Hermet, Inc.

HERMET, INC. Hermet, Inc. and Charles Zawislak and Local 545, In- ternational Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO Local 545, International Association of Bridge, Struc- tural and Ornamental Ironworkers, AFL-CIO and Charles Zawislak and Hermet, Inc. Cases 22-CA-6120 and 22-CB-2824 January 9, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On May 30, 1975, Administrative Law Judge Nan- cy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent Local 545 filed exceptions and a supporting brief, and Respondent Hermet filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Hermet, Inc., Dover, New Jersey, its officers , agents, succes- sors, and assigns, and Respondent Local 545, Inter- national Association of Bridge , Structural and Orna- mental Ironworkers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order as so modified: 1. Delete paragraph 2(a)(1) and substitute therefor the following: "(1) Entering into a collective-bargaining agree- ment, with or without a clause requiring membership in Local 545 as a condition of continued employ- ment, with Hermet, Inc., where Local 545 does not represent an uncoerced majority of employees in the appropriate unit." 2. Substitute the attached notice for that of the Administrative Law Judge marked "Appendix B." i In its exceptions, Respondent Local 545 asserts, inter aha, that the Ad- 29 mimstrative Law Judge's recommended Remedy provides for a cease-and- desist Order which is unjustifiably broad insofar as it applies certain prohi- bitions against future collective-bargaining agreements it may enter into with employers other than Respondent Hermet . Further, Local 545 main- tains that there is no record support for the Administrative Law Judge's related conclusion that, absent such prohibitions , there is a likelihood of Local 545 entering into collective-bargaining agreements with such other employers under circumstances similarly violative of Sec 8 (b)(1)(A) and (2) of the Act We find merit in Local 545's contentions and shall, accordingly, modify the Administrative Law Judge's recommended Order and issue a modified notice. Respondent Hermet excepts, inter alia, to the portions of the recommend- ed Remedy and Order which make it jointly and severally liable, with Re- spondent Local 545, for reimbursement to its employees of dues paid to Local 545. It contends, in effect, that-as the dues it collected from employ- ees were paid over to Local 545-responsibility for dues reimbursement must be placed solely on that union While it appears from the record that some or all of the dues collected from employees by Hermet were , in fact, paid over to Local 545, we find that it is nevertheless proper for Hermet to be made jointly and severally liable under the circumstances of this case . Thus, the facts of this case reveal that, although it had prior knowledge that the employees had advised the International Union that they preferred to have Local 455 continue to rep- resent them, Hermet unlawfully participated in the solicitation of signatures on transfer requests and thereafter executed and maintained an unlawful union-shop agreement with Local 545. Contrary to our colleague, we do not believe that these are "appropriate circumstances" under which to impose only secondary liability on Hermet The cases cited by our colleague are distinguishable since they involved situations where the employer who was held secondarily liable either strongly resisted the unions' unlawful demands or acted in "good faith." See Bulletin Company, 181 NLRB 647 (1970); N L.R B v. Lexington Electric Products Co, Inc, 283 F.2d 54 (C A 3, 1960) In any event, we note that in cases of this nature the usual practice in our compliance procedure has been to initially seek full reimbursement of dues paid from the party who was the ultimate recipient of the funds involved. Here, full compliance by Respondent Local 545 will eliminate the need for compliance on this point by Respondent Hermet. Chairman Murphy would modify the Remedy to find that Respondent Local 545 is primarily liable for the reimbursement of union dues to the employees and the Employer is only secondarily liable , under the circum- stances of this case The Employer has transmitted the dues moneys to the Union, and the Union should therefore be primarily responsible for making restitution . It is well-settled Board policy, in appropriate circumstances, to find such primary and secondary liability See , e.g., SuCrest Corporation, 165 NLRB 596 (1967), enfd 409 F.2d 765 (C A 2, 1969), and Zoe Chemical Co, Inc., 160 NLRB 1001 (1966), enforcement denied on other grounds 406 F 2d 574 (C.A 2, 1969) The facts of this case, which are undenied, clearly war- rant such a determination. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to present their evidence, it has been decided that we violated the law and we have been ordered to mail you this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT enter into a collective-bargaining agreement, with or without a clause requiring union membership as a condition of continued employment, with Hermet, Inc., when we do not represent an uncoerced majority of the employ- ees in an appropriate unit. WE WILL NOT maintain or enforce an agree- 222 NLRB No. 3 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment entered into under such circumstances. WE WILL NOT threaten employees with loss of jobs if they do not apply for membership in our organization. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL, jointly and severally with Hermet, Inc., make Hermet's employees whole, with in- terest, for dues paid to us, in the manner de- scribed in that part of the Decision entitled "The Remedy." LOCAL 545, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS , AFL-CIO FINDINGS OF FACT 1. JURISDICTION The Company is a New York corporation which, be- tween August 1972 and February 1975, maintained a plant in Dover, New Jersey, where it manufactured, sold, and distributed steel smokestacks and related products. During the 12 months preceding the February 1975 issuance of the complaint, a representative period, the Company shipped directly to points outside New Jersey products valued in excess of $50,000. The complaint alleges that Respondents committed unfair labor practices beginning in September 1974. I find that, as Respondents concede, the Company is engaged in commerce within the meaning of the Act, and assertion of jurisdiction herein will effectuate the policies of the Act. Local 545 is a labor organization within the meaning of the Act. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding, heard at Newark, New Jersey, on March 10, 11, and 20, 1975, pursuant to charges filed on October 31, 1974, a first amended charge filed against Respondent Hermet, Inc. (the Company), on January 31, 1975, and a complaint issued on February 7, 1975, presents the follow- ing questions: (1) whether the Company violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended (the Act), and Respondent Local 545, Interna- tional Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO (Local 545), violated Section 8(b)(1)(A) and (2), when they allegedly entered into a col- lective-bargaining agreement, containing a union-security clause, at a time when Local 545 allegedly did not repre- sent an uncoerced majority of the Company's employees in the contract unit, and thereafter maintained and enforced that agreement; (2) whether the Company violated Section 8(a)(1) and (2) of the Act by allegedly otherwise assisting and supporting Local 545; and (3) whether Local 545 vio- lated Section 8(b)(1)(A) by allegedly threatening employees with loss of jobs unless they joined Local 545. The General Counsel and Local 545 appeared at the hearing through counsel. The Company filed an answer denying material allegations of the complaint, and its vice president (presi- dent at all material times) testified on Local 545's behalf, but the Company did not file an appearance at the hearing. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by Local 545 and counsel for the General Counsel (the Gener- al Counsel), I make the following: 1 To an extent not wholly clear, Local 545's brief relies on "a statement taken from [William Colavitol during the course of the investigation by the Board The statement was neither used in an attempt to contradict his testi- mony, nor was it offered in evidence " Colavito did not testify ' I have decid- ed this case without regard to any alleged prehearing statement by him II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Prior litigation before the Board Prior to August 15, 1972, the Company's fabricating shop was located in Corona, New York, which is within the territorial jurisdiction of Shopmen's Local Union No. 455, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO (Local 455 or the Brook- lyn local) .2 On August 25, 1972-10 days after the shop moved to Dover, New Jersey, about 50 miles from its for- mer location and within the territorial jurisdiction of Local 545-Administrative Law Judge Max Rosenberg issued a decision finding, inter alia, that in 1971 the Company had violated Section 8(a)(2) of the Act by assisting, supporting, and recognizing Local 5, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (the Boilermakers), and had violat- ed Section 8(a)(5) by refusing to recognize the Brooklyn local on the basis of a majority card showing. Administra- tive Law Judge Rosenberg recommended an order requir- ing the Company to, inter alia, withdraw and withhold rec- ognition from the Boilermakers unless and until it was cer- tified and bargain with the Brooklyn local. Exceptions to his decision were filed by, inter alia, the Company and the Brooklyn local, which was the charging party in that pro- ceeding. On April 12, 1973, the Board adopted his recom- mended order. Lawrence Rigging Inc., 202 NLRB 1094 (1973). By letter dated October 9, 1972, while Administrative Law Judge Rosenberg's decision was pending before the Board on exceptions, Local 545 asserted to the Company that it represented a majority of the Company's employees, and requested recognition. On October 24, 1972, the Boil- ermakers filed a representation petition. Local 545 was per- mitted to intervene in the proceeding on the basis of a showing of interest of approximately 25 authorization cards in a unit consisting of 57 employees as of October 24, 2 The Company's corporate name was then Lawrence Rigging, Inc HERMET, INC. 31 1972. The Brooklyn local was also permitted to intervene on the basis of the Board's bargaining order and a collec- tive-bargaining agreement, discussed infra, which was exe- cuted about March 1973, about 5 months after the Boiler- makers filed its petition. On November 30, 1973, the Board dismissed the Boilermakers petition on the following grounds (Hermet, Inc., 207 NLRB 671, 672 (1973): [T]he Employer and the [Brooklyn local] assert that the contract and the Board's Order requiring the Em- ployer to bargain with the [Brooklyn local] are bars to the petition. At the time of the filing of the petition by the Boilermakers, the Employer was obligated to bar- gain with the [Brooklyn local]. Such a finding had been made in a decision of an Administrative Law Judge which was later affirmed by the Board. Under these circumstances, and particularly where, as here, the petitioning Union [the Boilermakers] had recently been found to have been unlawfully assisted with re- spect to the same unit, we do not find that the petition raised a question concerning representation in view of the Employer's obligation to bargain with the [Brook- lyn local] which existed at the time the petition was filed and which subsequently resulted in the execution of a contract which is still in effect. 2. Events prior to the purported transfer of bargaining rights from the Brooklyn local to Local 545 a. Events leading up to the contract's execution On March 14, 1973, the Company's employees com- menced a strike, called by Local 455, in an effort to compel the Company to execute a satisfactory bargaining agree- ment. That day, Carlos Feliciano, whose employee status at that time is undisputed, reported the strike to Local 545's business agent, Michael McHugh. McHugh there- upon called the president of the Brooklyn local, William Colavito, and together they set up an employee meeting at which they established an employee bargaining committee and arranged for picket lines. During the strike, McHugh and Local 545 president Michael Dinkowitz showed up at the picket line from time to time .3 During the strike, some employees signed a petition au- thorizing the Brooklyn local to represent them. Also during the strike, employee Feliciano obtained from McHugh a number of printed authorization cards, which he circulated among his fellow employees. At least 25 of Respondent's 56 unit employees signed cards thus distributed by Felici- ano. The printed portion of the cards contains a blank in which the number of the particular Ironworkers local is to be written. McHugh testified that he inserted the number "545" on each card before giving the cards to Feliciano, and gave "545" cards to no other employee; and Feliciano testified that all the cards contained such an entry when he received them. However, employee Timothy Gardner tes- tified that the cards which he received and handed out to the employees, including the card signed by Gardner him- self and two whose signatures he witnessed , contained, no entries on the printed line after the printed "Local" nota- tion.4 Gardner's testimony that he asked for the return of his card after learning that "545 instead of 455 was put in" was to some extent corroborated by Feliciano. Moreover, employees Charles Zawislak and David Young testified that the cards which they received from Feliciano did not bear a local number, and Young testified that no local number was on his signed card when he returned it to Feli- ciano.5 On the basis of the witnesses' demeanor, I- credit Gardner, Zawislak, and Young; discredit McHugh's and Feliciano's testimony that all the cards named "545" when signed; conclude that an undeterminable number (perhaps all) of the cards did not name "545 " when signed; and, accordingly, conclude that these cards have no probative weight in determining whether the signatory employees preferred Local 545 to Local 455, the Brooklyn local. Moreover, in view of Feliciano's misrepresentations in this respect and his demeanor, I discredit his uncorroborated testimony that, when employees asked him during the strike why representatives of both locals were there , he said "that being the shop was a runaway shop and they were trying to get the shop, the National Labor Relations Board permitted them to be there for [a]while, until we made the transfer . . . it is the Labor Board, they want [Local 545] over here because it was a runaway shop." Among the participants in contract negotiations during the strike were the Brooklyn local's president, Colavito; its financial secretary, John Zito; Local 545's business agent, McHugh; its president, Dinkowitz; and a five-man em- ployee committee including Gardner and Feliciano. Gard- ner credibly testified that he knew who McHugh and Din- kowitz were, and the record shows similar knowledge by Feliciano .6 The agreement concludes by reciting, "the par- ties hereto have hereunto set their hands and seals," and then the name of the Brooklyn local "By" one or more individuals.' The contract also contains an entry "Ap- proved as to Form: International Association of Bridge, Structural and Ornamental Iron Workers." At no point does Local 545's name appear in the contract. In reply to my inquiry during the opening statement by Local 545's counsel as to whether Local 545 was a signatory to the contract, its counsel replied, "They could not be at that point. The Board had designated, as you will recall in the New York proceeding, 455 as the representative of the em- ployees." b. Relevant contractual provisions The bargaining agreement as executed provided,, inter alia: THIS AGREEMENT, executed and effective as of the first day of April, 1973, by and between LAWRENCE RIGGING, 4 Gardner signed the authorization card on March 15, and Young signed on March 19 On or about March 21, both signed a petition authorizing Local 455 to represent them. 5 Zawislak did not sign a card. 6 However, employee Young, who was not on the bargaining committee, credibly testified that he did not know that Local 545 participated in the bargaining sessions. 3 However, employee David Young credibly testified that he thought they 7 The record fails to show who actually signed the contract under the and Colavito were "all from the same union." Brooklyn local's name 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INC. (HERMET, INC.), 100 East Dickerson Street, Dover, New Jersey 07801, (including its successor or as- signs), ... and Shopmen's Local Union No. 455 of the _ International Association` of Bridge, Structural and Ornamental Iron Workers (AFL-CIO), (including its successors or assigns), hereinafter referred to as the ".Union", as the agent for and acting in behalf of the Company's production and maintenance employees WITNESSETH THAT THE PARTIES HAVE AGREED AS FOLLOWS: The contract also required employees "to be or become a member of the Union" as a condition of continued em- ployment, and provided that, upon receipt of the individu- al employee's signed authorization, the Company would deduct "Union dues" from his paycheck and mail a check "made payable to the Union" for the deductions "to the Financial Secretary of the Union." In addition, the con- tract contained clauses regarding union stewards, and pro- vided that "Business agents and/or other authorized repre- sentatives of the Union" would be permitted to enter the shop when employees were working for the purpose of in- vestigating complaints or working conditions. Also, the Company was to make specified payments to the "Iron Workers Local 455 Welfare Fund," the "Iron Workers Local 455 Pension Fund," the "Iron Workers Lo- cal 455 Sick Leave Fund," the "Local 455 Apprenticeship, Training-Upgrading Trust Fund," and the "Iron Workers Local 455 Annuity (Supplemental-retirement) Fund." The Company undertook to provide certain personnel informa- tion to the trustees of these "Funds." Additionally, the Company agreed to increase or alter certain monetary pay- ments to conform to the "standard agreement to be negoti- ated between the Union and the independent shops to suc- ceed the standard independent agreement which expires on June 30, 1973." Further, the contract contained the follow- ing: The International . . . is not a party to this agree- ment and similarly shall have no right to redress there- under against the Company for a breach hereof. However, before this agreement and any amendments thereto may become binding and effective, the Inter- national must approve this agreement and/or such amendments as to form. Such approval by the Inter- national as to form shall not be construed to make the International a party to this agreement or any amend- ments thereto ... . c. Events in connection with the "successors or assigns" clause On March 19, 1973, Local 455 and the Company signed an agreement in which the Company recognized Local 455 as the employees' exclusive bargaining representative. The preamble language "Local 455, its successors or assigns" was inserted in the April 1, 1973, contract at the request of Local 545 Business Agent McHugh. The Company's attor- neys thought this was a "good" provision, because it would assure the Company that the contract would still be in ef- fect after the "transfer" to or "takeover" by Local 545. During a meeting between the employee negotiating committee and the two locals' officials before the negotia- tions had reached the agreement eventually presented to the employees for ratification, McHugh asked Colavito when and how the shop would be turned over to Local 545. The officials of the two locals became involved in an argu- ment as to whether the shop would be turned over to Local 545. Gardner then asked Colavito why the "successors or assigns" language had been included in the draft agree- ment. In reply, Colavito told the employee negotiating committee, in the presence of Local 545 officials but not company representatives, that this language had been in- serted to "keep the men together" by avoiding employees' arguments during the negotiating period about which local they were "going to." Colavito said "we will take that up separately." There is no credible evidence that Local 545's officials made any relevant comments.' After the negotiators had reached an agreement, an em- ployee meeting was called about April 1, 1973, to de- termine whether the contract would be ratified. Among those present were Colavito, McHugh, and Dinkowitz. Co- lavito told the employees, inter alia, that "the bargaining unit was 455 and its successors and assigns." He did not say that the bargaining rights would be transferred to Lo- cal 545 within a reasonable time? The employees ratified the contract. d. The locals' relationship inter se and with the Company Before negotiations began, officials of the two locals started to discuss arrangements for transferring bargaining rights to Local 545. On April 30, 1973, they orally agreed that such a transfer would take place after about 6 months or, perhaps, after a reasonable time. Between about Sep- tember 1973 and the beginning of October 1974, Dinkowitz paid about six visits to the shop to talk to the men. In each case, he first obtained the Company' s permission. During these visits,'he did not represent employees in processing their grievances, hold conversations with management as these employees' bargaining representative, or hold himself out as the employees' collective-bargaining representative. Following the execution of the contract, Brooklyn Local president, Colavito, conducted an election in which the employees in the shop voted for three employees to act as shop stewards. These shop stewards processed grievances 8 My findings in this paragraph are based on the credible testimony of Gardner, who impressed me as an intelligent and honest witness McHugh testified that the employee members of the negotiating committee, including Feliciano and Gardner, were told during negotiations that a transfer of bargaining rights would occur within a "reasonable amount of time " Felici- ano, whose native language is Spanish although he speaks fairly good Eng- lish, testified that "during the negotiations we all agreed that we were going to make a transfer from 455 to 545." but he was not asked about the specific discussions on which he based this conclusion On the basis of the witnesses' demeanor, I credit Gardner McHugh admitted that the negotiating com- mittee did not receive a "direct order" to tell the other employees that there would be a transfer within a reasonable time. s My finding in this sentence is based on McHugh's testimony that he did not recall Colavito's saying this I believe that McHugh would have recalled Colavito's saying this if he had in fact said it. HERMET, INC. 33 at the earlier stages, and Colavito handled them at subse- quent stages. Colavito visited the plant at least once a week. He would ask the employees if they had any prob- lems, and sometimes met with the stewards to discuss past and possible future "problems." In March 1974, Colavito and Zito conducted a meeting of the Company's employees at the Moose lodge in the Dover area.10 McHugh and Din- kowitz also attended. Those present discussed the results of arbitration cases regarding company employees, the em- ployees' "problems," and an alleged company claim of poor worker-company relationships. Arne Jacobsen, who was the company president at all material times, testified that, between the execution of the contract and the purported transfer of bargaining rights in the fall of 1974, he considered that the Brooklyn local, and not Local 545, was the employees' bargaining representa- tive. Similarly, Local 545 Business Agent McHugh testified that before the locals' September 1974 agreement purport- ing to transfer bargaining rights, the employees' recognized bargaining representative was the Brooklyn local. B. Alleged Supervisory Status of Certain Individuals Counsel for the General Counsel alleges, and Respon- dents deny, that certain individuals who were covered by the collective-bargaining agreement were supervisors with- in the meaning of the Act. These issues are material to matters considered infra and for purposes of convenience will be treated at this point. The immediate superior of James Reilly was Plant Super- intendent Philip Dugan, whose supervisory status is con- ceded in both answers. The Company's answer does not deny Reilly's supervisory status, but Company President Jacobsen testified that he did not consider Reilly a supervi- sor. Reilly's title was general foreman and layoff man. The entire shop came under his jurisdiction, but he had other foremen who worked under him. He had authority to inde- pendently assign employees to jobs, to take people off jobs, to move employees between jobs, to effectively recommend disciplinary action (including firing), and to reprimand em- ployees. In addition, he saw to it that employees were pre- sent at their work stations. Reilly seldom performed the work done by persons who were admittedly employees. He wore a white hat like admitted Supervisor Philip Dugan, whereas hats of other colors were worn by personnel who were admittedly employees. I find that Reilly had authori- ty, in the Company's interest and in the exercise of inde- pendent judgment, effectively to recommend employees' discharge and discipline and responsibly to direct them. I conclude that he was a supervisor within the meaning of Section 2(11) of the Act. Thomas Dugan, who was directly responsible to Reilly, was the helper foreman. He could effectively recommend the discipline of helpers, varying in number from 5 to 10. He had the authority to assign work to helpers, to move helpers between jobs, and to tell them what to do. He kept track of helpers to make sure they were doing their as- signed jobs, and occasionally gave them oral reprimands. He wore a white hat and spent no more than a fourth of his time performing manual labor. He was paid at least 60 cents an hour more than the highest paid helper under him. I find that he had authority, in the Company's interest and in the exercise of independent judgment, effectively to rec- ommend discipline of helpers and responsibly to direct them. I conclude that he was a supervisor within the mean- ing of Section 2(11) of the Act. Carlos Feliciano became a foreman about May 1973.11 He assigned employees to jobs. Sometimes Reilly told him whom to assign, and sometimes Reilly left the selection to Feliciano. With Reilly's permission, Feliciano could trans- fer employees between jobs. When he thought employees were not working hard enough, he told them this and sometimes reprimanded them. Feliciano performed con- siderable manual work when the work force was small, but very little when it was large. He wore a white hat and re- ceived at least 60 cents an hour more than those who wore hats of other colors. I find that after May 1973 Feliciano had the authority, in the Company's interest and in the exercise of independent judgment, responsibly to direct employees. I conclude that after May 1973 he was a super- visor within the meaning of Section 2(11) of the Act. Daniel Quayle is listed as a mechanic on the September 30, 1974, seniority list, and the man whom he eventually replaced as foreman, Verblitsky, appears on that list as a foreman. Verbhtsky's signature appears on one of the ap- plications for transfer from the Brooklyn local to Local 545, dated October 11, 1974. There is no contention or evidence that Quayle was a supervisor before he became foreman. The Company's answer admits at one point, but elsewhere denies, that Quayle was a foreman at material times; 12 Local 545's answer admits that Quayle was a foreman at all material times, but denies that he was a supervisor. I conclude that Quayle did not become a fore- man (and, therefore, did not become a supervisor) until after October 11, 1974.13 C. The Purported Transfer of Bargaining Rights 1. The locals' execution of the transfer agreement On or about November 1973, Local 545 President Din- kowitz made several unsuccessful efforts to get in touch ° About the middle of the last day of the hearing, after resting and while cross-examining Feliciano, counsel for the General Counsel stated that he intended to seek his superior's permission to amend the complaint so as to add the allegation that Feliciano was a supervisor After all parties had rested, counsel for the General Counsel moved to amend the complaint so as to add an allegation that the Company violated the Act through Feliciano's conduct at a September 30, 1974, employee meeting Local 545's counsel opposed the motion, but stated that, if this allegation as to Feliciano had been in the original complaint, counsel would not have asked any addi- tional questions of any witnesses who were not in the hearing room when the motion was made. Further, counsel declined to call any witnesses pre- sent in the hearing room in connection with the motion to amend I granted the motion and also granted Local 545's motion for leave to amend its answer to deny the newly added allegation i2 See pars. 2-6 of the Company's answer in light of pars 7-13(a) of the complaint i3 Zawislak, who was not laid off until the end of October 1974, testified to The location of the Brooklyn local's regular meeting hall was inconven- that as of September 30, 1974, Quayle had a white hat and was giving out ient for the Company's employees at the Dover shop. Colavito believed that jobs Zowislak elsewhere evinced a poor memory for dates (infra, fn 15). 1 "getting them away from the shop would make . . for better atmosphere " conclude that he was mistaken as to this date as well. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Brooklyn local president, Colavito, about transferring to Local 545 the bargaining rights with respect to the Company's shop. Dinkowitz eventually brought the matter to the attention of McHugh, his superior, who got in,touch with both Colavito and International President John H. Lyons. By letter to McHugh and Colavito dated August 26, 1974, Lyons asserted that in February 1974 Colavito had advised him by letter that the two locals had agreed to a transfer of bargaining rights after a minimum of 6 months following the Board's representation case decision, which issued on November 30, 1973. Lyons' letter stated, "It is becoming very difficult to understand why the [transfer of bargaining rights] has not been consummated to this date I, therefore, am assigning an International representa- tive to assist both local unions in completing the transition of jurisdiction ,... and to complete this matter no later than October 1, 1974." On September 27, 1974, International Organizer William Modell came -to the office shared by McHugh and Din- kowitz and produced the following document, which had been signed by Colavito and Zito on September 24 and which McHugh and Dinkowitz signed on September 27: It is agreed that the bargaining rights now held by Shopmen's Local Union No. 455, New York City is hereby transferred to Shopmen's Local Union No. 545, Newark, New Jersey. The following provisions will be dealt with in the fol- lowing manner. In any case of a disagreement the said disagreement will be decided by General Organizer William J. Modell. Arbitration cases filed by Local 455 will be handled and processed to a conclusion by said Local Union. WELFARE BENEFITS-Can be taken over at a time convenient to Local 545's record requirements. SICK LEAVE-Sick leave contributions will be paid by the Company to Local 455 up through December 31, 1974 in order for the men to be assured of their annual benefit. ANNUITY-Annuity contributions will be paid by the Company to Local 455 up to the time which Local 545 works out an Agreement with the Company pro- viding for benefits equal to the [Company's] Annuity contributions or until March 31, 1975. TRAINING FUND-Contributions for such shall be paid to the employees in a manner agreed upon be- tween Local 545 and the Company. All other conditions of the contract to remain as is until March 31, 1975. All members to be transferred by November 1, 1974. 2. The employees' letter to the International in support of Local 455, the Brooklyn local Having heard rumors about the impending purported transfer of bargaining rights, employee Young suggested to employee Zawislak that the men should write a petition to "the big man." On or about September 26, 1974, Zawislak asked his wife to type the following letter, dated September 27: International Association of Bridge, Structural and Ornamental Iron Workers c/o Mr. John H. Lyons 1750 New York Avenue, N.W. Washington, D. C. 20006 Dear Sir: We, the undersigned, employees of Hermet Corp., 100 E. Dickerson St., Dover, N.J. are now represented by Local #455 of Brooklyn, N.Y. We were advised that as of October 1, 1974 Local #545 of N.J. will be tak- ing over as our union. We are sending you this petition because we prefer to keep Local #455 of Brooklyn. Zawislak signed the latter and, on September 27, brought it, to work with him. At the solicitation of Zawislak and em- ployees Young and Hamilton Fleary, on September 27 and 28 at least 42 employees 14 in a unit of no more than 68 employees 15 signed the letter, which was thereafter mailed to Washington sometime before September 30. When showing the other employees this document, Fleary said, "we have a fighting union, because as far as I heard, every arbitration case we [had] we won, and I don't see why we should use another union. And this shop was being handed over to 545, and we decided to send a petition to Washing- ton to say that we would like the union that we have, and I think we have some kind of right to choose who we want." 3. The announcement of the agreement to transfer bargaining rights On September 30, 1974, Supervisors Reilly and Thomas Dugan and employee Quayle summoned the employees to a meeting in the lunchroom. This meeting was attended by Supervisors Reilly, Thomas Dugan, and Feliciano, all of whom were covered by the collective-bargaining agree- ment; and also by Company President Jacobsen (infra fn. 17), and Plant Superintendent Philip Dugan. Feliciano and Local 545 Representatives McHugh and Dinkowitz distrib- uted to each person present a copy of the September 24-2,7 agreement between Local 545 and the Brooklyn local, quoted above.16 McHugh and/or Dinkowitz said that they 14 This number does not include two illegible signatures However, the credible evidence shows that only company personnel signed. 15 These 68 included 3 persons whom I have found to be supervisors (Reilly, Feliciano, and Tom Dugan) and Foreman Verbhtzsky, whose suc- cessor in that job (Quayle) had authority to recommend discipline of em- ployees and responsibly to direct them, within the meaning of Section 2(11) None of these individuals is among the 42 found to have signed the letter. Zawislak testified that, when the petition was circulated on September 27 and 28, 10 employees on the seniority list were not present, either because they were on layoff status or for some other reason. However, 6 of these 10 signed the letter (Charles Bartha, R Cabrera, Miguel A Castro, Juan Lor- enzo, Joseph Ramella, and Jose Santelis) I regard Zawislak's testimony in this respect as reflecting on his memory rather than on his honesty or on the credibility of the testimony authenticating the signatures on the letter. Four of these six signatures resemble those on forms signed about 2 weeks later requesting a transfer between the locals The record fails to show any trans- fer request purportedly signed by Miguel A. Castro or Jose Santelis 16 This finding is based on Dmkowitz's testimony, which I regard as based on a clearer recollection than McHugh's testimony , that he himself distrib- uted all the copies HERMET, INC. 35 were going to take over the shop by October 1 and that the Brooklyn local would continue to handle pending arbitra- tion proceedings and the funds for welfare benefits, sick leave, and annuities . Employee Danny Hughes mentioned the circulation of the letter (which he had not signed) fa- voring continued representation by the Brooklyn local, and McHugh said that he had heard about it. Jacobsen said that Local 545 would be taking over, that it was a good representative, and that he would abide by the existing contract." The employees were told (inferentially, by Mc- Hugh or Dinkowitz) that eventually they would have to transfer their membership, that the employees would have a weekend to "think about them, to sign them and bang them back Monday morning." At the request of McHugh and some of the employees, Supervisor Feliciano explained in Spanish to some of the Spanish-speaking employees what he regarded as the purport of the remarks made at the meeting. Sometime in October 1974, in the presence of Plant Su- perintendent Philip Dugan, Local 545 Business Agent Mc- Hugh asked employee Zawislak to stay on as shop steward; but in connection with the employees' letter to the Interna- tional, to which letter McHugh referred in foul language, remarked that if Zawislak ever did something like that again, McHugh could get him in a lot of trouble.18 D. The Execution of the Employees' Transfer Applications Before the morning coffeebreak on Friday, October 11, 1974, Loca1545 President Dinkowitz brought in a pile of form applications for transfer from the Brooklyn local to Local 545. Employee Young immediately reported this to employee Zawislak. During the coffeebreak, between 9 and 9:15 a.m., the matter was discussed among a group of em- ployees. Chief Shop Steward Dave Hughes said that he did not know what to do. Employees Young, Fleary, and Za- wislak, and perhaps others, said that they did not want to sign. Young, Fleary, and Zawislak went up to Dinkowitz and told him that they did not want to sign the transfer applications. Dinkowitz replied, "Well, if you don't sign, you will never work in New Jersey again." 19 He spoke in a "kind of loud" tone,20 and Plant Superintendent Philip Du- 17 My finding in this sentence is based on a composite of the testimony of Zawislak, Fleary, and Young. Jacobsen denied attending this meeting "because I would not sanction any of this until I received authorization from the International ," but Mc- Hugh's undenied and credible testimony , based in part upon his personal daily calendar, establishes that on two occasions before receiving the International's letter, the Company met with Local 545 to negotiate changes in the April 1973 agreement. Jacobsen further testified that a few days after receiving the International's October 16 "authorization" letter (described infra) he conveyed a message like that in the text to an employee meeting attended by McHugh and Dmkowitz. Dinkowitz was not asked about either the September 30 meeting or the alleged October meeting McHugh and Feliciano denied that Jacobsen attended the September 30 meeting, Mc- Hugh was not asked about the alleged October meeting . On the basis of the witnesses' demeanor, I credit the testimony set forth in the text is The record fails to show whether Zawislak agreed to stay on as steward He was laid off at the end of October 1974 is This is Zawislak's version. I regard his memory for words as more reliable than that of Young, whose version was, "If you don't sign the card, you cannot be in two unions, and you cannot work in New Jersey" 20 Dinkowitz's testimony at the hearing was given in a very audible tone of voice gan was sitting in his office about 10 feet away with the door open. An undisclosed number of other employees were standing around listening to this exchange. Thereafter, employees began to be called into Plant Su- perintendent Philip Dugan's office, one by one, by Supervi- sor Reilly, Supervisor Thomas Dugan, or employee Quayle. According to Dinkowitz, Philip Dugan was "in and out" of his office during these interviews, but stayed out most of the time. About 10 a.m., Supervisor Reilly called Fleary to Plant Superintendent Philip Dugan's office. When Fleary en- tered, Dinkowitz gave him a transfer application and said, "you can't belong to two unions. The shop is handed over to the New Jersey local, and you got to sign, or you wouldn't be able to work in New Jersey." Fleary said that he did not want to sign the card because of the letter (signed by Fleary) to the International protesting the trans- fer. Fleary credibly testified that "they said I would be going against them if I didn't sign this card." Fleary put the unsigned form in his pocket and left Philip Dugan's office. Thereafter, at about 11 a.m., Zawislak approached em- ployee Young and said, "You must sign, I am going to sign." Young replied, "No way." Then, employee Quayle told Young to go into the office to sign. He replied, "I ain't signing no card." Young did go in, but he refused to sign and left his form there. In the afternoon, Supervisor Reilly told Fleary to go to Plant Superintendent Philip Dugan's office again. When Fleary walked in, Philip Dugan, Supervisor Thomas Du- gan, Shop Steward Dave Hughes, and Local 545 President Dmkowitz were present. This time, Fleary signed. He cred- ibly testified that he signed "Because I need the job, if I didn't sign, I might not have a job, because they told me if I didn't sign it I could not work in New Jersey." Thereafter (inferentially), Fleary told employee Young, "You got to sign, man, we ain't got no choice." Young replied, "How could you, tell me that we haven't got no choice?" After Fleary had signed, he and supervisor Thomas Du- gan approached employee Young. Dugan told Young, "Go into the office." Young obeyed because, as he credibly tes- tified, Dugan "is the foreman and I had to do what he told me and that was about it." When Young, Fleary, and Su- pervisor Thomas Dugan entered the office, Plant Superin- tendent Philip Dugan was sitting at his desk. Shop Steward Dave Hughes and Local 545 President Dinkowitz were also there. Young credibly testified: I still told them I didn't understand what they were telling me. So Dave Hughes was trying to tell me about signing and then they were going to take the matter up further. But when they come and say, again, that if I don't sign, I could not work in Jersey, and I could not be in two unions at the same time, I said, "Okay." Young also credibly testified that he signed partly because a majority of the others had already signed. That same afternoon, employee Quayle came to Zawis- lak, put an arm on his shoulder, and said, "Come on, it's your turn to sign." Zawislak walked into Plant Superinten- 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent Philip Dugan's office, where he saw Philip Dugan, Supervisor Thomas Dugan, Shop Steward Dave Hughes and Local 545 President Dinkowitz. Zawislak signed. He credibly testified that he was "scared" and signed "because I live in New Jersey and I can't go to work in New York or Connecticut or whatever." That day, 61 persons, in a unit of no more than 68 em- ployees, signed transfer applications. In January 1975, 47 of such applications were granted by the International." E. Respondents' November 1974 Agreement to Contractual "Changes" By letter dated October 16, 1974, the International ad- vised the Company: This is to inform you that on September 24, 1974 an agreement was reached between representatives of [Local 545 and the Brooklyn local] to consummate the [transfer of bargaining rights] . . . It is understood that it will be necessary for representatives of . . . Lo- cal Union No. 545 and your Company to enter into a Supplemental Agreement providing for the necessary changes in the collective bargaining agreement in ac- cordance with the provisions of [the locals' September 1974 agreement]. Enclosed was a copy of the locals' September 1974 agree- ment. After meeting with Local 545 on four occasions between October 9 and November 6, 1974, the Company sent it a letter dated November 6, 1974, and "agreed [to] and ac- cepted" by Local 545 on November 11, 1974. The letter "acknowledge[d] the transfer in representation." It further recited, "This acknowledgement or any subsequent modifi- cations or changes to the existing contract terms shall not be construed as reopening this contract for bargaining pur- poses. Because of certain differences in the operational procedures and agreements reached [in September 1974 be- tween the locals], Hermet was requested to meet with rep- resentatives of Local No. 545 to revise certain provisions in the existing contract . . . . The following changes were agreed to." These "changes" were: (1) As of November 1, 1974, the Company was to stop paying 2 cents per man- hour into the Local 455 Apprenticeship Training-Upgrad- ing Trust Fund and to raise wages by 2 cents an hour. (2) As of January 1, 1975, the Company was (a) to stop paying 8 percent of its weekly payroll to the Iron Workers Local 455 Welfare Fund, and to start paying 52-1/2 cents per hour to the "Structural Steel and Ornamental Iron Work- ers Fund"; (b) to stop making "sick leave" contributions of 2 percent of weekly payroll to the Iron Workers Local 455 Sick Leave Fund, and to give employees a 2-percent wage increase; (c) to stop making annuity contributions of 1 per- cent of its weekly payroll to the Iron Workers Local 455 Annuity (Supplemental Retirement) Fund and to start pay- ing 3 cents per man-hour to "Shopmen 's Local 545 Sever- ance Fund"; and (d) to start contributing to the "Structu- ral Steel and Ornamental Iron Workers Pension Fund (Shopmen's Local No. 545)." The Company also under- took to deduct dues of $12 per month per employee and to pay them to Local 545, starting the month of November 197422 Local 545 ' has no training "Fund." The Local 545 "Funds" referred to in the preceding paragraph are admin- istered by a certified public accountants' firm which does not administer any "Funds" for the Brooklyn local. F. Relationship Between Local 545 and the Company After Early October 1974 Sometime between October 1 and 9, 1974, Local 545 rep- resentatives began to make periodic visits to the shop to process grievances and in connection with negotiating the matters covered in the November 6 letter just described. In November 1974, Local 545, with the assistance of its coun- sel, processed a grievance alleging that the Company had violated the "Subletting of Work" (section 20) of what was described in McHugh's letter to Local 545's counsel as "the contract between Hermet Inc. and the Union." 23 In Janu- ary 1975, Local 545 made at least some efforts to find jobs elsewhere for employees whom the Company had laid off. By letter to Local 545 dated January 25, 1975, the Com- pany gave notice of its intention to terminate the "Current Collective Bargaining Agreement." On January 28, 1975, Local 545 sent a notice to the Federal Mediation and Con- ciliation Service of the "proposed termination or modifica- tion of the existing collective bargaining agreement," nam- ing the Company as the employer. The Dover shop shut down in mid-February 1975, and as of the March 1975 hearing was in the process of being sold 24 Until the plant shutdown, the Company honored the 1973 contract as pur- portedly modified by its November 1974 agreement with Local 545. No employee election of any kind was ever held to determine whether the employees wanted to transfer from the Brooklyn local to Local 545. 21 My findings in this part II, D, about the conversations relating to the execution of the forms are based on the credited testimony of Zawislak, Fleary, and Young, all of whom I believe to be essentially honest witnesses Dinkowitz testified that he was at the plant between 3 and 3-1/2 hours during the execution of these 61 forms, and that 95 percent were executed in his presence--m short, that assuming he was present in the office continu- ously and the employees entered continuously, they entered at average in- tervals of less than 4 minutes When asked by Local 545's counsel, "Did you threaten anybody [in connection with the form-signing interviews]?" he re- plied "No, I did not," when asked, "Was it necessary to threaten any- body9", he replied "No, it was not." On the basis of the witnesses' demean- or, I discredit the testimony of Dinkowitz set forth in this footnote. 22 The agreement as executed in April 1973 called for dues deductions of $10 a month unless changed by "the applicable provisions of the Interna- tional Constitution and/or By-Laws of the Union." Cf. infra, fn. 26 23 Employee Young testified that he was dissatisfied with Local 545's rep- resentation because one or more unidentified Local 545 representatives "used to curse me out." This matter was not further explored. u However, the Company was still in business performing sales and engi- neering work and was also subcontracting certain work The Dover plant shutdown does not moot the instant proceeding. N L R B v Rosaha Kostil- nik, Executrix of the Estate of Michael Kostilnik, d/b/a Pacific Baking Co., 405 F 2d 733 (C.A. 3, 1969). HERMET, INC. 37 G. Analysis and Conclusions 1. The Company's recognition of Local 545 and Local 545's acceptance of such recognition The record shows that on September 27 and 28, 1974, a substantial majority of the Company's employees signed a letter to the International stating that they wanted to keep the Brooklyn local rather than be taken over by Local 545. Nonetheless, on September 30, 1974, Local 545 advised the employees that it was going to take over the shop by Octo- ber 1, and that the employees would eventually have to transfer their membership to Local 545. Further, Local 545 distributed to the employees copies of the two locals' Sep- tember 1974 agreement, purporting to transfer bargaining rights and stating that all members were to be transferred by November 1. During this September 30 meeting, Com- pany President Jacobsen confirmed that Local 545 would be taking over, and added that it was a good representative and he would abide by the contract. Beginning in October 1974, and until the shop's February 1975 shutdown, Local 545's representatives periodically visited the shop to pro- cess employee grievances. Moreover, pursuant to negotia- tions begun on October 9, 1974, on November 6-11, 1974, Respondents acknowledged the change in representation and that both regarded themselves bound by the contract executed by the Brooklyn local (which contract included a union-shop clause), with certain changes in fringe benefits and with a $2-per month increase in the dues to be checked off. In short, on November 6-11, 1974, the Company and Local 545 entered into an agreement which in effect recog- nized Local 545 as the employees' exclusive bargaining rep- resentative and required membership therein as a condi- tion of employment, notwithstanding the employees' preference for the Brooklyn local as manifested by their letter to the International before Respondents announced to the employees that a purported transfer of bargaining rights was to take place. Moreover, thereafter Respondents maintained and enforced that agreement. Such evidence established, at least prima' facie, a company violation of Section 8(a)(1), (2), and (3), and a Local 545 violation of Section 8(b)(1)(A) and (2). International Ladies' Garment Workers' Union [Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731 (1961); Department Store Food Corp. of Penna., 172 NLRB 1203 (1968), enfd. 415 F.2d 74 (C.A. 3, 1969). While scieriter is not necessary to establish such violations (Bernhard-Altmann, supra, at 738-740), I note that both Respondents were advised of the employees' letter to the International during the September 30 meeting when Respondents announced the impending purported transfer; that McHugh later evinced to Zawislak full knowledge of Zawislak's role' in the letter, which McHugh attacked with "foul" language; and that both Respondents participated in unlawfully pressuring employees to sign forms, requesting transfer from the Brooklyn local to Local 545. In contending that Respondents' conduct did not violate the Act, Local 545, heavily relied on Associated General Contractors of America, Inc., Evansville Chapter, 182 NLRB 224, 225 (1970). The Board there pointed out, however, that "an employer, ordinarily, may not rely upon actions of an International union resulting in a jurisdictional realign- ment as between affiliated locals and may violate the Act by withdrawing recognition from one local and recognizing another in accordance with such a reorganization." On the basis of this principle, the Board has refused to amend the certification of one local by substituting the name of a sis- ter local, in accordance with an agreement by both locals and their parent international to transfer bargaining rights, where the employees' approval was not sought until after the decision to transfer jurisdiction over them had already been made. Carriage Oldsmobile Cadillac, Inc., 210 NLRB 620 (1974). The Board reached a similar result where the employer's employees had not been given an opportunity to vote at a meeting where the old local's members voted to transfer, to a newly chartered sister local, bargaining rights in the area where the employer's plant was located. Yale Manufacturing Company, Inc., 157 NLRB 597 (1966). Car- riage Oldsmobile and Yale Manufacturing strongly support the General Counsel's contention that the statutory signifi- cance accorded the employees' expressed dissatisfaction with the prospect of Local 545's representation is not ne- gated by the agreement of the locals, the International, and the Company purporting to transfer representation rights to Local 545. To be sure, AGC, 182 NLRB 224, went on to hold that the employer and the local which were respondents therein did not violate the Act by contracting with each other dur- ing the effective period of the employer's contract with the charging local, where the locals' parent international had awarded relevant jurisdiction to the respondent local. However, nothing in the Board's decision indicates that the employees affirmatively objected to the change. Moreover, AGC expressly relied on the fact that it involved the con- struction industry under Section 8(f), where the employees are not members of a fixed and stable work force having an identity with a specific employer, where representation rights customarily accrue to the referring union, and where employers have important practical business reasons to ac- commodate their labor relations practices to the practices of construction unions 25 No comparable "sound industrial considerations" point to the same result with respect to the Company's smokestack-fabricating plant, which had a sta- ble employee complement and for 18 months had been serviced to the employees' satisfaction by Local 545 repre- sentatives who paid weekly visits to the plant. The other cases noted by Local 545 involve union merg- ers, most of them employee-approved. As pointed out in Local 545's brief, "the pertinent inquiry in cases of this type is whether the new union is a continuation of the old one or a substantially different organization." No merger took place here, and Local 545 is plainly a "substantially different organization" from Local 455. Thus, the two locals, which have both been actively functioning at all times relevant here, have different offi- cers, different dues,26 and different meeting halls, and op- 25 Indeed, the international's transfer of jurisdiction in AGC arose from employer complaints about unsatisfactory employee referrals from the local which originally had j unsdiction. 26 The International's constitution forbids "Shopmen 's local unions" to Continued 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erate under different district councils. Local 455 has a training "Fund" and Local 545 does not-a circumstance which caused the Company and Local 545 to transfer to the employees' paychecks the amounts which were to be paid to Local 455's training "Fund" under the 1973 con- tract as originally executed. Further, Local 545-represented employees and Local 455-represented employees receive fringe benefits from separate "Funds" which are separately financed and have different administrators 27 Moreover, Local 545 sought recognition from the Company while the Brooklyn local was participating in litigation which suc- cessfully -sought a bargaining order in its favor, and (on the basis of authorization cards naming Local 545) intervened in a representation proceeding where the Brooklyn local also intervened (on the basis of its bargaining order and contract) and successfully prevented an election. Also, as found above, during the strike Local 545 inserted its own local number on at least some authorization cards where the signers had failed to insert the local number. Further, with the Company's assistance, Local 545 eventually se- cured the employees' signatures on printed form "Applica- tion[s] for Transfer from Shopmen's Local Union No. [455] ... to Shopmen's Local Union No. [545]." Also, the Inter- national later forwarded to Local 545 statements that each of 47 company employees "was a member of Local 455" paid up to October 31, 1974. In addition, Company Presi- dent Jacobsen testified that before receiving the International's October 1974 approval of the purported transfer of bargaining rights, he considered Local 455 as the employees' representative; and Local 545 Representa- tive McHugh testified that before the locals' September 1974 agreement purporting to transfer bargaining rights, the employees' recognized bargaining representative was the Brooklyn local. This testimony negates Local 545's ap- parent contention that the difference between the two lo- cals was significantly blurred by Local 545 representatives' participation in negotiating the March 1973 contract, which they did not sign; and by Dinkowitz's pre-October 1974 visits to the plant, when by his own admission he did not represent employees in processing their grievances, converse with management as the employees' bargaining agent, or hold himself out to the employees as their collec- tive-bargaining agent. Indeed, the employees' September 27-28, 1974, letter to the International, signed by an over- whelming majority of the bargaining unit, shows that they regarded the two locals as different and preferred the Brooklyn local to Local 545. Local 545 also contends that any rights the employees may otherwise have possessed to block the purported transfer of representation have been effectively waived. As- suming arguendo that such rights are waivable, an effective waiver would have to be conscious, clear, and unmistaka- ble28 No such showing is made here. Thus, when an em- ployee on the bargaining committee asked in the presence of representatives from both locals why the "successors or assigns" language had been included in the draft contract, change their dues without following a procedure which includes member- sh approval by secret ballot. Cf. supra, In. 22. The record fails to show whether the benefits are different. 28 Cf. The Press Company, Incorporated 121 NLRB 976, 977-978 (1958). nobody described any agreement to transfer bargaining rights between locals. The statements about the material contract clauses during the ratification meeting amounted to no more than a repetition of the critical contract lan- guage, which standing alone fails to show that an mterlocal transfer of bargaining rights was intended. The Interna- tional constitution and the printed membership applica- tions signed by the employees did not (of course) refer to any agreement to transfer; nor, contrary to Local 545's apparent contention, did they alert the members that such a transfer would take place. Rather, the very most they show is that the International may have been empowered to effect the transfer.29 The separate and simultaneous or- ganizational efforts of each of the two locals after the shop's August 1972 move to New Jersey and before the March 1973 execution of the new contract would militate against any employees' apprehension, when ratifying the contract, that the International would ever exercise any such powers. It is true that the Company and the locals' officials agreed to the "successors or assigns" language in anticipa- tion of an eventual purported transfer of bargaining rights. However, to permit such parties effectively to waive the Section 7 rights of unknowing employees to select their own representative would be irreconcilable with the con- siderations underlying Carriage Oldsmobile, 210 NLRB 620, and Yale Manufacturing, 157 NLRB 597. Indeed, to the extent that the Brooklyn local's bargaining rights de- rived from the Board's bargaining order and the Board's subsequent disposition of the representation case, to afford the requested effect to the very contract successfully urged as a bar to a Board election with the Boilermakers and Local 545 on the ballot would enable private parties to alter significant portions of the Board's unfair labor prac- tice order and the effect of the Board's dismissal of the representation petition. Finally, Local 545 contends that its majority status is established by the October 11, 1974, cards purportedly re- questing transfer of the signatory employee to Local 545. For the reasons discussed below, I find that the employees were unlawfully pressured into signing these cards. Such pressures included prior conduct by the two locals and the Company which made the transfer of bargaining rights and 29 This is my reading of these documents as a lawyer , and with the assis- tance of Local 545's counsel , who provided me with a list of what he regards as the most relevant sections of 9 articles scattered between p. 5-111 of the 28-article International constitution . Some of these provisions seem really to be directed at construction locals rather than at the "shopmen's locals" involved here Thus, sec 35 of art XXI deals largely with clearance cards, whereas Sec 47 (not cited by Local 545's counsel) of that art. provides, "The above sections of this Constitution, relative to clearance cards, transfers, and Travel Dues and Receipts, shall not apply to . members of Shopmen's Local Unions for whom transfers are hereinafter specifically provided for in this Constitution " (This apparently refers to sec 5 of art. XXVIII. "Transfers may be issued for any member of a Shopmen's local union upon proper application through the Financial Secretary of his local union to the General Secretary at International Headquarters ") Both the authorization card and the constitution are in small print, and the constitution is 113 pages long I doubt whether an unassisted layman would piece out even this much from such documents An, employee witness whose native language is English was asked whether he was able to read, and he replied, "Very little." Many of the employees speak Spanish as a native language and have limited ability to understand written or spoken English. HERMET, INC. 39 membership transfer requirements appear to employees as a fait accompli, and repeated threats of job loss for not signing, including a threat made before any cards were signed and overheard by an undisclosed number of em- ployees. I conclude that such pressures tainted all these cards,30 and, accordingly, that they cannot afford Respon- dents the right to enter into a collective-bargaining agree- ment covering such employees. Department Store Food Corp., supra, 172 NLRB at 1207-08; see also Carriage Olds- mobile, supra. For the foregoing reasons, I find that by entering into the November 6-11, 1974, agreement, and by thereafter maintaining and enforcing it, the Company violated Sec- tion 8(a)(1), (2), and (3) of the Act, and Local 545 violated Section 8(b)(1)(A) and (2). 2. Allegedly unlawful pressure to cause employees to apply for transfer to Local 545 The employee meeting at which employees were told that Local 545 was about to take over the shop, and that eventually the employees would have to transfer their membership to Local 545, was held by Local 545 represen- tatives on September 30, 1974. The Company permitted Local 545 to use working time and the company lunch- room for this meeting, which was attended by Company President Jacobsen and Plant Superintendent Philip Du- gan as well as by supervisors in the bargaining unit. More- over, Jacobsen in terms ratified much of what Local 545's representatives said by telling the employees that Local 545 would be taking over, that it was a good representative, and that he would abide by the existing contract. Supervi- sors in the bargaining unit directed employees to attend this meeting, and Supervisor Feliciano (also in the bargain- ing unit) purportedly related to Spanish-speaking employ- ees what was being said there. True to Local 545's September 30 statement that the em- ployees would eventually have to transfer, on October 11, 1974, many of Respondent's about 68 employees were indi- vidually called by Supervisors Reilly and Thomas Dugan to the office of Plant Superintendent Philip Dugan, where Local 545 President Dinkowitz asked each employee to sign a form requesting transfer of membership from the Brooklyn local to Local 545. These supervisors called the employees into Plant Superintendent Philip Dugan's office after he overheard Local 545 President Dinkowitz tell some employees who did not want to sign that if they did not, they would never work in New Jersey again. Moreover, after Fleary initially refused to sign notwithstanding a like statement by Dinkowitz in the presence of Supervisor Reil- ly (who had called Fleary to Philip Dugan's office), Reilly called Fleary to that office again, where Dinkowitz again attempted (this time, successfully) to procure Fleary's sig- nature in the presence of Supervisors Reilly and Dugan and Plant Superintendent Dugan. Similarly, after employee Young initially refused to sign, Supervisor Thomas Dugan directed him to go to Philip Dugan's office again, where Young was confronted by Dinkowitz and Plant Superin- tendent Philip Dugan and was told that if he did not sign he "could not work in Jersey." No contractual clause then required membership in Local 545 as a condition of em- ployment in the Company's plant and, in any event, no such clause and no limitation to the Company's plant were mentioned to the employees. Sixty-one of the sixty-eight persons in the bargaining unit signed transfer applications that day, and there is no evidence that anyone refused to sign even though, only 2 weeks earlier, at least 42 employ- ees had signed a letter that they preferred the Brooklyn local to Local 545. I find that Local 545 violated Section 8(b)(1)(A) of the Act when Local 545 President Dinkowitz told employees on October 11, 1974, that if they did not sign transfer ap- plications they would never work in New Jersey.31 I further find that the Company violated Section 8(a)(1) and (2) by ratifying such statements, because they were made in the presence of Plant Superintendent Philip Dugan under cir- cumstances where he would be expected to disavow such statements if they were not true.32 Moreover, particularly because Plant Superintendent Dugan knew in advance that Local 545 intended to procure signatures by unlawful threats (if necessary) and failed to disavow such threats when made in his presence and in his office, I find that the Company violated Section 8(a)(1) and (2) on October 11, 1974, when it permitted Local 545 to use Philip Dugan's office to solicit signatures on the transfer cards; when Phil- ip Dugan and Foreman Dugan and Reilly remained in the office while signatures were being solicited; and when the Company permitted these foremen to call the employees to the office to sign.33 These foremen's inclusion in the bar- gaining unit does not absolve the Company from responsi- bility for their conduct, in view of the plant superintendent's concomitant and cooperating conduct di- rected to a like end}4 Finally, I find that the Company violated Section 8(a)(1) and (2) on September 30, 1974, when it permitted Local 545 to use the Company's lunchroom during working hours for a meeting to advise the employees that Local 545 would be taking over the shop and the contract and that they would eventually have to sign transfer applications. See Howard Creations, supra. In addition to later participating with Local 545 in unlawfully bringing about such results, the Company by Jacobsen's own admission had previously agreed to the purported transfer, and during the September 30 meeting ratified Local 545's remarks by President Jacobsen's comments and by the silent presence of Plant Superintendent Philip Dugan. Moreover, Jacobsen's com- ments show that the Company had advance knowledge of this meeting's purpose. However, because Quayle was not a supervisor on Octo- ber 11, 1974, I do not find any company unfair labor prac- tices based on his conduct. Nor do I agree with the General Counsel's contention that the Company violated the Act 31 Isaac Putterman, d/b/a Rockville Nursing Center, 193 NLRB 959, 976- 977 (1971); Seamprufe, Inc, 82 NLRB 892, 894-895 ( 1949), enfd. 186 F.2d 671 (C.A 10, 1951), cert denied 342 U.S. 813. 30 Prospect Gardens of Norwalk, Inc, 177 NLRB 136, 139 (1969), Puerto 32 N L.RB v Urban Telephone Corp., 499 F.2d 239, 243 (C.A. 7, 1974). Rico Food Products Corporation, 111 NLRB 293, 295 (1955); Clement Broth- 33 Howard Creations, Inc, 212 NLRB 179 (1974) (ALJD) and cases cited. ers Co, Inc, 165 NLRB 698 (1967), enfd 407 F.2d 1027 (C.A. 5, 1969) 34Typoservice Corporation, 203 NLRB 1180, 1183 (1973). 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by virtue of the fact that Supervisor Feliciano addressed the September 30 meeting. Feliciano was himself a member of the bargaining unit, and he spoke at the publicly ex- pressed request of Local 545 and the employees rather than the Company. I do not believe that his supervisory status beginning in May 1973, or his membership in the employ- ees' bargaining committee in March 1973, would lead the employees to believe that on this September 1974 occasion he was speaking on the Company's behalf rather than as a translator and as an individual concerned with the identity of his own bargaining representative and the terms of the bargaining agreement covering his own conditions of em- ployment. 5 The General Counsel's brief contends that the Company violated the Act "by allowing its supervisory personnel to summon its employees into meetings of Local 545," appar- ently referring to the September 30, 1974, meeting. Howev- er, the complaint contains no such allegation as to this meeting, and the requested finding would not alter the re- sult herein. I decline to make such a finding. CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 545 is a labor organization within the meaning of Section 2(5) of the Act. 3. By entering into an agreement on November 6-11, 1974, which recognized Local 545 as the representative of the Company's employees in its Dover, New Jersey, plant and required membership in Local 545 as a condition of continued employment, and by thereafter maintaining and enforcing that agreement, the Company violated Section 8(a)(1), (2), and (3) of the Act and Local 545 violated Sec- tion 8(b)(1)(A) and (2). 4. Local 545 has violated Section 8(b)(1)(A) of the Act by threatening employees with job loss if they did not sign applications to transfer their membership to Local 545. 5. The Company has violated Section 8(a)(1) and (2) by ratifying such statements by Local 545, and by otherwise assisting and supporting Local 545 in its efforts to procure employee signatures on such transfer requests. 6. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have violated the Act in certain respects, I shall recommend that they be required to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. In view of Local 545's contention (see, e.g., par. 8 of its an- swer) that the purported transfer of bargaining rights is called for by the constitution of its parent International, and that Respondents' conduct is justified on that ground, I apprehend that "danger of [its] commission [by Local 545] in the future is to be anticipated from the course of [Local 545's] conduct in the past" (N.L.R.B. v. Express 35 See Montgomery Ward & Co., 115 NLRB 645, 647-648 (1956), enfd 242 F.2d 497 (C A 2, 1957), cert. denied 355 U S. 829 (1957) Publishing Co., 312 U.S. 426, 437 (1941) ). Accordingly, the cease-and-desist order against Local 545 will extend to all shops (other than those in the construction industry; AGC, supra, 182 NLRB at 224-225) which were represented by sister locals before coming under Local 545's jurisdiction. Because the Dover shop is permanently shutdown, I shall not recommend a requirement that Respondents dis- continue their bargaining relationship unless and until Lo- cal 545 is certified; or that they post notices. Rather, I shall recommend that they be required to mail appropriate no- tices to the employees who were in the unit on and after September 30, 1974, the date on which the unfair labor practices began. Because a number of employees in the unit speak Spanish as a native language and have limited understanding of English, the notices are to be sent in both languages. In addition, I shall recommend that Respon- dents be required, jointly and severally, to reimburse em- ployees who joined Local 545 on and after October 11, 1974, for all dues paid to Local 545, with interest as pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962) 36 Upon the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 37 1. Respondent Hermet, Inc., Dover, New Jersey, its offi- cers, agents, successors, and assigns, shall: a. Cease and desist from: (1) Entering into a collective-bargaining agreement, with or without a clause requiring membership in a labor organization as a condition of continued employment, with Local 545, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, when Local 545 does not represent an uncoerced majority of the employees in an appropriate unit. (2) Maintaining or enforcing an agreement with Local 545 entered into under such circumstances. (3) Unlawfully assisting and supporting Local 545. (4) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act. b. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (1) Jointly and severally with Local 545, make its em- ployees whole, with interest, for dues paid to Local 545, in the manner described in that part of this Decision entitled 36 The Company is made jointly liable for such sums, in view of its unlaw- ful participation in the solicitation of signatures on transfer requests and its unlawful execution of the union-shop agreement with Local 545 I note, however, that sec 5C of the bargaining agreement requires the refund to the Company or the employee of "Union dues erroneously withheld from any employee's earnings by the Company and paid to the Union " 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes HERMET, INC. "The Remedy." (2) Mail to each of its employees who worked in the collective-bargaining unit on or after September 30, 1974, a copy in Spanish and English of the attached notice, on forms provided by the Regional Director for Region 22, marked "Appendix A." 38 (3) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply therewith. 2. Respondent Local 545, International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO, its officers, agents, and representatives, shall: a. Cease and desist from: (1) Entering into a collective-bargaining agreement, with or without a clause requiring membership in Local 545 as a condition of continued employment, with Hermet, Inc., or any other employer (not in the construction indus- try) whose employees were represented, at the time the employer's operation came under Local 545's jurisdiction, by another local affiliated with International Association of Bridge, Structural and Ornamental Ironworkers, AFL- CIO, where Local 545 does not represent an uncoerced majority of employees in the appropriate unit. (2) Maintaining or enforcing an agreement entered into under such circumstances. (3) Threatening employees with loss of jobs if they do not sign applications for membership in Local 545. (4) In any like or related manner restraining or coercing employees in the exercise of their rights under Section 7 of the Act. b. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (1) Jointly and severally with Hermet, Inc., make Hermet's employees whole, with interest, for dues paid to Local 545 in the manner described in "The Remedy." (2) Mail to each of the employees who worked in the collective-bargaining unit on or after September 30, 1974, a copy in Spanish and English of the attached notice, on forms to be provided by the Regional Director for Region 22, marked "Appendix B." 39 (3) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order what steps 41 have been taken to comply therewith. The complaint is hereby dismissed in all other respects. 38 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 39 See fn 38, supra APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to mail you this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT enter into a collective-bargaining agreement, with or without a clause requiring union membership as a condition of continued employment, with Local 545, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, when Local 545 does not represent an uncoerced ma- jority of the employees in an appropriate unit. WE WILL NOT maintain or enforce an agreement with Local 545 entered into under such circumstances. WE WILL NOT unlawfully assist and support Local 545. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Re- lations Act. WE WILL, jointly and severally with Local 545, make our employees whole, with interest, for dues paid to Local 545, in the manner described in that part of the Decision entitled "The Remedy." HERMET, INC.