Glaziers, Local Union 767

GLAZIERS, LOCAL UNION 767 Glaziers, and Glassworkers, Local Union 767 (Sierra Glass Service, Inc.) and David John Bergman. Case 20-CB-3696 February 8, 1977 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On October 12, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the Charging Party and Employer jointly filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief 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 the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Reno, Nevada, on August 24 and 25, 1976.1 The complaint, issued May 18, 1976, is based upon a charge filed November 17 by David John Bergman, an individual. The complaint alleges that Glaziers & Glass- workers, Local Union 767, hereinafter referred to as Respondent or as the Union or as Local 767, violated Section 8(b)(3) of the National Labor Relations Act, hereinafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel, Respondent Union, and Sierra Glass Service, Inc. I All dates hereinafter are within 1975 unless otherwise stated 2 General Counsel moved in his brief to make minor transcript correc- tions The motion has been carefully considered, has not been opposed, and hereby is granted 3 This summary is based upon credited testimony of various witnesses relative to facts not in dispute (except as discussed ) and supported by the record 35 Upon the entire record 2 of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Sierra Glass Service, Inc., hereinafter referred to as Sierra Glass, a Nevada corporation with a principal place of business in Reno, Nevada, is, and at all times material herein has been, engaged in the business of installing residential, commercial, and other glass. During the most recent calendar year, in the course and conduct of its business operations, Sierra Glass purchased goods, materi- als, and supplies valued in excess of $50,000 directly from suppliers located outside the State of Nevada. I find that Sierra Glass is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Glaziers & Glassworkers , Local Union 767, is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background3 Warren Welsh (Welsh) and Larry Schenck (Schenck) became partners in February 1968, and on February 12, 1968, opened a glass business in Reno called Sierra Glass Service, at 645 Sunshine Lane (hereinafter referred to as 645). About a year later Welsh and Schenck opened a new location at 230 Sunshine Lane4 (hereinafter referred to as 230), called Sierra Glass Service, initially as a warehouse and later as a glass business. About the same time, Welsh and Schenck acquired from a company known as Alpine Glass a glass business at South Lake Tahoe. The Tahoe business was renamed South Shore Glass by Welsh and Schenck. Welsh and Schenck managed the three business- es5 together until Schenck died in November 1971. Welsh owned and managed the three businesses, alone, after Schenck's death. In 1973, on a date not established, Welsh sold South Shore Glass to Ann and Bill Russell. In October 1973, Welsh sold 230 to his estimator and manager, Laurel Marshall, who about a year later moved the equipment and employees to a different location. In January 1976, Welsh moved the 645 businesses to 620, where it now remains. The first contract between the Union and Sierra Glass was signed in 1968, when the only business location was at 645. (This is discussed below.) Sierra Glass continuously was under contract with the Union thereafter, at least until S 230 is about 2-1/2 blocks from 645 5 The business at 645 was incorporated in February 1969 230 was operated from the 645 location . South Shore Glass was incorporated shortly after the business was purchased. Corporate headquarters for 645 and 230 was at 645 (now 620 Sunshine Lane) Welsh and Schenck maintained their offices at 645 Welsh's office now is at 620 Sunshine Lane (herein 620) 228 NLRB No. 10 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the events concerned in the controversy herein. A problem between Sierra Glass and the Union occurred in 1971, when the Union accused the Company of contract violations. 645 was picketed by Local 767 on that occasion. A new contract was entered into, effective August 1, 1972, until August 1, 1975, between Local 767 and a group of employees including Sierra Glass . At the time Welsh signed the 1972 contract he was operating three businesses, at South Shore Glass, at 645 , and at 230. Welsh participat- ed, on at least two occasions, in negotiations for the 1972 contract. The provisions of the union (Local 767) contract existing when South Shore Glass was opened were applied at South Shore Glass and adhered to by Welsh during the time he (and Schenck) owned South Shore Glass from 1969 until 1973. During that period of time Welsh made regular reports and forwarded contributions required by the union contract to the Union on behalf of unit employees at South Shore Glass. The provisions of the 1972 contract and the preceding 1968 contract also were applied by Welsh to the 230 location at all times while that location was owned by Sierra Glass between 1969 and October 1973. Reports and contributions on behalf of unit employees at 230 regularly were made by Welsh to the Union. In early 1974, Local 767 picketed the location at 645 for a period of about 3 weeks. At that time 645 was the only business operated by Welsh. Bartlett told Welsh that the latter was being picketed because he was not "fulfilling all the requirements of the Union." Welsh acknowledges that, since the contract of 1972, he has not applied the union contract to employees at 645, and that he has operated 645 as a nonunion shop and 230 as a union shop since that date. B. Contentions of the Parties Welsh contends that the employees working for him at 645 are not unit employees, that neither he nor the Union in the past have considered them unit employees, and that the Union is violating the Act by insisting that the August 1, 1972, contract covers employees at 645. The Union contends that the contract of August 1, 1972, as amended, by its terms covers employees at the 645 location and that Sierra Glass is violating the terms of that contract. C. The Contract of August 1, 1972 Following are pertinent portions of the aforesaid con- tract: SECTION 1. TERM OF AGREEMENT (a) This agreement shall remain in full force and effect from August 1, 1972 and including July 31, 1975 on all items other than wages and renegotiate Section 8, and shall be considered as renewed from year to year thereafter unless either party hereto shall give written notice to the other of its desire to have the same modified, and such notice must be given at least sixty (60) days prior to July 31, 1975, or on any anniversary date thereafter of this agreement. If such notice is not given, then this agreement shall stand as renewed for the following year. The wage portion of this agreement is for the period of one year, beginning August 1, 1972 to July 31, 1973. (b) Upon written notice at least sixty (60) days prior to July 31, 1973, both parties agree to meet and negotiate a cost package for wages and renegotiate Section 8 only for the period beginning August 1, 1973 to July 31, 1974. Upon written notice at least sixty (60) days prior to July 31, 1974, both parties agree to meet and negotiate a cost package for wages and renegotiate Section 8 only for the period beginning August 1, 1974 to July 31, 1975. SECTION 2. RECOGNITION The Employers shall recognize Glaziers and Glass Workers, Local Union #767, as the exclusive represen- tative for the purpose of collective bargaining for all of the glaziers and glass workers employed by the Employ- ers within the territorial jurisdiction of the Local Union. SECTION 24. GENERAL GLAZING Selecting, cutting, preparing, handling, installing or removal of all plate glass, X-ray shielding glass , window glass, and of all other types of glass, including structural glass, tempered glass doors, safety or protection glass, auto glass, all plastics or other similar materials when used in place of glass and when set or glazed with putty, mastic, cement, rubber or other materials used in place of same, driving the Employer's truck as necessary. The installation of the above materials when set in wood, stone, rubber (natural or synthetic), metal of all types, sash doors, skylights, louvers, sliding or fixed showcase, glass doors or partitions in the shop or on the job, whether temporary or permanent, on or for any building in the course of construction , repair or alter- ation. The fabrication and installation of all extruded, rolled or fabricated metals, tubes, mullions, metal facing materials, mutins, facia, trim mouldings, porcelain panels, arch porcelain panels skylights , show doors and relative materials, including those in any or all types of building related to store front and wall construction. Door and window frame assemblers , such as patio sliding or fixed doors, vented or fixed windows, such items as shower doors, bath tub enclosures, storm sash, where the glass becomes an integral part of the finished product, it shall be considered glazier's operation including the installation of same , except in the case of basic manufacturing. ART GLASS: [Text omitted ] MIRRORS AND PROCESSING: [Text omitted] SECTION 25. TOOLS AND WORKMANSHIP [Text omitted] The fact that no notice of intention to modify the contract pursuant to section 1, above, was given by either party is not disputed and is found. GLAZIERS, LOCAL UNION 767 37 D. The Unit The contract definition of the unit is set forth in section 2, above. General Counsel contends that the unit is as follows: All glaziers and glassworkers at the Employer's 230 Sunshine Lane, Reno, Nevada location, excluding all other employees, guards and supervisors as defined in the Act. The fact that the first contract between the parties was signed in 1968 amply is shown by the testimony of Welsh and Kendall Bartlett, business representative for Local 767 since 1964 or 1965. Further, General Counsel stated on the record that he does not contest the fact that a contract between the parties existed prior to 1972. Welsh testified on several occasions to the existence of a union contract prior to 1972, and also prior to the opening of 230. For example: Q. [By Mr. Longman] Do you know of your own personal knowledge if Mr. Schenck had had dealings with Mr. Bartlett or the Union during the time that he was your partner? A. Yes. He mainly did it at the time he was here. Q. Is it your testimony that there was never a union contract in existence covering Sierra Glass before 1972? A. Yes. We were signed up before that. Q. When was it that you were first signed up? A. I would have to say about 1969. Q. Would it be'68? A. It could have been in the last half. I can't tell you that. Q. Is it true, sir, that you were continuously under union contract commencing with the latter part of 1968 to and including sometime in 1975 or '76? Either one? A. Yes. I would say from the end of'68 until I sold the storefront part. s t s s t Q. Isn't it a fact, sir, that when you negotiated with Mr. Bartlett for the first time, that you-the only place of business that you had was 645 Sunshine Lane; isn't that true, sir? A. That would not be true because my partner did the negotiation. Q. When the business commenced to negotiate with the Union. A. That would seem possible, yes. Welsh contends that the 1972 negotiations primarily involved wages, which underscores the existence of an earlier contract. Neither party introduced a copy of the 1968 contract into evidence, but Bartlett testified credibly and without contra- diction that provisions of the 1972 contract in general, and the 1972 definition of general glazing work in particular, are the same as those in the 1968 contract. Bartlett corroborated Welsh when he testified that, at the time the 1968 contract was signed, the only business covered by the contract was the one at 645. Bartlett and Welsh also corroborated each other in testifying that negotiations for the first contract were conducted by Bartlett and Schenck, and that Sierra Glass at that time owned no business other than the one at 645. Welsh testified that the work done at 620 is "identical" to the work previously done at 645, and that it consists of auto glass, replacement of broken glass in homes, screens, and shower doors. Welsh also testified that the work done at 645 was the same when the location was opened in 1968, as it is at 620 today. Further, Welsh testified that the only work ever done at 230, when that location was owned by Sierra Glass, was storefront and commercial work, usually done at the worksite while new commercial buildings were under construction. He said employees at 645 and 230 never were interchanged between those two locations. Finally, Welsh testified that the work done at South Shore Glass principal- ly was commercial storefront installation, with some home and auto replacement work. Welsh testified that, in December 1969, he opened the store at 230 in order to bid on, and perform, commercial work that never had been done at 645. He stated that, when he signed the contract of August 1, 1972, he signed only for the 230 location and that he never recognized Local 767 at 645. However, that testimony differs from his later testimo- ny wherein he said his Company had a contract with the Union from 1968 until after 1972. Since the Company only owned one store in 1968 - the 645 location - the earlier testimony clearly was wrong. It is seen from the foregoing that, regardless of the kind of work performed at 645, that location was under contract with Local 767 starting in 1968 and, based upon Welsh's testimony as well as that of Bartlett, the contract was being enforced by the Union (through picketing) at least as early as 1971.6 The record does not show any modification or termination of the 1968 contract prior to its replacement by the 1972 contract. Since Welsh applied the 1968 contract to his operations at 230 after it was opened, and regularly made union reports and contributions pursuant to that contract dunng its entire life, it is obvious that the parties intended, both in 1968 and 1972, a unit embracing all Sierra Glass glassworkers and glaziers, wherever they were employed. It is not realistic to contend that 645 employees were not included within the unit under the 1968 contract, since that is the location the contract was signed for by Schenck, and that contract was applied to the 645 employees, as demonstrated by the 1971 picketing. Welsh laid this subject to rest when he testified: Q. When you first formed your partnership with Mr. Schenck, what year was that? A. That was February of'68. Q. So then, it was in the same year that you formed your partnership with Mr. Schenck that you signed the union agreement for the first time to your recollection. 6 Bartlett testified, credibly and without challenge, that complaints of contract violations giving rise to the 1971 picketing were filed with the Union by glaziers working at 645 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. To my recollection- Q. Is that right, sir? A. Yes. Q. And that, that contract was in force, in effect continuously at least through 1972. A. Yes. Q. And thereafter for some period of time; is that right? A. Yes. Q. It's true, is it not, sir, that when you went into business with Mr. Schenck, that you did not operate the present premises commonly known and described as 230 Sunshine Lane for any business purposes ; is that true? A. That's true. Q. So that it was sometime after you signed the union contract that you first started to operate the premises as a glass business commonly known as 230 Sunshine Lane; right? A. Close to that vicinity. Would have worked together. In view of the foregoing it is quite clear , and it is found, that the unit involved in this controversy is, and was intended by the parties to be, one that includes all employees of Sierra Glass, wherever they are located.7 E. The Work Performed In an attempt to show that the parties intended a unit covering only 230 when Welsh signed the 1972 contract, General Counsel introduced testimony and evidence about work performed at the three locations. It is argued that 230's work was limited to commercial storefront work at new construction sites, and that South Shore Glass primari- ly was engaged in commercial work, whereas 645 was devoted at all times solely to auto and replacement glass, screens, and doors. It is contended that commercial storefront work is different from general glazing, thus is not within the definition of the 1972 contract relating to general glazing. This argument is without merit, for several reasons: I. The definition of general glazing is the same in both contracts, 1968 and 1972. That definition is set forth above, and obviously includes storefront and commercial work at new construction sites. There is no testimony or evidence that the parties ever discussed, or negotiated relative to, any different interpretation of the contract terms. 2. Welsh participated in negotiations leading to the signing of the 1972 contract, yet he acknowledged, and Bartlett confirmed, that at no time, during negotiations or otherwise, did Welsh say anything about negotiating only for 230. Further, Welsh testified that he- never discussed with Bartlett any work distinction between 645 and 230. 3. Storefront signs at 645 and 230 make no distinction relative to work. The 645 sign reads "Sierra Glass," and the 230 sign reads "Sierra Glass Warehouse." r Welsh indicated in his testimony , although the point is not entirely clear, that South Shore Glass was incorporated separately from Sierra Glass. However, resolution of that point is not necessary . This controversy primarily involves 645 and 230 and further, since Welsh was the sole stockholder of all three locations , they can and should be considered as one for purposes of this Decision. 4. The contract of 1972 was signed under the name "Sierra Glass." No words of limitation are shown. 5. Since at least 1970, the yellow pages of the telephone book have carried the name Sierra Glass at only one location: 645.8 Further, those advertisements, until 1974 after 230 was sold to Marshall, covered both commercial and residential work. 6. Employees at 230 and 645 were paid from the same bank account. 7. All reports to the Union gave only the 645 address. The 230 address appears on no records sent to the Union. Based upon the foregoing, and upon Welsh's testimony that he operated 645 as a nonunion shop and 230 as a union shop, it is well established that Welsh's reason for not applying the 1972 contract to 645 was not related to the terms of that contract. Rather, failure to apply the contract was in order to divide the business into two functions. 230 was for commercial work, where union affiliation would be advantageous. 645 was for glass work on automobiles and homes, where formal advance bids generally are not made and where union affiliation would be of detriment rather than of benefit. As Welsh acknowledged, 645 glaziers were paid less than those at 230. Clearly the work distinction was made by Welsh for his own purposes. Welsh was equivocal and less than convincing when he testified that no storefront or commercial work ever was performed at 645. Testimony shows that 645 was in business at least a year before 230 was formed . During that time, and thereafter until the new contract was signed in 1972, Welsh applied the 1968 contract to 645, according to his own testimony and that of Bartlett. Bartlett credibly testified that he knew some commercial work was done at 645, and he and witness Dan Hoss credibly testified that they observed tools at 645 customarily used on commercial work. These facts, and Welsh's testimony, compel the conclusion that Welsh and Schenck 9 started 645 as a union operation ; that 645 remained a union operation until about the time of Schenck's death; that the division of work at 230 and 645 occurred in 1971; that the division of work continued until South Shore Glass and 230 were sold by Welsh; and that the contract of August 1, 1972, was negotiated without any reference to or discussion about a division of work. It is found that the August 1, 1972, contract by its terms covers all glazing work, including storefront and commer- cial work on new construction, as well as noncommercial glass work on automobiles and in homes. It is further found that the August 1, 1972, contract is a renewal of an earlier contract with similar provisions describing the unit and the work covered by the contract, and that the 1972 contract covers work performed, and glassworkers and glaziers employed, at 645 and 230. F. Bartlett 's Knowledge General Counsel and Welsh argue that Bartlett has known for several years that Sierra Glass work was divided a Resp. Exh. 1. B Both Welsh and Bartlett testified that the 1968 negotiations and contract, and discussion of union matters thereafter until Schenck's death, were conducted by Schenck and Bartlett. GLAZIERS, LOCAL UNION 767 between 645 and 230, as described above, but that Bartlett took no action and it therefore can be assumed that Bartlett knew the 1972 contract covered only the employees at 230, or condoned its application to 230 only. The argument is based upon: (a) About seven or eight glaziers worked at 645, and three glaziers worked at 230. Reports made to the Union since November 1972 cover only employees at 230. (b) No employees at 645 or 620 have told Welsh that Local 767 represents them, nor has Local 767 stated to Welsh that it represents any of those employees. (c) Welsh never asked Bartlett for referrals to 645. (d) Bartlett visited the premises at 645 and 230 on many occasions, and therefore knew that 645 had employees who were not being reported to the Union. (e) Present employees at 645 do not want the Union to represent them. (f) Bartlett knew only automobile and residential work was being done at 645, and he knew about the business at 230. Bartlett denies any intent or action to apply the 1972 contract, or its predecessor 1968 contract, to 230 alone. He also denies that he condoned such an application of the two contracts. Bartlett answers the above-listed contentions by Welsh, as follows: (a) Although Bartlett knew about the 230 location and had visited it on many occasions, he first learned of the existence of 230 in 1971, and at all times thereafter, until 230 was sold to Marshall, he knew of only one business address for communications, and of only one headquarters and one office for Sierra Glass, i.e., 645. All reports and union contract contributions were sent from 645. All referrals of employees under the contract were sent to 645. He was suspicious that Welsh was not reporting all his employees under the contract, but he had no proof of that fact until just prior to filing the Section 301 action in the U.S. District Court for the District of Nevada on December 12, 1974. Bartlett said he did not know of the sale of 230 to Marshall until the latter part of 1974. (b) Welsh never indicated to Bartlett that he was not familiar with the terms of the contract ; 10 Bartlett discussed specific terms of the contract with Welsh during negotia- tions but Welsh never said he would withdraw from the contract nor did he ever tell Bartlett that he believed only employees at 230 were covered by the contract. (c) Welsh never asked for referrals to specific locations. He merely requested glaziers, and Bartlett dispatched them to the only business address he knew - 645. Bartlett never knew where Welsh put the men to work. (d) Bartlett said he suspected Welsh was violating the contract, as discussed elsewhere herein, but he had to assume Welsh was honest, and had to await proof before taking action. (e) This allegation is immaterial, except as discussed below. (f) Bartlett contends this is immaterial, since the contract covers employees at 645. Bartlett said he did not condone 10 Welsh testified he never read all the contract 11 Bartlett testified that Local 767 has contracts with approximately 65 contractors, and has about 410 members. Bartlett said he has no investigator, and that he alone runs the office and dispatches employees. 12 Marshall worked on the premises at 230, at all times prior to and after the sale of 230, until 230 was moved to another location 39 Welsh's actions in applying the contract only to employees at 230. Bartlett insists, and the record supports him, that the 1968 contract was signed when only 645 was in existence. The record also shows that the 1972 contract was applied only to employees at 230. The record does not show the extent of how the 1968-72 contract was applied, but Bartlett and Welsh testified to the picketing in 1971, described above, while Schenck was alive, and Welsh testified that, whatever the problem was, Schenck worked it out with the Union. A key question, therefore, is whether Bartlett knew about, and condoned, Welsh's actions relative to the 1972 contract. Bartlett credibly testified that he first knew of the existence of 230 sometime in 1971. There is nothing in the record to contradict that statement, or to raise an inference that it is not accurate. Bartlett testified that he addressed the group of negotiat- ing employers, including Welsh, in 1972 and 1973 and admonished them to report all unit employees. He said he was suspicious at that time that some employers, including Welsh, were not reporting accurately.[[ Welsh testified that he was not present at all negotiation sessions and his testimony did not specifically cover this point. This testimony by Bartlett is credited. General Counsel's Exhibit 5 is a series of copies of Welsh's reports to the Union. They all show the employer as "Sierra Glass Service Inc. 645 Sunshine Lane Reno Nev." Contributions for employees were reported and made through November 1973. The December report states, "No employees hired for November 1973. All employees terminated November 30, 1973." Reports were sent to the Union monthly from January 1974 through May 1974, stating no glaziers were employed. Bartlett credibly testified that he first knew 230 had been sold when Marshall so advised him by telephone in 1974.12 Bartlett further testified that, when he learned after December 1973 that Welsh's reports were showing no employees he was suspicious and talked with the adminis- trator of the union trust fund about it. The administrator suggested that Bartlett look into the matter, and Bartlett called Welsh on the telephone. Bartlett testified: TitE WITNEss: He said that he was no longer in the construction end of it. I told him he had to send in fringe benefits on all of his hourly employees. He informed me that he couldn't afford it. Welsh did not deny Bartlett's testimony about the above conversation. Welsh testified to another conversation, which he placed at about 2 or 3 months before he sold 230 to Marshall, i.e., about July or August 1973.13 Welsh stated: Q. You said you were picketed on a second occasion. When was that second occasion you were picketed? A. That was 1974 at 645 Sunshine Lane. 13 It appears possible that the two recitations may cover the same conversation, but that would not change any findings or conclusions The date is uncertain because Welsh earlier testified that the 230 sale was not entirely consummated until some time after October 1973. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Were you picketed only at 645 Sunshine Lane at that time? A. Yes. Q. How long were you picketed? A. Approximately three weeks. Q. Did you ever have any conversations with anyone from the Union concerning this picketing? A. Yes. I called Ken Bartlett. Q. As best as you can recall, what took place in that conversation? What did you say, and what did he say? A. Best I can recall, I called Ken and asked him what was going on and why. Q. What did he say? A. At that time, he believed we weren't paying all our dues like we should and that weren't fulfilling all the requirements of the Union. Q. Did he say which location he felt you weren't fulfilling these requirements at? A. No. Q. How many locations did you have in business in Reno at that time? A. At that time, just one. Q. Which was where? A. 645 Sunshine Lane. Bartlett testified that the district court action was filed by the Union about 6 months after his conversation with Welsh, quoted above. G. Summary Analysis 1. Continuously from 1968 until charges were filed herein, Sierra Glass was under contract with the Union. Welsh testified that he never indicated an intent to withdraw from the contracts, or terminate either of them. When the first contract was signed Sierra Glass had but one location, at 645 Sunshine Lane. The unit included all of Sierra Glass' employees. A new location (230), 2-1/2 blocks away, was acquired by Sierra Glass in 1969. The parties voluntarily treated 230 as an accretion under the contract; the terms of the 1972 contract and its predecessor 196814 contract were applied to and accepted at 230 until 230 was sold and transferred to Marshall. No change (other than wage rates) was made at 230 after the renewal contract was signed on August 1, 1972. Corporate headquarters, facili- ties, work classifications under the contract, work condi- tions, and unit description remained the same. The accre- tion was a valid one.15 The same conclusion is required by consideration of the 1972 contract alone. It covers, by its terms, all glaziers and glassworkers employed by Sierra Glass, both commercial and residential. The record does not support General Counsel's contention that the parties intended to limit the contract to 230. Wording of the 14 The record on enforcement of the contract between 1968 and 1972 is not extensive or complete , but existence of the contract is admitted . Events challenged herein occurred for the most part after August 1 , 1972, the complaint is based upon events after August 1, 1972, and the record shows picketing in 1971 because of alleged contract violations . Further, General Counsel argues that 230 "which employed union glaziers for construction work, was operated as union shop at all times during the period that the Employer maintained this particular business operation ... " 230 was maintained by Respondent as a business operation from about February 1969 until October 1973 Therefore, by General Counsel's own argument, the contract is unequivocal; Welsh testified that he never discussed with Bartlett the limitation he now claims. No evidence shows, or indicates, that the parties intended to limit the contract to 230. 2. General Counsel called as witnesses five employees. Miller and Pilkington started working for Sierra Glass at 645 in 1974 and 1975, respectively, well after the 1972 contract was signed. Hobbs did not work for Sierra Glass between 1970 and 1975, during the controversial events involved herein. Rubertus started working for Sierra Glass at 645 in 1969, became a member of Local 767 in 1970, went to 230 for a month in 1971, then took a union withdrawal and returned to 645 in 1971. Marsh worked at 645 from 1969 until the present. Testimony of the five employees was intended to estab- lish the fact that employees of 645 are not union members, and do not want Local 767 to represent them. However: (a) Desires of present employees are immaterial, so far as events on and prior to August 1, 1972, are concerned. (b) Such desires also are not controlling in the proceed- ings herein. The language of the Board in Shamrock Dairy, Inc.,16 is appropriate: Although the Union in this case has never been certified as the representative of the Respondent's employees, the Respondent extended recognition to the Union as their exclusive representative in the 1953 contract. This the Respondent was forbidden by law to do if the Union did not have majority status at the time of the execution of the contract. It would be improper to presume that the Respondent engaged in unlawful conduct by execution of the 1953 contract. Rather, we presume that the Respondent acted lawfully and that the Union, which had been the recognized bargaining representative of the Respondent's employees since 1937, had majority status at the time of the execution of the 1953 contract, as the Respondent, in effect, admit- ted by granting sole recognition. There is no evidence to rebut this presumption. Accordingly, the Union was the majority representative of the Respondent's employees at the time of the execution of the 1953 contract. We further fmd that the Union enjoyed such status for the duration of the contract. By virtue of the existence of the contract, the Union was entitled to such recognition for the period during which the contract was a bar to a redetermination of its bargaining status.10 At the time of the inception of the alleged refusal to bargain in July 1955, the 1953 contract had about 2-1/2 months to run. No reason appears why that contract then would not have been a bar to a redetermination of the Union's bargaining status for the remaining period of the contract. On the basis of the foregoing, we conclude that it was incumbent upon the Respondent to treat parties had been enforcing the earlier contract approximately 3-1/2 years pnor to signing the August 1, 1972, contract. General Counsel did not show that 645 was treated differently from 230 prior to 1972 Based upon these facts, it is clear that the 1968 contract was enforced during its existence, both at 230 and 645. 15 Public Service Company of New Hampshire, 190 NLRB 350 (1971), White Cross Discount Centers, Inc., 199 NLRB 721 (1972). 16 Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc, and Shamrock Milk Transport Co., 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd 280 F.2d 665 (C.A.D.C., 1960), cert. denied 364 U S. 892 (1960). GLAZIERS, LOCAL UNION 767 with the Union as the majority representative of the employees involved herein at the time of the alleged refusal to bargain . [Footnote omitted.] If present employees desire a change of representative, that must be accomplished pursuant to Board procedures. 3. The record shows Bartlett communicated with Welsh, instituted picketing, and finally instituted a Section 301 proceeding within a reasonable time after learning of contract violations by Welsh. Under such circumstances, Bartlett is found not to have condoned the violations. 4. General Counsel argues that Respondent violated Section 8(b)(3) of the Act by "its verbal and written demands, its picketing, and its filing and maintaining the Section 301 suit, to include the auto glass and replacement work employees in the unit , although Respondent was not the lawful bargaining representative of those employees." The record does not support this allegation . The verbal and written demands and the picketing were timely legitimate protests against alleged contractual violations by Sierra Glass, and included requests for remedial action by Sierra Glass. Relative to the suit in the district court, the Board stated in United Aircraft Corporation (Pratt and Whitney Division): 17 Respondent filed suits against the Charging Parties in Connecticut Superior Court seeking damages for al- leged tortious acts committed by the Unions' members during the course of the 1960 strike and secured judgments against the Unions in excess of $ 1 million .9 In the Clyde Taylor case,10 the Board held that, while "the making of a threat by an employer to resort to the civil courts as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act" was a violation of Section 8(a)(1), an actual suit was not similarly unlawful . In justification of the latter position the Board majority reasoned that "the Board should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such right as an unfair labor 17 192 NLRB 382, 384 (1971). 18 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 41 practice." 11 Since the Taylor case, the Board has consistently held that the filing of a civil suit cannot be found to be an unfair labor practice.12 8 United Aircraft Corp. v JAM, 68 LRRM 2488, 70 LRRM 2577 (Conn. Supenor Ct. Hartford County, Nos 133884 and 133885.) The Connecticut Supreme Court affirmed the Supenor Court's finding of liability, but directed a new trial with respect to the amount of compensatory damages. United Aircraft Corp v. Machinists, issued April 27, 1971. to Clyde Taylor Company, 127 NLRB 103. 11 Id at 109. In taking this position , the Board majority overruled W.T. Carter and Brother, 90 NLRB 2020, and adopted the view expressed by former Chairman Herzog in his dissent in that case. 12 Smith Steel Workers, 174 NLRB 235, enfd. in relevant part sub nom. Smith Steel Workers v . A O. Smith Corporation, 420 F.2d 9 (C.A. 7); G.C Murphy Company, 171 NLRB 370; DC International, Inc., 162 NLRB 1383, 1394; Fashion Fair Inc, 159 NLRB 1435, 1449; Loca1283, United Automobile, Aircraft and Agricultural Implement Workers of America, 145 NLRB 1097, 1121. Based upon all the foregoing, it is found that the allegations of the complaint were not proved. CONCLUSIONS OF LAW 1. Sierra Glass Service, Inc., is, and at all times material herein has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glaziers & Glassworkers, Local Union 767, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Glaziers & Glassworkers, Local Union 767, did not violate Section 8(b)(3) of the Act, as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 It having been found and concluded that Respondent, Glaziers & Glassworkers, Local Union 767, has not engaged in unfair labor practices, the complaint herein is dismissed in its entirety. 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