Coinmeco, Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coinmeco, Inc. and Sheet Metal Workers Internation- al Association Local 210, Production, Merchandising and Distribu- tion Employees Union, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Coinme- co, Inc.) and Sheet Metal Workers International Association. Cases 3-CA-4627, 3-CA-4682, and 3-CB-1777 November 14, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 5, 1972, Administrative Law Judge' Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent Union filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified. Although we agree with the Administrative Law Judge that Respondent Coinmeco violated Section 8(a)(1) and (2) when it granted recognition to Local 210 on September 24, 1971, the latter not represent- ing a majority of the employees in the unit, we believe it necessary to make clear the fact that the Sheet Metal Workers did not represent the employ- ees on that date either. It thereafter gained its majority status. The General Counsel excepts to the Administrative Law Judge's failure to find that Respondent Coinme- co also violated Section 8(a)(5) by unilaterally promulgating, instituting, and maintaining written shop rules affecting the employees conditions of employment at a time when it knew the Sheet Metal Workers represented a majority of Respondent's employees. We find merit in this exception. The record shows that sometime in November 1971, subsequent to the Sheet Metal Workers attaining majority status and demanding recognition, Respondent Coinmeco put into effect a list of 30 rules, the violation of which subjected the offender to discipline which could even result in discharge. It is also clear in the record that the Sheet Metal Workers was not notified of the institution of these rules. In view of the fact that the Sheet Metal Workers was the majority representative of Coinmeco's employees at that time, this unilateral activity on the part of Coinmeco was in violation of Section 8(a)(5) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Coinmeco, Inc., Little Falls, New York, its officers, agents, successors, and assigns, and Respondent Local 210, Production, Merchandising and Distribution Employees Union, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, New York, New York, its officers, agents, and representa- tives, shall take the action set forth in said recom- mended Order. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 In the absence of exceptions to the Administrative Law Judge's dismissal of the allegation that Coinmeco also violated Sec. 8(a)(3) of the Act, we will adopt his findingpro forma. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This proceeding tried before me at Little Falls, New York, on April 4, 1972, with all parties present and duly represented, involves a consolidated complaint 1 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleges that Coinmeco, Inc. (herein Respon- dent Company), interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act; assisted and supported Local 210, Production, Merchandising and Distribution Employees Union, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Respondent Union, Local 210, or Teamsters); and refused to bargain with Sheet Metal Workers, the collec- tive-bargaining representative of Coinmeco's employees in an appropriate unit; extended the contract between Coinmeco's parent company and Respondent Union, covering employees at the Plainview, New York, plant, to employees at the Little Falls, New York, plant, at a time when Respondent Union did not represent a majority of the employees in the latter plant, thereby violating Section 8(a)(1), (2), (3), and (5) of the Act; and that by accepting representation of the Little Falls employees at a time when 1 Issued January 5, 1972, on charges filed by Sheet Metal Workers International Association (herein Sheet Metal Workers). The charge in Case 3-CA-4627 was filed on October 8, 1971. The charge in Case 3-CA-4682 was filed November 23, 1971, and amended January 3, 1972. The charge in Case 3-CB-1777 was filed November 23, 1971, and amended January 3, 1972. 200 NLRB No. 45 COINMECO, INC. it did not represent a majority of said employees and otherwise coercing and restraining said employees Respon- dent Union violated Section 8(b) (1)(A) of the Act. The critical, and virtually the sole issue to be decided, is whether the Little Falls plant was an accretion to the Plainview plant. Indeed, at the trial the General Counsel conceded that, if the Little Falls plant was an accretion to the Plainview unit, the complaint herein should be dismissed. Respondent, however, refused to concede the converse of the proposition. For reasons hereafter more fully stated, I find and conclude that the Little Falls plant was not an accretion to the Plainview unit; that the evidence sustains the material allegations of the complaint and warrants issuance of a remedial order, including a provision that requires Coinmeco to recognize and bargain with Sheet Metal Workers as the exclusive collective-bargaining representative of the employees at the Little Falls plant. At the trial all parties were permitted to introduce relevant and material evidence, to examine and cross- examine witnesses, to argue orally on the record, and to submit briefs. Oral argument by counsel for the General Counsel and Respondent Union, respectively, is included in the transcript. Additionally, a brief submitted by counsel for Respondent Union has been duly considered. The General Counsel, although requested to file a brief, has not done so. Upon the pleadings, stipulations of the parties, the evidence, including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Although the answers filed by the separate Respondents deny the allegations of the complaint with respect to the nature and extent of the Company's business, the evidence with respect to that issue shows the following: United Stollar Manufacturing Company (herein Stollar), with its principal office and plant at Plainview, New York, has been engaged for some years in the manufacture, sale, and distribution of metal fabrications. In the late summer or early fall of 1970, Stollar opened another plant at Little Falls, New York, which is about 250 miles distant from Plainview. Early in 1971, the Little Falls plant was separately incorporated under the name of Coinmeco, Inc., the Respondent Company herein, under which name it has since operated. Bernard Discount, the chief executive officer of both corporations, testified that he is the sole owner of the entire operation, and in overall charge of all aspects of the business conducted by both companies, and makes the ultimate decisions on all matters involving labor relations and labor policies. Although Discount gave me the impression that he was most reluctant to disclose the facts, and wanted to leave the impression that his operation was wholly intrastate over which the Board would not assert jurisdiction, he did admit that in the operation of his business he purchased for the use of both plants steel valued at in excess of $1 million. He testified that he purchased such steel from firms in Syracuse and Utica, New York, and initially claimed to be unaware as to where 295 said steel was produced, but finally admitted that to the best of his knowledge no steel is produced in the State of New York, and that the steel he purchased was most probably produced in the Commonwealth of Pennsylvania. Also, in his affidavit given the Board on October 28, 1971, Discount stated, "During the past 12 months we have received goods and materials from outside the State of New York in excess of $50,000." Discount also admitted that for 1971 sales of his enterprise would be in excess of $1 million, about 10 percent of which was shipped directly to points outside the State of New York, and that virtually all sales were to large industrial concerns such as Fairchild Camera and Univac. On the basis of Discount's testimony, I find that Stollar and Coinmeco constitute a single-integrated employer that is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that under the Board's standards it would effectuate the policies of the Act to assert jurisdic- tion over its operations. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the separate answers admit, and on the basis thereof I find that Local 210 and Sheet Metal Workers are both labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED A. Chronology of Events As heretofore stated the Little Falls plant began operation in the late fall of 1970, hiring most of its employees from the general area of Little Falls. There is no evidence of any union activity among the employees until late August,2 when William Laughlin, an organizer for Sheet Metal Workers first contacted some of the Little Falls employees regarding organization , but nothing definite appears to have been done at that time. On September 24, John Rushton , plant manager at Little Falls, and an admitted supervisor, observed two men about the plant whose presence was unauthorized. When these men identified themselves to Rushton as representatives of Teamsters, the latter told them they were without authority to be in the plant, and would have to leave, which they did. Before being requested to leave, the men had passed out some authorization cards for Teamsters but there is no evidence that any were signed at that time. There is no evidence of activity by Teamsters among the Little Falls employees prior to this occasion. Indeed, 7 of the 10 employees who testified stated that, when they were interviewed for hire by Coinmeco supervisors , either a union was not mentioned or, if it was, they were told that there was no union in the plant, and that management did not want one. Nor is there any evidence that prior to September 24 Teamsters made any demands upon Respon- dent Company with respect to the Little Falls employees. As heretofore indicated, Stollar has been under contract with Local 210 for about 15 years with respect to the maintenance and production employees of the Plainview 2 This and all dates hereafter mentioned are 1971 , unless otherwise indicated. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. The last such contract is effective from January 1, 1971, to December 31, 1973, and thereafter from year-to- year absent prescribed notice. In addition to providing for a union shop and the checkoff of union dues, the aforementioned contract, as did at least some of the predecessor contracts, contains the following provision: ARTICLE I-Recognition C. This Agreement shall cover all future plants which the Employer may operate during the term of this Agreement or any extension thereof, including all plants operated as the result of expansion or change. This Agreement shall apply to the Employer's plant should there be any shift of geographical location. According to Discount, he has over the years opened some five or six plants in various locations, each of which he offered to Local 210 pursuant to the above-quoted provision, but that Local 210 rejected the offer with respect to plants he opened in Miami, Florida, and Joplin, Missouri, because of the distance from New York. There is no evidence, however, that there was any discussion between Discount and Local 210 relative to the Little Falls plant from the time said plant opened in the late summer or early fall of 1970, until the events of September 24, as hereinafter set forth in greater detail, although Delange, Local 210's director of organization, admitted that he became aware in the fall of 1970 that Stollar was building a plant in Little Falls. Also on September 24, apparently pursuant to the aforementioned contract between Stollar and Local 210, Coinmeco entered into a contract with Local 210, effective from that date until December 31, 1973, recognizing the latter as the representative of the production and mainte- nance employees at the Little Falls plant. The contract contains provisions for a union shop and the checkoff of dues. There is no evidence that Local 210 presented any proof of majority to Coinmeco in connection with the execution of said contract. Indeed, according to Delange, director of organization for Local 210, he simply presented the contract to Discount and told the latter, "He'd better damned well sign it " The evidence is undisputed, however, that Local 210 has notified Coinmeco that the union shop and checkoff provisions of the contract are not to be enforced pending the disposition of the issues in this case by the Board, or that any employee was discharged for refusing to comply with those provisions. On September 28, representatives of Teamsters returned to the Little Falls plant. On this occasion, Rushton, after telephoning Discount and obtaining his approval, permit- ted them access to the plant in order that they might, in his 3 The unit is described in the exhibit as "production, maintenance, shipping and receiving employees in the employ of Commeco, Inc, at its Little Falls, plant, on October 1, 1971, exclusive of all office clerical employees, professional employees, guards, and supervisors as defined in the Act" I find this to be an'appropnate unit for the purpose of the alleged 8(a)(5) violation. 4 Actually the handwritten list of those attending the October 1 meeting with Laughlin contains 20 names, including, as best I can read it, that of "Thomas Malley " I do not find this name on the stipulated list of words, "exercise their visitation rights to explain the contract that they had with Coinmeco to the employees." Toward the end of September, Laughlin received a message from some Coinmeco employees that Teamsters were in the plant trying to organize, and that the men wanted him to come to Little Falls and complete his organizing for Sheet Metal Workers. Laughlin did so, and met with the employees during the evening of October 1. As shown by General Counsel's Exhibit 2 and the stipulation of counsel, there were at that time 25 employees in the Unit .3 Of these, 19 attended the October 1 meeting with Laughlin and each signed a card authorizing Sheet Metal Workers International Association, or any affiliated local union thereof, to represent him for purposes of collective bargaining. There is an additional card stipulat- ed into evidence signed by Rick B. McNeely, whose name is not on the list of those who attended the October 1 meeting, thus giving Sheet Metal Workers a total of 20 cards. The authenticity of these cards was stipulated, and no issue is raised concerning their validity as authoriza- tions to Sheet Metal Workers.4 Also at this meeting,, the employees selected a committee to accompany Laughlin to the Coinmeco plant for the purpose of demanding recognition from that employer. On October 4, Laughlin and his committee called on Plant Manager Rushton and demanded recognition for Sheet Metal Workers, presenting the authorization cards in his possession for Rushton to check. Rushton looked through the cards casually and added, " I'm sure they're all right." Rushton then showed Laughlin a piece of paper he said he was going to post on the plant bulletin board, which read, "The people in this shop are represented by Teamster Local 210." Rushton then telephoned Discount and informed the latter of Laughlin's recognition demand and the authorization cards he had presented. Discount asked to speak to Laughlin and told the latter that he was the owner of the operation, that he had a contract with Respondent Local 210 with whom Laughlin should speak. Laughlin refused to communicate with Local 210 as Discount asked and suggested that Discount authorize Rushton to sign the recognition agreement which Laughlin had present. Discount refused to do so and asked Laughlin what alternatives he (Discount) had. Laughlin replied that unless the recognition agreement was signed he had no alternative but to picket the plant until recognition was granted. Discount replied that if this occurred he would close the Little Falls plant. Upon the conclusion of this telephone conversation, Laughlin informed the men of his conversation with Discount and picketing of the Little Falls plant commenced and continued until early Novem- ber, at which time the strikers abandoned their strike and requested that they be reassigned to their jobs.5 employees in the unit, nor does his name, address , or telephone number coincide with any of the signed cards. While it has no particular effect on the majority status of Sheet Metal Workers, in order to conform to the evidence, I find that only 19 employees attended the meeting on October 1, and then signed cards. 5 There is no contention by the General Counsel nor is there any evidence to indicate that any striker was denied his lob when the strike was abandoned COINMECO, INC. 297 B. The Events of November 3 up. When Wiegand approached Randazzo the following On November 3, representatives of Local 210 again came to the Little Falls plant to seek support for that Union among the employees, at which time the following occurred. 1. Richard Bruce, an admitted supervisor, told employ- ees Walo, Kohl, and Baum that they were wanted in the office. Reaching the office with Bruce, the employees found two men who stated that they were representatives of Teamsters, that Teamsters had a contract with Discount, and that any plant the latter opened was covered by that contract and the employees thereof were represented by Teamsters. According to Kohl, the two men were later joined by a third whom he identified as Delange, a representative of Local 210. After listening to an explana- tion of the contract provisions, Walo commented that the Little Falls plant had been open for more than 7 months and asked why it had taken Teamsters so long to get there. The men replied they had not known the plant existed. Walo, Kohl, and Baum were asked to sign cards for Teamsters. They refused and asked if this meant that they would have to look for other jobs after 30 days. One of the men replied, "yes."6 2. Art Fernald, an admitted supervisor, told employees Allen Wiegand and Larry Liess that they were wanted in the office. Reaching the office Wiegand and Liess found two men whom they did not then know, but according to Wiegand he later ascertained one of them to be James Gilcrest, shop steward for Local 210 at the Plainview plant. The .employees were told about Local 210's contract with Coinmeco and were asked to sign Teamsters cards. Wiegand responded by saying, "I couldn't fight City Hall," and signed a card as requested. About a week later when Gilcrest and Union Agent Delange were again at the plant they held an impromptu meeting with a number of employees and Wiegand was designated as shop steward for Local 210 at the Little Falls plant .T Thereafter, Wiegand testified ''that he solicited employees while at work to sign cards for Local 210 and that his supervisors saw him doing so and voiced no objections. He additionally testified that Supervisor Fernald and Plant Manager Rushton told him to solicit employees to sign cards for Local 210 and referred to one incident in particular when he solicited Randazzo, a new employee, to sign such a card. When Randazzo indicated reluctance to do so, he reporled that fact, to Rushton. The latter directed Wiegand to give Randazzo a copy of the Local 210 contract to study over the weekend, and to talk to him again the following Monday, and that if he did not sign by Monday he would be terminated, because his 30-day waiting period would be 6 Based on the uncontradicted and credited testimony of Walo and Kohl. Neither Baum, nor Bruce testified. Although Delange testified as a witness called by Respondent Local 210, he only stated his conclusion that no employee was told that he'had to join Teamsters, or that he would be discharged if he failed to do so. I do not regard this as a denial of the testimony of Walo or Kohl, but if it be so regarded, I credit the latter- Delange did not deny that he was present in the office on November 3 with the other men who identified themselves as representatives of Teamsters. 7 The General Counsel contends that this meeting was held within hearing distance of Supervisor' Fernald and that under the circumstances it constituted surveillance by Respondent Company and was violative of Sec. 8(a)(1). I do not think the evidence is sufficient to establish that Fernald Monday, he told the latter that if he did not sign the card that day he (Wiegand) could no longer protect him in the event of a grievance. Randazzo agreed to and did sign a card for Local 210, stating that he was doing so only because he did not have another job to go to. Wiegand additionally testified that Supervisor Fernald directed him to solicit specific employees, including Eddie LaCalle, to sign cards for Local 210, and that when he talked with LaCalle he told the latter that those employees who signed a card for Local 210 would be treated differently than those employees who did not, and that Supervisor Fernald would try to get LaCalle a 25-cent-an-hour increase in pay.8 3. Supervisor Bruce informed employee Eddie LaCalle that the latter was wanted in the office. Apparently employee Dave Masle received the same message because LaCalle and Masle went to the office together. In the office they found two men who introduced themselves as representatives of Teamsters, explained the contract between Local 210 and Respondent Company, and asked LaCalle and Masle to sign cards for Local 210. Both refused. As the conversation was concluding, one of the Local 210 representatives stated that the two employees either had to join that Union or look for another job. Subsequently, Supervisor Fernald told LaCalle that Rush- ton had stated that any employee who did not sign a card for Local 210 "would be done."9 4. Supervisor Fernald told employee Dickenson that the latter was wanted in the office. Dickenson asked employee Sadekowski to accompany him. In the office they found the two men who had solicited card signers for Teamsters on September 24, as above stated. When the subject of union was raised by the two men, Dickenson stated that he could not discuss unions on company time. Dickenson and Sadekowski were asked their names, and when they refused to give that information they were taken to Rushton's office where one of the men stated to Rushton, "These two guy's will be fired." Rushton replied, "Okay." The evidence is clear, however, that neither Dickenson nor Sadekowski was discharged or in any way disciplined by Respondent Company.10 5. At the request of Supervisor Bruce, employee Rook, accompanied by employees Chrisman and Hoage, went to the office where two men were present who identified themselves as representatives of Teamsters. The two men told the employees that Respondent Company had a closed shop agreement with 't'eamsters, and that they heard this conversation, if he did hear it, under the circumstances of this case, his conduct constituted surveillance. See Atlanta Gas Light Company, 162 NLRB 436, 438. 8 Based on the credited and for the most part uncontradicted testimony of Wiegand. Neither Bruce, Fernald, nor any representative of Local 210, other than Delange, testified. Although Plant Manager Rushton and Delange both testified, neither gave any testimony contradicting that of Wiegand in the aspects above set forth 9 Based on the uncontradicted and credited testimony of Edward LaCalle and Masle. 10 Based on the uncontradicted and credited testimony of Dickenson and Sadekowski. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have to join that union or "get out." Rook replied that he was not interested." C. The Specific Facts Bearing on the Accretion Issue As heretofore indicated, Plainview is approximately 250 miles distant from Little Falls. The two seem to be different labor markets, and all employees at Little Falls, except for some supervision, were hired from that area. Although from four to five employees have been sent from Little Falls to Plainview for training, the extent of the training period is not disclosed by the record. Discount testified that there has been some interchange of employees but admitted that such was only for periods of short duration, and that this had not occurred for about 5 months. Approximately 90 percent of the equipment in Little Falls was sent from Plainview. It is admitted that the employees at Little Falls are paid at a wage rate which is less than the wage rate paid for the same job at Plainview, allegedly because the employees at Little Falls have not yet acquired the level of experience and know how that prevails at Plainview. All permanent personnel records with respect to the Little Falls employees are maintained at Plainview. Records with respect to current hours of work are kept, as they necessarily must be, at Little Falls, but at the end of each pay period these are forwarded to Plainview, where checks drawn on a Little Falls bank are prepared and sent to Little Falls for distribution to the men. The payroll records then remain permanently at Plainview. The purchasing of raw materials is done in the main from Plainview, but such materials may be shipped in designated quantities directly from the supplier to Little Falls, or the entire order may be shipped to Plainview with the portion required at Little Falls shipped to the latter plant from Plainview. In addition, the plant manager at Little Falls has the authority to and does order materials he may need not only locally, but from distant points. Although the record is not entirely clear, apparently the materials purchased by the Little Falls manager is billed to and paid for by the central office at Plainview. The job classifications, work tasks performed, and the product produced in the two plants are essentially the same. Although some parts necessary to complete an order are produced in their entirety at Little Falls, according to Discount, such production is dependent upon Plainview, at least to the extent of the required tooling. In other instances the work necessary to perform a particular order may be done in part at one plant with the remainder at the oth er. In some instances a part of the operations necessary to complete a particular product may be performed in one plant and then sent to the other plant for another operation. Although Discount testified that the Little Falls plant is dependent upon and could not exist without the il Based on the uncontradicted and credited testimony of Rook. 12 The findings in this section are based on the uncontradicted testimony of Discount and Plant Manager Rushton. 13 The General Counsel contended at the trial that this conduct of Respondent Company also violated Sec 8(a)(3). At the trial no authority was cited and no theory advanced in support of this contention Although requested to file a brief, the General Counsel has not done so. I find and conclude that the evidence fails to establish an 8(a)(3) violation. Assuming Plainview plant to support and sustain it, it is significant that he did not claim, and the record would not support an assertion, that the Plainview plant is so dependent upon the Little Falls plant as to be unable to exist without it. The record leaves no room for doubt, and I find that the Little Falls plant is simply an expansion of Discount's total business operations to enable him to increase his total volume of business, a result he seeks and hopes to attain.12 IV. CONTENTIONS AND CONCLUSIONS If, as the General Counsel contends, the Little Falls plant was not an accretion to the unit covered by the contract between Stollar and Local 210, then, under the facts of this case, the action of Respondent Company in (1) contractually granting recognition to Local 210 at a time when Sheet Metal Workers, and not Local 210, was the majority representative of the employees at Little Falls, and (2) urging at least some of said employees to become members of and support Local 210 were clear violations of Section 8(a)(1) and (2)13 of the Act; and the conduct of Local 210 in entering into the contract with Respondent Company, at a time when it was not the majority representative of the Little Falls employees, and in threatening to cause the termination of at least some employees for their failure to comply with the union- security provisions of the contract, was clearly the restraint and coercion of said employees in the exercise of rights guaranteed to them by Section 7 of the Act which Section 8(b)(1)(A) of the Act proscribes. International Ladies' Garment Workers' Union v. N.L.R.B. 366 U.S. 731. The totality of the foregoing conduct by Respondent Company and Respondent Union makes the Company's refusal to bargain with Sheet Metal Workers, notwithstanding the abundant proof made available to Respondent Company that Sheet Metal Workers was the duly designated representative of the employees at the Little Falls plant, a violation of Section 8(a)(5) of the Act. The conduct involved is of a character that the effect thereof is not likely to be eradicated by the usual cease-and-desist order and the posting of a notice, so as to ensure a fair election. In these circumstances the card designations may on balance be regarded as a more reliable indicator of employee's desires, and a bargaining order may issue as an appropriate remedy. N. L. R. B. v. Gissell Packing Company, 395 U.S. 575, 610-614. If, on the other hand, as Respondents contend, the Little Falls plant was an accretion to the unit for which Local 210 was the lawfully recognized collective-bargaining representative, then none of the conduct referred to above would constitute a violation of the Act. In this posture Local 210's contract covering the Coinmeco plant would be in all respects lawful; it would be entitled to enforce the union-security and checkoff provisions thereof; and with respect to Respondent Company the execution of the that the execution of the September 24 contract had the effect of encouraging membership in Local 210, and discouraging membership in Sheet Metal Workers, I am unable to find the discrimination necessary to complete the 8(a)(3) violation . Moreover, as no one was discharged or suffered any loss by reason of the enforcement of the contract, no reinstatement or backpay is involved, and the 8(a)(3) violation, assuming its existence, was purely technical, requiring no remedy. COINMECO, INC. 299 contract as to said employees and the refusal to bargain with Sheet Metal Workers would likewise be lawful. The other assistance it gave Local 210 would be no more than the cooperation properly expected between an employer and the lawfully recognized representative of its employ- ees.14 Accordingly, disposition of the case as the General Counsel conceded at the trial, turns on whether or not the Little Falls plant was an accretion to the unit of the Plainview employees covered by the contract between Stollar and Local 210. It is to that issue that I now turn. In determining whether a new plant is an accretion to an existing unit certain fundamental principles are well established and must be borne in mind. First, it is settled that: The rights ... to self-organization and to bargain collectively through representatives of their own choos- ing granted by Section 7 of the Act are the rights of employees, not of any labor union or the employer, and no labor organization [nor employer] has authority to arrogate unto itself the representation of any unrepre- sented group of employees without their consent 15 Secondly, the rights thus reserved to employees to select their own bargaining representative cannot be abrogated by any contract between the parties. Local 620, Allied Industrial Workers v. N.L.R.B., 375 F.2d 707,711 (C.A. 6), enfg. Dura Corporation, 153 NLRB 592. And finally, in Melbet Jewelry Co., 180 NLRB 107, 110, the Board announced its policy that: We will not . . . under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the union to represent them.16 With the foregoing principles in mind, and upon consideration of all the relevant factors, I find and conclude that the Little Falls plant is not an accretion to the unit covered by Local 210's contract at the Plainview plant. I reach this conclusion upon the totality of the following factors which I regard as of controlling signifi- cance: 1. The distance of approximately 250 miles between the two plants, and the fact that although the jobs are virtually interchangeable, the extent of such interchange was very limited; some four or five employees and none in the 5 months prior to the trial. See Brewton Fashions, Inc., 145 NLRB 99, 102, 127; Dura Corporation, 153 NLRB 592, 594. 2. The Little Falls area, from which virtually all of the employees were hired, is a different labor market than Plainview, and the two groups of employees were paid at different rates, which serves to point up a lack of a community of interest between them. Dura Corporation, supra. 3. The Little Falls plant has its own supervision, which, while subject to overall supervision from top management 14 See Brewton Fashions, Inc., 145 NLRB 99, 120, fn. 88. 15 Retail Clerks Union, Local 770 v. N.L.R.B. 370 F.2d 205,208 (C.A. 9). 15 In the instant case, of course, the Little Falls employees which unquestionably constitute an appropriate unit have unequivocally demon- strated that they do not desire representation by Local 210, but instead have made known their desire to be represented by Sheet Metal Workers. In at Plainview, hires employees and fix their rate of pay and working conditions. 4. The limited nature of the functional integration of the two plants. Local 620, Allied Industrial Workers v. N.L.R.B., supra. Having reached the conclusion that the Little Falls plant was not an accretion to the Plainview unit, it follows, for the reasons, and in the particulars set forth above, Respondent Company violated Section 8(a)(1), (2), and (5), and Respondent Union violated Section 8(b)(1)(A) of the Act. I so find and conclude. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents Local 210 and Sheet Metal Workers are labor organizations within the meaning of Section 2(5) of the Act. 3. By entering the contract on September 24 with Local 210, recognizing the latter as the sole collective-bargaining representative of its employees at its Little Falls plant, when Local 210 was not the majority representative of said employees, and by soliciting some of said employees to sign cards for and otherwise support Local 210, Respon- dent Company interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act, and contributed support to Local 210, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) and (2) of the Act. 4. By refusing, on October 4, to recognize and bargain with Sheet Metal Workers as the duly designated collec- tive-bargaining representative of the Little Falls employees, in the unit herein found appropriate, Respondent Compa- ny engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 5. By entering into the aforementioned contract of September 24, with Respondent Company, at a time when Local 210 did not represent a majority of the employees at the Little Falls plant, and by threatening to cause the discharge of employees at said plant if they did designate Local 210 as their bargaining representative, Respondent Union restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. The evidence fails to sustain the allegations of the complaint that Respondent Company violated Section 8(a)(3) of the Act, and that allegation should be dismissed. those circumstances , to force the Little Falls employees to accept representation by Local 210, solely because Local 210 and Respondent Company have so agreed , is to foist upon them a bargaining representative they do not want, contrary to the teachings of Retail Clerks Union, Local 770 v. N.L R.B., supra, and Melbet Jewelry Co., supra 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent Company and Respon- dent Union, respectively, have engaged in unfair labor practices, it will be recommended that they be required to cease and desist therefrom, and that they, respectively, take certain affirmative action designed and found necessary to effectuate the policies of the Act. One of the more basic rights conferred upon employees by Section 7 of the Act is the right freely, and without restraint or coercion from an employer or labor organization, to choose their collective- bargaining representative, if one they desire. The unlawful activity of Respondents go to the very heart of the Act and demonstrate the intent on the part of both Respondents to interfere with and defeat the lawfully expressed organiza- tional rights of the Coinmeco employees . Accordingly, to make effective the interdependent guarantees of Section 7, an order requiring each Respondent to cease and desist from in any manner infringing upon the Section 7 rights of the employees is warranted . N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (CA. 4); California Lingerie, Inc., 129 NLRB 912, 915. Having found that Respondent Company assisted and supported Local 210 by entering into a contract with the latter for the employees of the Little Falls plant, it will be recommended that Respondent withdraw and withhold all recognition from Local 210 with respect to said employees, unless and until Local 210, is certified by the Board as the exclusive majority representative of such employees. Having found that Local 210 engaged in and is engaging in conduct violative of Section 8(b)(1)(A) of the Act, it will be recommended that it be required to cease and desist from in any manner enforcing or giving effect to, or demanding compliance with, its contract with Coinmeco, executed on September 24, or any renewal or extension thereof, or from acting or attempting to act as the collective-bargaining representative of any of the employ- ees at the Little Falls plant, unless and until it has been certified by the Board as the majority representative of such employees . In view of the statement in the record by Counsel for Local 210 (tr. 18), that if the Little Falls plant is held not to be an accretion to the Plainview unit , it will not permit the shipment of work from that plant to the Little Falls plant, it will be required that Local 210 advise Coinmeco and Stollar that it will not, directly or indirectly, engage in any conduct to enforce compliance with its contract of September 24 or to promote a claim that it is the representative of the Little Falls employees. Having further found that Respondent Company unlaw- fully refused to bargain with Sheet Metal Workers as the duly designated representative of its employees in an appropriate unit, it will be recommended that Respondent Company be required, upon request, to bargain collectively with Sheet Metal Workers as such representative and, if an understanding is reached, embody the same into a signed written agreement. Upon the foregoing finding of fact and conclusions of 17 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 law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:17 ORDER A. Respondent Coinmeco, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Contributing financial or other support to Local 210, Production, Merchandising and Distribution Employees Union, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter Local 210), or to any other labor organization of its employees at its Little Falls, New York, plant. (b) Threatening employees with discharge or other discipline if they do not become members of or otherwise assist Local 210, or any other labor organization of its employees, except to the extent permitted by Section 8(a)(3) of the Act. (c) Recognizing or in any manner dealing with Local 210, as the representative of its employees at its Little Falls, New York, plant, with respect to wages, rates of pay, hours of employment, or any other term or condition of employment, unless and until Local 210 shall have demonstrated its exclusive majority representative status pursuant to an election conducted by the National Labor Relations Board among its employees at its Little Falls, New York, plant. (d) Giving effect to the contract with Local 210, dated September 24, 1971, or any renewal, extension, or modification thereof: provided, however, that nothing in this Order shall be construed as requiring Coinmeco to alter, vary, or modify the wages, hours, or other terms or conditions of employment now enjoyed by any of the aforesaid employees. (e) Failing or refusing, upon request, to bargain collectively with Sheet Metal Workers International Association, as the exclusive collective-bargaining repre- sentative of its employees in an appropriate unit. The appropriate unit is: All production, maintenance, shipping and receiving employees in the employ of Coinmeco, Inc., at its Little Falls, New York, plant, exclusive of office clerical employees, professional employees, guards and super- visors as defined in the National Labor Relations Act, as amended: (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. 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. COINMECO, INC. 2. Take the following affirmative action designed and found necessary to effectuate the policies of said Act: (a) Forthwith withdraw and withhold all recognition from Local 210, as the exclusive bargaining representative of its employees at its Little Falls, New York, plant, and cease dealing with it regarding the wages, hours, or other terms and conditions of employment of said employees, unless and until Local 210 shall have demonstrated its majority representative status pursuant to an election conducted by the National Labor Relations Board among the employees at said plant, in an appropriate unit. (b) Upon request, bargain collectively with Sheet Metal Workers International Association as the exclusive repre- sentative of its employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody the same into a written signed agreement. (c) Post at its Little Falls, New York, plant, copies of the attached notices marked "Appendix A" and "Appendix B." 18 Copies of the notice marked "Appendix A," on forms to be furnished by the Regional Director for Region 3 (Buffalo, New York), after being signed by an authorized representative, and copies of the notice marked "Appendix B," after receipt of same from the aforesaid Regional Director, shall be posted at the aforesaid plant promptly upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.19 B. Respondent Local 210, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting or attempting to act as the exclusive collective- bargaining representative of any of the employees of Coinmeco, Inc., at the latter's Little Falls, New York, plant, for the purpose of dealing with said employer concerning wages, hours, or other terms and conditions of employment of said employees, unless and until it shall have demonstrated its exclusive majority representative status in an' election conducted by the National Labor Relations Board among the aforesaid employees in the unit hereinabove found appropriate. (b) Giving any effect to, or in any other manner, directly or indirectly, demanding or insisting upon compliance with its contract dated September 24, 1971, with Coinmeco, Inc., covering employees of the latter's Little Falls, New York, plant, or any renewal, extension, or modification thereof, or calculated to promote or support a claim that it is the majority 'representative of the aforesaid employees, unless and until it has been certified by the Board as such representative. (c) Threatening to cause the discharge of, or the infliction of other discipline upon any employee employed by Coinmeco, Inc., at its Little Falls, New York, plant, because such employee has refused to designate Local 210 301 as its bargaining representative, or to give it other assistance or support. (d) In any other manner restraining or coercing the employees of Coinmeco, Inc., at its Little Falls, New York, plant, in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment, entered into pursuant to Section 8(a)(3) of the Act. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the National Labor Relations Act. (a) Notify Coinmeco, Inc., and Stollar Manufacturing Co., in writing, that the contract of September 24, 1971, is no longer in effect, and that it will not, directly or indirectly, demand, insist upon, or engage in any conduct calculated to enforce compliance with said contract, or to promote a claim of majority representative status of the employees involved, unless or until it is certified by the National Labor Relations Board as such representative. (b) Post at all its offices and meeting halls copies of the attached notice marked "Appendix B.1120 Copies of said notice, upon forms to be furnished by the Regional Director of Region 3 (Buffalo, New York), shall after being signed by an authorized representative of Local 210, be posted by it as above provided, immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by it to ensure that said notice is not altered, defaced, or covered by any other material. (c) Mail to the aforesaid Regional Director, in such quantity as he may request, copies of Appendix B, on forms provided by said Regional Director, signed by its duly authorized representative, for posting by Coinmeco, Inc., at the latter's Little Falls, New York, plant, as herein above provided. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith.21 IT IS FURTHER RECOMMENDED that the complaint herein, to the extent that it alleges a violation of Section 8(a)(3) of the Act, be dismissed. 18 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 a United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 19 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified by deleting the words "this Decision," and substituting the words "this Order " 20 See fn 18, supra 21 See In. 19, supra 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 all sides had full opportunity to present their evidence, the National Labor Relations Board 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has found that we, Coinmeco, Inc., violated the National Labor Relations Act, and ordered us to post this notice. We will fully carry out the Order of the Board, the Judgment of any court, and we will abide by the following: The aforementioned Act gives all employees these rights To organize themselves To form, join, or help unions of their choice To act together for collective bargaining or other mutual aid or protection. To refuse to do any or all of these things. WE WILL NOT do anything to interfere with you in the exercise of these rights. WE WILL NOT threaten you with discharge or other discipline because you refused to designate Local 210 as your bargaining representative, or to give it other assistance and support, unless a lawful agreement requiring such discharge, executed pursuant to Section 8(a)(3) of the Act, is in effect. As the Board found that we violated the law when we entered into a contract with Local 210 with respect to employees of our Little Falls, New York, plant, WE WILL withdraw all recognition from Local 210, and will henceforth refuse to deal with Local 210 as the collective-bargaining representative of our employees at the aforesaid plant, unless and until Local 210 is certified by the Board as the representative of the aforesaid employees. WE WILL NOT give any assistance or support to Local 210, or in any respect comply with our contract with said Union except that nothing in the Board's Order requires us to alter, vary, or in any respect modify the wages, hours, or other terms and conditions of employment that you now enjoy. As the Board found that we violated the law when we refused to bargain with Sheet Metal Workers International Association as the duly designated representatives of our employees in an appropriate unit, WE WILL, upon request, recognize and bargain collectively with said Association, as the duly designat- ed collective-bargaining representative of our employ- ees in an appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody the same into a written signed agreement. The appropriate unit is All production, maintenance, shipping and re- ceiving employees in the employ of Coinmeco, Inc., at our Little Falls, New York, plant, exclusive of office clerical employees, profession- al employees, guards and supervisors as defined in the National Labor Relations Act, as amended. Dated By COINMECO, INC. Employer (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Ninth Floor, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100. 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 all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we, Teamsters Local 210, violated the National Labor Relations Act, and ordered us to post this notice. We will carry out the Order of the Board, the Judgment of any Court, and we will abide by the following: The aforesaid Act gives all employees these rights To organize themselves To form, join, or help unions of their choice To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything to coerce or restrain employees of Coinmeco, Inc., Little Falls, New York, in the exercise of these rights. WE WILL NOT threaten to cause your discharge, or the infliction of other discipline upon you, because you refuse to designate us as your bargaining representa- tive, or to otherwise assist or support us, unless there is in effect a lawful agreement requiring such discharge, executed pursuant to Section 8(a)(3) of the Act. WE WILL NOT act or attempt to act as the collective- bargaining representative of the employees of Coinme- co, Inc., at its Little Falls, New York, plant, for the purpose of dealing with said Company concerning the wages, hours, and other terms and conditions of employment of the aforesaid employees, unless and until we have been certified by the Board as the collective-bargaining representative of said employees. WE WILL NOT give effect to, or in any other manner, directly or indirectly, demand or insist that Coinmeco, Inc., comply with the contract we entered into with it on September 24, 1971, with respect to its employees at Little Falls, New York, or any renewal, extension, or modification of said contract; nor will we engage in any conduct calculated to enforce compliance with the aforesaid contract, or to promote a claim of majority representative of the employees involved, unless and until we are certified by the Board as such majority representative. COINMECO, INC. LOCAL 210, PRODUCTION, MERCHANDISING AND DISTRIBUTION EMPLOYEES UNION, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By 303 (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Ninth Floor, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.