Captive Plastics, Inc.

CAPTIVE PLASTICS, INC. 749 Captive Plastics, Inc. and International Union of Tool, Die and Moldmakers Plastic Moulders and Novelty Workers' Union, Local 132, a/w International Ladies' Garment Workers' Union, AFL-CIO and International Union of Tool, Die and Moldmakers. Cases 22-CA-5344 and 22-CB-2396 March 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 16, 1973, Administrative Law Judge Herzel H.E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent Union and Respondent Employer filed exceptions and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the 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. 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, Captive Plastics, Inc., Piscataway, New Jersey, its officers, agents, successors, and assigns, and Respondent Plastic Moulders and Novelty Workers' Union, Local 132, a/w International Ladies' Garment Workers' Union. AFL-CIO, New York, New York, its officers, representatives, and agents, shall take the action set forth in the said recommended Order. DECISION HERZEL H. E. PLAINS, Administrative Law Judge: This proceeding consolidated two cases, one against Respon- dent Employer (Captive), and the other against Respon- dent Union (Garment Workers Union or Garment Workers), on charges filed by the Charging Party (Tool- makers Union or Toolmakers).' Captive is in the business of manufacturing plastic bottles and other plastic containers by the injection blow molding process. In April 1972, on Board certification of Garment Workers Union as bargaining agent for Captive's production and maintenance employees, Captive and Garment Workers entered into a collective-bargaining contract. At the same time, Captive began to install, and hire for, a tool shop or toolroom in its plant with the capacity to make and repair the steel forms or molds used by it and others in the injection blow molding process. Captive obtained its molds and toolroom work, until its own toolroom became fully operational, from Lincoln Mold, a company in which Captive's president had a substantial financial interest. Captive hired for its toolroom six toolmakers or moldmakers, who as such had skills and training greater than and different from the production and maintenance workers, and who generally performed their work in the toolroom. Captive's president told the newly hired tool- makers that Garment Workers was the Union representing the production and maintenance employees but that they, the toolroom employees, did not have to join the Union, and they did not join nor were they asked to join. In August 1972, Toolmakers Union began an organiza- tional drive among the toolroom employees and obtained signed authorization cards from a majority. On January 26, 1973, Toolmakers commenced a strike in which all six of Captive's toolroom employees participated. In connection with the strike, and resumption of work thereafter, Captive is charged with six violations of the Act. The allegations are: (1) Captive promised its toolroom employees wage increases and other benefits if they abandoned their support of Toolmakers Union and threatened to close the toolroom if they did not do so, in violation of Section 8(a)(1). (2) Captive, in violation of Section 8(a)(1) and (2), recognized Garment Workers Union on January 29, 1973, as representative of the toolroom employees, when it had no indication of their support let alone majority support, and at a time when Toolmakers Union had organized the toolroom employees, had demonstrated their substantial support, and had demanded recognition. (3) Captive violated Section 8(aXl), (2), and (3) when it incorporated the toolroom employees into the collective- bargaining contract with Garment Workers Union, a contract containing a union-security clause, when Garment Workers had no indication of support among the toolroom employees. (4) Captive violated Section 8(a)(1), (2), and (3) when it required its toolroom employees on January 30, 1973, and February 28, 1973, to become and remain members of Garment Workers Union pursuant to the union-security clause in the collective-bargaining contract with Garment Workers. (5) Captive violated Section 8(axl) and (3) of the Act on February 28, 1973, by discharge or layoff of two toolroom 1 In Case 22-CA-5344, the charge was filed on March 15, 1973, and 1973 The amended complaint alleges violations of Section 8(a)(1), (2), and complaint issued on May 4, 1973 In Case 22-CB-2396, the charge was filed (3) of the National Labor Relations Act (the Act) by Captive, and violations on May 3, 1973. An order consohdatmg the cases and an amended of Section 8(bXIXA) and (2) by Garment Workers . These are spelled out complaint against both Captive and Garment Workers was issued May 30, infra 209 NLRB No. 118 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Harkness and Pasculli, because of their avowed support of Toolmakers Union. (6) Captive violated Section 8(a)(1), (2), and (3) on April 23, 1973, by a second discharge or layoff of toolroom employees Harkness and Pasculli because they refused to join Garment Workers Union.2 Garment Workers Union is charged with two violations of the Act. The allegations are that: (1) By entering into an agreement with Captive to incorporate Captive's toolroom employees into the Cap- tive-Garment Workers collective-bargaining contract, when Garment Workers had no indicia of support among the tool room employees, Garment Workers violated Section 8(b)(1)(A). (2) By requesting and requiring Captive to compel its toolroom employees to become members of Garment Workers Union and by demanding that toolroom employ- ees Harkness and Pasculli be discharged because they refused to join such Union, Garment Workers violated Section 8(b)(l)(A) and (2) of the Act .3 In defending against the charges, Employer Captive makes two claims. First, that the toolroom employees were part of the bargaining unit of production and maintenance employees by accretion, hence lawfully subject to the enforced requirement of the union-security clause of the Captive-Garment Workers contract that they become members of Garment Workers Union 30 days after employment. Secondly, that the Toolmakers Union en- gaged in an unlawful strike against Captive beginning on January 26, 1973, for the purpose of compelling Captive and other employers to join an employer association in violation of Section 8(b)(4)(i) and (ii) of the Act.4 Therefore, Captive contends that the two toolroom employees Harkness and Pasculli, who continued to stake for a period after their fellows returned to work and until the strike ended, were engaged in unprotected activity, that Captive was under no obligation to reemploy them when they came back, and that they were replaced. In addition, it is claimed that when the two employees were later called back in April 1973 they were lawfully subject to the contract requirement that they join Garment Workers Union and their refusal to sign and work under that condition was a voluntary choice not to return to work. Garment Workers Union in its defense contends, first, that it made no agreement with the employer Captive after the Toolmakers strike began in January 1973 to cover the toolroom employees under the Captive-Garment Workers contract and made no demand upon the employer that the toolroom employees become Garment Workers members, 2 In pertinent part, Section 8(a) makes it an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights [of self-organization , etc ] guaranteed in Section 7, (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it, (3) by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor organization, provided that an employer shall not be precluded from agreeing with a labor organization (not unlawfully established or assisted by his actions) to require as a condition of employment membership in the labor organization if it is the duly designated representative of the collective bargaining unit employees. that it only stated a position to the employer that such employees "are required to become members of our Union," and that it never requested discharge of a toolroom employee who would notjoin Garment Workers Union. Second, Garment Workers agrees with employer Captive's contention that the toolroom employees became part of the production and maintenance bargaining unit by accretion and argues that there could be no question raised concerning representation of the toolroom employees until the expiration of the Captive-Garment Workers collective- bargaining agreement, which is still in force. Third, Garment Workers argues that because on February 27, 1973, Toolmakers filed a petition for an election governing the representation of the toolroom employees at Captive, upon which a hearing was held on March 13 and 15 before this trial began, the Regional Director should have decided the representation issue (and not postponed it for the trial of the unfair labor practice charges in this case) and thereby would have determined the basic issue in the unfair labor practice case, as well as in the representation case. As part of this argument, Garment Workers contends that the rights of the employees involved were not violated. The case was tried in Newark, New Jersey, on July 5-6, and July 16-17, 1973. General Counsel, Captive, and Garment Workers have filed briefs. Upon the entire record in the case, including my observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Employer Captive is a New Jersey corporation, with its principal office and plant in Piscataway, New Jersey, where it is engaged in the manufacture, sale, and distribution of plastic bottles and other plastic containers and related products. In the year preceding filing of the complaint, which was representative of its operations, Captive manufactured and sold goods valued in excess of $50,000, of which goods valued in excess of $50,000 were shipped from the Piscataway plant directly to points outside New Jersey. Respondent is engaged,, as it admitted, in commerce within the meaning of Section 2(6) and (7) of the Act. Garment Workers Union and Toolmakers Union, respectively, are, as the parties admit, labor organizations within the meaning of Section 2(5) of the Act. 3 In pertinent part, Section 8(b) make it an unfair labor practice for a labor organization or its agents- (I) to restrain or coerce (A) employees in the exercise of the rights [of self-organization, etc ] guaranteed in Section 7, (2) to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3) [described in fn . 2, supra 1 4 In pertinent part, Section 8(b)(4Xi) and (u) makes it an unfair labor practice for a labor organization or its agents to engage in, or induce an employee of a person engaged in commerce to engage in, a strike or refusal to perform services, or to threaten, coerce, or restrain any person engaged in commerce, where in either case an object thereof is: (A) forcing or requiring any employer or self-employed person to join any employer organization CAPTIVE PLASTICS, INC. 751 11. THE UNFAIR LABOR PRACTICES A. Employer Captive's Business-Contract With Garment Workers Union At the time of trial, Captive had been in business about 4 years, according to its vice president, Robert Treitler. manufacturing in the plant at Piscataway, New Jersey, plastic bottles, containers, and related products. Treitler joined the Company in February 1972, as vice president and plant manager, responsible for all operations within the plant that covered a complement of about 65 production and maintenance workers. Garment Workers Union began an organizing drive about that time, culminating in a Board-conducted election and certification on April 3, 1972, of the Union's Local 132 as bargaining representative for the unit of production and maintenance employees, excluding office clericals, sales- men, executives, guards, and supervisors. Following bargaining, in which Captive's president, John Raymonds, vice president, Treitler, and Garment Workers business representative, Eddie Nesbit, were participants, a collec- tive-bargaining contract was executed on April 7, 1972, G.C. Exhibit 2, effective retroactively from March 27, 1972, to March 26, 1975. The contract contained a union-security clause, article II, which required employees to join Garment Workers Union and maintain membership as a condition of employment and required the same of new employees within 30 days after employment. B. Installation of the Toolroom The contract between Captive and Garment Workers, when executed on April 7, 1972, covered the approximately 65 production and maintenance employees, of whom 3 or 4, said Vice President Treitler, were maintenance mechan- ics. The production and maintenance employees func- tioned on the production floor, also referred to by the employee witnesses as the pressroom from the fact that the injection blow molding process that produced the plastic bottles and products was performed in and by presses. The tooling or molds, inserted in the presses to provide the shaping of the plastic containers produced, were not manufactured by Captive at the time the union contract was executed in April 1972. The molds, made of steel, were largely if not entirely produced at and repaired by Lincoln Mold, a company in which President Raymonds of Captive had a substantial financial interest and took an active part. (President Raymonds did not testify, and the information respecting him and his actions in this case came from Vice President Treitler and the employee witnesses.) None of Captive's production or maintenance employees had the skills, special training, and schooling, and experience required for moldmaking or toolmaking. Never- theless, President Raymonds, who was himself an experi- enced toolmaker (Treitler was not), contemplated installing at Captive his own tool shop or toolroom for producing and repairing molds for the plastic molding presses. Indeed, he had apparently ordered the heavy and vaned machinery needed for such a toolroom5 even before executing the April 7 contract with Garment Workers, because the machinery started arriving at the plant in April-May, and Raymonds began advertising for, inter- viewing, and hiring, experienced toolmakers or moldmak- ers in April. The first man hired-Art Kopacz-was hired a week or 10 days after April? according to Vice President Treitler. President Raymonds did all the hiring for the new toolroom. Moldmaker John Harkness was interviewed and hired in April with an offer that he start immediately by working temporarily at Lincoln Mold where, Raymonds told him, Raymonds was a partner. Harkness decided to delay his start and began work at Captive on May 1, 1972, on which day new employee William Spies also began work. In the first week Harkness and Spies, working with the production and maintenance employees, set up the machines for the toolroom. On the following Monday, May 8, Kopacz who had been working at Lincoln Mold came in. President Raymonds came into the toolroom, with Treitler, whom he introduced as company vice president, and said he was making Kopacz temporary foreman. He asked employees Harkness and Spies if it was alright with them, and according to Harkness they assented. Over the summer, three additional employees were hired for the toolroom-toolmakers Alexander Mucho and Janos Orehocski, and Anthony Pasculli who specialized in mold polishing-so that by the end of the summer, according to Vice President Treitler and employee Pasculli, there were six tool room employees, five, including Kopacz, who were moldmakers and one a mold polisher. At the time the contract with Garment Workers was signed in April 1972, although President Raymonds contemplated having a toolroom in the plant, as Vice President Treitler conceded (claiming however that he himself was unaware of it), there was no mention of it by Captive at the bargaining negotiations with the Union, according to Treitler. Garment Workers Agent Nesbit, a business representative of the union for 25 years, testified that he services for the Union some 36 shops doing work in plastics, like Captive, and that some have, and some do not have, tool, die, and moldmaking departments. Neverthe- less, he said, he did not ask in the negotiations if Captive would have a toolroom or toolmakers in the future. When President Raymonds hired employee Harkness in April 1972, he showed him around the shop, including the intended location of the toolroom at the back end of the plant, where at the time there was no operation and a milling machine standing as yet uncrated. Raymonds told Harkness that there was a Union in the shop, but not to worry about that, the toolroom employees would not have to join, he was putting a temporary tool shop in at the back of the building and planning an addition to the building for a permanent toolroom. In early September 1972, when President Raymonds hired employee Alexander Mucho, Mucho asked if there was a Union in the plant. Raymonds told him the Garment s Also variously referred to by the witnesses as tool shop, machine shop, and steelroom. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers Union was in the plant but, that as far as the toolroom was concerned, you are out of it, you do not have to belong to this Union, you are a special group not belonging to the production line. Mucho responded he was glad to hear it. Vice President Treitler testified that either he or President Raymonds instructed the company bookkeeper, who routinely handled the union dues checkoff and other contributions to the Union for employees on the payroll more than 30 days, that she was not to approach the six toolroom employees I about signing a union checkoff authorization; and Captive did not notify the Garment Workers Union by this or other written notice of its toolroom employees or that it regarded them as covered by the union contracts The evidence established that in the first 9 months of the existence of the toolroom, from May 1972 through January 1973 (when the Toolmakers Union strike began), no toolroom employee was ever asked by anyone, including the Garment Workers shop steward or its business representatives, who visited the premises and came into the plant area, to become a member of the Garment Workers Union. Under President Raymonds' instructions to the toolroom employees, if they had any grievances they were to take them directly to him or, in his absence, to Vice President Treitler. C. Operation of the Toolroom By training, pay and hours, and method of operation, the toolroom employees were set apart from the production workers, and constituted a special group at Captive, as President Raymonds told employee Alexander Mucho, when he was hired, heading B, supra. Employee John Harkness described the 4-year New Jersey state apprenticeship program of combined scholas- tic and on-the-job training required to become a certificat- ed journeyman moldmaker or toolmaker (the terms are used interchangeably). In his case, he obtained his training and state journeyman's certificate from Union County Technical School in Scotch Plains, New Jersey, which embraced 4 years of working in a shop by day and attending school at night, and successfully completing courses in algebra, trigonometry, engineering drawing, blueprint reading, physics, welding, lathe operation, Bridgeport milling machine operation, grinding machine operation, advanced inspection, electrical discharge, mold- making, and tool and diemaking. In addition, as he and others testified, it took several more years of work experience as a journeyman to become a first class mold or toolmaker. All six of the Captive toolroom group were experienced men when hired, and in some instances had many years of experience, such as Alexander Mucho with 25 years, and Anthony Pasculli with 20 years of experience. Vice President Treitler testified there was no toolroom experience or the special school training among the 6 Initially, Vice President Treitler sought to assert at trial that he had always regarded the toolroom employees as covered by the union contract but, under closer scrutiny , his actions plus his Board affidavit given in February 1973 indicated the contrary, and he conceded that there was doubt about coverage. He admitted that President Raymonds was of a different view and did not believe the toolroom employees were covered by the union contract. 7 On rare occasions, said employee Pasculli, a production worker would production and maintenance workers and hence there were no transfers or promotions from the production floor to the toolroom. The growth of the toolroom came from hiring outside Captive. The toolroom employees worked with machinery not used by or generally available to the pressroom (pro- duction) employees, such as Bridgeport milling ,machines, surface grinder, pedestal grinder, turret lathes, tracer lathes, radial drill press, band saw, and electric discharge machine.? The toolroom employees were expected to have, and had, most of their own hand tools or measuring tools; that included micrometers, verniers, calipers, height gauges, and precision blocks. They usually worked at tolerances of 4/10,000 of an inch, and performed directly from blue- prints. As Vice President Treitler and the toolroom employee witnesses testified, the toolroom employees divided their time between the manufacture of new steel molds and the repair of damaged molds. This work was done by them almost entirely in their own room or enclosure, in size between 30 feet by 30 feet or 40 feet by 40 feet, separated from the production floor by a chain link fence (from floor to ceiling), plus one work bench just outside the enclosure for lack of space inside. On some few occasions when it was easier to make a simple adjustment or repair of a mold without taking it out of the press, a toolmaker would be asked to go into the press room and make the adjustment in place, but most of the times the mold had to come out of the press to the toolroom for repair. Only two or three of the toolroom employees handled this occasional work in the pressroom and it occupied a very minor portion of their time, a few hours a month said Harkness , no more than 5 percent of a man's time said Treitler.8 While most of the toolroom work was on molds for the Captive presses, not all of it was. Employees Harkness and Mucho testified to doing work that was shipped to Captive customers, notably the Bristol-Myers Company. The toolroom employees were the highest paid group in the plant. Their hourly rate was scaled higher than the production-maintenance employees, and their gross pay was additionally higher than the others by reason of the separate longer time schedule observed by the toolroom. As Vice President Treitler testified, toolroom employees regularly worked a 10-hour day for 5 days per week and 6 hours on Saturday, or a 56-hour week. All hours over 8 on a weekday and all Saturday hours were overtime hours, hence toolroom employees were regularly paid overtime for 16 hours per week, plus any additional overtime that might be requested of them. On the other hand, said Vice President Treitler, the production workers worked a regular 8-hour day, 40-hour week, and since there were three shifts, covering the whole day, had less opportunity for overtime. If there was come into the toolroom for a few seconds to use the band saw to cut a plastic bottle for measuring its thickness a By choice or inclination, the toolroom employees kept themselves apart from the production employees on their free time. Thus, although all plant employees had to use a common timeclock and washroom and had use of a common eating area, the toolroom employees took their lunches together as a group away from the eating area and other employees, according to employee Mucho. CAPTIVE PLASTICS, INC 753 overtime for them, it had to be specially scheduled and approved in each case, unlike the toolroom employees who had standing, scheduled overtime for 16 hours per week. In the plant chain of command, the toolroom was also apart from that governing the rest of plant and had its own separate supervision. In the first place, all hiring for the toolroom was done by President Raymonds, whereas Vice President Treitler, as plant manager, was otherwise responsible for all other plant hiring assisted by the production manager, department managers, and plant manager for maintenance. Treitler testified that acting foreman of the toolroom, Art Kopacz, an experienced toolmaker, did the prescreening and evaluating of hires for the toolroom. Secondly, apart from himself and President Raymonds, Treitler named 13 managers, supervisors, and foremen (but excluded Kopacz who, Treitler contended, was not a supervisor) as providing the total plant supervision, none of whom provided any supervision of the toolroom or had the training or capacity to do so. According to Treitler, Production Manager John Bungert had overall responsibil- ity for production on the molding machines or presses, which are run by molding mechanics, who also install and remove the molds and make minor repairs to the machines. Bungert gave his orders and direction to the shift supervisors but they had no responsibility for or over the tool shop, said Treitler. Bungert did issue written work orders which identified for the tool shop molds that needed repairing, and these were delivered to Acting Foreman Kopacz, who saw that the needed work was done by his men. Bungert was not a toolmaker. Thirdly, subject only to determination by management of priorities to be given to certain work, the evidence was clear that Acting Foreman Kopacz provided the day-to- day supervision of the toolroom. Management decision on priorities largely meant President Raymonds' decision, sometimes Vice President Treitler's decision in Raymonds' absence, and, on priorities in repair of molds, would include Production Manager Bungert's decision. Once priorities were decided, Vice President Treitler conceded and employee testimony confirmed, that Kopacz determined in his discretion which toolroom employees did which work, took employees off jobs they might be doing to assign them other work, checked employees' work, including going from machine to machine and assisting with difficult blueprints, received their work, saw to its delivery, returned to them for correction work not properly functioning, checked employees' time, made requests of them that they work additional overtime, kept track of their work, handled the toolroom paper work, and ordered tools and supplies for them. Within a $50-per-order limit he needed no approval for purchases of tools. Neither President Raymonds nor Vice President Treitler spent much time in the toolroom, as Treitler testified. Treitler had overall plant responsibility and greater responsibility on the production side, so that his visits to the toolroom were of short duration, on an "in and out" basis. Raymonds spent time away from the plant on business for Captive and on other business interests he had, and while he initially spent more time in the toolroom than Treitler normally did, as the toolroom became established he spent even less time there than Treitler. The employees testified that neither Raymonds nor Treitler gave them any instructions or supervision on the doing of a job, and when they had problems they took them to Kopacz. It has been already noted that when the shop started out in May 1972 Kopacz was initially introduced as temporary foreman. On subsequent hires (Pasculli, for example, in September) Kopacz was described by Presi- dent Raymonds as the man supervising the toolroom employees' work, and Treitler testified that Kopacz' responsibilities did not change but if anything became greater as the shop expanded (at the time of trial the toolroom had 17 employees). It was suggested by Captive that Kopacz was not a supervisor within the meaning of the Act because he did not hire or fire, because he punched a timeclock and was paid an hourly wage, and because he did some of the physical work of toolmaking alongside the other toolmak- ers. As already noted, Vice President Treitler's testimony indicated that Kopacz was doing the effective work of hiring by checking the abilities of new prospects for President Raymonds; and employees (for example, Hark- ness and Mucho) obtained wage increases as a result of Kopacz' intervention on their behalf or reports on their work. While Kopacz was an hourly paid employee, he was, as Vice President Treitler testified, the highest paid employee in the toolroom. It is useful to note that several other foremen whom Treitler named as having recognized supervisory status in the production area were (by his admission elsewhere in the record) also hourly paid. Lastly, the amount of time Kopacz spent physically engaging in toolmaking, from the testimony of the employees in the shop, was relatively little compared to time spent in his supervisory duties. The foregoing analysis of the functions and authority of Art Kopacz, whether he is labeled leadman (as Captive prefers) or foreman or supervisor, and notwithstanding the fact that he works part of the time with his hands, alongside his men, and is paid hourly, marks him clearly a statutory supervisor, who occupies an intermediate posi- tion between top management and the rank-and-file employees, N.L.R.B. v. Edward G. Budd Manufacturing Company, 169 F.2d 571, 575 (C.A. 6, 1948), cert. denied 335 U.S. 908 (1949); N.L.R.B. v. Gary Aircraft Corporation, 368 F.2d 223 (C.A. 5, 1966), cert. denied 387 U.S. 918 (1967), leadmen held statutory supervisors; N.L.RB. v. Southern Airways Company, 290 F.2d 519, 523-524 (C.A. 5, 1961), working dock chiefs held supervisors under the Act. The substantial area of discretion enjoyed by Kopacz to make decisions concerning operations directly affecting employ- ees under him, without close continued control of higher supervision, is key to the determination that whether leadman or foreman he was a supervisor within the meaning of the Act. See West Virginia Pulp and Paper Co., 122 NLRB 738, 743, 744, 752 (1958), holding that several categories of hourly paid foreman were statutory supervi- sors; E.E.E. Co., Inc., 171 NLRB 982 (1968), working foreman who assigned work to other employees held supervisor under the Act; McCoy Co., 151 NLRB 383, 385 (1965), warehouse leadman , who assigned work to ware- house employees, held statutory supervisor. If Kopacz were 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not such a supervisor, the toolroom employees would have been entirely without supervision most if not all of the time, warranting the conclusion that conferring upon, and exercise by, him of even a small amount of supervisory power made him a representative of the employer, Rafael Vega v. N. L. R. B., 341 F.2d 576, 577 (C.A. 1, 1965), cert. denied 382 U.S. 862 (1965). D. Toolmakers Union Organizing, Toorroom Employees Strike In August 1972, Toolmakers Union began an organiza- tional drive among the toolroom employees, as employee Harkness and Toolmakers President Anthony Callello testified. By January 1973, at the conclusion of a union membership meeting the night of January 25, four of the six toolroom employees had signed cards for membership in Toolmakers Union, G.C. Exhibits 3a-d (employees Harkness and Pasculli signed up in August 1972, employee Mucho in October 1972, and employee Spies turned his card in at the meeting of January 25, 1973). Following the union membership meeting on the night of January 25, 1973, the toolroom employees of Captive went on strike the following morning, Friday, January 26, 1973, by staying outside the plant and not going in at the 7 a.m. starting time. Captive's President Raymonds came outside and invited employees Harkness and Pasculli into a meeting in Raymonds' office, where Vice President Treitler and Foreman Kopacz were also present. President Raymonds asked what the employees were doing. Employee Harkness, who acted as spokesman for the employees (he had been designated acting shop steward, according to Toolmakers Union President Callel- lo), replied that the toolroom employees were out for recognition of the Toolmakers Union as their representa- tive. Raymonds answered, why do you need a union, anything you fellows want I give you. Employee Pasculli spoke of the absence of any sick pay or pension plan, and President Raymonds said he would give the employees a pay increase of 25 cents every 3 months, until they were the highest paid shop in the area, and a 2-week vacation after 1 year, and what did he have to do to get them back to work? Employee Harkness answered that the employees want- ed recognition of their Union and offered President Raymonds the Union's telephone number. (Vice President Treitler corroborated in his testimony that Harkness said the men were on strike because they wanted recognition of their own tool union in the shop, and testified that no additional or other demand was made on Captive by or on behalf of the Toolmakers Union.) Raymonds replied, no, you can stay out for the next 6 months, it would make no difference. Vice President Treitler said he would close the toolroom before he would have two unions in one shop, and President Raymonds said he agreed with Treitler and would ship his toolmaking work to Connecticut. Harkness and Pasculli reiterated their commitment to the Toolmak- ers Union and that they were striking for recognition, and went back outside, Harkness reporting by telephone to Toolmakers on what had occurred. At this point the employees commenced picketing, first with signs made by Harkness saying "Captive Tool on strike-IUTDM (the union's initials)," and later with signs supplied by Tool- makers saying simply "On strike-IUTDM." President Raymonds came outside and asked Harkness if he had understood Raymonds' offer, repeating it-25-cent-per- hour raise every 3 months, highest paid shop in the area, and 2-week vacation after a year-and told him to think about it. Toolmakers had apparently commenced strikes at other plants in New Jersey, seeking recognition, according to William Samson who, on a nonprofessional basis, was in charge of organizing for Toolmakers in Middlesex County where Captive was located. Samson covered and visited the picket lines at about 20 plants in Middlesex County but neither he nor any of the Toolmakers professional agents made any direct contact with the management at Captive. On Monday, January 29, 1973, Toolmakers Organizer Samson and Toolmakers President Callello came to the picket line at Captive in response to a request for a meeting by Garment Workers Union Agent Eddie Nesbit. Nesbit had learned of the strike, the previous Friday, the day it began. The three met and talked in Nesbit's car outside the Captive plant. Nesbit asked what was going on and Callello told him the Toolmakers were on strike for recognition. Nesbit asked if his people were involved. Callello replied no, the strike involved only the toolroom. Nesbit asked how would it affect him, and Samson indicated that it would not affect the Garment Workers because the strike was only for the steel tradesmen (toolmakers) throughout the State. Nesbit told the Tool- makers representatives that he did not represent the toolroom employees at Captive, that he represented the production workers who worked in the press department and that he would help the Toolmakers by putting pressure on Captive's President Raymonds to recognize Toolmak- ers. Garment Workers Agent Nesbit admitted telling the Toolmakers representatives he would help them; but, incredibly, claimed at trial that he had meant he would help them get recognition at the Lincoln Mold plant, in which President Raymonds had a financial interest, and that he (Nesbit) didn't know even at this time, January 29, 1973, that Captive had a toolshop in its plant and toolmakers operating the shop. The incredibility of these claims by Nesbit, an experienced representative of Gar- ment Workers for 25 years, is evident from other parts of his testimony to the effect that (though he had visited the Captive plant, including the working floor area, two or three times in the 9 months since May 1972, and had sent others to visit for him, and had a shop steward , assistant shop steward, and shop committee to do representation work in the plant) he had paid no attention to the newly installed toolroom or to the new machinery in the toolroom, different from the machinery in the pressroom, or to the new employees in the toolroom; that none of his personal representatives or plant representatives had told him of the employees in the toolroom; that on his visit to the Captive picket line the morning of January 29, 1973, he paid no attention to the strike signs nor did he talk to any of the picketing employees nor did he know how many employees worked and how many picketed nor did he ask; and that thereafter, when he and Garment Workers claimed contract coverage of the toolroom and its CAPTIVE PLASTICS, INC. 755 employees, he made no inquiry as to who in the group worked and who continued to picket and who and how many paid union dues. Following his meeting at the Captive picket line with the Toolmakers representatives on the morning of January 29, 1973, Garment Workers Agent Nesbit went into the plant. He claimed he then learned for the first time in the 9 months of its existence, from President Raymonds, that there was a toolroom in the shop, and that the pickets outside the plant were employees of Captive (a claim I do not credit for reasons enumerated above). In any event, following a meeting the same day with President Ray- monds, Vice President Treitler, and Captive's lawyer, Schwartz, Nesbit switched from the position he announced in the morning to the Toolmakers representatives, viz, of aiding them gain recognition, to asserting that the toolroom employees were covered by the Garment Work- ers contract and belonged in that Union. Nesbit testified that he insisted that the toolroom employees had to join the Garment Workers Union. He further testified that Captive's lawyer, Schwartz, and the two corporate officers agreed, whereupon he caused a letter to be sent forthwith to Captive by Garment Workers (G.C. Exh. 4, dated January 29, 1973). The letter called attention to the fact that certain employees of Captive had failed to become members of Garment Workers Union in accordance with the union-security provision (article 2) of the existing collective-bargaining contract, that notwithstanding anoth- er union is picketing for recognition as representative of these employees, they are within the purview of the contract, and all six employees are required to be members of Garment Workers Union. Nesbit testified that Garment Workers gave cards to Captive's bookkeepers with instruc- tions they were to approach the employees in timely fashion and require them to join the union. Captive immediately composed letters to each of the six employees of the toolroom (G.C. Exh. 5, dated January 30, 1973), telling them that Garment Workers had advised, and the company lawyer agreed, that each of the employees who had walked out of the plant was covered by the contract with Garment Workers as production and maintenance employees, that it would be necessary for each to become members of Garment Workers, and on failure to do so within 30 days employment would be terminated. Each was asked to advise Vice President Treitler if he intended to report to work under the stated condition. On the previous Saturday, January 27, the second day of the strike, President Raymonds had been in touch with employee Harkness and told him he was fired, that Raymonds was taking all of Captive's moldmaking work to Gill Woods Plastics in Greenbrook, and that if Harkness wanted a job there he could go there with Raymonds' recommendation. Raymonds also told employee Pasculli essentially the same thing and that he no longer had a job. On Monday, January 29, apparently following the meeting with Garment Workers Agent Nesbit. President Raymonds got in touch with employee Harkness again and told him that the toolroom employees were covered under the Garment Workers collective-bargaining contract with Captive and were engaged in an illegal strike, that they had 30 days to join Garment Workers Union or be fired, and that he, Raymonds, was sending out letters to each of the employees stating what he said. On Tuesday, January 30, President Raymonds handed employees Harkness and Pasculli their copies of the letter requiring them to join the Garment Workers or be fired (G.C. Exh. 5, supra ), and copies were handed or mailed to the other employees who returned to work that day or the next day. Employees Harkness and Pasculli continued out on strike until Saturday, February 24, 1973, when they too returned to work following a settlement of the Toolmakers multiplant strike, approved Friday, February 23 .9 E. Discharges, Layoffs, Other Coercion Captive's Vice President Treitler testified that in the meeting of January 29, 1973, that involved himself, President Raymonds, Captive's lawyer Schwartz, and Garment Workers Agent Nesbit, he, Treitler, advised Nesbit that the toolroom employees were picketing because they wanted the Toolmakers Union, and that they did not want to join the Garment Workers Union; nevertheless, it was Nesbit' s position, supported by lawyer Schwartz, that the employees had no choice, that they were covered by the Garment Workers collective-bargaining contract with Captive and had to join Garment Workers. Treitler further testified that he and President Raymonds did not oppose this Garment Workers demand (confirmed in the Garment Workers letter of January 29 (G.C. Exh. 4)), because he and Raymonds both agreed that if the toolroom employees wanted a union it was better for Captive to have had them join the Garment Workers rather than Toolmakers, indeed, he said, both Raymonds and himself were pleased to have one union rather than two unions in the shop. Hence, said Treitler, Captive immedi- ately followed up with its letter of January 30 to the toolroom employees requiring them to join Garment Workers if they were to retain their jobs (G. C. Exh. 5, supra). Employee Alexander Mucho testified that in response to a call on Wednesday, January 31, he and fellow toolmakers Spies and Orehocski went back into the plant and talked with management. They spoke with Vice President Treitler and Foreman Kopacz. (It appeared that Kopacz had not stayed out after the initial part of the first day of the strike.) According to Mucho, Treitler made it plain that if they wanted their jobs they would have to apply for membership in Garment Workers within 30 days, and Treitler handed them cards to sign for the Union. The three men went to work, but stalled signing up for the Garment Workers. On February 28, Vice President Treitler came into the shop with Garment Workers cards, according to his testimony and that of employees Mucho and Harkness (the 9 The settlement provided for restoration of employees to their jobs and element of the settlement was the Union's agreement to terminate the strike that for shops open on Saturday, the employees would return to work the in return for affected employers' agreement to consent elections in their following day, Saturday, February 24, and for all other shops the employees shops by March 23, 1973 (td ). would return on the following Monday (G.C Exh 7, page 2) The central 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD latter with Pasculli had been back in the shop since February 24), and told the employees they would have to sign cards for Garment Workers Union to keep their jobs and had to turn them in by the next day or they would no longer be able to work for Captive. He testified he was acting pursuant to the company letter distributed January 30 and the 30-day period was almost up. The employees protested, but Treitler responded that the toolroom was under the jurisdiction of Local 132 of the Garment Workers, and having one union would bring some peace to the shop.70 President Raymonds also came into the toolroom that same day, according to employee Mucho, and told the group of employees they would receive a wage increase and an additional vacation if they did not become members of Toolmakers Union or refrained from support- ing it. Employee Mucho testified that on the following day (which, he said, was the 29th day of the 30-day period) he, Spies, Orehocski, and Kopacz, signed cards for Garment Workers. Vice President Treitler testified that since January 29, 1973 (the date may or may not be accurate), Captive has checked off and transmitted to Garment Workers initiation fees and dues from the toolroom employees. On February 28, the same day that Vice President Treitler delivered his final ultimatum to the toolroom employees to sign up with the Garment Workers Union or lose their jobs, Treitler laid off or discharged employees Harkness and Pasculli. Both employees had previously returned to work on Saturday, February 24, in keeping with the terms of the Toolmakers strike settlement, noted above, and worked that day and the first 3 days of the next week, February 26, 27, and 28. Foreman Kopacz assigned them to their usual work, and when they called his attention to the fact that their timecards were not in the rack when they reported back, the timecards were restored to the rack in time for their punch-out Monday, February 26, and use on the succeeding days. President Raymonds was in the plant February 26 and 27, as Treitler conceded, but Treitler did not come in until February 28. That afternoon Vice President Treitler went over to employee Pasculli's workbench, called Harkness over, and handed them both layoff slips. According to both men Treitler told them that this was permanent, they had been replaced. (Treitler claimed he didn't say it was permanent but said until Captive had more work and needed more people.) Treitler pointed to a new man Bob Bessie, a lathe hand, as one of the replacements. Bessie had reported to work just a few days before, on February 22, Treitler testified. And, as the testimony indicated a lathe hand does not have the skill or work competence of a moldmaker (Harkness' job) or of a mold polisher (Pasculli's job). The second so-called replacement, one Jan Kuriata, according to Treitler, did not report to work until March 5, 1973. Treitler admitted that in Pasculli's absence Captive was sending part of its mold polishing work to be done in outside shops; and that whenever there was more toolroom work than the employees could handle, it was sent out, to be done elsewhere, in both situations at greater cost than having the work done by its own toolroom employees. On March 15, 1973. Toolmakers filed a charge against Captive (G.C. Exh. 1(a), upon which the CA portion of the complaint is based) alleging, among other things, a discriminatory layoff of employees Harkness and Pascul- li.ii On or about April 20, 1973, employees Harkness and Pasculli received telegrams from Captive to come back to work. They phoned in and agreed to report Monday, April 23. Both reported in and began working. About 8 a.m., Richard Young, the shop steward of the Garment Workers Union, came to each of them with a card to be signed, saying it was an authorization to the employer to deduct union dues for the Garment Workers from the pay of each. Harkness and Pasculli refused to sign and walked in on President Raymonds with the unsigned cards. He told them they had to sign, they said they would not, whereupon Raymonds told them they would have to get out, and both employees left the plant immediately. That afternoon (April 23), Vice President Treitler telephoned employee Harkness and told him there had been a misunderstanding in the morning, that Captive was not telling him to leave but that the Garment Workers Union was telling him so, and as far as Captive was concerned he still had a job. Treitler said that Harkness asked if he had to join the Garment Workers, and Treitler replied that the Union's steward informed us you did and said Harkness could talk to Shop Steward Young and get it straightened out. Treitler then put Young on the phone. Shop Steward Young told employee Harkness that Captive was a closed shop, that he had had 30 days to join Garment Workers Union and since the 30 days were up, he was terminated. Treitler also left a message, similar to his message to Harkness, with employee Pasculli's wife, on the same afternoon, saying that Captive had nothing to do with forcing Pasculli out, it was the Garment Workers who caused the discharge. On May 4, 1973, the Regional Director issued the CA complaint against Captive based on the Toolmakers charge of March 15, supra . Thereafter, Captive again telegraphed employees Hark- ness and Pasculli that work was available and both employees reported for work in mid-May (Harkness thought it was Wednesday, May 16, Pasculli and Vice President Treitler thought it was Monday, May 14). In any event, both employees worked for part of the day, and then voluntarily quit. As Pasculli explained, it appeared that there was a division in the toolroom, with Harkness and himself on one side, and the other employees on the other side and shunning the two of them ; and since they couldn't see working 10 hours a day in such a cold atmosphere they left voluntarily and did not return. Employee Harkness testified that on this last recall and partial day of employment, no mention was made to Pasculli or himself of a necessity to join or sign anything 10 Employee Mucho testified that he would not have joined the Garment an election by Captive's toolroom employees (Case 22-RC-5627), and a Workers if he had not been told he had to join, that he would not have hearing by the Region was held on March 13 and 15, 1973 (exhibit RU-2(a) joined "of my own free will " and (b)). Filing of the Toolmakers charge of March 15, supra, and the 11 Toolmakers had previously filed on February 27, 1973, a petition for resultant complaint in the case at bar, has halted action on the petition. CAPTIVE PLASTICS, INC. for the Garment Workers Union. It appears that on May 3, Toolmakers had filed its (CB) charge with the Board alleging that Garment Workers had attempted to cause and caused Captive to discriminatorily discharge its toolmakers; and, under date of May 15, 1973, Garment Workers gave Captive a letter (G.C. Exh. 6) referring to the charge and Board investigation of the charge, stating that though Garment Workers claimed contract coverage of the toolmakers in the shop it would not insist that Captive observe the union-security provisions of the contract in regard to those employees until the Board had resolved the issue. Vice President Treitler testified that this was the first time in the history of the dispute that Garment Workers, or anyone on its behalf, had advised that the Union was not insisting on enforcing the union-securty clause of the contract. F. Concluding Findings The interference of Employer Captive with the self- organizational rights of its toolroom employees is manifest. The toolroom employees notified Captive's President Raymonds on January 26, 1973, that they were striking to obtain recognition of their Union, Toolmakers Union. His response was that they didn't need a union and that Captive would provide successive wage increases (and additional vacation time) to make theirs the highest paid tool shop in the area. When this promised inducement did not appear to dissuade the employees from their strike for union recognition, both President Raymonds and Vice President Treitler turned to threats of closing down the toolroom and contracting out the toolroom work rather than recognizing Toolmakers as the representative of the toolroom employees. Both the promise of benefits to and threat of reprisal against its employees to induce them to forego their union organization constituted interference by Captive with the self-organizational rights of its employees in violation of Section 8(a)(1) of the Act. N.LRB. v. Exchange Parts Co., 375 U.S. 405, 409-410 (1964); N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617-618 (1969). The unlawful interference with employee organizational rights was followed by further unlawful interference and conduct on the part of Captive and Garment Workers, the rival Union, by Captive extending recognition to Garment Workers, as purported representative of the toolroom employees, and incorporating them under Captive's con- tract with Garment Workers, when Garment Workers had no indicia of support from the toolroom employees and Toolmakers had the openly demonstrated majority support of the toolroom employees behind its demand for recogni- tion (and a card majority if it were asked for). Such recognition of and agreement with a minority union violated Section 8(a)(1) and (2) of the Act on Employer Captive's part,'andSection,8(b)(1)(A) on Garment Workers Union's part, and would have been violations even if the Employer and Union had entertained good-faith beliefs that the Union represented the majority, International Ladies' Garment Workers Union [Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731, 738-739 (1961). However, in the case at bar, the facts summarized under the preceding headings demonstrated that neither Captive 757 nor Garment Workers acted in good faith but rather in unlawful concert by use of direct employer solicitation of Garment Workers memberships under threats of firing (by Vice President Treitler) and promise of benefits (by President Raymonds), followed by enforcement of the Garment Workers contract provisions designed to main- tain the assisted status. The request for recognition of Toolmakers as their representative by the toolroom employees on January 26, 1973, backed by their visible unanimous support of the strike for recognition (as well as by signed authorization cards by a majority), raised a real question regarding representation of the employees under the Midwest Piping rule, 63 NLRB 1060 (1945). The employer's duty to maintain strict neutrality and await Board resolution of the rival claims was breached by according the advantage of a contract to Garment Workers, constituting additional unlawful support of Garment Workers by Captive, in violation of Section 8(aX2), and interference with self- organizational rights of employees, in violation of Section 8(a)(1) of the Act, N.LR.B. v. National Container Corp., 211 F.2d 525, 536 (C.A. 2, 1954); Iowa Beef Packers, Inc. v. N.L.R.B., 331 F.2d 176 (C.A. 8, 1964); Melbet Jewelry Co., 180 NLRB 107, 110 (1969). Both Captive and Garment Workers argue that, by accretion, the toolroom employees had become part of the bargaining unit of "production and maintenance" employ- ees, who were the pressroom employees when the contract was entered into by Captive and Garment Workers in April 1972. Hence, it is argued that the recognition of Garment Workers as toolroom representative and giving effect to the union membership and other union-security provisions of the contract for the toolroom were not unlawful acts. The summary of the evidence, under the preceding headings, indicates that Captive installed the toolroom, almost simultaneously with the execution of the Garment Workers contract (which was the first and only union contract of the employer), as a separate entity excluded from the provisions of the contract with Garment Workers. Captive told the toolroom employees so, when they were hired, and Garment Workers acquiesced in the arrange- ment. At the very least, by his own admission, Garment Workers Agent Nesbit paid no attention to the toolroom;' and, as the additional proof indicated, Garment Workers and he made no claim of representing the toolroom in the first 9 months of its existence and even offered to assist Toolmakers in achieving recognition as late as the fourth morning after the strike of the toolroom employees had begun in late January 1973. It was not until Agent Nesbit met with Captive's management and lawyer later that day, that the "accretion" position jointly emerged. The position was arrived at concededly with knowledge that the toolroom employees wanted their own union representa- tion by Toolmakers and did not want to be represented by Garment Workers; and that Captive' s management felt if there was going to be a union representing the toolroom employees it would be better to have them represented by Garment Workers, so that there would only be one union in the plant. As described under heading C, above, by special training 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and qualifications, pay, hours of work, and method of operation, the toolroom employees were a special and separate group at Captive, set apart from the production and maintenance workers of the pressroom where the products of the Company were turned out. The toolroom employees made and repaired the steel forms used in the production process (largely used in this plant, but also for other plants), and did their work almost entirely in their own enclave and under supervision, separate from the pressroom, with no exchange of employees between the two units or graduation of employees from the pressroom into the toolroom. As the Board said of a similar toolroom, in a plant that manufactured power chain saws, "the toolroom comprises a functionally distinct and homoge- nous traditional department with a nucleus of skilled employees who constitute a unit appropriate for collective bargaining," McCulloch Corporation, 189 NLRB 76, 77 (1971). The Board, noting the absence of any relevant history of collective bargaining in the plant (as in the case at bar), rejected the employer's contention that an overall production and maintenance unit was the solely appropri- ate unit for bargaining, id. at 76.12 The Board has made like other holdings, on facts similar to the facts in the case at bar, that a group of toolroom employees constitutes an appropriate unit for separate representation if the toolroom employees so desire, overruling contentions that an overall production and maintenance unit is the only appropriate unit, see, among others, Schick, Inc., 130 NLRB 1501 (1961), and Gemex Corp., 120 NLRB 46 (1958).i3 The Board has also held that the accretion principle does not apply (including cases where contracts provide for accretion to the bargaining unit of future employees of the contracting employer) when the employee group sought to be added to the established unit may separately constitute an appropriate bargaining unit, Melbet Jewelry Co., supra, 180 NLRB 107, 109-110 (1969), saying: We will not, however, under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them. Accord: Sheraton-Kauai Corp., 177 NLRB 25, 28 (1969); and see affirmance of the Board in N.L.R.B. v. Masters- Lake Success, Inc., 287 F.2d 35 (C.A. 2, 1961). The Board recently reaffirmed its statement of limitation on the use of accretion, enunciated in Melbet and Sheraton-Kauai, supra, in Smith's Management Corp., 197 NLRB 1156. It would follow, therefore, that since the toolroom employees at Captive constituted an appropriate unit for bargaining, it was unlawful for Captive or Garment Workers to treat them as accreted to the existing unit of production and maintenance employees when both knew that Garment Workers did not represent an uncoerced 12 The Board also pointed out in the McCulloch case that other factors, delineated in Mallinckrodt Chemical Works, 162 NLRB 387 (1966), which might apply if the toolroom employees had been then represented as part of a broader unit and the case were a proposed severance case, were not relevant, id at 77, In 4. 13 It is well established Board law, endorsed by the courts, that more majority of the toolroom employees or any of them, indeed when both knew that a majority of the employees wanted representation by the Toolmakers and was opposed to representation by the Garment Workers. In sum, by agreeing on January 29, 1973, with Garment Workers to accrete the unit of toolroom employees to the unit of production and maintenance employees and to make applicable to the toolroom employees the union- security provisions of the Garment Workers contract when Garment Workers did not represent a majority of the toolroom employees and when a question concerning their representation existed, and by thereafter maintaining and enforcing these provisions, through coercing the toolroom employees on January 30 and February 28, 1973, to become and remain Garment Workers members on pain of discharge and honoring the (forced) checkoff authoriza- tions, see Local 1424 etc. Machinists [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411, 413-414 (1960), Captive interfered with the self-organizational rights of the employ- ees in violation of Section 8(a)(1), assisted Garment Workers in violation of Section 8(a)(2), and discriminated in regard to the hire of employees and tenure of their employment in violation of Section 8(a)(3) of the Act, see Melbet Jewelry Co., supra, 180 NLRB at 110; Sheraton- Kauai Corp., supra, 177 NLRB at 25. In the case of employees Harkness and Pasculli, who stayed with the Toolmakers strike until it was settled on February 23, 1973, and resumed work at Captive on February 24 in accordance with the settlement, it would appear that their discharge on February 28, allegedly because they had been replaced and for lack of work, was a pretext. On February 28, Vice President Treitler made his drive in the shop to compel the toolroom employees to sign up with the Garment Workers by the following day, which was the end of the 30-day period under the union-security clause. It was obvious that Harkness and Pasculli, as the avowed advocates of Toolmakers Union, would not sign and would create a problem for management in succeeding with its pressure on the other employees, so the two were dismissed for the claimed reason. There was work that each was doing under assignment from Foreman Kopacz, and President Raymonds in the plant in this period. One of the alleged replacements, a lathe hand, was not a replacement for either a moldmaker or mold polisher; the other alleged replacement did not begin work until the following week (which suggests he was a replacement after the discharge of February 28); and Captive found it necessary in the ensuing period after February 28 to get some of its moldmaking and mold polishing done in outside shops. Captive's claim of replacement and lack of work was a sham. Likewise, there was no substance to the claim by Captive's counsel that employees Harkness and Pasculli had engaged in an illegal strike at Captive and were not entitled to reemployment on February 24, and hence could be (and were) replaced. The claim was based on the fact than one unit may be appropriate among the employees of a particular enterprise, Haag Drug, 169 NLRB 77 (1968), and that a departmental unit in an industrial plant is an appropriate unit for collective bargaining, S D Warren Company v N.LR B, 353 F 2d 494, 499 (C A 1, 1965), cert denied 383 U.S 958(1966) CAPTIVE PLASTICS, INC. that at some of the plants struck by Toolmakers, though not at Captive, the Toolmakers made a demand, in addition to the demand for recognition, that the employer join an employers' association for dealing with the union.14 The evidence in the case at bar established that no such additional demand was made of Captive by the employees, led by Harkness and Pasculh, in their demand for recognition, nor was any demand made by Toolmakers professional agents on Captive; and Captive's Vice President Treitler admitted that the only demand made on the Company was the demand by the employees for recognition of Toolmakers. There was no taint of illegality in the conduct of Captive's toolroom employees. In any event, Captive accepted employees Harkness and Pasculli back on February 24, and they worked for 4 days without any hint of the alleged replacement. Their discharges by Captive on February 28 was aimed at discouraging continued support by the toolroom employees of Toolmak- ers and spurring the remaining employees to join Garment Workers, and constituted discriminatory discharges in violation of Section 8(a)(3) and (1) of the Act. N.L.R.B. v. Ulbrich Stainless Steels, Inc., 393 F.2d 871, 872 (C.A. 2, 1968). President Raymonds, contemporaneous promise of a wage increase to the remaining employees, on the same day, if they would give up their support of Toolmakers was further evidence of the discriminatory purpose, and in itself a violation of Section 8(a)(1) of the Act. The second discharge of employees Harkness and Pasculli by Captive on April 23. 1973, after they were called back and reported for work that morning, was directly at the instigation of the Garment Workers. When both employees refused to sign the Garment Workers cards proffered them by the Garment Workers plant representa- tive, President Raymonds fired them. In so doing, Captive again violated Section 8(a)(1), (2), and (3) of the Act by continuing to recognize Garment Workers and to enforce the union-security clause unlawfully extended to the toolroom at a time when Garment Workers did not represent an uncoerced majority of the unit of toolroom employees. Correlatively, Garment Workers violated Section 8(b)(1)(A) and (2) of the Act by seeking and obtaining from Captive recognition as bargaining representative of the unit of toolroom employees and agreement to incorpo- rate them into the Garment Workers collective-bargaining contract when Garment Workers did not represent an uncoerced majority of these employees, and by requesting and requiring Captive to compel the toolroom employees to become members of Garment Workers and requiring that employees Harkness and Pasculli be discharged because they refused to join Garment Workers. N. L. R. B. v. Revere Metal Art Co., 280 F.2d 96, 99-100 (C.A. 2, 1960), cert. denied 364 U.S. 894 (1960); N. L.R.B. v. Seine and Lien Fishermen's Union [Paul Biazevich, et al. d/bla M. V. Liberator, et al.], 374 F.2d 974, 977 (C.A. 9, 1967), cert. denied 389 U.S. 913 (1967); MelbetJewelry Co., supra, 180 14 The Regional Director had moved for and obtained m the U S District Court a temporary restraining order against Toolmakers picketing to compel employers tojoin an employer organization , Resp. Exhs. 3 and 4. The settlement of February 23, 1973 (G C. Exh. 7, In. 9, supra ), washed out the controversy by termination of the strike , agreement that the sinking employees would return to work and be taken back, and agreement on 759 NLRB at 110; Sheraton-Kauai Corp., supra, 177 NLRB at 25. The claim of Garment Workers, that it made no demand on Captive to require the toolroom employees to become members of Garment Workers, is refuted by the testimony of the witnesses for both Garment Workers and Captive and by Garment Workers written demand of January 29, 1973 (G.C. Exh. 4), which was not relaxed until May 15, 1973 (G.C. Exh. 6), after the coerced memberships and discriminatory discharges had been effected. Garment Workers further claims that the rights of the toolroom employees were not violated is obviously without merit, and the Regional Director was clearly justified in suspend- ing the pending representation case, 22-RC-5627, until the unfair labor practice questions raised in the case at bar were determined and relief given from violations that if left unremedied would unfairly prejudice the rights of the affected employees and their ultimate freedom of choice. In this connection, it should be noted that the record in the case at bar is far more complete and informative on the toolroom unit question15 than the record made in the pending representation case, exhibits Resp. Union 2(a), (b), and (c), which record was developed without the participa- tion of the General Counsel. CONCLUSIONS OF LAW 1. Employer Captive's toolroom employees constitute an appropriate unit for collective bargaining. 2. By unlawfully assisting and supporting the Garment Workers Union to accrete the unit of toolroom employees into the unit of production and maintenance employees represented by Garment Workers, by unlawfully extending Garment Workers union-security contract with Captive to the unit of toolroom employees, by enforcing the contract provisions with coercion and discharges of toolroom employees, and by promising benefits to and threatening reprisals against its toolroom employees in order to discourage their support of Toolmakers Union and to encourage their membership in Garment Workers Union, Captive has engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act. 3. By unlawfully demanding and accepting from Captive recognition as the exclusive bargaining representa- tive of the unit of Captive's toolroom employees, by unlawfully submitting said employees to the terms of the collective-bargaining contract governing Captive's unit of production and maintenance employees, by unlawfully extending the union-security contract to the toolroom employees, and by requiring and obtaining the assistance of Captive to coercively enforce its provisions, including discharges of toolroom employees, Garment Workers restrained, coerced, and is restraining and coercing, the toolroom employees in the exercise of their rights guaran- teed in Section 7 of the Act, in violation of Section 8(b)(1)(A) and (2) of the Act. holding consent elections in the struck shops. 15 For example, on such matters as the details of supervision , division of work between toolmakers and production workers, educational background and training of toolmakers, hours of work, the hiring of toolmakers, and information provided them on the question of a union, and other pertinent items 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It will be recommended that: (1) Captive and Garment Workers cease and desist from their unfair labor practices and, because of their disregard of fundamental employee rights, from in any other manner infringing upon the rights of the toolroom employees guaranteed by Section 7 of the Act; (2) Captive cease recognition of Garment Workers as exclusive bargaining representative of the toolroom em- ployees, and Garment Workers cease acting as such representative, and that both desist from applying to the toolroom employees the union-security provisions of the contract between them unless and until Garment Workers is certified by the Board as the representative of said employees; (3) Because of the coercion involved and their combined responsibility for it, Captive and Garment Workers shall, as a matter of joint and several responsibility, reimburse the toolroom employees, including former employees, for all union initiation fees, dues, and other moneys unlawfully collected from them pursuant to the inapplicable contract and the unlawful checkoff authorizations, N.L.R.B. v. Revere Metal Art Co., supra, 280 F.2d 96, 100; Melbet Jewelry Co., supra, 180 NLRB 107, 110; and similarly shall make former employees Harkness and Pasculli whole for any loss of earnings suffered by them as a result of their discharges on February 28 and again on April 23, 1973. In accordance with Board policy, there shall be an allowance of interest at the rate of 6 percent per annum added to the sum due each employee or former employee, computed on the basis of separate calendar quarters with interest to begin running as of the last day of the calendar quarter, for initiation fees, dues, and other moneys exacted or due in that calendar quarter, until compliance with the reimburse- ment order is achieved, Salmirs Oil Co., 139 NLRB 25, 27 (1962); and, likewise, backpay due the two discharged employees shall be computed on a quarterly basis, as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest at 6 percent, as provided by the Board in Isis Plumbing and Heating Co., 138 NLRB 716 (1962); and (4) Captive and Garment Workers post and deliver the notices provided for herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: 16 ORDER A. Respondent Captive, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its toolroom employees with loss of jobs, discharging or laying them off, or threatening or engaging in other reprisal, because they support or participate in organizing for Toolmakers Union or other labor organiza- tion. (b) Promising wage increases or other benefits to induce its toolroom employees to forego support of Toolmakers Union or other labor organization. (c) Discouraging its toolroom employees from member- ship in Toolmakers Union or other labor organizations by promise of benefits, or by layoff, discharge, threats thereof, or other discrimination affecting tenure and conditions of employment. (d) Encouraging its toolroom employees to become members of Garment Workers Union or other labor organizations by promise of benefits, or by layoff, discharge, threats thereof, or other reprisal or discrimina- tion affecting their tenure and conditions of employment if they fail to become members. (e) Contributing support and assistance to Garment Workers Union or to any other labor organization of its employees. (f) Recognizing Garment Workers Union as the exclu- sive bargaining representative of its toolroom employees for the purposes of dealing with Captive concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment , unless and until Garment Workers Union shall have demonstrat- ed its exclusive majority representative status pursuant to an election conducted by the Board among the toolroom employees. (g) Applying the collective-bargaining contract between Captive and Garment Workers Union to the toolroom employees or giving the contract effect as to the toolroom employees, provided that nothing herein shall require Captive to vary or abandon any wages, hours, or other substantive feature of its relations with the toolroom employees established in performance of the contract, or to prejudice the assertion by the employees of any rights they may have thereunder. (h) Giving effect to checkoff authorizations executed by the toolroom employees in favor of Garment Workers Union. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Gar- ment Workers Union as the exclusive bargaining represent- ative of the toolroom employees for the purpose of dealing with Captive concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Garment Workers shall have demonstrated its exclusive majority status pursuant to an election conducted by the Board among the toolroom employees. (b) Jointly and severally with Garment Workers Union reimburse the toolroom employees, including former employees, for all union initiation fees, dues, and other moneys paid or checked off pursuant to the aforesaid 16 In the event no exceptions are filed as provided by Sec 102.46 of the Section 102.48 of the Rules and Regulations , be adopted by the Board and Rules and Regulations of the National Labor Relations Board, the findings, become its findings, conclusions, and order, and all objections thereto shall conclusions, recommendations, and Order herein shall, as provided in be deemed waived for all purposes. CAPTIVE PLASTICS, INC. contract and checkoff authorizations, and jointly and severally with Garment Workers Union make former employees Harkness and Pasculli whole for any loss of earnings incurred by them as a result of their discharges on both February 28 and April 23, 1973. The reimbursement of fees and dues and the payment of lost earnings shall be made in the manner set forth in the section of this decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all records concerning payroll, personnel, social security payments, timecards, disbursements, and all other records necessary to ascertain the backpay and the reimbursement of union fees and dues owed under the terms of this order. (d) Post in the Captive plant at Piscataway, New Jersey, copies of the attached notice hereto marked"Appendix A."17 Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region 22 (Newark, New Jersey), Captive shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Captive to insure that said notices are not altered, defaced, or covered by any other material. (e) Deliver or mail forthwith to the Regional Director additional signed copies of the notice Appendix A, as provided in the preceding paragraph A 2(d), for posting by Garment Workers Union at its business offices and meeting halls in conspicuous places, including places where notices to members are customarily posted. (f) Post and maintain at the same place and under the same conditions provided in paragraph A, 2(d) above, as soon as forwarded by the Regional Director, copies of the attached notice hereto marked "Appendix B."is (g) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Captive has taken to comply herewith. B. Respondent Garment Workers Union, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of Captive's toolroom employees for the purpose of dealing with Captive concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Garment Workers Union shall have demonstrated its exclusive majority representa- tive status pursuant to an election conducted by the Board among the toolroom employees. (b) Giving effect to, or requesting or requiring Captive to give effect to, the collective-bargaining contract between Captive and Garment Workers as applied to the toolroom employees of Captive. (c) In any other manner restraining or coercing the toolroom employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Captive reimburse the toolroom employees, including former employees, for all union initiation fees, dues, and other moneys, paid or 761 checked off pursuant to the contract between Captive and Garment Workers Union and the checkoff authorizations, and jointly and severally with Captive make former employees Harkness and Pasculli whole for any loss of earnings incurred by them as a result of their discharges on both February 28 and April 23, 1973. The reimbursement of fees and dues and the payment of lost earnings shall be made in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all records necessary to ascertain what is owed in reimburse- ment of union fees, dues, and other moneys under the terms of this Order (c) Post in Garment Workers Union business offices and meeting halls copies of the attached notice hereto marked "Appendix B."19 Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region 22, Garment Workers Union shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Garment Workers Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver or mail forthwith to the Regional Director additional signed copies of the notice Appendix B, as provided in the preceding paragraph B, 2(c), for posting by Captive at its plant in Piscataway, New Jersey, in conspicuous places, including places where notices to employees are customarily posted. (e) Post and maintain at the same places and under the same conditions provided in paragraph B 2(c) above, as soon as forwarded by the Regional Director, copies of the notice attached hereto marked "Appendix A." 20 (f) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Garment Workers Union has taken to comply herewith. 17 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." 18 See preceding In. 17, supra 19 See fn . 17, supra. 20 See In. 17, supra APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the National Labor Relations Act, we notify you that: WE WILL NOT threaten our toolroom employees with loss of jobs, or discharge or lay them off, or threaten or engage in other reprisal, because they support or 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participate in organizing for the Toolmakers Union or other labor organization. WE WILL NOT promise wage increases or other benefits to induce our toolroom employees to forego support of the Toolmakers Union or other labor organization. WE WILL NOT discourage our toolroom employees from membership in the Toolmakers Union or other labor organizations by promise of benefits or by layoff, discharge, threats thereof, or other discrimination affecting their tenure and conditions of employment. WE WILL NOT encourage our toolroom employees to become members of Garment Workers Union or other labor organization by promise of benefits, or by layoff, discharge, threats thereof, or other reprisal or discnmi- nation affecting their tenure and conditions of employ- ment. WE WILL Nor contribute support and assistance to Garment Workers Union or to any other labor organization of our employees. WE WILL withdraw recognition from, and wE WILL NOT recognize, Garment Workers Union as the exclu- sive bargaining representative of our toolroom employ- ees unless and until Garment Workers has demonstrat- ed its exclusive majority representative status in an election among the toolroom employees conducted by the National Labor Relations Board. WE WILL NOT apply the collective-bargaining con- tract between ourselves and Garment Workers Union to the toolroom employees, and we will not give the contract effect as to them, noting, however, that nothing in the decision requires us to vary or abandon the wages, hours, or other substantive feature of our relations with the toolroom employees established in performance of the contract, or to prejudice the assertion by the employees of any rights they may have thereunder. WE WILL NOT give effect to the checkoff authoriza- tions executed by our toolroom employees in favor of Garment Workers Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL, jointly and severally with Garment Workers Union, reimburse with interest our toolroom employees, including former employees, for all union initiation fees, dues, and other moneys paid or checked off to Garment Workers Union, and wE WILL, jointly and severally with Garment Workers, pay former employees Harkness and Pasculli for loss of earnings, with interest, because of their discharges on both February 28 and April 23, 1973. CAPTIVE PLASTICS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building-16th Floor, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2 100. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the National Labor Relations Act, we notify you that: WE WILL NOT act as the exclusive bargaining representative of the toolroom employees of Captive Plastics, Inc. (hereinafter called Captive) unless and until we have demonstrated our exclusive majority representative status in an election among the toolroom employees conducted by the National Labor Relations Board. WE WILL NOT give effect to, or request or require Captive to give effect to, our collective -bargaining contract as applied to the toolroom employees of Captive. WE WILL NOT in any other manner restrain or coerce the toolroom employees of Captive in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL, jointly and severally with Captive, reimburse, with interest, the toolroom employees for all union initiation fees, dues, or other moneys paid or checked off to us pursuant to the contract with Captive and the checkoff authorizations, and WE WILL, jointly and severally with Captive, pay, with interest, former Captive employees Harkness and Pasculli for loss of earnings incurred by them as a result of their discharges on both February 28 and April 23, 1973. PLASTIC MOULDERS AND NOVELTY WORKERS' UNION, LocAL 132, A/W INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building-16th Floor, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2100.