Catalytic Industrial Maintenance Co.

CATALYTIC INDUSTRIAL MAINTENANCE CO. Catalytic Industrial Maintenance Company and Oil, Chemical and Atomic Workers International Un- ion, AFL-CIO Catalytic Industrial Maintenance Company and Union Boilermakers Distrito 3 de Puerto Rico, AFL- CIO, Petitioner. Cases 24-CA-3063 and 24-RC-4205 March 13, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 24, 1973, Administrative Law Judge Harry H. Kuskin issued the attached Decision. Thereafter Oil, Chemical and Atomic Workers International Union, AFL-CIO, filed exceptions and a supporting brief, and a brief in answer to the cross- exceptions . Catalytic Industrial Maintenance Com- pany filed cross-exceptions and a brief in support of the Administrative Law Judge's Decision. 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 conclusions of the Administrative Law Judge and to adopt his recommended Order. In view of our decision to revoke the Certification of Representative heretofore issued in Case 24-RC-4205, we have reconsidered our Decision and Order issued in Case 24-CA-3063, 196 NLRB 228, and we have decided to dismiss the complaint in its entirety. ORDER Pursuant to the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Certification of Representative heretofore issued in Cases 24-RC-4205 be, and it hereby is, revoked. IT IS FURTHER ORDERED that the Board's Decision and Order, reported at 196 NLRB 228 be, and it hereby is, vacated and the underlying complaint in that proceeding, Case 24-CA-3063 be, and it hereby is, dismissed in its entirety. I The Employer then had a contract with Oxochem to do most of the latter's maintenance work. 2 His title has since then been changed to that of Administrative Law DECISION STATEMENT OF THE CASE 641 HARRY H. KUSKIN, Administrative Law Judge: This is a postcertification proceeding in the above-entitled matter. Upon a motion to revoke certification filed herein by Catalytic Industrial Maintenance Company, herein called the Employer or Catalytic, the Board, on May 17, 1973, issued an Order Remanding Proceeding to Regional Director for Hearing, and a hearing was thereafter held before the undersigned at Hato Rey, Puerto Rico, on July 18 and 19, 1973. The circumstances leading up to this postcertification proceeding were as follows: On July 30, 1971, the Board issued its Decision and Certification of Representative, affirming the Regional Director's Report and Recommendation on Objections and Challenged Ballots dated May 7, 1971, and certifying the Intervenor, Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive bargaining representative in a unit of the maintenance and service employees of the Employer at the Oxochem Enterprise project' within the Corco complex at Penuelas, Puerto Rico, excluding all office clerical employees, service and maintenance tempo- rary employees, professional employees, guards and supervisors as defined in the Act. Thereafter, the Employer filed a motion to revoke certification and for other relief, which the Board denied on September 10, 1971. Subse- quent thereto, on October 29, 1971, the Employer filed a motion to revoke certification and for other relief based on newly discovered evidence and changed circumstances, and the Intervenor filed a motion in opposition. On November 8, 1971, the Board also denied this motion of the Employer. The next development occurred on Decem- ber 29, 1971, when Trial Examiner Morton D. Friedman2 issued his Decision, in Case 24-CA-3063, finding that the Employer had violated Section 8(a)(5) of the Act by refusing to bargain with the Intervenor as the certified representative of its employees in the aforesaid unit. He expressly noted therein that, "if the [Intervenor] performs some overt act that would be in conflict with its position as certified representative of [the Employer's] employees, then the [Employer] could apply to the Board in a proper manner for the revocation of the [Intervenor's] certifica- tion." On April 7, 1972, the Board adopted the recom- mended order in that decision. On November 21, 1972, while the Board's petition for enforcement of that order was pending in the United States Court of Appeals for the First Circuit, the Employer filed the instant motion to revoke certification, contending that the Intervenor herein had committed an "overt act" inconsistent with its position as the exclusive bargaining representative of the employees in the certified unit by distributing a leaflet stating its intention, in negotiations with Oxochem, to seek an increase in the number of Oxochem maintenance person- nel.3 According to the Employer, this would necessarily have meant the elimination of its employees from the Oxochem jobsite. On December 5, 1972, the Board denied the Employer's instant motion to revoke certification. Judge and he shall be referred to hereinafter as such. 3 Local 2 of the Intervenor has been the exclusive bargaining agent of Oxochem's production and maintenance employees since 1970. 209 NLRB No. 101 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, in the light of an affidavit from Ronald J. Grey, an Oxochem supervisor, in support of the Employer's contentions in its motion to revoke, filed by the Employer on December 6, 1972, and in light of an affidavit by Efrain Velazquez, the area director of the Intervenor, filed by the latter on December 8, 1972, admitting the posting of the leaflet, but denying any intent on the part of the Intervenor to force cancellation of the Catalytic's maintenance contract with Oxochem, the Board, on January 29, 1973, moved the United States Court of Appeals for the First Circuit to remand the unfair labor practice proceeding for further consideration of the instant motion to revoke certification in light of the above-mentioned affidavits. Thereupon, on April 17, 1973, the court granted the Board's motion and ordered the Board to hold a hearing on the issue of whether the Intervenor has engaged in an "overt act" in conflict with its representation obligations to the Employer's employees in the unit at the Oxochem project. The Board, having accepted the remand requested by it, thereupon issued, on May 17, 1973, its heretofore mentioned Order Remanding Proceeding to Regional Director for Hearing. The order directed that the hearing be held before an Administrative Law Judge "on the issue of whether the Intervenor or its agents have engaged in any overt acts, particularly the distribution of the June 9, 1972, leaflet, which would be in conflict with its representation obligations to the Employer's employees [at the Oxochem project] and thus would warrant revocation of the Intervenor's certification." Upon the entire record, including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the Employer and the Intervenor, I make the following: FINDINGS OF FACT The Oxochem Complex and its Manner of Operation The Employer is engaged in Puerto Rico in the performance of industrial maintenance. One of its custom- ers is Oxochem Enterprises, which operates a petrochemi- cal complex on the south shore of Puerto Rico in what is commonly called the Corco Petrochemical Complex area. Oxochem Enterprises is anoint venture between Common- wealth Petroleum Company, herein called Corco, and W. R. Grace Chemical Company. Corco itself has a petro- chemical complex, and in the same area are the P.P.G. Petrochemical complex and the Puerto Rico Olefins Petrochemical complex. Oxochem Enterprises began operations about September 1970. Since that time, Oxochem has employed mostly production people and four maintenance people at this complex. Its maintenance people are so distributed throughout the three shifts that only one maintenance employee is on the job at any one time. Since the inception of operations, the Employer has been doing the day-to-day and other maintenance at this complex for Oxochem, consisting of preventive maintenance or routine mainte- nance in order to obviate failure of any piece of equipment; emergency or unplanned maintenance due to a failure of an equipment component either outside the usual working hours, or suddenly during working hours, and for which additional maintenance people are brought in on short notice, if needed; cleanup jobs in the office and around the fences, and so forth; and minor construction, which is referred to as "capital type work." In addition to furnishing hourly-paid employees to perform this work, the Employer supplies its own salaried supervision and staff- support people, thereby performing the complete function of maintenance in the areas described above. It has done so pursuant to a cost-plus contract with Oxochem which expired on April 23, 1973. Since that date, Oxochem and the Employer have negotiated the terms of a second contract, which has been referred by the parties to the joint venture for approval. At the time of the hearing, Oxochem and the Employer were "working under the terms of the old contract vis-a-vis fees, in general terms." As to the nature and size of the Employer' s maintenance unit at the Oxochem complex from September 1970 until the distribution of the June 9, 1972, leaflet by the Intervenor, the record shows the following: Werner Poelk, who was project superintendent for the Employer at Oxochem from June 1970 through January 1972, and was manager of maintenance for the Employer at the time of this hearing, gave uncontradicted testimony, which I credit, that startup operations by the Employer at Oxochem began in September of 1970 and lasted for about a month and a half; that, during that period, the Employer's total complement of hourly paid employees, i.e., the nonsupervisory employees in maintenance, reached a maximum of 98 employees; that thereafter an almost constant decrease in this complement occurred until the complement stabilized at a force which varied, except during emergencies or plant turnarounds, from about 33 to 50; 4 that, during emergencies, there could be as many as about 100 hourly paid maintenance employees working for the Employer; and that, during annual turnarounds which usually lasted about a week and a half, the Employer had about 60 to 70 hourly paid maintenance employees on its payroll. And with particular reference to the situation on June 9, 1972, there is credible testimony by Ronald J. Grey, Oxochem's superintendent of engineering and maintenance, that the Employer actually had on the job that day 33 hourly paid employees, that 2 such employees were absent, and that, of this full complement of 35 hourly paid employees, which comprised the certified unit, 9 were laborers who were unskilled, while the rest were skilled; and further that the Employer also had on the project that day 24 salaried people consisting of supervisors and other types of staff and support people, I salaried person being absent, making an overall employer complement at Oxochem of 60 individuals.5 It is further apparent, and I find, on the basis of other uncontradicted and credited testimony of Grey, that this complement on June 9, 1972, which was a Friday, was typical of the size of the Employer's work force at Oxochem during the period of 4 Poelk testified that, if this figure was ever exceeded, it was only by one Employer which was delivered to him by the Employer during the morning or two people. of June 9, 1972, and which, he testified, he checked out at the time and 5 Grey referred, in the course of this testimony, to a force report of the found to be correct The report is in evidence as Empl Exh. 3 CATALYTIC INDUSTRIAL MAINTENANCE CO. May and June preceding that Friday, except for weekends and holiday periods, when the complement was reduced very substantially. More specifically, during this period of approximately 5 weeks, the number of hourly paid employees, other than on weekends or during holiday periods, varied between 32 and 37, and the number of salaried personnel varied between 25 and 28. The Bargaining History at the Oxochem Complex Oxochem has been in bargaining relations with Local 2 of the Intervenor with respect to its production and maintenance employees since October 19, 1970. To date there have been two collective-bargaining agreements between Oxochem and Local 26 covering these employees. The first one expired on June 9, 1972, and the second one was executed the next day, was for a 2-year period, and was still in effect at the time of the instant hearing. The second contract, like the first, contains a subcontracting clause which reads as follows: THE UNION recognizes that OXOCHEM has signed a contract with a subcontractor to provide part of its maintenance work . Said subcontract terminates on April 27, 1973. OXOCHEM agrees not to let or renew subcontracts, prior to negotiations with the UNION. OXOCHEM further agrees not to use the services of contractors to do production work except in cases of operation and training needed in the start-up of new units that may be installed. 1. Prior to contracting such work, OXOCHEM will notify and discuss the contract with THE UNION. It is understood that personnel included in the bargaining unit shall not be transferred from their usual occupa- tion and replaced by personnel not included in the bargaining unit. 2. Under no conditions can a member of the bargaining unit (UNION) be placed under the orders or supervision of the personnel of a contractor. 3. It is agreed that Maintenance men who are placed on sl-ift will be of a classification not lower than «B„ It was during the negotiations for this second contract that the overt act of distributing the leaflet, which is in issue herein, occurred. The relevant details of these negotiations shall be discussed hereinafter. To be noted, at this point, are these additional develop- 6 As it would appear that the Intervenor was in charge of the union negotiations for these contracts, I shall refer to the Intervenor hereinafter rather than Local 2 when I discuss these negotiations T The petition was filed on September 25, 1970 8 Both these meetings took place before the Intervenor was certified by the Board herein. Indeed, the meetings occurred during the pendency before the Board of Catalytic's exceptions to the heretofore mentioned Regional Director's Report and Recommendation on Objections , wherein he found the objections of Catalytic to the election to be without merit and recommended that the Intervenor be certified. 643 ments during 1970 and 1971, viz., on September 3, 1970, more than a month before the first of these two contracts was executed, and about 3 weeks before the Intervenor filed its petition in the instant proceeding ,7 which resulted in its certification as the exclusive bargaining agent of Catalytic's maintenance employees, Oxochem and the Intervenor executed a letter of intent to the following effect: On April 10, 1971 OXOCHEM agrees to meet with THE UNION to discuss the staffing of its maintenance work force. The intent of both Parties being to seek a solution to this problem. The intent of THE UNION being to provide an orderly system to phase out subcontracting of routine maintenance work. It is the further intent of THE UNION to seek ways and means to implement a program whereby employees of subcontractor would be used only to supplement a permanent maintenance work force during shutdowns and for new constructions. It is the intent of OXOCHEM to seek a solution consistent with its business objectives, relative to the staffing of its maintenance work force. In the event agreement is not reached in the interim period, the subject will be negotiated on the termination date of the present Labor Contract. Thereafter, the parties met pursuant to the terms of the letter of intent. According to the findings of Administrative Law Judge Friedman in Case 24-CA-3063, which the Board adopted, at the second meeting, Velazquez, who was then the International representative of the Intervenor, "expressed the intent `that if we agree, then they'd start the plans for phasing out the routine maintenance by Catalytic and taking over by our own maintenance force' and that this would be accomplished as a start with the transfer of 15 employees of 'Corco,' a company administratively associated with Oxochem, whose employees are also represented by the [Intervenor]"; and at the third such meeting on July 19, 1971, Velazquez manifested "the intention to try to persuade Oxochem to perform its own maintenance work by employing individuals both from Corco and from [the Employer]."s I note, too, that Velazquez, during his testimony before me, acknowledged that the purpose of these meetings was that of "phasing out the regular maintenance." I come now to the developments during the bargaining in 1972 between Oxochem and the Intervenor for a second contract. The only witness in this proceeding who attended these bargaining negotiations was Velazquez, who was then the International representative of the Intervenor. With particular reference to what occurred prior to and Catalytic, the Employer herein, urges, in its brief, that I should now find, after a review of the evidence in the proceeding before Administrative Law Judge Freedman, that Velazquez was aware of the Regional Director's recommended certification when the above statements were made at the June and July 1971 meetings. and that these statements should therefore be viewed as a positive act inconsistent with the Regional Director's recommended certification . Suffice it to say that it is implicit in Administrative Law Judge Freedman's findings and conclusions , which the Board adopted, that the date of the Board's certification was the critical date and not the date of the Regional Director's recommended certification. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including the distribution of the leaflet, he testified, in substance, as follows: One of the original proposals, of which there were about 15, was that the number of in- house maintenance employees of Oxochem be increased from 4 to 30. Another original proposal was that the September 3, 1970, letter of intent be carried forward with the resulting contract. In the course of the discussions that they had concerning increasing the in-house maintenance force, he told the representatives of Oxochem that if they moved over 30 hourly paid maintenance employees from the Employer and added them to the in-house maintenance employees of Oxochem, there would be 50 hourly paid maintenance employees remaining with the Employer. The representatives of Oxochem did not dispute his statement that the Employer then had 80 hourly paid maintenance employees in its employ at the Oxochem complex, but took the position "right from the beginning" that "we are not gping to move over anybody from Catalytic."9 As of June 8, this proposal was one of about 10 items still outstanding. At this juncture, this proposal, as well as others, was revised downward by the Intervenor and submitted to the representatives of Oxochem. As no agreement resulted, the Intervenor posted copies of the June 9, 1972 leaflet 10 at the Oxochem complex and distributed copies to its members at that complex and at other petrochemical complexes in the area. The record shows that, in the leaflet, the Intervenor set forth Oxochem's last offer, its revised proposals in response thereto, the failure of agreement, and the facts that it had obtained the intervention of a conciliator, that it did not know whether Oxochem would agree to a meeting with the conciliator, that a strike effective at 12:01 a.m., Saturday, June 10, 1972, had been authorized by the president of the Intervenor, and that an emergency meeting of the board of directors of Local 2 was being called for the following morning at 7:15 a.m. in the Corco cafeteria. The critical language here appears in part (b) of the section entitled "Increase in the Working Force." The text of that section, the first part of which refers to a proposal to increase the production employees and is not in issue herein, reads as follows: (a) We proposed a total of 10 per shift in Process. Before we were asking for 12 operators on each shift. (b) We proposed a total of 20 in maintenance . Before we were asking for a total of 30. The leaflet makes no mention of the Intervenor's proposal 9 It is patent that Velazquez' testimony concerning his representations to the negotiators for Oxochem as to the size of Catalytic's maintenance unit at the Oxochem complex does not comport with my findings heretofore as to the actual size of Catalytic's maintenance unit during this period. And although he testified further, during cross-examination, that he was given the figures, which he mentioned during these negotiations, by members who were in the Catalytic maintenance unit, with whom he met four or five times during the period of these negotiations at such places as thejobsite, the El Gungulen Bar, and his office, I note that he did not identify these individuals In the light of the above, and since it taxes one's credulity to believe that Velazquez would not have known the facts relating to this significant aspect of the negotiations at the very time when the Union proposed the transfer, I do not credit this part of his testimony relating to these negotiations, although I find credible the rest of his testimony as to these negotiations. 10 The leaflet, in Spanish, is in evidence as part of Empl Exh l; the with respect to the letter of intent which the Intervenor had been urging theretofore and which Oxochem was opposing. As already noted, agreement was reached by the negotiating parties on June 10, 1972, and this agreement was still in effect at the time of the instant hearing. According to Velazquez, although the Intervenor did not prevail on this revised work force proposal, it was able, through this method of pressuring for an increase in the work force, to get Oxochem to include in the resulting agreement the subcontracting provision which has been set forth herein. And as to the letter of intent, which was not carried along with this resulting agreement, Velazquez testified that he "let the Letter of Intent out" at that time because of Oxochem's agreement "not to cut out Catalytic unilaterally." It is, however, apparent from an examination of the subcontracting provision in the resulting agreement that it does not so provide. The Asserted Reasons for Seeking the Transfer of Maintenance Employees in the Certified Unit to the In-House Production and Maintenance Unit of Oxochem Velazquez testified, in substance, that the Intervenor's paramount concern in this connection was to guard against the unilateral cancellation by Oxochem of the Employer's contract as the maintenance subcontractor on the Oxo- chem jobsite with the resulting loss of jobs to its membership, as had happened prior thereto at the PPG complex when PPG cancelled a similar contract with the Employer; ti and that, in consequence, the Intervenor took the position that, should a unilateral cancellation occur, Oxochem had to take over Catalytic's maintenance employees as its own employees. He testified further that the Intervenor sought at that time to have some mainte- nance employees at Catalytic transferred to Oxochem's production and maintenance unit, in which it was the bargaining agent, in order to prevent such unilateral cancellation and to gear the negotiations toward getting Oxochem to agree, as Oxochem had in the prior agreement between them, "not to let or renew subcontracts prior to negotiations with the [Intervenor]." I find unconvincing Velazquez' testimony above that the transfer of some maintenance employees at Catalytic to Oxochem's production and maintenance unit was pro- posed, in part, in order to prevent such umlateral cancellation. Rather does it appear that the transfer proposal, if accepted by Oxochem, would have brought English translation thereof is in evidence as Empl. Exh. 2 ii The Employer asserts that "a violent strike of Catalytic which occurred at those PP.G premises (during March 19721 as well as the Oxochem premises, and the premises of Olefin's petro-chemical complex, brought about the cancellation of Catalytic's subcontract " The record shows, in this connection , that, pursuant to unfair labor practice charges filed by the Employer, a complaint issued, in Cases 24-CC- 149 and 24-CB-803, alleging that the Intervenor had committed acts at these complexes in violation of Sec. 8(b)(IXA) and 8(bX4)(i) and (ii)(B) of the Act, and that the matter was thereafter settled on the basis of the Intervenor's agreeing, without admitting liability for the actions alleged, to post notices to the effect that it will cease and desist from the conduct alleged in the complaint . I perceive no warrant for holding, without more, as the Employer impliedly contends herein, that the foregoing supports a conclusion that the Intervenor itself brought about the cancellation of Employer's contract by P P G. CATALYTIC INDUSTRIAL MAINTENANCE CO. nearer the date of the phasing out of Catalytic's mainte- nance unit on the project. Indeed, that the latter was the intent behind this proposal of the Intervenor is under- scored by the fact that, during most of these negotiations with Oxochem, i.e., until shortly before the second contract was entered into, the Intervenor was seeking a renewal of the letter of intent of September 3, 1970, which stated, in relevant part, "The intent of the [Intervenor] being to provide an orderly system to phase out subcontracting of routine maintenance (i.e. every-day maintenance) work.12 It is the further intent of the [Intervenor] to seek ways and means to implement a program whereby employees of the subcontractor be used only to supplement a permanent work force during shutdowns and for new constructions." In all the circumstances, I conclude and find that the Intervenor's intent. during the bargaining over its proposal that Oxochem agree to enlarge the in-house maintenance force, was that of getting Oxochem to phase out the subcontracting of routine maintenance work being done by Catalytic for Oxochem and to fill in the void by enlarging its own maintenance force through the employment of maintenance employees from Catalytic's certified unit at Oxochem. I am satisfied, too, and find that had the Intervenor prevailed in this original or revised proposal, Catalytic's continuance as a subcontractor doing mainte- nance work would have been placed in serious jeopardy and that Catalytic's elimination from the Oxochem project would have been a strong likelihood. This is apparent from (1) the fact, as found herein, that during the period of these negotiations the number of maintenance employees in the certified unit of Catalytic at the Oxochem project varied between 32 and 37, and that this was typical of the size of unit, except during emergency periods and yearly plant turnaround situations, and (2) the convincing and credible testimony herein of Grey and Poelk that eliminating either 20 or 30 of this number would have resulted in the elimination of the Catalytic subcontract because it would not have been economically feasible for Catalytic to continue working on the Oxochem project with the small number of personnel remaining. In this connection, both Grey and Poelk stressed the difficulties which would then exist with respect to supervision, administration, and training, due to the existence of a small contingent of maintenance personnel at Catalytic and a larger contingent of maintenance employees at Oxochem, as well as the problems attendant upon coordinating two working forces which would be interdependent. Developments Between Oxochem and Catalytic in the Wake of All the Foregoing The Employer admits, in its brief, that the Intervenor has taken no positive action inconsistent with the certification herein since June 10, 1972, the date of the signing of the collective-bargaining agreement between Local 2 of the Intervenor and Oxochem. In this connection, as appears from my findings heretofore, after the aforesaid agreement was signed the following occurred: (1) Oxochem and the Employer entered into negotiations for a new subcontract 12 Poelk testified credibly that, on June 9, 1972, 6 of the 35 employees then comprising the Employer's complement of maintenance employees were doing other than routine maintenance work, and that, if the entire 645 to replace their prior subcontract which expired in April 1973, and the terms of a new subcontract were agreed upon several months before the instant hearing; and (2) the subcontract was thereupon referred by Oxochem for approval to Corco and W. R. Grace Chemical Company, which companies operate Oxochem Enterprise as a joint venture, and has yet to be approved for signature. According to Grey, "basically the reason [for this inaction] is that our agents [of the joint venture companies] don't want to sign the contract because they are waiting to see what the final position of the [Intervenor] will be with regard to the subcontracting problem and the problem we are having which is personified by this hearing." Analysis and Conclusions The United States Court of Appeals for the First Circuit issued two decisions, which are here relevant, in the case of N. L. R. B. v. David Buttrick Company, the second decision having issued after remand to the Board of its decision therein for further consideration. As here, that proceeding required consideration of the allegations by the subject employer of a conflict of interest on the part of the bargaining agent. In the first decision in 361 F.2d 300, 307 (C.A. 1, 1966), the court listed, as controlling considera- tions in cases of this type, the following: (1) it is the innate danger to be guarded against; (2) the existence of this danger does not require proof of abuse of trust, so long as there is sufficient power and temptation to commit such abuse; (3) such a danger, if proximate enough, without evidence of present abuse, can poison the collective bargaining process by subjecting every issue to the questioning of ulterior motives; (4) where such proximate danger exists, it is not exorcised by the mere existence of other legal remedies such as those created by anti-trust legislation; and (5) the keystone freedom required on the part of a local union seeking to become an exclusive collective bargaining agent is the freedom to conclude such bargaining negotiations free of the suspicion that it is motivated by any purpose other than its loyalty to the employees it represents. In the second decision in 399 F .2d 505, 507 (C.A. 1, 1968), the court said further: There is a strong public policy favoring the free choice of a bargaining agent by employees. This choice is not to be frustrated. There is a considerable burden on a non-consenting employer, in such a situation as this, to come forward with a showing that danger of a conflict of interest interfering with the collective bargaining process is clear and present. While the court there found against the subject employer, it did so because "on this record we cannot find a proximate danger of infection of the bargaining process." It is apparent from all my findings heretofore that the complement were to reach 40 employees, there would be about 7 employees doing other than routine maintenance work. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose that the Intervenor admittedly had, before its certification on July 31, 1971, as the bargaining agent of Catalytic's maintenance employees on the Oxochem jobsite, of not having Catalytic's maintenance employees do the routine maintenance work on that jobsite as theretofore, was again in evidence thereafter in May and June 1962 during the negotiations between Oxochem and it to replace the initial contract between them, which was to expire on June 9, 1972. This purpose manifested itself, as my findings herein show, in (1) the union proposal, through all but the last I or 2 of the approximately 25 bargaining sessions, that, in addition to the contract resulting from these negotiations, the contracting parties carry forward the letter of intent theretofore entered into by them on September 3, 1970, which says, in relevant part, that "the intent of the [Intervenor is] to provide an orderly system to phase out subcontracting of routine maintenance work"; (2) the Intervenor's demands, during the bargain- ing, that Oxochem's in-house maintenance force be expanded very substantially, asking, at first, that that force be expanded from 4 to 30, and then revising the demands to an expansion to 20, the additional employees to come from the certified unit at Catalytic, which demands were withdrawn at the last bargaining session; and (3) the overt act herein of distribution by the Intervenor of the June 9, 1972, leaflet to its members at the Oxochem jobsite and to other members at other petrochemical complexes in the area, which leaflet set forth the latest union demands upon Oxochem, including the initial and the revised demand for an increased in-house maintenance force. While it is true that this purpose was not realized, in that the status quo as to size of unit was maintained in the resulting contract between the Intervenor and Oxochem, and in that the union efforts to carry along with that resulting contract the letter of intent of September 3, 1970, also proved abortive, what is significant here is that the above overt act occurred and further that, as found herein, had the union position prevailed, Catalytic's continuance as a subcontractor doing maintenance work on the Oxochem jobsite would have been placed in serious jeopardy, and Catalytic's elimina- tion from the Oxochem jobsite would have been a strong likelihood. Accordingly, I am persuaded that the overt act 13 I am cognizant in this connection of the fact that the Intervenor has taken no positive action inconsistent with its certification herein since June 10, 1972, the date on which its negotiations with Oxochem ended in agreement However, I find no warrant for inferring therefrom a disavowal of its demonstrated purpose to work for the dissolution of the certified unit herein of the Intervenor consisting of its June 9, 1972, leaflet, which it posted and distributed in the manner found herein, when viewed in the light of the context from which it arose, warrants a finding, which I make here, that the Intervenor has acted inconsistently with its representation obligations to the employees in the certified unit. Although Velazquez made the statement at the hearing in the related 8(a)(5) proceeding before Administrative Law Judge Friedman that the Intervenor's policy is not to work for the dissolution of a unit which it represents, I am persuaded, and find, on the basis of my findings above, that the Intervenor has here demonstrated a purpose to work for the dissolution of the certified unit herein. That this purpose did not abate with the signing of the contract by Oxochem and the Intervenor is apparent from the following testimony of Velazquez, during cross-examina- tion, explaining why the letter of intent was not mentioned among the Intervenor's demands in the June 9, 1972 leaflet: "I believe we did not include that one because we had already decided that we were not going to press it, but the membership always knew that we wanted to have people transferred from Catalytic to Oxochem." [Emphasis sup- plied.] Accordingly, I conclude and find that the evidence preponderates in favor of a finding that the Intervenor has, by the aforesaid conduct, created a proximate danger of infection of the bargaining process.13 Recommendation In view of my findings above, it follows that the Employer's motion to revoke certification, filed herein on November 21, 1972, has merit. Accordingly, I recommend that the motion be granted. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this remanded proceeding, I hereby issue the following recom- mended: ORDER t4 The certification of representative heretofore issued in this case is hereby revoked. 14 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 shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes