Mosier Safe Co.

AIRMATICS SYSTEMS 71 Airmatics Systems Division of the Mosier Safe Company and International Union of Tool, Die and Mold Makers and Local 102, international Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party to the Contract. Case 22-CA-5383 February 15, 1974 DECISION AND ORDER BY MEMBERS FANNING, KFNNEDY, AND PENELLO On September 4, 1973, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. Thereafter, counsel for Respondent filed exceptions and a supporting brief, and counsel for the party to the contract 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,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that Respondent, Airmatics Systems Division of the Mosler Safe Company, Wayne, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Drv Wall Products, Inc, 91 NLRB 544. en`d. 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings We have further considered Respondent's contention that the Administrative Law Judge has evidenced a bias or at least an appearance of bias against Respondent's position. We have carefully considered the record and the attached Decision and reject these charges of bias alleged by the Respondent 2 We agree with the Administrative Law Judge that Respondent violated Sec 8(a)(1) and (2) of the Act by recognizing the party to the contract on February 23, 1973, at a time when there existed a real question concerning representation of Respondent 's toolroom employees As the Administrative Law Judge found, that question was raised by a combination of the demand for recognition of the Charging Party made by certain of the toolroom employees on January 26, 1973. by the picketing for Charging Party which took place between January 26 and February 2, 1973, and which continued even after the employees had signed cards for the party to the contract; by the petition for an election filed by the party to the contract on February 2, 1973. which listed the Charging Party as an organization known to have a representative interest in the employees pursuant to which the Regional Director issued on February 9. 1973. a notice of hearing set for February 27. 1973. by the credited testimony of two employees' regular wearing of buttons for the Charging Party after the picketing ended, and by the credited testimony of the toolroom foreman that he communicated certain of the employees' favorable sentiments toward the Charging Party to Respondent% officals before recognition was granted the party to the contract In such circumstances, we agree with the Administrative Law Judge that Respondent was duty-bound to withhold recognition of either union until the question concerning representation was finally determined under the procedures provided by the National Labor Relations Act Its failure to do so was therefore a violation of the Act Midwest Piping & Suppli Co. Inc , 63 NLRB 1060 however, we deem unnecessary to such a resolution the following conclusions of the Administrative Law Judge and therefore we do not pass on his conclusions that (I) certain of the authorization cards obtained by the party to the contract were tainted by the remarks made at the time they were signed. (2) Charging Party has "specialized experience" in the representation of toolroom employees, and (3) Respondent was motivated to recognize the party to the contract because of a preference for dealing with one union rather than multiple unions Since the Charging Party's claim raised a real question concerning representation. Respondent was prohibited, for whatever reason, from signing a contract with any union until that question was properly resolved DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: This case was tried in Newark, New Jersey, on June 25, 26, and 27, 1973, on a charge filed by International Union of Tool, Die and Mold Makers (herein called IUTDM) on April 5. 1973, amended on May 11, 1973, and a complaint issued by the General Counsel on May 24, 1973. In brief, the complaint alleges that the above-named Company (the Respondent herein) violated Section 8(a)(1), (2), and (3) of the Act by recognizing Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Teamsters) as the exclusive collec- tive-bargaining representative of its toolroom and mainte- nance cage employees, and by entering into a collective- bargaining agreement with Teamsters covering the terms and conditions of employment for the said employees, notwithstanding that, at the time of such recognition and contract execution, Teamsters did not represent "an untainted and uncoerced majority" of said employees, and that there was then pending before the Board "a question concerning representation [of said employees] involving IUTDM." The Respondent filed an answer to the complaint which denies some of the substantive allegations and the commission of unfair labor practices. Upon the entire record,' including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent is a New York corporation which is engaged in the manufacture, sale, distribution, and service of security equipment at various plants, including one located in Wayne, New Jersey, the only facility involved in i Pursuant to a motion made by the Respondent which was granted during the hearing, the record in this case includes the transcript of the hearing and the exhibits in Airmaucs Systems Division of the Mosler Safe Compant. Employer, and International Union of Tool, Die and Mold Makers, Petitioner, Case 22-RC-5598 209 NLRB No. 6 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this proceeding In the operation of the said business, the Respondent in the last 12 months, a representative period, admittedly sold and shipped products valued in excess of $50,000 from its plant in Wayne, New Jersey, to customers located outside the State of New Jersey. The Respondent admits and I find it is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent also admits that Teamsters is a labor organization within the meaning of Section 2(5) of the Act, and I so find. The Respondent denies that IUTDM is such a labor organization, but I find to the contrary, on undisputed testimony, that IUTDM is an organization in which employees participate which exists for the purpose of dealing with employers concerning wages, rates of pay, hours of employment, and condition of work for employ- ees. I therefore find that IUTDM is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The History of Labor Relations at the Respondent's Wayne, New Jersey, Plant The Respondent first acquired the Wayne, New Jersey, facility involved in this proceeding in about 1955. At that time, "the hourly paid employees engaged in maintenance and production work" were represented by Local No. 274, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (herein called Plumbers). Upon its acquisition of the Wayne plant, the Respondent recognized Plumbers as the collective-bargaining representative of the employees in the above-described unit, and it thereafter entered into successive collective-bargaining agreements with Plumbers covering the terms and conditions of their employment. In 1969, Plumbers was decertified as the representative of said employees, and in the same year, following an election conducted by the American Arbitration Association, the Respondent recognized Teamsters as the representative of the said employees. Since 1969, the Respondent has entered into two successive collective-bargaining agree- ments with Teamsters covering the terms and conditions of employment of: All hourly paid employees engaged in maintenance and production work at the Company's facility at 415 Paterson-Hamburg Turnpike, Wayne, .:ew Jersey 07470, excluding all office clerical employees, watch- men, guards and supervisors as defined in the National Labor Relations Act. The most recent such contract is for a 3-year term which began on December 22, 1972, and terminates on December 20, 1975. It contains a union-security provision which requires all employees in the unit to become members of 2 Before the events charged herein as unfair labor practices , the hourly paid employees engaged in maintenance work covered by the Respondent's contracts with Teamsters admittedly referred only to janitorial employees and porters Teamsters within 30 days after the effective date of the contract or hire, whichever occurs later. There are about 225 employees covered by that agreement. At the time that the Respondent entered into both its contract with Teamsters, the Company had in its employ a number of salaried tool-and -die makers and other highly skilled employees who worked principally in its "tool and die room" under separate supervision. The Respondent also then had in its employ two salaried maintenance men who worked in its "maintenance cage ," an area separate from the toolroom , under the separate supervision of its plant engineer. It is undisputed that neither of these two employee groups was a part of the unit covered by the Respondent's contracts with Teamsters, that neither had previously been represented by any labor organization, and that there is no history of collective bargaining on their behalf.2 Moreover, during the contract negotiations be- tween the Respondent and Teamsters in December 1972, Teamsters expressed no interest in the representation of either the toolroom employees, or those who worked in the maintenance cage, and the Respondent likewise made no effort to expand the unit coverage of the proposed contract to include these employees, that is, not until the toolroom employees sought to be represented by IUTDM. B. The Current Events on Which the Complaint Herein is Based I The strike for recognition of IUTDM IUTDM is a relatively new labor organization which began a campaign to represent toolroom employees in Northern New Jersey in January 1973.3 On January 25, David B . Bogert, an apprentice tool-and-die maker employed by the Respondent since January 1970, attended a meeting of IUTDM at which the employees voted to strike their respective employers for recognition . Bogert communicated this information to his fellow toolroom employees, and on the following morning (Friday, January 26) they struck and started to picket the Respondent's Wayne plant with homemade signs which stated, "Tool Makers Union on Strike" and "Tool Makers Strike." About 8 of the Respondent's i1 toolroom employees participated in the strike and picketing on the first day of the strike. About 8:30 a.m, on that first day of the strike, George Vetan, the Respondent's personnel director, came out to the picket line and asked three of the strikers, Dave Bogert, George Bogert , and James Morgan , "what was going on," and "why we were on strike." George Bogert and Morgan replied, that they were "on strike for recognition for the IUTDM , the International Union of Tool , Die [and] Mold Makers." Vetan said, "I never heard of this outfit." George Bogert pointed to a large button which he was wearing, approximately 3-1/2 inches in diameter, on which the name of IUTDM was printed. Vetan asked, "What do you want me to do?" The employees suggested that Vetan S Prior to the hearing in this case, IUTDM had been certified by the Board as the exclusive collective-bargaining representative of the toolroom employees of about 20 to 25 employers Unless otherwise noted, all dates hereinafter refer to 1973 AIRMATICS SYSTEMS called IUTDM, and Dave Bogert supplied Vetan with IUTDM's address and telephone number.4 The Respon- dent admittedly made no effort to contact IUTDM. On Monday, January 29, after the weekend, the strike and picketing by the toolroom employees resumed, and it continued daily thereafter to and including Friday, February 2. Starting with January 29, the strikers also carried signs obtained from IUTDM which bore the legend: "IUTDM on Strike" During the course of that week, all of the Respondent's remaining toolroom employ- ees (with the exception only of Mike Gorkowski who quit the Respondent's employ on January 31 in accordance with a prior announcement) participated in the strike and picketing on behalf of IUTDM, and no one worked in the toolroom on February 2, the last day of the strike.5 2. The intervention by Teamsters into IUTDM's recognition campaign Pursuant to instructions issued by Teamsters president, Ernest Terrien, the production and maintenance employ- ees represented by Teamsters continued to work during the strike by the toolroom employees for recognition of IUTDM as their representative.", In addition, starting with the first day of the strike, Teamsters chief steward, Albert Pecci, stationed himself in the driveway to the plant and instructed all truckdrivers who approached that Teamsters "was not on strike," and he waved them across the picket line. At about the same time, Personnel Director George Vetan ordered an advertisement to be inserted in the local newspapers for experienced "tool makers." The ad ap- peared in the newspapers on 3 successive days beginning with Sunday, January 28. 71 On Tuesday, January 30, Teamsters president, Terrien, 4 The findings above are based on the credited testimony of Dave Bogert, George Bogert, and James Morgan Vetan admitted that he was told by the pickets that they were striking for recognition of IUTDM. He denied. however, that he accepted Dave Bogert's offer to supply him with the name, address, and telephone number of IUTDM, and he testified that he specifically rejected Bogert's offer Based on demeanor, and implausible and self-contradictory testimony by Vetan in other respects. I credit his version of this conversation only to the extent that it accords with that of the three employees 5 The findings regarding the total participation by the toolroom employees in the strike for recognition of IUTDM are based on the credited testimony of Dave Bogert and Respondent's then toolroom foreman Henry Antomuk 7 he Respondent produced no payroll or other records. obviously available to it, to disprove the testimony of Bogert and Antomuk in this regard I therefore accord no probative value to the hearsay testimony of Perry A. Newcomb, the Respondent's director of industrial relations. regarding telephone reports which he assertedly received at his office in Cincinnati, Ohio. from Edward Voitas, the Company's director of operations at Wayne. :o the effect that this strike and picketing did not have the full support and participation of the toolroom employees. I note in this regard that Voitas was not called to testify by the Respondent although he admittedly was available 6 The two salaried and unrepresented "maintenance cage" employees also continued to work during the strike 7 See G.C E'th. 7. Vetan testified that the ad was inserted in order to secure a replacement for Mike Gorkowski who was quitting on. January 31 Although the timing of the insertion of the ad. and the announcement of plural job openings, suggest that the Respondent might have been motivated by other considerations, such as replacement of the strikers, 1 nevertheless believe Vetan's explanation. and I credit his testimony in this regard S A number of witnesses testified that this incident occurred on 73 bought breakfast for a number of striking and picketing toolroom employees at Sorenson's Diner near the plants During the meeting which ensued, the strikers complained about the failure of Teamsters to honor their picket line, and Terrien invited them to "join a good strong union," and thereby eliminate the need for "worry" "about the trucks [not] stopping." Terrien also told the strikers that they no longer had jobs -with the Respondent, that the Company was advertising in the newspapers for their replacements, but that if they joined Teamsters, they would "get their jobs back." Ternen further told the strikers that if they joined Teamsters he would negotiate "a separate contract" for them, and they would not lose any of their present benefits or salary status.9 Ternen finally told the striking employees that if they signed Teamsters authori- zation cards, he would present them to the Company and would petition for an NLRB election at which they could vote "Teamsters in and the Toolmakers Union out" At the conclusion of the meeting, George Bogert accepted a supply of blank Teamsters' authorization cards from Terrien, and undertook to solicit signatures thereto from the Respondent's toolroom employees.10 3. The acquisition by Teamsters of authorization cards from the toolroom and maintenance cage employees That same day, after the meeting in Sorenson's Diner with the striking toolroom employees, Teamsters Chief Steward Pecci solicited Frank Soltis and Thomas Dakake, Respondent's two salaried and previously unrepresented maintenance cage employees, and obtained their signatures to Teamsters' authorization cards. ii Also on the same day, George Bogert commenced soliciting toolroom employees Wednesday, January 31 However, in the light of documentary evidence that a number of Teamsters' authorization cards admittedly signed the same day, and a written demand made by Teamsters that day for recognition, are dated January 30. 1 conclude that those who testified that this incident occurred on January 31 were in error in this regard. As salaried employees , the toolroom employees enjoyed a number of benefits that were greater than those available to the production and maintenance employees represented by Teamsters For example, the toolroom employees were not required to punch a timeclock-production employees were. toolroom employees took their vacations whenever they preferred-production employees all took their vacations during the first 2 weeks in July. and toolroom employees were allowed more paid sick leave than production employees 1O The findings above are based on a composite of the testimony of Dave Bogert and James Morgan which I credit I do not credit George Bogert's initial testimony that Ternen told the strikers , "We're all probably going to get fired," because it is inconsistent with his later credited testimony (which corroborates that of Dave Bogert and James Morgan) that Ternen said, "if we signed the Teamster cards that we would have our jobs hack." i note in this regard that undoubtedly based on these statements of Ternen . a rumor to the effect that the strikers considered their employment as terminated came to the attention of Respondent's management , and this prompted Personnel Director Vetan to assure George Bogert later that week that the strikers had not been fired, that the rumor to that effect was not true, and that they were free to end their strike and return to work at any time Because of self-contradictions , implausibility, and demeanor. I regard the testimony of Terrien and Pecci as generally unreliable and worthy of little credence I therefore credit their testimony in respect to this meeting only to the extent that it accords with my findings above. ii Insofar as the record discloses, these two employees never joined IUTDM or participated in the toolroom employees ' strike for recognition of IUTDM as their representative 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to sign Teamsters' authorization cards, and obtained the signatures of Paul Martin and Russ Decker. That evening at about 6 or 7 p.m., the toolroom employees held a meeting at James Morgan's house to discuss what Terrien had told them in the diner that morning. The meeting was attended by 8 of the Respon- dent's 11 toolroom employees.['- Varying opinions were expressed at the meeting as to whether the interests of the toolroom employees would be better served by Teamsters or IUTDM representation, and several employees voiced their disbelief in Terrien's promise to get them a separate contract if they signed up with Teamsters. George Bogert said "we were fired and if we joined the Teamsters we would get our jobs back." 13 Teamsters' authorization cards were thereupon signed at the meeting by Dave Bogert, Frank Bogert. George Bogert, Frank Re, Steve Molnar, and James Morgan.i4 4. Teamsters' demand for recognition and petition for certification On January 30 about 5 p.m., Teamsters President Temen went to the Respondent's plant and met with Edward Voitas, the Company's director of operations. Terrien asked Voitas "to recognize Local 102 [Teamsters] as the bargaining agent for these people," and he told Voitas that Teamsters "had a majority and 1 was willing to show them [the authorization cards] to him." At the same time, Ternen gave Voitas a written "message" on Teamsters' stationery which read as follows: 16 To The Airmatics Systems of The Mosier Safe Co. At 415 Paterson-Hamburg Tpk. Wayne, New Jersey 07470 DATE Jan 30, 1973 SUBJECT Recognition of Local 102 Teamster I.B.T.C.W.H. to represent Toolmakers and mainte- nance [sic ] employees by a card count in place of an NLRB elections [sic]. An agreement to be entered into to designate Local 102 as sole bargaining agents for these maintance [sic] employees and toolmakers. Ernest Terrien By Local 102 Pres. Voitas replied that he could not give Terrien an answer at that time because he would have to check with counse1.16 The following day (January 31), Ternen made a second written demand on Voitas for recognition as the represent- ative of "Toolmakers maintainance [sic] machinist and others not in any Union." 17 His second demand likewise was rejected by the Respondent. Thereafter, on February 2, Teamsters filed a petition with the Board for certification as the exclusive representa- tive of the Respondent's employees in the following unit: All toolmakers, toolroom, stock handlers and mainte- nance men. The said petition was assigned Case 22-RC-5272.18 It alleged, inter alia (par. 1la), that there was "a strike or picketing at the employer's establishment," and in para- graph 11 c, that the said strike and picketing was being conducted "by and on behalf of International Union of Tool, Die and Mold Makers of 1544 Irving Street, Rahway, N.J., since January 25, 1973." The petition further alleged (par. 12) that IUTDM was an organization which had "claimed recognition as representative" and was "known to have a representative interest." In connection with the said petition, Teamsters also filed with the Board the 12 authorization cards which it had obtained as described above.19 5. The Respondent's decision to extend recognition to Teamsters Although practically all of the Respondent's toolroom employees signed Teamsters' cards on January 30 and 31 as described above, they nevertheless continued to strike and to picket for recognition of IUTDM, and they did not end their strike or return to work until February 5, and then only after they had been notified that Teamsters had filed a petition for an NLRB election. Following their return to work, Dave Bogert continued to wear a large IUTDM button in the plant, and James Morgan conspicu- ously displayed a like button in the plant on his toolbox 20 12 Dave Bogert, James Morgan, Steve Molnar. Paul Martin, George Bogert, Frank Bogert, Joseph Scepan, and Frank Re 13 The quotes above are from the credited testimony of Dave Bogert George Bogert testified in this regard that he "told the employees that Ernie Terrien had gave [sic ] me a bunch of Teamster cards and if we signed the Teamster cards we would have our Job back and we would have a stronger union by belonging to the Teamsters. ' 14 George Bogert's card (Teamsters Exh. 4) is dated January 14 He testified, however, that he signed the card at the meeting in Morgan's home, and "I Just put the wrong date down, I guess " In addition to the cards obtained as described above, George Bogert also solicited and secured Teamsters' cards from toolroom employees Michael Einreinhof and Joseph Scepan These cards (Teamsters Exh 8 and 10) are dated January 30 and 31. respectively. 15 Employer's Exh 4 in Case 22-RC-5598. 16 The findings above are based on Ternen's uncontroverted testimony which is credited to this extent only. Terrien also testified that at the time he made this demand for recognition, he had in his possession 12 authorization cards 2 signed by maintenance cage employees, and 10 signed by toolroom employees. According to both Terrien and Pecci, the toolroom employees' cards were turned over to Ternen on January 30, just before the latter made his demand on Voitas for recognition of Teamsters Contrary to Terrien's and Pecci's testimony , I find that at the time of Terren's demand, he had no authorization cards signed by any toolroom employees. I base this conclusion not only on George Bogert's credited testimony that he first turne4 over the cards signed by toolroom employees to Pecci on the morning following the meeting in Morgan 's house, but also on the quite evident fact that , when Terrien made his demand for recognition the meeting in Morgan's house at which six of the cards were signed , had not yet even convened In the light of the foregoing, I regard the testimony of Terrien and Pecci regarding the possession of 12 signed cards before the January 30 demand for recognition was made as pure fabrication, and 1 regard their testimony in general as worthy of little credence or reliance. 17 Employer's Exh 5 in Case 22-RC-5598. "I G.C. Exh 4. 19 Teamsters Exhs 2 through 13 20 The findings above are based on the credited testimony of Dave Bogert, James Morgan, George Bogert, and Respondent's then toolroom foreman Henry Antoniuk Eugene Verha, the Respondent's manager of manufacturing engineering whose jurisdiction includes the toolroom, testified that he could not recall seeing Dave Bogert wear an IUTDM button after the strike ended, but Verba admitted seeing such a button on AIRMATICS SYSTEMS Near the end of the week of the toolmakers' strike, George Bogert admittedly told Operations Director Voitas that "the toolroom was going into the Teamsters Union," and he told Verba, the manager of manufacturing engineering, that "the toolroom employees had all signed cards for the Teamsters." At the time he made these statements, however, all of the toolroom employees were still striking for recognition of IUTDM with IUTDM signs. Moreover, as noted above, after the strike ended, the Respondent received a copy of Teamsters' petition for certification which named IUTDM as a union having an interest in the representation of the employees for whom Teamsters sought certification. The Respondent thus obviously knew that IUTDM still had at least the support of some of its toolroom employees. The Company accordingly undertook to ascertain which of the Unions had the greater support of these employees.21 In this regard, commencing with the termination of the toolmak- ers' strike, both Verba and Personnel Director Vetan asked Toolroom Foreman Antoniuk on several occasions "what was the division in the toolroom about one union as opposed to the other." Antoniuk at first reported that he "thought they were split right down the middle, as far as the allegiance to the two unions." Subsequently, he reported to them that the toolroom employees whom he supervised "were tending to lean more toward the toolmakers union." 22 On February 9, the Regional Director of the Board for Region 22 issued a notice of representation hearing in the case initiated by the Teamsters' petition (Case 22-RC-5572), and served copies thereof by registered mail upon the Respondent, Teamsters and IUTDM. The said notice scheduled the hearing on the Teamsters' petition for February 27. During the week following its receipt on February 5 of a copy of Teamsters' petition for certification, Respondent decided that it preferred "to have one union to deal with rather than multiple unions." That preference, in turn, caused the idea to crop into the mind of Industrial Morgan's toolbox. Verha assertedly never reported the latter fact either to his superior Voitas, or to Personnel Director Vetan. In the light of Respondent's conceded interest in the views of its employees in respect to the two Unions, I place no credence in Verba's testimony that he did not report Morgan's conspicuously displayed interest in IUTDM to his superiors, and I likewise do not credit Verba's asserted lack of observation of Dave Bogert's button 21 According to Industrial Relations Director Newcomb, some of the Respondent's officials were then of the opinion "that maintaining the nonunion status [of these unrepresented employees ] was the proper objective, and there was [then] a question of whether that [objective] had any chance at all." 22 These findings are based on Foreman Antoniuk's testimony which I credit as reliable both in general and in these respects Verba admitted that commencing with the return to work of the toolroom employees on February 5, he inquired of Antomuk about "twice a week" "how the employees in the toolroom were feeling regarding the union question" Verha also conceded that when he first made that inquiry about "two or three days after they [the toolroom employees] came back." Antoniuk told him that "it looked like a 50-50 proposition with regards to the toolroom favoring one union or the other" Verba also testified that on later similar inquiries, Antoniuk gave him "basically the same information " industrial Relations Director Newcomb testified that following the termination of the strike of the toolroom employees for recognition of IUTDM, he received co.itinuing reports from Operations Director Voitas that "the Teamsters assertions of representing a majority of the employees appeared to be valid, and that there was a total lack of any evidence of any 75 Relations Director Newcomb that the toolroom and maintenance cage employees "might not be an appropriate unit," and that they could possibly be regarded as an accretion to the production and maintenance unit already represented by Teamsters.2•5 Newcomb accordingly "ar- ranged" for Operations Director Voitas "to have his staff ... get together the facts concerning any interrelationship between the employees" to support this "overall unit" theory, and to thereby avert the possibility of having to deal "with any other union." In addition, Newcomb then checked with Respondent's counsel Collins about "the legal point of view of [whether] having these people in one unit was appropriate." On February 14, a few days after the Respondent's receipt of the Board's notice of represen- tation hearing on the Teamsters petition, Newcomb and Mr. Collins visited the Wayne plant professedly "to explore in depth the question of the unit requested in the petition, [and] to assess as far as we could the strength of the Teamsters and the other union involved." 24 Newcomb assertedly was supplied by Voitas, Verba and Vetan with information concerning "the interrelationship of the work activities of the employees in the production unit with the employees in the die shop and the maintenance crib." He thereupon on February 14 decided, notwithstanding that a hearing was scheduled for February 27 on the Teamsters' petition for representation, and that IUTDM was a named party in interest in that proceeding, to recognize Teamsters as the representative of the toolroom and maintenance cage employees on the theory that "we had a valid accretion situation . . . and that it was probably inappro- priate to be a separate unit." In furtherance of that decision, Newcomb requested Operations Director Voitas to "setup a meeting" with Teamsters. On or about February 15, Voitas arranged for a meeting with Teamsters Secretary-Treasurer Merker. The latter allotted 2 days. February 22 and 23, to.this meeting, the first dates he had available because of his busy schedule of negotiations.25 support for . . . IUTDM " I place no credence in or probative value on this hearsay testimony. As previously noted. Voitas was not called to testify although he admittedly was available Moreover, in the light of Antoniuk's contrary reports to Verbs and Vetan. %nd the open display of IUTDM buttuns in the plant. I regard it as incredible that Voitas would have made such reports to Newcomb I therefore place no credence in Newcomb's testimony in this regard Cf. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) v tv L R.B, 459 F.2d 1329 (C A D C., 1972), 2 Wigmore, Evidence, Sec. 285 (3d. ed. 1940). 23 Newcomb testified , " I was surprised when I found out .. that they [the toolroom employees ] were never really in the [production and maintenance ] unit." In the light of Newcomb's position as Respondent's industrial relations director, I regard his professed lack of knowledge of the unrepresented status of the toolroom employees as beyond belief, and I do not credit him in this regard 24 Seefn 22,supra 25 Except for the last sentence which is based on Merker 's testimony which I credit to this extent only, the findings and quotes above are based on testimony and admissions elicited from Newcomb. Newcomb conceded, albeit reluctantly and after much prodding, that it was "highly likely" that the preference for dealing with "one union" caused the "overall unit" and accretion theory to "crop into my mind " Newcomb also testified that "The Teamsters were not privy to what we were going to discuss [at the meeting which he asked Voitas to arrange ]." I place no credence or probative value in this latter hearsay and incompetent testimony , and I believe the converse to be true 1 base this conclusion on the following considerations - Teamsters (Continued) 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The so-called negotiations between Respondent and Teamsters Pursuant to the prior appointment made on about February 15 by Operations Director Voitas with Teamsters Secretary-Treasurer Merker, Newcomb and Voitas met with Merker and Terrien at or about 8 a.m on February 22 at the Howard Johnson Motor Lodge in Wayne, New Jersey. According to Newcomb. Terrien first "impressed upon the company that he did represent a majority of the people, [and] that he had cards from all but one of the employees in the toolroom and maintenance cage area." 26 Newcomb then purportedly told Merker and Terrien that he did not regard a separate unit for these employees as appropriate, and he assertedly showed Merker "some facts and figures" about the "interrelationship" of these employ- ees with those in the production and maintenance unit already represented by Teamsters. Merker, on the basis of an "independent investigation" allegedly conducted by him, testified that he agreed "that this was something that could be an accretion." Although both parties thus were in agreement on this issue, the discussion of this subject (according to Newcomb) consumed the entire morning of February 22, and "continued into the afternoon period." At the conclusion of this lengthy (5-hour) discussion of this subject, Merker assertedly repeated, "that the Company's position had merit, [and] that the separate unit did not appear to be appropriate." Then, although the Respondent had previously made known its readiness to recognize Teamsters for the 13 employees as accretions to the existing unit represented by Teamsters, Merker assertedly asked (according to Newcomb), "if the Company would entertain an accretion situation into the P & M unit," and Newcomb assertedly replied, "I thought we would." The parties then adjourned to permit them "to do some homework" regarding the manner in which they would fit these employees "into the [existing] labor agreement." This had twice demanded recognition as the representative of the toolroom and maintenance cage employees, and a hearing on this petition already had been scheduled Merker was a busy man, but he nevertheless allotted 2 days to this meeting It stretches credulity beyond the breaking point to believe that he would have arranged this meeting without asking the purpose therefor, or that he would have allotted 2 days of his busy schedule unless he knew that the meeting was for contract negotiations In respect to this testimony of Newcomb, I fiiid the words of Judge Learned Hand in Dyer v MacDougall, 201 F.2d 265, 269 (C A 2), quoted with approval in N L R B v Walton Manufacturing Compam 369 U S 404, 408 (1962), to be particularly appropriate For the demeanor of a witness may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story, for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to eive assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies " In many other respects, Newcomb's testimony on occasion was implausible, at times contrary to admissions elicited from other witnesses for the Respondent and with his own testimony, andin addition, he frequently hedged, equivocated, and evaded direct answers to questions which he regarded as inimical to the Respondent's interest I therefore regard his testimony as generally unreliable, and I credit it only when it constitutes an admission against the Respondent's interest, or when it accords with other testimony which I regard as reliable 26 Obviously in the light of his prior decision to treat the toolroom and was necessary, according to Newcomb, because the existing contract "did not have the classifications to cover the [toolroom and maintenance cage] people," and also because "we had to develop new [wage rate] ranges because the ranges that they would have would be higher than any existing ranges in the [current] agreement." The parties accordingly met again the following morning at the same place, agreed on new job classifications and wage rate ranges for the toolroom and maintenance cage employees, and then executed an agreement extending the coverage of Respondent's existing contract with Teamsters to include the said employees. The said agreement,''7 obviously prepared by a lawyer, consists almost entirely of a recital of all the reasons for regarding the toolroom and maintenance cage employees as accretions to the existing production and maintenance unit represented by Team- sters, and except for new job classifications and wage rate ranges applicable to the so-called newly accreted employ- ees, it extends the existing labor agreement between Respondent and Teamsters to the said employees.213 7. IUTDM's petition for certification On February 23, following the execution of the aforede- scribed agreement, Terrien filed a request with the Board's Regional Office to withdraw the Teamsters' petition in Case 22-RC-5572, in which IUTDM was named as a party in interest, and which was scheduled for hearing on February 27. Upon notification of the Teamsters' request, IUTDM filed a petition on February 26 for certification as the representative of the Respondent's employees (Case 22-RC-5598) in the identical unit previously requested in the prior Teamsters' petition.29 A hearing on IUTDM's petition was conducted on March 6. At the said hearing, Teamsters appeared as an intervenor, the Respondent and Teamsters asserted their agreement of February 23 as a contract bar to IUTDM's petition, and they contended maintenance cage employees as accretions to the existing production and maintenance unit of 225 employees, no proof of majority among the "accreted" employees was required In any event. Teamsters had no difficulty in assuaging the Respondent's compunctions, if any, in this regard It did this in two ways (1) by telling Respondent that it had cards from all but one of the allegedly accreted employees- the Respondent never saw the cards nor asked to see them, and (2) by engaging, on the very morning of the previously arranged negotiations meeting, in a token "strike" and picketing in which only 3 of the 13 affected employees participated-the rest refused to join in the strike, although asked-and the 225 P & M employees also worked, notwithstanding the picket line of their union According to Terrien and Merker, the asserted reason for this "strike" was that Respondent "had refused to recognize me," and that "we were tired of waiting of being [sicI recognized as the bargaining agent" I place no credence in these assertions inasmuch as the "strike" and picketing continued for the entire day on February 22, notwithstanding that Terrien and Merker learned early in the morning shortly after the picketing began (even if it did not know so before (see In. 25. supra) ) that the Respondent intended to recognize Teamsters as the representative of these employees as accretions to the unit already represented by it All of the foregoing persuades me that the reason for the Teamsters' token strike was not that asserted by Terrien and Merker, to obtain recognition as the collective- bargaining agent of the 13 employees , but solely to lend an aura of legitimacy to the so-called negotiations of Respondent and Teamsters. 27 Employer's Exh 2 in Case 22 -RC-5598. 25 As a result of this "agreement," the "accreted employees" lost their salary status, are now required to punch a timeclock, and they also lost some of the other fringe benefits which apply only to salaried employees y the Teamsters' withdrawal request was then approved by the Regional Director on February 27 AIRMATICS SYSTEMS that the unit sought by the petitioner was inappropriate because the employees named therein were accretions to the production and maintenance unit covered by the Respondent's successive collective-bargaining contracts with Teamsters. In addition, both Teamsters and Respon- dent contended that the inclusion of the two maintenance men with the toolroom employees rendered the "craft unit" sought by I UTDM's petition as inappropriate for collec- tive-bargaining purposes. In this regard, 1 UTDM moved at the conclusion of the hearing on its petition to amend the unit sought therein by excluding the two maintenance cage employees therefrom. The Regional Director has taken no further action on IUTDM's petition pending the outcome of the complaint which he issued against Respondent in this case. C. Concluding Findings 1. The applicable legal principles The principal issue presented in this case is whether the Respondent violated Section 8(a)(2) of the Act by recognizing and executing a contract with Teamsters for the toolroom and maintenance cage employees at a time when there was a real question concerning the representa- tion of said employees in an appropriate unit. Section 8(a)(2) of the Act sets out a "clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination or interference." International Association of Machinists. Tool and Die Makers Lodge 35 v. N.L.R.B., 311 U.S. 72, 80 (1940). In furtherance of that policy. "[i]t has repeatedly been held that an employer may not intrude in matters concerning the self-organization of his employees. He must refrain from all interference. . . . Especially is this so where the adherence of the employees is being sought by rival labor organizations. N. L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1." Harrison Sheet Metal Company v. N. L. R. B., 194 F.2d 407, 410 (C.A. 7. 1952). For where there is a real question as to which of two or more unions the employees would prefer as their representative, any action by an employer "which demonstrates in any way a preference for one union over the other . . . interfer[es] with the fundamental right of [the] employees to choose their own representative," Southern Conference of Teamsters v. Red Ball Motor Freight, Inc., 374 F.2d 932, 938 (C.A. 5, 1967). Accord : N. L R. B. v. Jack W. Sellers, et. aL, d/b/a Coca Cola Bottling Company of Sacramento, et aL, 346 F.2d 625, 631 (C.A. 9,1965); IV L.R.B. v. National Container Corp., 211 F.2d 525, 536 (C.A. 2, 1954). The Board's Midwest Piping doctrine,30 which conceded- ly controls the determination of the principal issue in this case,31 is "a direct outgrowth of the parent doctrine of employer neutrality in matters relating to employees' choice of a bargaining representative " N.L.R. B. v. Nation- al Container Corp., supra, 211 F.2d at 536. According to this Midwest Piping and Supply Co, Inc. 63NLRB 1060 (1945) si Resp br,p 17 32 The Midwest Piping doctrine has been consistently applied by the Board, and its application has received judicial approval in a number of factual settings N i_R B v. Henry Heide, Inc , 219 F.2d 46 (C A. 2. 1955), cert denied 349 U.S 952. N L R B v Burke Oldsmobile. Inc, 288 F 2d 14 77 doctrine, "an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize or enter into a contract with one of those unions until its right to be recognized has finally been determined under the specific procedures provided by the Act ." Retail Clerks Union, Local 770 aff/w Retail Clerks International Association v. N.L. R. B., 370 F.2d 205, 207 (C.A. 9, 1966). The danger inherent in an employer's premature recognition and bargaining with one of several competing unions is, of course, that the "execution of a contract with a union does constitute support of it, for `once an employer has conferred recognition on a particular organization it has a marked advantage over any other in securing the adher- ence of employees, and hence in preventing the recognition of any other.' N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 1938, 303 U.S. 261, 268 ... "N.LR.B. v. Signal Oil & Gas Co., 303 F.2d 785, 787 (C.A. 5, 1962). See also, International Ladies' Garment Workers Union, AFL-CIO v. N.L.R.B., 366 U.S. 731 (1961 ); Elastic Stop Nut Corporation v. N.L.R. B., 142 F.2d 371, 380 (C.A. 8, 1944), cert. denied 323 U.S. 722 ; Intalco Aluminum Corporation v. N.LR.B., 417 F.2d 36, 39 (C.A. 9, 1969) 32 Thus, the fundamental premise underlying the Midwest Piping doctrine is that when two or more competing unions can each marshal evidence demonstrating that they have support from a substantial proportion of the unit employ- ees, the representative status of any of the unions, even one possessing evidence purporting to demonstrate that it is supported by a majority of the employees, is rendered so doubtful that the employer must remain neutral until the question of representation is finally resolved, preferably through the Board's election processes. And, where the contest between two unions has not yet " `crystalized' into a manifest preference" on the part of the employees, the employer's reliance upon the purported majority status of one of the rival unions is insufficient to negate the existence of a real questioning concerning representation. Oil Transport Company v. N L. R.B, supra, 440 F.2d at 665. 2. The question concerning representation Although the Respondent concedes that the Board's Midwest Piping doctrine is "the controlling general princi- ple of law" applicable to this case, it contends that it was not faced with a real question concerning representation, and it therefore did not impinge on the doctrine when it recognized and executed a contract with Teamsters "since they represented an uncoerced majority of the toolroom and maintenance cage employees." The Respondent bottoms this contention on the further assertions that it was "never presented" with "a substantial claim [by IUTDM] to represent the . . . [said] employees," and that in any event IUTDM's claim for representation was made for "an inappropriate unit" of employees who are "a proper accretion," and they therefore "could lawfully be (C A. 2, 1961), N L R B N, National Container Corp, supra, N L R B v Midtown Service Co, Inc, 425 F 2d 665 (C A. 2. 1970), N LR B v Signal Oil & Gas Co. 303 F 2d 785 (C A 5. 1962), N L R B v. Allied Food Distriliution, Inc, 421 F2d 188 (CA 5, 1969), enfg 169 NLRB 783, Oil Transport Company v N L R B, 440 F 2d 664 (C A. 5.197 1) 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD added to the existing unit [represented by Teamsters] without affording them a self-determination election." I find, contrary to these contentions , that at all material times Respondent had knowledge of a substantial interest and claim by its toolroom employees for representation by IUTDM, that Respondent recognized Teamsters as the representative of said employees , not because the Team- sters represented an uncoerced majority of the tool and die room employees-I find that Teamsters did not-but only because of Respondent's admitted preference for not dealing with another union as the representative of these employees . Finally, I find that a unit of toolroom employees is an appropriate craft unit for the purpose of collective bargaining, that IUTDM is a union which specializes in representing such employees , and that the Respondent therefore was faced with a real question concerning representation when it bypassed the pending scheduled Board hearing on the Teamsters' petition for representation (in which IUTDM was a party), and extended recognition and a contract to Teamsters, one of the two competing unions. a. The Respondent 's knowledge of the substantial claim of its toolroom employees for representation by IUTDM The Respondent's argument in support of its contention that it was "never presented" with a substantial claim by IUTDM to represent the toolroom employees runs in sum as follows: No official of IUTDM ever requested recognition as their representative. During the week of January 29 while the toolroom employees were on strike, they "switched allegiance" from IUTDM to Teamsters. After the strike ended, "except for the claim of two employees that they occasionally displayed buttons for the IUTDM, there was absolutely no activity in support of . . . IUTDM." On February 10, the employees voted at a meeting "to stay with the Teamsters" and not IUTDM. A majority of the employees thus "had decided that Local 102 [Teamsters] could best represent their interests." Based on the foregoing "objective evidence," the Company had every reason to believe that the employees supported Teamsters Local 102, and inasmuch as "an uncoerced majority of the Company's employees freely chose to be represented by Teamsters," it was "lawful" for Respondent to extend recognition to it.33 The record as credited hereinabove does not support these contentions, and I regard them as without merit. As found above, all of the Respondent's toolroom employees (except one who was quitting) participated in a strike and 33 Resp. br., pp. 18-3 I. 34 Valley Broadcasting Company, 87 NLRB 1144, 1145, In. 2. 35 Industrial Relations Director Newcomb testified in this regard as follows: Q. What was the reason you told Mr. Voitas not to extend recognition [to Teamsters] in the light of the statement [assertedly] made to you by Mr. Voitas that they [Teamsters] represented a majority of the toolroom employees? A. Considering the fact that they [the toolroom employees] had been picketing that same week for another union [IUTDM ], there was a question in my mind as to whether they [Teamsters ] did [represent a majority ] or not. picketing of the Respondent's plant from January 26. to and including February 2 for recognition of IUTDM. On the first day of the strike, they told Respondent's Personnel Director Vetan of this objective of their strike. The Respondent thus obviously then had knowledge of the "substantial interest" of its toolroom employees in repre- sentation by IUTDM. No further demand for recognition by an official of IUTDM was required or was necessary to apprise Respondent of that interest.34 Thereafter, although these same employees signed authorization cards for the Teamsters on January 30 and 31, they continued neverthe- less to strike and picket for recognition of IUTDM. This ambivalent conduct of the toolroom employees concededly caused the Respondent to reject the Teamsters demands for recognition as their representative, notwithstanding the offer of Teamsters to submit to "a card count in place of an NLRB elections [ SIC]."35 As previously noted, the toolroom employees continued their strike for recognition of IUTDM, and did not return to work until Teamsters filed a petition for certification as their representative. The Teamsters petition named IUTDM as an organization which "claimed recognition as representative" and which was "known to have a representative interest." Under all these circumstances, it is quite evident that the Respondent had no reasonable or justifiable basis for believing that IUTDM did not have a substantial interest in representing the toolroom employees. Indeed the record discloses quite to the contrary that the Respondent had knowledge of the continuing substantial interest of these employees in representation by IUTDM, notwithstanding that they had signed authorization cards for the Teamsters, and that the latter had demanded recognition based thereon. That knowledge was implicit in the reason assigned by Newcomb for rejecting the Teamsters' recognition demands.36 Such knowledge like- wise was implicit in the repeated inquiries admittedly addressed twice a week after the strike ended by Verba, the Respondent's manager of manufacturing engineering, to Henry Antoniuk, the Respondent's toolroom foreman, as to how these employees stood on the "union question." As found above on Antoniuk's credited testimony, he told not only Verba, but also Personnel Director Vetan, that at first the employees "were split right down the middle," but later, before the Respondent recognized Teamsters, they "were tending to lean more towards the toolmakers union." 37 The Respondent argues that it was justified in believing that the toolroom employees "switched allegiance" and decided that Teamsters "could best represent their interests because they voted at a meeting held on February 10" "to Q. There was a question in your mind as to what? A. There was a question in my mind as to whether, in fact, they [Teamsters] represented a majority [of the toolroom employees]. cis; See fn. 35, supra. 47 The Respondent urges that Antoniuk's testimony in this regard should not be credited, but I regard it as reliable, and as noted above (see fn. 22, supra ) Verba substantially corroborated much of Antoniuk's testimony regarding these reports. Respondent also denied that Antoniuk is a supervisor within the meaning of the Act, but inasmuch as the undisputed record discloses that he had authority to hire and fire, and that he did hire several employees, I find contrary to the denial that he was such a supervisor. AIRMATICS SYSTEMS stay with the Teamsters." According to the credited testimony of Dave Bogert in respect to this meeting which was attended also by the two maintenance cage employees, it was called so that the employees in the toolroom and the maintenance cage could decide whether to vote for Teamsters or IUTDM at the Board election which they expected to be forthcoming. The vote, according to Bogert whom I credit, was 3 for IUTDM, 3 (including the two maintenance cage employees) for Teamsters, and 6 or 7 still undecided.-38 Thus, contrary to the Respondent's contention that this meeting is "objective evidence" that the employees favored representation by Teamsters, all that it discloses is that as of February 10 a substantial percentage of the toolroom employees still favored repre- sentation by IUTDM, and that a real question concerning their representation existed. There is, moreover, no evidence whatsoever that the Respondent knew about this meeting when it recognized Teamsters as the representative of these employees, or that it based its decision to do so thereon. The Respondent further contends that inasmuch as "an uncoerced majority" of the Company's employees freely chose to be represented by Teamsters, "it was lawful" for Respondent to extend recognition to it. Under the circumstances which prevailed in this case, this contention has no merit either in law or in fact. Thus, even assuming that Teamsters represented "an uncoerced majority" of the toolroom employees, in the light of the concurrent substantial interest of these employees in representation by IUTDM, under the Board's Midwest Piping doctrine, the Respondent could not lawfully recognize either of these unions until the question concerning their representation was resolved under the specific procedures provided by the Act 39 Moreover, the Teamsters did not represent an uncoerced majority of the tool-and-die room employees. As found above, a substantial number of the toolroom employees who were then striking for recognition of IUTDM signed authorization cards for the Teamsters after they were falsely told, first by Teamsters President Terrien, and then by George Bogert while soliciting the cards for Teamsters, that they no longer had jobs with the Respon- dent, but that if they joined Teamsters, they would "get their jobs hack." In the light of this material and fraudulent misrepresentation. the cards obtained by this devise can hardly be regarded either as "uncoerced," or as resulting from the "free choice" of these employees. Moreover, since these same cards were rejected by Respondent on January 30 and 31 as unreliable evidence of Teamsters majority status, and motivated it to then deny the Teamsters' demands for recognition, I find it difficult to understand how an NLRB receipt for the very self same 31, According to Soltis and Dakake, the two maintenance cage employees who admittedly voted `or Teamsters at this meeting, the vote favored the latter union Soltis test;fied that 60 percent voted for Teamsters, 30 percent for IUTDM, and 10 percent were undecided Dakake testified that "more than half," "a majority," raised their hands for Teamsters On cross- examination , Soltis, although asked, was unable to name a single toolroom employee who voted for Teamsters, and he changed the asserted percentage in favor of Teamsters to 55 percent. Similarly, Dakake, although asked, could not recall the name of a single toolroom employee who assertedly "put up their hands for the Teamsters " Under the circumstances. I place no reliance in the accuracy of their testimony regarding this vote as Oil Transport Company v N L R B, supra 79 cards could later on February 23 be regarded as evidence that "clearly, an uncoerced majority of the Company's employees freely chose to be represented by the Team- sters." 40 I conclude from all the foregoing and from Newcomb's admissions (see fn. 25, supra) that Respondent's recogni- tion of Teamsters for these employees was motivated, not on reliance on the Teamsters cards or on the token picketing of three employees for Teamsters on February 22,41 but only by the Respondent's admitted preference for dealing with Teamsters rather than with multiple unions. I further find that at all times material herein, the Respon- dent had knowledge of the substantial interest of these employees in representation by IUTDM. b. The appropriate unit As found above, the Respondent was presented with and was aware of the continuing rival claim of IUTDM to represent its toolroom employees when it recognized and contracted with Teamsters to represent both the toolroom employees and the maintenance cage employees. That claim of IUTDM, did not, however, automatically raise a real question concerning representation and make applica- ble the Board's Midwest Piping doctrine, unless the unit of employees sought by IUTDM was appropriate for collec- tive bargaining under the Act 42 The General Counsel contends that the Respondent's toolroom employees constitute such an appropriate unit. The Respondent contends that "a separate unit of toolroom employees or a separate unit of toolroom and maintenance cage employ- ees is an inappropriate unit for bargaining since the toolroom and maintenance cage employees are a proper accretion to the unit currently represented by the Team- sters." I find, contrary to the Respondent's contention, that in the light of Board precedent, the Respondent's toolroom employees which IUTDM sought and seeks to represent, constitute an appropriate unit for collective bargaining under the Act .43 The unit in question consists of approximately 10 employees, including five tool-and-die makers, one appren- tice tool-and-die maker, two toolroom machinists, one experimental sheet metal machinist, and one tool-crib attendant. Many of these employees have worked for the Respondent in these categories since before 1969 when Teamsters succeeded Plumbers as the collective-bargaining representative of the Company's production and mainte- nance employees. However, they were not then included in the coverage of the 1969 contract between Respondent and Teamsters nor in its 1972 renewal, and there has been no history of collective bargaining in their behalf. Indeed, W Br, p 31 11 Newcomb admitted that the decision to recognize Teamsters was made on February 14. and that "it was in no way influenced" by the Teamster February 22 "strike " 12 Shea Chemical Corporation, 121 NLRB 1027 1029 Accord William Penn Broadcasting Crmipani. 93 NLRB 1104 41 See section I 11, B, 7 of this Decision, supra In the light of this finding. I deem it unnecessary to determine whether the Respondent's two maintenance cage employees who were organized by Teamsters only should he included in this unit, or in the production and maintenance unit I regard that determination to be one for the Regional Director in Case 22-RC-5598 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before IUTDM organized them, and they struck Respon- dent for recognition of IUTDM as their representative, there admittedly was neither a suggestion nor a notion by either Teamsters or Respondent that these employees constituted an accretion to the unit of Respondent's employees which the Teamsters already represented. The Respondent's toolroom employees work in an enclosed area separated from that in which its production employees work, and they have their own, separate, lockers located in the toolroom area. The work of the toolroom employees consists of making tools and dies , and doing prototype and development work. Toolroom employees require a working knowledge of trigonometry, an ability to work at close tolerances of a few thousandths of an inch, and to read sophisticated blueprints. The apprenticeship program of the State of New Jersey in which the Respondent participates requires the apprentice to serve an 8,000 hours, over a 4-year period on various machines to qualify as a journeyman tool-and-die maker.44 Toolroom employees all furnish their own tools. There are a number of machines in the Respondent 's plant that are located and used exclusively in the toolroom which have no counter- part in the production areas. These include a surface grinder, a diamond grinding wheel , a filing machine, a 50- ton hydraulic arbor press, a quarter milling machine, and a furnace. The toolroom employees work under the separate supervision of a toolroom foreman who is responsible to Verba, the manager of manufacturing engineering. Prod- uction employees work under nine different foreman who work under the supervision of Vincent Soleo, the plant superintendent.45 Toolroom employees spend 85 percent to 95 percent of their time working in the enclosed toolroom, and on the occasions when they work in production areas, they are still under the supervision of their own toolroom foreman. The work done by toolroom employees in the production areas consists of troubleshooting, readjusting or resetting a tool, not in production . There is no evidence of any transfers , or of any line of progression, from production worker to toolroom employee. The work of the production employees is generally repetitive, that of the toolroom employees for the most part is not. Toolroom employees possess higher skills and they accordingly are paid substantially higher wage rates than production employees.46 Indeed, the absence in the December 1972 contract between Respondent and Teamsters of job classifications and wage rate ranges which would be appropriate for the toolroom employees, admittedly made it necessary for them to negotiate such job classifications and wage rate ranges on February 23, when the Respon- dent and Teamsters extended their existing contract to cover the toolroom employees. In addition, until the Respondent extended its contract with Teamsters for the production and maintenance employees to include the toolroom employees in its coverage, there were also substantial differences in the working conditions and fringe benefits of the two groups. Thus, production workers were hourly paid employees and are paid every 44 See G.C. Exh. 3. 45 The toolroom foreman does not work under or report to Soleo. 46 Compare the wage rates Employer's Exh. I with Employer 's Exh. 2 in Case 22-RC-5598. 11 Even in the latter case , production employees are barred from the use week-toolroom employees were salaried and paid twice a month ; production employees punched a timeclock-tool- room employees did not ; the two groups had different hospital and pension plans and different vacation sched- ules, and the toolroom employees were entitled to more paid sick leave days than production workers. Finally, the record discloses that production employees work in the toolroom area only on the relatively infrequent occasions when there is a need to operate a machine which is not in use in the toolroom, and all similar machines in the production areas already are engaged, or when there is no counterpart machine in the production department.47 On the foregoing record, I find insufficient evidence of integration or community of interest between the Respon- dent's production and maintenance employees and the toolroom employees to regard the latter as accretions to the production and maintenance unit ,48 and to the contrary, I find that the Respondent's toolroom employees constitute a functionally distinct, homogeneous , departmental, group of employees with a nucleus of traditional craft tool-and- die makers of the type which the Board customarily finds an appropriate unit, especially in cases such as this where they have been excluded from the history of collective bargaining and no craft severance is involved .49 Inasmuch as IUTDM is a labor organization which has been certified by the Board as the exclusive representative of similar craft units of about 20 to 25 employers, I also find that IUTDM has specialized experience in the representation of tool- room employees such as those employed by the Respon- dent. Conclusion I conclude from all the foregoing that at the time Respondent recognized Teamsters as the representative of its toolroom employees, it then was aware that IUTDM had a substantial interest in the representation of said employees . I further find that the toolroom employees constitute a unit appropriate for collective bargaining under the Act, and that there existed a real question concerning their representation when Respondent recog- nized and contracted with Teamsters as their representa- tive. I further conclude that by bypassing the Board's processes and by recognizing Teamsters on February 23 as the representative of said employees, notwithstanding the rival claim of IUTDM, the Respondent unlawfully assisted and supported Teamsters and engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. Finally, I find that by executing the contract with Teamsters on February 23 which , inter alia, required its toolroom employees to become and/or remain members of Teamsters as a condition of employment, the Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(3) and ( I) of the Act. of some of the machines in the toolroom. 48 Cf. Chrysler Corporation. 134 NLRB 454, 457. 49 McCulloch Corporation, 189 NLRB 76: United Screw and Bolt Corporation, 106 NLRB 1308, 1309- 10; The Gemex Corporation, 120 NLRB 46. AIRMATICS SYSTEMS IV. rHE EFFLCT OF 1HF UNFAIR LABOR PRACTICES UPON COMMI•RCE The activities of the Respondent set forth in section 111, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. T1-HE REMFI)Y Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully assisted and supported Teamsters by recognizing it as the collec- tive-bargaining representative of the toolroom employees, and by extending to the said employees an existing contract containing union-security provisions requiring membership in Teamsters as a condition of employment, notwithstanding that Teamsters did not represent an uncoerced majority of the toolroom employees, and a real question concerning their representation existed, I will recommend that Respondent be ordered to cease recogniz- ing Teamsters as the collective-bargaining representative of its toolroom employees, to cease giving effect to the February 23, 1973, extension of its existing collective- bargaining agreement to the said toolroom employees, and to reimburse the said employees for all fees, dues, and other moneys that they have been required to pay Teamsters by reason of the enforcement of its agreement with Teamsters dated February 23, together with interest thereon at the rate of 6 percent per annum to be computed in the manner set forth in Seafarers International Union of North America, Great Lakes District, AFL-ciO.30 Upon the basis of the foregoing findings of fact and upon the entire record in the case. I make the following: CONCLUSIONS OF LAW 1. International Union of Tool, Die and Mold Makers, and Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 2. Airmatics Systems Division of the Mosler Safe Company is an employer engaged m commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. All tool and diemakers, experimental sheet metal mechanics, toolroom machinists, machine operators, tool- crib attendants, and apprentices employed by the Respon- dent in the toolroom of its Wayne, New Jersey, plant, excluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act, and 50 138 NLRB 1142 31 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 , recommendations. and recommended Order herein shall, as 81 all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By recognizing Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the collective-bargaining representative of the employees in the said appropriate unit, and by entering into an agreement with the above-named Union which extends to the said employees an existing collective- bargaining agreement which requires membership in the said union as a condition of employment, the Respondent has unlawfully assisted and supported Local 102. Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, and has engaged in unfair labor practices within the meaning of Section 8(a)(2). (3), and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER--" Respondent, Airmatics Systems Division of the Mosler Safe Company, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Contributing financial or other support. aid, or assistance to Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to any other labor organization of its employees. (b) Recognizing Local 102, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, as the representative of its toolroom employees in the appropriate unit described below for the purpose of dealing with it concerning wages, rates of pay, hours of employment, or other terms and conditions of employ- ment, unless and until such labor organization shall have been certified by the Board as the exclusive representative of such employees. The appropriate unit is: All tool and die makers, experimental sheet metal mechanics, toolroom machinists, machine operators, tool crib attendants, and apprentices employed by the Respondent in the toolroom of its Wayne, New Jersey. plant, excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, and all other employees. (c) Giving effect to the collective-bargaining agreement with Local 102, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, dated February 23, 1973, or to any modification, extension, renewal, or supplement thereto; provided, however, that nothing contained in this Decision and Order shall require 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 he deemed wailed for all purposes 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its toolroom employees, which it has established in the performance of such agreement, or prejudice the assertion by the employees of any rights they may have thereunder. (d) Giving effect to any checkoff authorization executed by its employees in the aforedescribed unit in favor of Local 102, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of Tool, Die and Mold Makers, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in 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 Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any successor thereto, as the collective-bargaining representative of any of its toolroom employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until the Board shall certify Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as such represent- ative. (b) Reimburse its toolroom employees in the unit described above for all fees, dues, and other moneys they have been required to pay to Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as a condition of employment by reason of Respondent's enforcement of its agreement dated February 23, 1973, whether or not pursuant to checkoff authorizations executed by said employees in favor of that union, together with interest at 6 percent per annum computed in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to analyze and compute the amounts of reimbursement due under the terms of this Order. (d) Post at its plant located at Wayne, New Jersey, copies of the notice marked "Appendix." 52 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of the receipt of this Order, what steps have been taken to comply herewith. 52 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the collective-bargaining representative of our toolroom employees unless and until the Board shall certify it as such representative. WE WILL NOT contribute financial or other support to Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT require as a condition of employment that our toolroom employees become or remain members of Local 102, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT give effect to the collective-bargaining agreement signed with Local 102, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, dated February 23, 1973, or to any modification, extension, renewal, or supplement there- to, or to any checkoff authorizations in favor of Local 102, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, execut- ed by our employers. However, nothing herein requires this Company to vary or abandon any wage, hour, seniority, or other employee benefit established in the performance of that agreement, or prejudices the assertion by our employees of any rights they may have thereunder. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of Tool, Die and Mold Makers, or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activity, except to the extent that such right may be affected by a lawful agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL reimburse each of our toolroom employees for all fees, dues, and other moneys unlawfully exacted AIRMATICS SYSTEMS 83 from them pursuant to the aforementioned agreement This is an offical notice and must not be defaced by with Local 102, International Brotherhood of Team- anyone. sters, Chauffeurs, Warehousemen and Helpers of This notice must remain posted for 60 consecutive America. Dated By days from the date of posting and must not be AIRMArICS SYSTEMS altered, defaced, or covered by any other material. DivisioN OF THE. MOSLER Any questions concerning this notice or compliance SAFE. COMPANY with its provisions may be directed to the Board's (Employer) Office, Federal Building-16 Floor, 970 Broad Street, Newark. New Jersey 07102, Telephone (Representative) (Title) 201-645-2100.