. The Local 355 welfare plan Respondents' "collective agreement" contains a provi- sion (art. XII) creating a "Welfare Fund" for "each employee covered by this Agreement," with the Employer required to contribute a certain monthly amount to "the United Welfare Fund" on each such employee's behalf "for the purpose of financing the Welfare Plan for the benefit of said employees." The provision further stipulates that "In the event that the Trustees [unidentified] of the said Welfare Fund shall determine that the amounts contributed by Employers [note the plural] are insufficient to adequately provide for the benefits made available to employees, the Employer agrees to make payment in such increased amounts as shall be determined by the said Trustees." There is a further proviso that "The Trustees of said Fund shall have the right to provide for inclusion in the Plan of Union officers, agents and employees, and such other persons as they may determine shall be included." Local 355 Official Stirt, called as a Local 355 witness, testified that the "United Welfare Fund"-which he characterized as "our welfare fund"-referred to in the parties' "collective agreement" is a creature of Local 355 solely and exclusively; only Local 355 members, or those it otherwise permits, may participate therein, Stirt explained that it covers all officials and employees of Russell even though they are not unit or Local 355 members; however, these would not be admitted unless the employee unit here was unionized under Local 355. It also covers all Local 355 officials, agents, and employees. According to Stirt, the further indication that whenever the contract was signed, the parties had not yet fully negotiated its terms or the terms which are normally to be found in a bona-fide collective agreement resulting from arms' length dealing, for with relation to those classifications of rates not yet agreed upon, the "agreement" was no more than an "agreement to agree if agreement is possible " Stirt himself conceded that, with employees not yet "slotted" into classifications at the time the "collective agreement" was executed, that was left for later and that "If we have any disagreement, we would arbitrate " RUSSELL MOTORS , INC. 371 fund is a trusteed fund of Local 355 and various employers,64 in part administered by Local 355 and with Stirt as an unpaid "trustee." Philpit, Joseph Nocella, and Marquand confirmed that they, as well as other Russell executives, supervisors, clerical, and other nonbargaining unit employees, participate in this "Welfare Plan," which issues membership or identification cards carrying the legend "United Welfare Fund."65 Russell President Philpit testified-corroborated by Local 355 official Stirt-that he (Philpit) "insisted upon" this universal inclusion before he would enter into the "collective agreement" with Local 355, and that Stirt agreed to this in "an oral understand- ing," which Stirt later testified is "the normal practice of the Union to do that, that when we do come into a shop is to take the whole group into our welfare fund. They don't have to be members of the Union if they are out of the bargaining unit." According to Stirt, this "discussion also include[d] taking Mr. Philpit and the Company supervisors in as well . . . because they are sales people," and under Stirt's oral agreement with Philpit the Company "was to pay [premiums] for all of them including . . . the nonunit employees . . . without any exception." According to Stirt, he left cards for the "Welfare Fund" at the Russell premises, together with Local 355 union dues "checkoff" authorization cards, on Wednesday, September 16. Of such cards here in evidence, none is dated earlier than September 16. Since the parties' continuing participation in a "Welfare Fund" of the character described, under the circumstances discussed, is not in this proceeding specifically alleged to be in violation of the Act, nor are we here concerned with any other possible legal requirements other than those of the Act,66 our interest is focused only on its relation to the overall situation, involving basic allegations of an "assist- ed" and otherwise improperly installed union under a "sweetheart" arrangement with the Employer. Considering the circumstances insofar as they involve the described "Welfare Plan," introduced under the aegis of Local 355 for unit employees but extending also to nonunit employ- ees and even company executives with conceivably conflicting claims and interests to be "impartially" admin- istered, such universality of "protection" (to the possible economic detriment of unit employees, whose economic "package" may to an extent be reduced) smacks of an accommodative element between the Employer and Local 355 suggestive of close relationship and common interest and not the usual arms' length dealing. g. The Local 355 "Shop Steward" Although there appears to be some uncertainty or difference of opinion as to whether Richard Nocella-the brother of Russell Service Manager Joseph Nocella-was eventually "elected" as Local 355 Shop Steward,67 it is undisputed that at any rate initially and through the 64 Russell President Philpit swore he does not participate in the fund's administration and does not know who does 65 There is no express reference on these cards to Local 355 66 Cf , e g , Art, Title Ili, Welfare and Pension Plans Disclosure Act of 1958, Internal Revenue Code and 26 CFR 67 Although Dester recalled such an "election" among some of the employees around the end of September, Guttilla maintained there was-m critical period here Nocella was self-appointed, and that at all times he alone has been serving as the Local 355 steward. It will be recalled that the "collective agreement" itself does not require that a Local 355 steward be elected, but calls merely for a steward "appointed or elected by the Union" who thereupon automatically attains "top seniori- ty" in the shop-even to the extent of displacing another employee-and is vested by the "collective agreement" with the "duty ... to see that there is no violation of this Agreement" (with all questions as to whether there is a "violation" required to be grieved and arbitrated at the sole instance of Union and Employer before a single arbitra- tor). Russell Service Manager Joseph Nocella testified that company records show that his brother Richard Nocel- la-umquely among the employees-was paid $115.50 for 25-30 hours "miscellaneous" (N. B., not "overtime") in addition to $154 for 40 regular hours, for the two critical weeks in September 1970. Joseph Nocella pleaded igno- rance as to the meaning of "miscellaneous," suggesting as an explanation that his brother Richard-a "B" mechanic then-was an extraordinarily gifted mechanic.68 h. Employer threats It has already been noted that, during the course of the described events in September 1970, various threats are ascribed to Respondent Employer, involving refusals to deal with UAW Local 259 and predicted dire economic consequences which would ensue if that union were to be chosen as the employees' representative. In this immediate connection, there will again be recalled Russell's previous torrid history with UAW Local 259 following its official certification by the Board after a secret election and Russell's refusal to bargain with that union, eventuating in a Board Order and court decree. The threats in question were far from insubstantial, since they not only bespoke a replay of the Employer's earlier unlawful refusal to deal with UAW Local 259, but also cut to the sinew and bone of the employees' jobs by threatening plant shutdown in the event Local 259 were chosen by the employees. Employee James Walker, a highly credible witness, testified that at the September 16 meeting of Service Manager Joseph Nocella with the assembled employees, Nocella told them that Russell President Philpit "could not afford the UAW's package, that it was too expensive and that he would close down the shop rather than sign a contract with the UAW." Likewise, employee Hopkins testified that on this occasion Service Manager Joseph Nocella referred to the "trouble" they had before and that the Company did not like unions "because of what happened before"-which could only have been a refer- ence to UAW Local 259; and that for this reason he "wanted [Local] 355" and "would rather close the shop "vote" and that Nocella was shop steward because "he told me " Nocella himself maintains he was "voted in" at "one of the meetings " 68 While Joseph Nocella testified on redirect examination that other employees also at times received various amounts under the heading "miscellaneous," there was no attempt to show what these were for, nor, of course, would it shed light on what Richard Nocella was paid for, which Respondents chose not to disclose 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD down than let that umon [UAW Local 259] in." Still another employee, Kennedy, testified credibly that Joseph Nocella told the entire assembled shop that UAW Local 259 "was the wrong union [and that] Philpit said he would rather close down than have the UAW come in because it would cost him too much money." When employees indicated they did not like various features of Local 355 and preferred UAW Local 259, Richard Nocella remarked in the presence of Joseph Nocella-without contradiction by the latter-that "the only way we [employees] could get UAW in was to strike." It will, finally, be recalled that-as described in another connection-Assistant Service Manager James Guido, a high-ranking supervisor in the Russell hierarchy and a highly creditable witness, testified that when he was called to Service Manager Nocella's office on September 15 for a dressing-down for calling UAW Local 259 in, Philpit told him that he "could not afford the [Local 259] rate[s]" and that he would "never sign a contract with [Local] 259... . I'll sell the business first." Philpit and his Service Manager Joseph Nocella contra- dict all of these employees, including their own supervisory subordinates, and deny that they said these things. It would serve no useful purpose to repeat my previous observations concerning the quality of their testimony. Crediting the described employees' testimony, I find that the threats were indeed made. i, Miscellaneous On his return from vacation, late in September, Russell Repair Shop Foreman Richard E. Walker in Service Manager Joseph Nocella's office, with Richard Nocella present, asked, "How come all of a sudden after all these years we're getting a union in Russell Motors?" The response of both Nocellas was that "they had contact with the union which would give broader medical coverage plus dental coverage." In October 1970 employee Richard Gruebel, who had not signed a Local 355 membership card, was given such a card by Service Manager Joseph Nocella in his office. It is noted, in this connection, that, as has been mentioned, Respondents' "collective agreement" contains a mandato- ry "union shop" membership provision, requiring all unit employees to become and remain members of Local 355 and to pay that union initiation fees and dues during the life of the contract and any automatic or other renewal, under penalty of discharge. Around April or May 1971, when President Philpit in the repair shop mentioned having to appear in court in an unfair labor practices case over the Union, Shop Supervi- sor Richard E. Walker asked him, "How did we get involved with the unions in the first place? I felt that we could have resolved any differences without the benefit of the union." Philpit's reply, according to Walker, was, "It was going to become inevitable that all of the dealers would eventually have a umon." Philpit does not deny saying this, but merely says he cannot "recall" saying it. Late in 1970 or early in 1971, Assistant Service Manager James Guido was called into Philpit's office, with nobody else there. Philpit told Guido that UAW Local 259 was hiring a lawyer, and that Philpit wanted a statement from Guido. Philpit appeared to be taking notes of Guido's ensuing remarks, which Guido neither read nor was asked to sign. At the conclusion of this interview, Philpit told Guido he had discussed "this situation" at a meeting with "several of his Buick dealer friends,"69 who told him they could not understand why Russell retained Guido in its employ. Philpit purported not to remember any such incident. I credit Guido's account as above described. Three Russell employees testified concerning Board subpenas requnng their attendance as witnesses at the behest of General Counsel or the Charging Party (UAW Local 259) in this case. Employee James Walker swore that upon receipt of these subpenas, Local 355 Representative Bisciglie 70 explained to them that there would be a trial and that although "anybody can be subpoenaed . . . you can't be forced to say anything," and advised them to "disregard" the subpenas and that Local 355 and the Company "will let [you] know if [you] had to go down."7i Similarly, employee Renaldo-likewise a highly creditable witness-testified that he was advised by the Local 355 representative (brought to Renaldo by Richard Nocella) that he did not have to sign a pretrial statement which he had given to a Board agent and that "Nobody's forcing you into saying anything." Although a third employee, Horace Mack, was allegedly unable to recall all of what Bisciglie told employees about the subpenas when Bisciglie visited the shop on that occasion, other than that Bisciglie assured the men that "there is [nothing] really to worry about," Mack did confirm the episode. Testifying on this subject, Biscighe denied the statements attributed to him; according to him, it was the employees who asked him what to do about the subpenas which had been served on them, and his (Bisciglie's) response was that they must appear and tell the truth. As for the pretrial statement incident involving Renaldo, after first insisting he was unable to recall any conversation regarding such a statement other than one with Richard Nocella, Biscigle later said 8 or 10 other employees were also present on the occasion; still later, Biscigle recalled another such conver- sation, in February or March 1971, but did not provide details. On the basis of comparative demeanor observations as well as the weight of the conflicting testimonial versions, I have no hesitancy in preferring and accepting the employ- ees' versions as described. A telling incident, as credibly recounted by Russell's former Repair Shop Foreman Richard E. Walker, occurred between Walker and Richard Nocella on July 8, 1971, the day before Walker left Russell's employment. Walker told Nocella that he still felt that as shop foreman he (Walker) should not have been in the Union (Local 355) and that Service Manager Joseph Nocella should not have given him the Local 355 membership card. Richard Nocella called Walker a liar and said he (Richard Nocella) had given Walker the card in "Joe's" office and presence. 69 Cf N L R B v. Raymond Buick, 445 F 2d 644 (C A 2), also involving exclusively, on behalf of Local 355, in the forepart of 1971 Local 355 and a nearby Buick agency other than Respondent Russell 7' Walker also stated that he subsequently was told that Bisciglie had 70 Biscigle took over from Shrt to "service" the Russell employees "retracted" this RUSSELL MOTORS, INC. Walker stood firmly by his guns that it was Joseph Nocella who had given him the card and offered to verify it with Joseph Nocella. Richard Nocella did not take up the invitation . Walker also commented adversely upon Rich- ard Nocella's recent elevation , because of his brother Joseph, from class "B" to class "A" mechanic. Although vigorously cross-examined regarding this episode (which was disputed by the Nocellas, but to a degree corroborated by witnesses Johnson and Turrill ), Walker adhered to it ruggedly and convincingly . I credit Walker's described account of the episode. During his testimony, Russell President Philpit conceded that-although there was not "anything remain[ing] to be negotiated" when he signed the "collective agreement" with Local 355-he increased the wages of James Walker as well as Marquand subsequent to his signing the "collective agreement" with Local 355, but he denied he did this to bring their wages in line with UAW Local 259 wage rates . The following (Fig. 1) is a comparison of wage rates under the speedily executed "collective agreement" between Russell and Local 355 (claimed by the latter to be the area "prevailing rates") and those under contracts of UAW Local 259 (claimed by it to be the area "prevailing rates"): Local 355 Hourly Rate UAW Local 259 Hourly Rate Job Classification (1970-72) 1970--72 Mechanic "A" $4.86 $4.86-$5.15 awn 3.85 "8e 3.45 3.77--4.02 New Car Make Ready Man 3.545-3.795 Lubeman 3.25 Lubeman-Rackman-Helper 3.515--3.765 Partsmen 3.96--4.21 "B" 3.575-3.825 Helper J 3.00 Metalman and 4.68-5.15 Combination Painter 3.77-4.02 Utilityman 2.75 2.89-3.14 Peter 2SIl J Local 355 Official Stirt testified that under the Local 355 contract Partsmen were classified as "Helpers." Fig. 1: Wage Rate Comparisons , Local 355 and UAW Local 259 (Source: G.C. Exh. 3A, Appendix A, and G.C. Exh. 20,Appendix A) D. Resume, Resolution, and Rationale As has been shown and found, in 1966 Respondent Russell's service employees by secret ballot in a Board- conducted election selected UAW Local 259 as their bargaining representative. Notwithstanding the Board's official certification of UAW Local 259, a complaint proceeding was thereafter instituted against Russell, 72 Both Philpit and Stirt conceded the absence of any prior contractual relationship, Philpit additionally testifying that the "collective agreement" here in question was the only one he has had in 20 years It would seem that these circumstances may additionally be taken into account in resolving the issue of whether a suddenly and speedily installed union has achieved such 373 resulting in a stipulated Board order and court decree enjoining Russell from continuing to refuse to bargain collectively in good faith with UAW Local 259 and to cease and desist from attempting to oust that union as its employees' representative. When, in the late summer of 1970, there were rumblings of renewed union activity among service employees, the movement was swiftly headed off or channeled into the direction of another, "independent" union, Amalgamated Local Union 355. This was accomplished through the activities of Richard Nocella, brother of Russell Service Manager Joseph Nocella and self-styled Local 355 shop steward, with the active assistance of various Russell supervisors, who in a I-day "campaign" enlisted 21 service employees-substantially the full crew-to sign member- ship cards to join Local 355. These activities, camed on openly and without concealment on Russell premises during paid working time, were known to Russell, including not only its Service Manager Joseph Nocella (chief of all service employees) but also its president, Russell Philpit, who did nothing to hinder those activities even though they were in violation of Russell rules banning such solicitation. When before any agreement was concluded between Local 355 and Russell, UAW Local 259 was invited into the fast-developing situation, the employee (a supervisor) who had called UAW Local 259 in was-in total contrast to those who had been openly soliciting for Local 355 on company premises during paid working time, in violation of company rules-berated by Russell President Philpit and Service Manager Joseph Nocella, in Nocella's or Philpit's office, and informed in no uncertain terms that UAW Local 259 would not be tolerated by Russell as its employees' representative, and that Russell would shut down rather than deal with it. Thereafter, to the knowledge of Russell and its supervi- sors, a substantial majority of the service employees signed membership cards, later in date than the cards they had signed for Local 355, designating UAW Local 259 as their sole bargaining representative, upon the basis of which UAW Local 259 requested recognition and preservation of the status quo pending determination of the question of representation through a secret ballot election to be conducted by the Board. Notwithstanding its knowledge of these facts, Russell ignored these requests of UAW Local 259, and instead-through Service Manager Joseph Nocel- la again expressly telling the employees that it would under no circumstances deal with UAW Local 259, but would rather shut down-proceeded to enter into whirlwind "negotiations" and to execute a "collective agreement" with Local 355, a labor organization with which Russell had had no prior dealing.72 Respondents Russell and Local 355 either backdated or otherwise signed that "collective agreement" as of a date I day after the date on the 21 Local 355 cards; namely, September 10, 1970.73 Russell's blitzkrieg enlistment of employees, whirlwind "negotiations," and lightning-like alleged contract execu- unique "instant success" as a result of employer assistance See N L R B v Link-Belt Co, 311 U S 584,588 7' As indicated above, it is in any event no answer for Respondents to contend, as they (particularly Local 355) do, that Local 355 simply beat UAW Local 259 to the punch, and that Russell executed a contract with (Continued) 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion are' most unusual in labor relations as chronicled in the annals of the Board. Such suspicious speed, within the frame of reference of Russell's past hostility and even Board order and court decree proscribing refusal to bargain in good faith with UAW Local 259, its announced preference of Local 355, its open membership campaign at its own expense through its own supervisors and manage- ment-related personnel on behalf of Local 355,74 its deliberate misdating of the "collective agreement" hastily executed with Local 355, the terms and provisions of that "collective agreement" including the mandatory Local 355 membership75 and dues "checkoff" with surrender of the right to strike and other employee rights, and its threats to shut down rather than deal with UAW Local 25976 speak eloquently of a snug "sweetheart" arrangement as charged. So far as Respondent Russell is concerned, they speak loudly of Employer assistance and support 77 to Local 355; 78 Employer encouragement (of Local 355) as well as discouragement (of UAW Local 259) of union membership and thus discrimination in regard to hire and tenure of employment; and, further, interference, restraint, and coercion of employees in the exercise of their right to select a bargaining representative of their own free choice, and their other rights guaranteed to them in Section 7 of the Act. Oil Transport Co., 182 NLRB No. 148, enfd. 440 F.2d 664 (C.A. 5); Shea Chemical Corporation, 121 NLRB 1027, 1029. They speak dust as loudly, so far as Respondent Local 355 is concerned, of restraint and coercion by Local 355 of employees in the exercise of their Section 7 rights and of causing as well as attempting to cause Russell to discriminate against its employees in violation of Section 8(a)(3) of the Act.79 Upon the entire record, I find and Local 355 before UAW Local 259 came on the scene Although I do not believe this in fact occurred, even if it did Local 355 was still an assisted and otherwise unlawfully employer-sponsored union for the Russell employees Under the circumstances shown, this would have been true even if UAW Local 259 had never come on the scene at all 74 "[A]n employer may properly be held responsible for 'interfering' in the affairs of a union because of participation by his supervisors even though such participation was not expressly authorized or ratified." Plumbers Local 636 v NLRB, 287 F 2d 354, 360 (C A D C) See also Il LR B v Park Edge Sheridan Meats, Inc, 323 F 2d 956 (C A 2) No representation question is presented when the showing of interest is based on cards solicited by supervisors, since such a union is incapable of representing the employees Desdu Productions, Inc, 106 NLRB 179 75 Cf Shipwrecking, Inc, 136 NLRB 1518, 1520 96 Cf N L R B v Gissel Packing Co, 395 U S 575, 618-6620, Textile Workers v Darlington Co, 380 U S 263, 274, fn 20, N L R B v Exchange Parts Co, 375 U.S 405, 409, N L R B v Virginia Electric & Power Co, 314 U S 469, 477, 478; Holly Hill Lumber Company v N L R B, 380 F 2d 838, 841 (C A 4), N L R B v Eastern Die Co, 340 F 2d 607, 608 (C A I), cert. denied 381 U S 951, N LR B v Tru-Line Metal Products Company, 324 F 2d 614, 616 (C A 6), cert denied 377 U S 906, United Fireworks Mfg Co v N L R B, 252 F 2d 428, 430 (C A 6) "The right of employees to be represented by officials of their own choice doubtless must outweigh any principle of persona non grata " N LR B v Signal Manufacturing Co, 351 F 2d 471 (C A I), cert denied 382 U S 985 77 As, through enabling and tolerating card solicitation for Local 355-as distinguished from UAW Local 259-on company premises during paid working time, by company supervisors and personnel; and through overt company favoritism toward Local 355 and coercive campaigning against UAW Local 259 Cf, e g, Modern Cleaners Company, 100 NLRB 37, enfd sub nom N L R B v Giallanza, 208 F 2d 243 (C A 2); N LR B v Clinton Woolen Mfg Co, 141 F 2d 753 (C A 6), Oil Transport Co, 182 NLRB No 148, enfd 440 F 2d 664 (C A 5, nonfiling of representation petition by rival union not determinative), Shea Chemical Corporation, 121 NLRB 1027, 1029, Jack Smith Beverages, Inc, 94 NLRB 1401, enfd as modified 202 F 2d 100 (C A 6), cert denied 345 U S 995, Midwest Piping conclude that Respondents in fact did these things, Russell in violation of Section 8(a)(2), (3), and (1), and Local 355 in violation of Section 8(b)(1)(A) and (2), of the Act. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. At all material times, Respondent Russell Motors, Inc., has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, Respondent Amalgamated Local Union 355 has been and is a labor organization within the meaning of Section 2(5) of the Act. 3. At all material times, Local 259, United Automobile, Aerospace, and Agricultural Implement Workers of Amer- ica International Union, Charging Party herein, has been and is a labor organization within the meaning of Section 2(5) of the Act. 4. Assertion of jurisdiction in this proceeding is proper. 5. By its conduct set forth in section III, above, found to constitute unfair labor practices, Respondent Russell Motors, Inc., has: a. In violation of Section 8(a)(2) of the Act, contributed financial or other support to a labor organization, viz Amalgamated Local Union 355; b. In violation of Section 8(a)(3) of the Act, discrimi- nated in regard to hire and tenure of employment and terms and conditions of employment: (1) to encourage membership in a labor organization, viz. Amalgamated Local Union 355; including by said Russell Motors, Inc., agreeing to a maintenance of membership requirement in a and Supply Co, Inc, 63 NLRB 1060 In this connection , Respondent Russell's history of animus against UAW Local 259 has been considered. It may also be said that premature employer recognition in the face of a rival union claim lends status to the prematurely recognized union, thereby further interfering with, restraining, and coercing the employees' true freedom of choice. Local 355 Official Stirt testified that "subsequent to that [recognition of Local 355 by Philpit on September 9], other people signed up later on, when we had the agreement " 78 It is not alleged or contended by General Counsel that Local 355 is a "dominated" or "interfered with" union under Sec 8(a)(2), presumably because the Employer here was neither the original sire nor accoucheur of Local 355 itself-although in a sense the Employer was such to his employees here Under certain circumstances , employer "domination" has been predicated upon the prominent role of supervisors, as here, in the sponsored union activities, committees, and meetings (Wahlgren Magnetics, 132 NLRB 1613, Thompson Ramo Wooldridge, Inc, 132 NLRB 993, enfd. as modified 305 F 2d 807 (C A. 7, and employer " interference" has been predicated upon supervisors' membership-as here-on an employees' bargaining committee (Nassau and Suffolk Contractors' Association, Inc, 118 NLRB 174, see also Plumbers Local 636 v N L R B, 287 F.2d 354 (C A D C ), quoted in fn 74, supra A finding of employer "domination" (as distinguished from employer "assistance") may warrant an order disestab- lishing the dominated union N LR B v District 50, UMW, 355 US 453, 458-459, Jack Smith Beverages, Inc, 94 NLRB 1401, enfd as modified 202 F.2d 100 (C A 6), cert denied 345 U S 995 79 That scienter or wilfulness is unessential to violation of Sec 8(b)(I)(A) and (2), see 1LGWU [Bernhard-Altmann Co J, v N L R B, 366 U.S. 731, 738-39 An 8(a)(2) violation by an employer supports a finding of an 8(b)(1) violation by the assisted union for interference with employees' rights to organize themselves, such as through concluding a contract with the employer (N L R B v. Richard W Kaase Company, 346 F.2d 24 (C.A. 8), Ellery Products Manufacturing Co, Inc, 149 NLRB 1388), particularly where the contract unlawfully conditions employment upon maintenance of union membership (cf United Association of Journeymen & Apprentices, Plumbers Local 231, J S Brown-E F Olds Plumbing & Heating Corp, 115 NLRB 594) RUSSELL MOTORS, INC collective agreement with said labor organization notwith- standing that said labor organization was not duly employee-authorized and further notwithstanding that said labor organization was established for said Russell Motors, Inc., employees, and maintained and assisted by actions of said Russell Motors, Inc,, defined in Section 8(a) of the Act as unfair labor practices; and (2) to discourage member- ship in a labor organization, viz Local 259, United Automobile, Aerospace, and Agricultural Workers of America International Union; c. In violation of Section 8(a)(1) of the Act, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 6. By its conduct set forth in section III, above, found to constitute unfair labor practices, Respondent Amalga- mated Local Union 355 has, in violation of Section 8(b)(1)(A) and (2) of the Act, restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and has caused and attempted to cause an employer, viz Russell Motors, Inc., to discrimi- nate against its employees in violation of Section 8(a)(3) of the Act. 7. The foregoing unfair labor practices, and each of them, have affected and are continuing to affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY There remains the question of remedy. It is a widely acknowledged principle in the transaction of human affairs that previous conduct is a reliable guide to anticipated future behavior. This case affords a good example of that principle so far as the past is concerned. It should also utilize that principle thereapeutically to provide a less bleak future. Neither of Respondents is a stranger to the Board, although Local 355 is very well known indeed. So far as Respondent Russell is concerned, as will be recalled, there is a previous history, a few years ago, of unlawful refusal to bargain with UAW Local 259 in the face of that Union's official certification by the Board following a secret ballot election, resulting in a Board order and court decree by the Second Circuit Court of Appeals of the United States. Notwithstanding all this, as has been shown, Russell persists in its obdurate hostility to its employees' selection of that Union as bargaining representative, to the extent of threatening to go out of business and thus end their jobs rather than deal with it, and instead foisting a "sweetheart union" (Local 355) on its employees to prevent that eventuality. These circumstances warrant and require a stronger and more effective remedy than the last time. So far as Respondent Local 355 is concerned, the reasonable limitations of decision writing as well as decision reading mandate a more synoptic treatment than the chronology really warrants. We are told that in fashioning an appropriate remedy we may properly consider a Respondent's history. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614; N.L.R.B. v. Seven-Up Bottling Co, 344 U.S. 344, 348-49; Truck Drivers & Helpers Local Union No. 728, Teamsters v. N.L.R.B., 332 F.2d 693, 695, 697 (C.A. 5), cert. denied 379 U.S. 913; Local 138, etc. v. N.L.R B., 321 F.2d 130, 138 (C.A. 2); N.L.R.B. v. 375 Springfield Building & Const. Trades Council, 262 F.2d 494, 498-499 (C.A. 1), cited with approval in N.L.R.B. v. Ochoa Fertilizer Corp., 368 U.S. 322; Jaffe, The Judicial Enforce- ment of Administrative Orders, 76 Harv. L. Rev. 865, 892 (1963). Local 355 has had a long and consistent history of violations before the Board and courts for more than 10 years, including the following cases 80 (1) Lundy Manufacturing Corporation, Amalgamated Local Union 355 & ano. (Cases 2-CA-6083, 2-CA-7330, 2-CA-7330-3, 2-CA-6403, and 2-CA-7330-2; acts dating from 1957), 136 NLRB 1230 (1962), enfd. 316 F.2d 921 (C.A. 2, 1963), cert. denied 375 U.S. 895 (1963); (2) Fiore Brothers Oil Co., Inc., Amalgamated Local Union 355 & ano. (Cases 2-CA-8146 and 2-CB-3234), 137 NLRB 191 (1962), enfd. 317 F.2d 710 (C.A. 2, 1963); involves Stirt ; (3) Salmirs Oil Company, Amalgamated Local Union 355 & ano. (Cases 2-CA-8149 and 2-CB-3237), 139 NLRB 25 (1962); involves Stirt; (4) Malcolm Konner Chevrolet, Amalgamated Local Union 355 & ano. (Cases 22-CA-1282 and 22-CB-527), 141 NLRB 541 (1963), enfd. 338 F.2d 972 (C.A. 3, 1964); involves Stirt; (5) Richmond Rambler Sales, Inc., Amalgamated Local Union 355 & ano. (Cases 29-CA-223 and 29-CB-70; 1965), Board Order (DS-609; 1965) and court decree (Ca. 2; 1966) on consent; involves Stirt and Bisciglie ; (6) Command Lincoln-Mercury Corp., Amalgamated Local Union 355 & ano. (Cases 29-CA-360 and 29-CB-134; 1965), Board Order (DS-644; 1966) and court decree (C.A. 2; 1966) on consent; involves Stirt; (7) Raymond Buick, Inc., Amalgamated Local Union 355 & ano. (Cases 29-CA-731, 29-CA-773, and 29-CB-259), 173 NLRB 1292 (1968; Board at 1293 speaks of Local 355's "peculiar proclivity to be involved in collusive situations"), enfd. 445 F.2d 644 (C.A. 2, 1971); involves Tolkow; (8), (9), and (10) Buckingham Livery Service, Fugazy-Continen- tal, Inc., Amalgamated Local Union 355, et al. (Cases 29-CA-916,29-CA-1092, and 29-CA-1214), Board orders adopting TXDs on no exceptions (1969), enforced by consent order sub nom. N.L.R.B. v. Fugazy-Continental, Inc. (C.A. 2, 1969; consolidated cases); (11) Vanella Buick Opel, Inc. and Amalgamated Local Union 355, Intervenor (Cases 22-CA-4204, 22-CA-4206, and 22-RC-4745), 191 NLRB No. 107 (1971); (12) and (13) Robin Ford Sales, Inc. and Amalgamated Local Union 355; Consolidated Petroleum Terminal, Inc. and Amalgamated Local Union 355, con- tempt proceedings involving contempt by Local 355 of three previous Second U.S. Circuit Court of Appeals decrees in Salmirs (1964) and Richmond Rambler (1966) cases, supra (C.A. 2, Nos. 28,481; 30,236-7; & 30,405-6); 5- day adversary hearing, on reference of C.A. 2, in U.S.D.C., E.D.N.Y. (69-Civ. 1560), before U.S.D.J. Dooling as Special Master, 77 LRRM 2989 (Oct. 23, 1970), finding and report confirmed and adopted and civil contempt judgment entered against Local 355, Stirt and Tolkow, 77 LRRM 3082 (C.A. 2, July 12, 1971); involves Stirt, Tolkow, & Bisciglie, with finding that Bisciglie in Robin Ford backdated "collective agreement" between Local 355 and Employer; (14) Vanella Buick Opel, Inc., Amalgamated Local Union 355 & ano. (Cases 22-CA-4373 and 22-CB-1857), 194 NLRB No. 123; and (15) the instant case. 80 Officially noticed in connection with Remedy herein 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The factual pattern encountered in these cases is largely the same as that found in the instant case; viz: introduction and installation of Local 355 as "exclusive bargaining representative" for all unit employees as a result of Employer connivance, coercion, interference, or assist- ance ; utilization of Employer executives or supervisors to enlist employees into Local 355 membership; a blitzkrieg signing up of employees on Local 355 cards, followed by a speedy "collective agreement" with the Employer; provi- sions in the "collective agreement" for a Local 355 "Union shop," with mandatory requirement that all employees join and maintain Local 355 membership as the puce of retaining their jobs, and with the Employer "checking off" from employees' wages and paying directly to Local 355 all Local 355 fees and dues on behalf of all employees; and a competing union or unions thereby discriminated against and ousted. As has already been noted, repeated violations of Board orders and court decrees are involved, capped by the recent contempt judgment by the Second U.S. Circuit Court of Appeals. The locale of almost all cases is the Long Island-Metropolitan New York City (including nearby New Jersey) area; and identified throughout various of the cases as the active officials and representatives of Local 355 are Stirt, Bisciglie, and Tolkow. Not only is Respondent Local 355 thus well known to the Board, but so also are the dramatis personae which it supplies to act out the scenario which has enjoyed so many repeat performances. Thus, we meet again Stirt and Biscighe.81 The script is again essentially the same-among other things, the use of Employer supervisors to dragoon employees into Local 355, the swift signing of a "collective agreement" featuring a Local 355 "security" provision requiring mandatory membership in Local 355, with mandatory initiation fees and dues "checked off" as continuing deductions from employees' wages as the price of retaining jobs, and the surrender of the right to strike or complain about any employment conditions. It is also noted, for example, that in the Robin Ford case in the above chronology there was an express finding by Judge Dooling that the Local 355 representative (Bisciglie) backdated the Local 355 "collective agreement" with the Employer-like here. The Local 355 official and represent- ative primarily involved in the instant case, Henry Stirt, cannot claim unfamiliarity with the script which he reenacted here as leading man, since he played the role before; he has signed notices, stipulations, and consent decrees in prior proceedings. His actions must therefore be judged as calculated and deliberate. On October 23, 1970, 81 Stirt explained here that he has been treasurer as well as an organizer and business agent of Local 355, an "unaffiliated independent" labor organization, for about 2-1/2 years, and prior to that secretary-treasurer for about 6 years, that Bisciglie has been secretary for about 2-1/2 years, that Bernard Tolkow is "Business Manager" who runs the Union on a day-to- day basis, and that the president is Charles Goldstein 82 Further experience appears amply to have borne out the concern of the statutory authors that "Experience has demonstrated that the Board has not been able in some instances to correct unfair labor practices until after substantial injury has been done Since the Board's orders are not self-enforcing, it has sometimes been possible for persons violating the act to accomplish their unlawful objective before being placed under any legal restraint and thereby to make it impossible or not feasible to restore or preserve the status quo pending litigation " (S Rep No 105, 80th Cong , 1st Sess 8, 27 ] 1947 1 ) 83 See, e g, Fibreboard Corp v. N L R B, 379 U S 203, 215-217, in the Second Circuit Court of Appeals contempt proceed- ings in N.L.R.B. v. Amalgamated Local Union 355, U.S. District Judge Dooling found (G.C. Exh. 17-Id., Findings 54 and 55, adopted by the court of appeals): 54. Tolkow and Bisciglie were fully cognizant of the implications of their own conduct and fully participant in the conduct of Local 355 in organizing Robin Ford Sales, Inc., and Tolkow knew and understood the terms of the cease and desist orders and the enforcement decrees referred to in findings 4, 6 and 7. 55. Stirt was fully cognizant of the implications of his conduct and fully participant in the conduct of Local 355 in organizing Consolidated Petroleum Terminal, Inc., and Tolkow and Stirt knew and understood the terms of the cease and desist orders and the enforce- ment decrees referred to in findings 4 and 6. Section 10(c) of the Act empowers the Board to order violators "to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatment of employees with or without back pay, as will effectuate the policies of this Act." Test of this statutory authority has drawn from our highest Court the characterization that it "charges the Board with the task of devising [ effective ] remedies." N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344, 346.82 We are constantly adjured by higher authority to design effective remedies; 83 as indicated, obedience to the Act's mandates requires no less. "It is now axiomatic that the Board has broad discretion in fashioning an affirmative remedy under Section 10(c) to `effectuate the policies of the Act.' See, e.g., N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 612, 216 (1964)." Lipman Motors, Inc v. N. L. R. B., 451 F.2d 823 (C.A. 2). Nor is the fact that a remedy never has been applied before reason for not applying it if warranted. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 600, and cases cited; Heck's, Inc., 191 NLRB No. 146. Under the circumstances shown, it would be nothing less than a travesty to fail to recommend utilization of the full armamentanum of the Board's remedial powers to prevent still further repetitions of deliberately continued lawless preying on employees, the intended beneficiaries of the Act's guarantees. In the situation and against the back- ground shown, I find that it is likely that the described actions on the part of Local 355 will recur in the absence of effective measures, which are accordingly called for here. After careful and searching consideration, I have resolved to recommend an order which, while fair, contains those features which I think the public interest requires in N L R B v Erie Resistor Corp, 373 U S 221, 236, N L R B v Seven-Up Bottling Co, 344 US 344, 346-349, Virginia Electric & Power Co v NLRB , 319 U S 533, 539-540, Phelps Dodge Corp v N L R B, 313 U.S 177, 188, 194, 198 The Board has expressed concerned awareness of the seriousness of this problem and the essentiality of solutions See, e g , McCulloch, A Tale of Two Cities or Law in Action, 1962 Proceedings of American Bar Association Section of Labor Relations Law, 14, 25, in which the former chairman spoke of the necessity for designing remedies "that will give more protection to the rights of self-organization, discourage unfair labor practices by unions and employers , and encourage the practice and procedure of collective bargaining " There are additional considerations here "The fact that the election is still to be held adds strength to the view that the policies of the Act would require an appropriate Board order to offset, insofar as such an order could do so, the effect of such unfair labor practices" United Steelworkers of America, AFL-CIO (Wagner Industrial Products Co)v.NL.RB,386F2d981,983(CADC) RUSSELL MOTORS, INC. order to effectively discourage and hopefully to terminate the deliberate flaunting of the Act which has continued for over a half generation to characterize Respondent Local 355's modus operandi. Those features will be apparent from the contents of the order recommended to the Board, which it would be superfluous to preview at this point. Where essential or appropriate, additional rationale is there supplied. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this consolidat- ed proceeding, and upon all other proceedings identified above and officially noticed herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 84 ORDER A. Russell Motors, Inc., and its officers, agents, successors, and assigns, and Amalgamated Local Union 355 and its officers, agents, and representatives, shall jointly and severally forthwith: 1. Cease and desist from giving effect to a certain "collective agreement" entered into between Russell Motors, Inc., and Amalgamated Local Union 355 dated September 10, 1970, or to any of its terms or provisions; without prejudice, however, to any wage rate, wage increase, vacation or holiday or sick leave period, hospitalization, medical or dental insurance coverage, or-any other economic benefit or emolument granted thereunder, or accruing or to accrue to any employee of Russell Motors, Inc., thereunder or in consequence thereof. 2. Cease and desist from giving effect to, or maintain- ing or asserting the validity of, any "membership card" executed by any employee of Russell Motors, Inc., on or since September 8, 1970, for the purpose of recognizing said Local 355 as the representative of the signatory of such card. 3. Cease and desist from giving effect to any authoriza- tion executed by any employee of Russell Motors, Inc., on or since September 8, 1970, requiring or authorizing Russell Motors, Inc., to "check off," deduct, withdraw, withhold, or otherwise not pay to any such employee, or to pay over to Amalgamated Local Union 355 for initiation fees or dues or on account of any obligation of member- ship in said Local 355, any part of such employee's wages due; and return each such authorization to the signatory employee. 84 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 85 This provision is deemed particularly appropriate in view of the inclusion in the parties' described "collective agreement " of mandatory union maintenance-of-membership and fees-dues "checkoff" requirements which have concededly been enforced by Respondents here at all times Cf, e.g, Virginia Electric & Power Co v N L R B , 319 U S 533, 539-541, N L R B v Raymond Buick, Inc, 445 F.2d 644, 645 (C A 2), Bernhardt Bros Tugboat Service, Inc v N L R B, 328 F 2d 757 (C A 7) 86 In view of the current level of legal interest charges , I see no justification for limiting interest below the lawful rate permissible in the jurisdiction where the moneys in question were unlawfully exacted from the employees I do not regard the requirement that lawful interest be added to 377 4a. Reimburse each employee of Russell Motors, Inc., who has paid or been charged, or who has had deducted from his wages, by "checkoff" or ,therwise, under or in consequence of the aforesaid "collective agreement" dated September 10, 1970, or any "checkoff" authorization or otherwise, any and all initiation fees, dues, and other charges, payments, exactions, and amounts paid by or on behalf of such employee, on or since September 10, 1970; 85 plus interest at the maximum lawful rate under the law of the State of New York.86 4b. Preserve and, upon request, make available to the Board or its agents, for examination and copying, their respective payroll records, social security payment records, timecards, personnel records, payment receipt records, reports, and all other records, including those of the United Welfare Fund ofl Amalgamated Local Union 355, necessary to determine the amounts of refunds due and the extent of compliance with this recommended Order. 5. Reimburse Local 259, United iAutomobile, Aero- space,' and Agricultural Implement Workers of America International Union for its organizing expenses incurred in connection with the service employees of Russell Motors, Inc., on and since September 14, 1970, and for its reasonable attorneys' fees and disbursements in the consolidated proceeding resulting in this recommended Order; the amounts thereof to be determined, if agreement cannot be reached thereon, by order on petition to the Board, jurisdiction being expressly retained for that purpose.87 B. Russell Motors, Inc., and its officers, agents, successors, and assigns, shall forthwith: 1. Withdraw and withhold recognition from, and cease and desist from recognizing, negotiating, or dealing with, Amalgamated Local Union 355 as the bargaining repre- sentative of any unit of employees of Russell Motors, Inc., unless and until said Local 355 has been duly certified by the National Labor Relations Board to be such representa- tive following a Board election.88 2. Cease and desist from unlawfully, directly or indirectly, giving, contributing, promising, or holding out any financial or other support, aid, assistance, or preferen- tial treatment to any labor organization. 3. Cease and desist from directing, authorizing, or permitting any official, supervisor, or agent of Russell Motors, Inc., to enlist or solicit, directly or indirectly, any employee of Russell Motors, Inc., to join any labor organization. repayment of an unlawful exaction as the imposition of a penalty . Cf. UAW [UdylueCorp],v.NL.RB,79LRRM2031,2041 (CADC) 87 Cf UAW [Udyhte Corp J v N L R B, supra , N L R B v Local 825. Operating Engineers, 430 F 2d 12251 (C A 3), Local 57, ILG WU (Garvin Corp], v N L R B, 374 F 2d 295, 304, fn 22(C A.D.C ), per Burger. J.), cert denied 387 U S 942, Port Drum Company, 170 NLRB 555, 556-557. and 180 NLRB No 90 It is deemed appropriate to extend this requirement to Respondent Russell in view of the circumstances herein , involving its announced, persisting intransigeance on the subject of dealing with UAW Local 259 notwithstanding the previous history of its relationship with that Union, including a Board order and Court decree following its unlawful refusal to bargain after Board certification of that Union after a Board election, as well as its pursuit of that policy notwithstanding its timely receipt herein from UAW Local 259 of oral and telegraphic requests for recognition and maintenance of the status quo pending a Board election 88 Cf Burns International Detective Agency v. N L R B, 441 F 2d 911 (C A 2), The Carpenter Steel Company, 76 NLRB 670 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Cease and desist from in any manner interfering with, restraining, or coercing its employees in the choice of Local 259, United Automobile, Aerospace, and Agricultur- al Implement Workers of America International Union, or any other labor organization, as their bargaining represent- ative. 5. Cease and desist from threatening not to recognize, negotiate, or deal with Local 259, United Automobile, Aerospace, and Agricultural Implement Workers of Amer- ica International Union (or- any other labor organization), in the event employees of Russell Motors, Inc., select said UAW Local 259 (or any other labor organization so selected) as their bargaining representative. 6. Cease and desist from threatening to shut down its plant, shop, business, or operations, or any part thereof, in the event that its employees select Local 259, United Automobile, Aerospace, and Agricultural Implement Workers of America International Union (or any other labor organization) as their bargaining representative.89 7. Cease and desist from encouraging or discouraging membership in any labor organization by discrimination in regard to hire or tenure of employment or any term or condition of employment. 8. Cease and desist from in any other manner interfer- ing with, restraining, or coercing any employee in the exercise of his right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 9. Post at each of its locations in the Village of Roslyn, Nassau County, New York (viz, 1039 Northern Boulevard and 1900 Northern Boulevard), copies of the "Notice to Employees" and also copies of the "Notice to Members" attached hereto marked "Appendix A" and "Appendix B."90 Copies of said Appendix A, on forms provided by the Board's Regional Director for Region 29, shall, after being duly signed by the authorized representative of Russell Motors, Inc., be posted by Russell Motors, Inc., immediately upon receipt thereof, and be maintained by it 89 See cases cited in In. 76, supra. Textile Workers v. Darlington Co., 380 U.S. 263, 274, In. 20, expressly cautions that, while actual termination of business operations rather than deal with a union is not proscribed, the threat to do so is. 99 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notices reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 91 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent, has taken to comply herewith." 92 Cf. Burns International Dectective Agency v. N. L. R. B., 441 F.2d 911 (C.A. 2); Laura Modes Company, 144 NLRB 1592, 1596. Respondent Local 355 conceded during closing argument that the Board has power to so order. 93 Ibid. In recommending inclusion of this feature in the Order, I do so with full awareness that the Board declined to adopt such a feature when suggested by my Brother Plaine in 1968 in Raymond Buick, Inc., 173 NLRB 1292, enfd. 445 F.2d 644 (C.A. 2); and that my Brother Fitzpatrick thereafter in Vanella Buick Opel, Inc., 194 NLRB No. 123 (1971), in view of the Board decision in Raymond Buick as he expressly stated did not consider it appropriate to recommend this particular remedy against Local 355 in the indicated pattern of violations on its part. But in declining to adopt this remedy when recommended by my Brother Plaine, the Board at that time for 60 consecutive days thereafter, in conspicuous places, in the aforementioned locations, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. Copies of said Appendix B shall, immediately upon receipt thereof from said Regional Director, likewise be posted, main- tained, secured, and safeguarded. 10. Deliver signed copies of the Notice to Employees marked "Appendix A" to the Board's Regional Director for Region 29 in a quantity to be designated by said Regional Director, for the purpose of posting by Amalga- mated Local Union 355. 11. Notify said Regional Director, in writing, within 20 days from the receipt of this Decision and recommended Order, what steps Russell Motors, Inc., has taken to comply herewith.91 C. Amalgamated Local Union 355 and its officers, agents, and representatives, shall forthwith: 1. Cease and desist from representing or purporting to represent, or holding itself out as representative of, any employees of Russell Motors, Inc., under or in conse- quence of a certain "collective agreement" entered into between Amalgamated Local Union 355 and Russell Motors, Inc., dated September 10, 1970, or any of its terms or provisions, or otherwise unless and until said Local 355 has been duly certified by the National Labor Relations Board to be such representative following a Board election 92 2. For a period of 3 years from the date of any final Order herein or in any proceeding growing out of this proceeding, cease and desist from representing or purport- ing to represent, or holding itself out as representative of, or entering into any collective agreement as representative of, any unit of employees of any employer, not presently validly represented by Amalgamated Local Union 355, unless and until said Local 355 has been duly certified by the National Labor Relations Board to be such representa- tive following a Board election.93 3. Cease and desist from utilizing officials, supervisors, or agents of an employer to unionize or to attempt to (1968) expressly stated that it was doing so only "at this time" (173 NLRB at 1293). Since then, however, Local 355 has not only again continued to engage in the acts here found, but it as well as its officials have been held in civil contempt by the Second Circuit Court of Appeals (77 LRRM 3082) following a full adversary hearing before United States District Judge Dooling sitting as a Special Master of the Court of Appeals (F.Supp., 77 LRRM 2989). I therefore consider that the time is now ripe-more than ripe-for a renewed recommendation that this remedy be adopted . It should not be necessary for the Federal agency armed with responsibility for policing industrial relations to "fox hunt" recidivists to earth with the same dull weapons which have repeatedly proven ineffective in the past. Nor is the Board required to "play hide-and-seek" with violators of the Act. Mexia Textile Mills, Inc. v. N.L.R.B., 339 U.S. 563, 568. Extention of the effect of a Board order against a union beyond the immediate employer is by no means unknown. For example, in District 65, Retail etc. Union (The St. John Associates, Inc., et al.), 157 NLRB 615, involving a union "swarm-in" upon various employers' premises for organizational purposes during worktime, the Board did not limit its cease-and-desist order to the involved employers' premises but extended it to the premises of "any other employer in the geographic area of its jurisdiction ." Id. at 626. When the Board order was enforced in N.L.R. B. v. District 65, Retail, Wholesale and Department Store Union, 375 F.2d 745, 747 (C.A. 2), the court took the occasion to state, "If the much used phrase 'law and order' is to have any meaning in our society, the Board's decision supporting these words must be enforced. The manner in which the union proceeded justifies the broadest type of order." (Continued) RUSSELL MOTORS, INC. unionize that employer's employees, to induce or attempt to induce such employees to be represented by Amalga- mated Local Union 355, or to assist or aid said Local 355 in organizing such employees. 4. Cease and desist from causing or attempting to cause an employer to discriminate against an employee in violation of Section 8(a)(3) of the National Labor Rela- tions Act, as amended. 5. For a period of 3 years from the date of any final Order herein or in any proceeding growing out of this proceeding, cease and desist from issuing or delivering to any employee or employer for any purpose any member- ship application, or membership or representational authorization card or other designation, of or pertaining to Amalgamated Local Union 355, unless there are legibly and prominently imprinted thereon the following words:94 THE NATIONAL LABOR RELATIONS BOARD HAS FOUND THIS UNION GUILTY OF COLLU- SION WITH EMPLOYERS TO VIOLATE RIGHTS OF EMPLOYEES, AND THIS UNION HAS BEEN ADJUDGED TO BE IN CONTEMPT OF COURT. 6. Cease and desist from in any other manner restrain- ing or coercing any employee in the exercise of his right to self-organization, to form, join, or assist any labor organization; to bargain collectively through representa- tives of his own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 7. Mail a copy of the Notice to Members, marked Similarly, in Teamsters, Local 901 (Associated Federal Hotels), 193 NLRB No 90, the Board's cease-and-desist order by its terms extended throughout all of Puerto Rico, "in view of the egregious nature of the violation in this case and the foregoing record of recent similar violations by the Union" which were officially noticed Id. While Respondent Union is closing argument here conceded that the Board has the power to prevent Local 355 from representing the Russell employees here without an election, it disputes the Board's power to do so regarding any other employees , citing N L.R B v. Gissel Packing Co, 395 U S 575, and UMW v Arkansas Oak Flooring Co, 351 U S 62 1 do not agree Nor do I understand the court's language in the Gissel and Arkansas Oak Flooring cases, indicating that employer recognition of a bargaining representative upon the basis of a card showing without an election, may under certain circumstances be proper or required, to mean that such recognition is mandatory, nor that the Board is powerless to act so as to prevent such exclusive representation even as to nonsigners of cards (possible 49 percent of a unit), under abusive 379 "Appendix B," to each member of Amalgamated Local Union 355.95 8. Post in conspicuous places at its business places and meeting halls, including all places where notices to members are customarily posted, copies of the Notice to Members and also copies of the Notice to Employees attached hereto marked "Appendix B" and "Appendix A".96 Copies of "Appendix B," on forms provided by the Board's Regional Director for Region 29, shall, after being duly signed by the authorized representative of Amalga- mated Local Union 355, be posted by said Local 355 immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in the aforementioned locations, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. Copies of said Appendix A shall, immediately upon receipt thereof from said Regional Director, likewise be posted, main- tained, secured, and safeguarded. 9. Deliver signed copies of the Notice to Members marked "Appendix B" to the Board's Regional Director for Region 29 in a quantity to be designated by said Regional Director, for the purpose of posting by Russell Motors, Inc. 10. Notify said Regional Director, in writing, within 20 days from the receipt of this Decision and recommended Order, what steps Amalgamated Local Union 355 has taken to comply herewith.97 circumstances such as those found here, involving deliberately persisting, egregious violation of repeated Board orders and court decrees in the planned and patterned illegal misuse of such cards so as to frustrate the Act's most basic purposes and guarantees 94 See cases officially noticed herein, enumerated supra, Raymond Buick, Inc and Amalgamated Local Union 355, 173 NLRB 1292, 1293 (1968), enfd 445 F 2d 644 (C.A 2); N L R B v Amalgamated Local Union 355, 77 LRRM 2989, 2991, 2993 (Finding 26), 2996-97 (Findings 54 and 55), and 77 LRRM 3082 (C A 2), and fns 83, 85, and 93, supra 95 This requirement is not limited to members or alleged members of Local 355 in the employ of Russell Motors, inc Cf Loray Corp, 184 NLRB No 57, J P Stevens and Co, Inc, 157 NLRB 869, 878-879, enfd 380 F 2d 292, 304 (C A 2), cert denied 389 U S 1005 96 See fn 90, supra - 97 See fn 91, supra