Vernon Devices, Inc.

VERNON DEVICES, INC. 475 Vernon Devices, Inc. and Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and Local 531, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party to the Contract. Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Local 445, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Vernon Devices, Inc., Party to the Con- tract. Cases 2-CA-13241 and 2--CB-5556 December 11, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 21, 1974, Administrative Law Judge Ber- nard Ness issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. As more fully set forth in his Decision, the Adminis- trative Law Judge found that the Employer and Local 531, IBT, respectively had violated Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the Act and that the Charging Party, Local 445, IBT, had been selected by a majority of the employees in an appropriate unit as their exclusive collective-bargaining representative. In his view, however, the unlawful assistance the Em- ployer provided to Local 531, IBT, and the "ephe- meral" discharge of every employee in the unit because they refused to accept representation by Local 531 or join that Union, but persisted in their desire for rep- resentation by Local 445, did not require the imposi- tion of a bargaining order to effectuate the purposes of the Act. In support of that conclusion he relied on the Board's decision in Mr. Wicke, Ltd., 172 NLRB 1680 (1968). We do not agree. In our view, Mr. Wicke, which predated NL.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), is readily distinguishable on the facts and the law. In this case, the effect of the unlawful assistance rendered Local 531 by the Employer and the dis- criminatory discharge of all the employees in the unit, when the Employer learned that they wished to be represented by Local 445 and refused to accept the Union favored by the Employer, cannot be cured by traditional remedies. The mass discharge, stemming only from the employees' attempt to select their own bargaining representative, whether ephemeral or not, cannot but have a telling and lasting effect on the em- ployees in the unit. That effect cannot be eradicated merely by making the employees whole for the minimal wages lost and the posting of a notice that the Em- ployer was found to have violated the Act and has been ordered not to violate the Act again in a like manner. The Employer's readiness to enforce its choice of a bargaining representative for its employees over that which they had chosen for themselves, and the extent to which it was willing to go to achieve that purpose, harshly demonstrated its contempt for the rights of its employees, and we cannot presume it will be so readily forgotten. A free and fair election, in these circum- stances, is unlikely. We conclude, contrary to the Administrative Law Judge, that an order requiring the Respondent to bar- gain with Local 445 is necessary in order to remedy the Respondent's unfair labor practices and to effectuate the purposes of the Act, and shall amend his recom- mended Order and notice accordingly.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Vernon Devices, Inc., New York, New York, its officers, agents, successors, and assigns, and Respondent Local 531, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified herein: 1. Insert the following as paragraph A,2,(e) and re- letter the succeeding paragraphs accordingly: "Upon request, recognize and bargain collectively with Local 445, IBT, as the exclusive collective-bar- gaining representative of the employees in the appro- priate unit, and, if an agreement is reached, embody it in a signed agreement." I Member Fanning adopts the Administrative Law Judge's finding that the Respondent did not violate Sec 8(a)(5) of the Act, pro forma, because there was no exception, and concurs in the conclusion that Respondent's unfair labor practices can be remedied only by issuing a bargaining order 215 NLRB No. 62 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Substitute the attached Appendixes A and B for those of the Administrative Law Judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees the rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT recognize or deal with Local 531, testified Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of our employees unless and until it has been certified by the National Labor Relations Board as the exclusive bargaining representative of our employees. WE WILL NOT give any force or effect to the Janu- ary 23, 1974, agreement made with said Local 531 or to any renewal, extension, modification, or sup- plement thereof. WE WILL NOT assist said Local 531 in any other manner to become the representative of our em- ployees. WE WILL NOT discharge or otherwise discriminate against any employee to encourage activities in support of Local 531 or to discourage activities on behalf of Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers, or any other labor organization. WE WILL NOT in any like or related mariner inter- fere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL recognize and, upon request, bargain collectively with Local 445, IBT, as the exclusive collective-bargaining representative of our em- ployees and embody any agreement that may be reached in a signed contract. WE WILL withdraw and withhold all recognition from Respondent Local 531 as the representative of our employees for the purposes of collective bargaining , unless and until the said labor organi- zation shall have been duly certified by the Board as the exclusive representative of such employees. WE WILL make whole the following named em- ployees for any loss of pay they may have suffered as a result of their discharge on March 5, 1974. Josephius Bennett Jose Navarro Victor Contreras Jose Otalora Victor Galindo John Procidano Francisco Garcia Jesus Reina Dominick Infante is Alberto Saldarriaga Jorge Marquez Eugene Strollo Carlos Munoz Juan Vasquez WE WILL jointly and severally with said Local 531 reimburse all present and former employees except for those who joined Local 531 prior to execution of the January 23, 1974, agreement, for any initiation fees, dues, or other moneys, paid or withheld from them pursuant to the aforesaid agreement or to any agreement superseding it. VERNON DEVICES, INC APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL MEMBERS OF LOCAL 531, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND ALL EMPLOYEES OF VERNON DEVICES, INC. WE WILL NOT act as the collective-bargaining re- presentative of the employees of Vernon Devices, Inc., unless and until we have been certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT give any force or effect to our con- tract with Vernon Devices, Inc., executed on Janu- ary 23, 1974, or to any modification, extension, renewal, or supplement thereto. WE WILL jointly and severally with Vernon De- vices, Inc., reimburse their present and former em- ployees, except those who joined us prior to execu- tion of the January 23, 1974, contract, for any initiation fees, dues, or other moneys paid or with- held from them pursuant to the aforesaid agree- ment or to any agreement superseding it. LOCAL 531, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: These cases were heard before me on May 30-31 and June 18, 1974, at VERNON DEVICES, INC. 477 New York, New York, on a consolidated complaint' issued by the General Counsel of the National Labor Relations Board. The amended complaint alleges that Vernon Devices, Inc., herein called Respondent Company, and Local 531, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called Respondent Local 531, have engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), (3), and (5) and Section 8(b)(1)(A) and (2) of the Act, respectively. Both Respondents have denied the commission of any unfair labor practices. At the conclusion of the hearing the parties waived oral argu- ment and indicated they intended to file briefs. Neither Re- spondent Local 531, who had requested and was granted an extension of time to file a brief, nor Respondent Company filed any brief. Upon the entire record,' including my observation of the witnesses, and after due consideration of the brief filed by the General Counsel, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY ing representative of its employees notwithstanding that Lo- cal 531 did not represent an uncoerced majority of the em- ployees and on about January 23, 1974, the Company and Local 531 executed a collective-bargaining agreement con- taining a union-security provision and that the contracting parties have maintained and enforced this contract despite the fact that Local 531 did not represent an uncoerced majority of the employees at the time of execution of the contract or at any time thereafter. The General Counsel con- tends that by engaging in the foregoing conduct, when Local 531 did not represent an uncoerced majority of the em- ployees, the Company violated Section 8(a)(1), (2), and (3) of the Act and, correspondingly, Local 531 violated Section 8(b)(1)(A) and (2) of the Act. The complaint further alleges that the Company violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Charging Party, Local 445, on or about February 27, 1974, as the bargaining representative of the employees. Finally, the complaint alleges that the Company violated Section 8(a)(3) and (1) of the Act by dis- charging its employees, 14 in number, on March 5, 1974, because of their support for Local 445 and their refusal to join or assist Local 531. The facts found herein are based on the pleadings and the admissions made at the hearing. The Company, a New York corporation, is engaged in the manufacture, sale, and distri- bution of tools and other mechanical equipment, and related products at its place of business in Mount Vernon, New York. During the year preceding the issuance of the complaint, which period is representative of its annual operations, it purchased and caused to be transported and delivered to its place of business, within the State of New York, tools, equip- ment, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of busi- ness in interstate commerce directly from outside the State of New York. The parties agree and based on the foregoing, I find that the Company is engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the parties agree, and I find that Local 445 and Local 531 are labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction The complaint alleges that on about November 28, 1973, the Company recognized Local 531 as the exclusive bargain- ' The original order consolidating cases, consolidated complaint, and notice of hearing was issued on April 19, 1974, and was predicated upon charges filed by Local 445, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Local 445, on March 4 and served on March 5, 1974, on the respective Respondents On May 6, 1974, the Regional Director for Region 2 issued an amended order consolidating cases, consolidated complaint, and notice of hearing 2 An obvious but significant error appears on p 16, 1 22 of the transcript The word "September" is hereby corrected to read "December " B. The Recognition of Local 531 The evidence relating to the circumstances surrounding the recognition of Local 531 was adduced through the testimony of Herbert Burstein, a member of the law firm representing the Company during the period relevant herein and during the hearing.' Apart from Burstein who was called by the Company's counsel, no other witnesses were called by either Respondent.' The uncontradicted testimony of a number of employees called by the General Counsel disclosed that in the summer of 1973 they were solicited outside the plant by representa- tives of Local 531 to sign authorization cards on its behalf. None of those who testified signed a Local 531 authorization card. We now turn to the testimony of Burstein. He testified he received a telephone call from the Company's general coun- sel, Myron Shapiro, asking him to represent the Company in a labor relations matter Burstein was told that Local 531 had requested recognition. Burstein met with Shapiro and New- mark, vice president of the Company, on September 13, 1974.5 At this meeting, Newmark related that Charles Kranitz,6 Local 531's vice president, had approached him and demanded recognition, claiming he had authorization cards from a majority of the employees.' Burstein then ad- vised the Company of his view of the law, including the right to ask for an election if there was a good-faith doubt of Local 53 I's majority.' Burstein then called Kranitz in the pres- 3 Mr Burstein's participation at the hearing was limited to his appearance as a witness on the third day of the hearing 4 Jerome Newmark, the Company's vice president was called as a 43(b) witness by the General Counsel His testimony was limited only to furnish- ing the names of the employees on the payroll during the pertinent periods herein 5 Burstein said he received the call from Shapiro within a week prior to the meeting of September 13 6 Sometimes incorrectly spelled Cranitz in the transcript 7 According to Burstein, Newmark placed this request for recognition at "either the first week in September or shortly before our meeting " 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence of his client and in response to his inquiry, Kranitz said he had a majority. Burstein then informed Kranitz he would instruct the Company to negotiate an agreement with Local 531. Burstein further testified he had dealt with Kranitz in the past and Kranitz never made any misrepresentations to him. Burstein met with Kranitz on September 26 at which time they discussed provisions of a contemplated contract. Burstein testified he did not know the precise date when the Company extended recognition but that it was after his meet- ing with the Company on September 13 and before September 26, when he met with Kranitz. He stated there would have been no purpose in his meeting with Kranitz on September 26 unless the Company had already recognized Local 531. Burstein's explanation leads me to the logical conclusion that recognition was extended between September 13 and Septem- ber 17. It was on this latter date that Burstein sent a letter to Kranitz confirming the date of September 26 for a meeting between the two. Under these circumstances, it is hardly likely Burstein would have arranged to meet with Kranitz for purposes of negotiations had the Company not yet extended recognition. Although the precise date of recognition cannot be determined from the record, as will be shown below, Local 531 did not represent a majority of the employees during the entire period from September 13 through September 26. By letter dated October 19 to Kranitz, Burstein itemized several proposals for a contract and also requested that Kranitz make available to him copies of the authorization cards. As Bur- stein stated in his letter, "I do not want to be in the position of signing an agreement where the Union does not represent at least the majority of the employees. My clients are pre- pared to go forward, subject to all applicable provisions of the law and with the complete rgservation of their rights if, in fact, you do represent a majority of the employees."9 In re- sponse to Burstein's request for the cards, Kranitz appeared at his office in the second or third week of November. Kranitz showed him six cards. What next occurred is best described in Burstein's testimony which follows: A. It was my understanding that at the time he ob- tained the cards there were 14 employees in all. Six were not enough. I said that wouldn't do it. He said there were three cards that had been mis- placed in the back of an automobile and the automobile had been traded in or some other cocamamy. I don't recall at this moment and that the cards were not availa- ble, but there were such cards. I think I spoke with either Joe Buttalucci or with Carmine Valenti, and they assured me that was so. I wanted confirmation because Charlie said he had not obtained the cards. They had been obtained by someone else in the union. Q. Did at any time thereafter the three cards make an appearance? A. Not to me they didn't. They may have been in this hearing, but I never saw them. Q. To your knowledge, were there at any time more than six cards? 8 Local 531 had not shown any cards to the Company 9G C Exh 4 A. To my knowledge, there were only six cards shown to me. That's all I know of, six cards.1° Burstein also testified as follows: In any event, I did not at that time compare the signa- tures, and I didn't check the cards against the list of employees as of the date when the cards were obtained, but I did ask Mr. Kranitz whether these were regular employees or those who qualified as employees within the meaning of the act. He assured me that he did. I accepted his assurance and proceeded with the completion of the contract and that was my sole and total connection with the matter. Burstein had no list of names of the employees in the unit. All he had was a total number of the employees in the unit by job categories as of the time the Union requested recognition which he said "would be either the first or second week in September." The collective-bargaining agreement between the Company and Local 531 was executed on January 23, 1974, effective as of January 1, 1974. The contract contained an otherwise valid union-security clause requiring member- ship in Local 531 and also contained a check-off provision. C. The Majority Question Relating to Local 531 The parties stipulated and I find that the appropriate bar- gaining unit consisted of all production employees and ma- chine operators, excluding clerical and office employees, guards, professional employees, and all supervisors as defined in Section 2(11) of the Act. The General Counsel presented eight witnesses who were employed since before August 1, 1973 and, at the time of the hearing, were still employed in the bargaining unit." Each credibly testified he had at no time signed an authorization card on behalf of Local 531. In addition to the above em- ployees, the following named bargaining unit employees who began their employment during the week appearing alongside their names credibly testified they likewise never signed Local 531 authorization cards:12 Carlos Munoz (9/9-9/15/73) Jose Navarro (10/4-10/20/73) Juan Vasques (10/28-11/3/73) Alberto Saldarnaga (1/21-1/26/74) No authorization cards on behalf of Local 531 were pre- sented at the hearing. Seventeen names are listed as having been employed in unit classifications during the week of Sep- tember 9-15, 1973. Included are the names of the eight listed 10 The word "cocamamy" used by Burstein in his testimony is a colloqui- alism which, in the context used, here would reasonably be interpreted to mean a weird story straining one's credulity Buttalucci and Valenti, men- tioned in his testimony, were two business agents of Local 531 " Strollo, Procldano, Marquez, Relna, Contreras, Garcia, Infante, and Gomez 12 Their names first appear on the list (G C Exh 5) for the pay period shown but there is nothing which discloses the specific date of employment VERNON DEVICES, INC. 479 in footnote 11, supra, and Carlos Munoz who commenced his employment during that week, all of whom never signed Local 531 authorization cards. Included also in the list of 17 are Gabriel Valencia, terminated on September 14, and John Bonuomo, a college student employed only for the summer and who was terminated on September 17. For purposes of determining the number of employees in the bargaining unit, I would not include Bonuomo. The sole evidence as to his employment status is what appears alongside his name in the list produced by the Company-"college student-summer only." The Board excludes such employees where there is no expectation of permanent employment." Moreover, it is clear the Company did not consider the summer employees as within the unit.14 In this connection, Burstein, when questioning Kranitz as to the number of cards asked Kranitz, "whether these were regular employees or those who quali- fied as employees within the meaning of the Act." Burstein also stated the number in the unit was 14 or possibly less at the time of the request for recognition. Interestingly, during the period from August 1 through September 1, 1973, there were no more than 14 regular employees in the unit. During this same period, also on the payroll were two to three sum- mer employees. During the week of September 2-8, 1973, 15 regular employees were listed and 2 summer employees. Ac- cordingly, I find that during the week ending September 15, there were no more than 16 employees to be considered at any given time that week. Since at least eight employees, and possibly nine if we were to include Munoz, did not authorize Local 531 to represent them, Local 531 did not represent a majority at any time that week. Nor did Local 531 attain a majority at any time thereafter. Fifteen names appear on the list as having been employed in unit job classifications during the September 16-22 week and from September 16 through December 1, no more than 16 were employed in the bargain- ing unit during any given period. At the time the Company and Local 531 executed their contract on January 23, 1974, 17 employees were in the bargaining unit. Of this number, 12 employees, including Saldarriaga, had not signed Local 531 authorization cards. 15 E. The Discharge of the Unit Employees The facts summarized below are based on the credible and undisputed testimony of employee Marquez, substantially corroborated by employee Strollo. As stated above, Newmark who was present throughout the hearing, was questioned only about the payroll. Kranitz was also present throughout the hearing but was not called as a witness. On February 28, the Company called a meeting of the employees and introduced Kranitz and another Local 531 agent, Martinez, to the employees. They were told a contract had been executed with Local 531. When employee Marquez questioned Local 531's status, stating that the employees never authorized that labor organization to represent them, Kranitz responded that a majority had signed up for Local 531. The employees were then asked by Kranitz to sign cards providing for medical benefits.16 The employees refused. The following day Kranitz reappeared at the plant and told the employees of the contractual benefits and again met with a blanket refusal from the employees to sign the medical benefit cards. Again on March 5 Kranitz returned to the plant and spoke to the employees about the benefits under the contract but once more was unsuccessful in obtaining signa- tures on the medical benefit cards. A committee of three employees, Marquez, Procidano, and Strollo, then met with Newmark, General Manager Becker and Shop Foreman Ganz. Marquez told Newmark he had signed a card for Local 445 and none of the employees wanted Local 531 to represent him. Newmark then told Marquez he was discharged for signing a Local 445 card. When Marquez remarked that all the men signed cards for Local 445, Newmark said they were all fired. Newmark then told all the men they were dis- charged. All the employees then punched out, 1 hour before their normal quitting time. The testimony does not shed much light on how their return was arranged but, in any event, the employees returned to work the following morning at the regular time with no further recriminations . Fourteen employees were subjected to this short-lived discharge." Discussion and Conclusions D. The Demand for Recognition by Local 445 On February 15, 1974, Local 445 Business Representative Robert Drexler gave employee Eugene Strollo membership cards in behalf of Local 445. That evening about 15 em- ployees in the 16-man unit met at Strollo's home. Of these, 12 employees credibly testified they signed membership ap- plications for Local 445. These cards, authenticated at the hearing by each witness, were turned over to Local 445 by February 21. By letter to the Company dated February 26, Local 445 requested recognition. The following day the Com- pany refused to extend recognition to Local 445. I find that at the time of the refusal of recognition, Local 445 repre- sented a majority of the unit employees. 13 Brown-Forman Distillers Corporation, 118 NLRB 454 (1957), NL.R B. v Joclin Manufacturing Company, 314 F 2d 627 (C A 2, 1963) 14 Cf Harvey Russell, 145 NLRB 1486 (1964) 15 Saldarriaga first began his employment sometime during that week but there is no evidence whether he was already employed on January 23 Even if he were to be excluded Local 531 clearly did not have a majority 1. The assistance to Local 531 It is well settled that an employer violates Section 8(a)(2) and (1) of the Act and a labor organization violates Section 8(b)(1)(A) of the Act when the employer extends and the union accepts recognition when the union does not represent an uncoerced majority of the employees in the appropriate unit." Similarly an employer renders illegal assistance to a labor organization in violation of Section 8(a)(2) and (3) of the Act and a union violates Section 8(b)(2) and (1)(A) of the Act when the parties execute a collective-bargaining agree- 16 Although not clearly explained in the record and because no card was offered as an exhibit, I can only assume the benefits to be provided were pursuant to the Union's welfare fund referred to in the collective-bargaining agreement executed by the parties on January 23 17 Eugene Strollo, John Procidano, Jorge Marquez, Jesus Reina, Victor Contreras, Victor Galindo, Francisco Garcia, Dominick Infante, Jose Otalora, Carlos Munoz, Jose Navarro, Juan Vasquez, Josephius Bennett, and Alberto Saldarriaga 18 International Ladies Garment Workers Union, AFL-CIO (Bernhard- Altman Texas Corp.) v NLR.B., 366 U.S. 731, 738 (1961). 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment containing a union-security provision requiring em- ployees as a condition of continued employment to become and remain members in the union, if, at the time of the execution of the agreement, the labor organization has not been properly designated or certified as the representative of a majority of the unit employees.19 The burden of proof of establishing the lack of majority status on the part of the allegedly assisted union remains at all times throughout the proceeding with the General Coun- sel. the record herein contains sufficient probative evidence to establish that at all times relevant Local 531 did not possess a majority. Recognition was extended sometime between Sep- tember 13 and September 26, the exact date not being ascer- tainable from the record. No authorization cards were pro- duced at the hearing to support Local 531's claim of majority. On the other hand, a majority of the employees in the unit credibly testified they did not sign any authorization cards on behalf of Local 531 Sometime in the second or third week in November the Company wanted assurance of Local 531's claim of majority status. As the company attorney testified, he did not make a conventional card check. Since he was not in possession of the names of the employees in the unit, one can hardly consider his investigation of Local 531's majority more than a form of blind faith in Kranitz's representation that he had nine cards, three of which had disappeared under weird circumstances. None of the cards were produced and the General Counsel provided credited testimony that a majority of the employees never did sign Local 531 authonza- tion cards. Nor, as described earlier, did Local 531 represent a majority of the bargaining unit employees on January 23, when the parties executed a contract providing for manda- tory union membership and also including a checkoff provi- sion. No testimony was adduced at the hearing to show whether or not the provisions of the contract were enforced but in light of the admissions of both Respondents at the hearing to the allegations in the complaint, I accordingly find that the Company and Local 531 maintained in effect and enforced the contract executed on January 23, 1974. In light of the above, I find that the Company rendered unlawful assistance and support to Local 531 in violation of Section 8(a)(2) and (1) of the Act by recognizing it as the representa- tive of the Company's employees when Local 531 did not represent a majority of the employees in the bargaining unit and Local 531 violated Section 8(b)(1)(A) of the Act by ac- cepting such recognition. I further find that the Company violated Section 8(a)(1), (2), and (3) and Local 531 violated Section 8(b)(1)(A) and (2) of the Act by entering into, main- taining, and enforcing a collective-bargaining agreement con- taining a union-shop clause requiring employees, as a condi- tion of their continued employment to become and remain members of Local 531, at a time when Local 531 did not represent a majority of the employees in the bargaining unit.20 19 Hi Temp, Inc., 203 NLRB 753 (1973), Kona-SurfHotel, 201 NLRB 139 (1973), Interpace Corporation, 189 NLRB 132 (1971) 20 Since neither Respondent filed a brief and the parties waived oral argument, their defense to the General Counsel's contention of lack of majority remains unknown or speculative Even if the argument were to be advanced that the majority should be determined as of the date the request for recognition was made, which I do not adopt, the record shows that at no time during the period from August 1 through September 8, 1973, were there more than 15 employees to be considered in the bargaining unit, the 2. The discharges The undisputed and uncontroverted testimony disclosed that on March 5, 1974, on being told the employees all sup- ported Local 445 and did not want Local 531 as their bargain- ing representative, the Company discharged all the em- ployees one hour before their normal quitting time. That they were reinstated the following morning under unexplained circumstances does not make their discharges any less illegal. Accordingly, I find the discharges of the employees named in footnote 17, supra, to be violative of Section 8(a)(1) and (3) of the Act. 3. The refusal to recognize Local 445 The General Counsel contends that an appropriate remedy should include a bargaining order. I have found above that when the Company refused to recognize Local 445 on Febru- ary 27, 1974, Local 445 represented a majority of the em- ployees in the stipulated appropriate bargaining unit. The General Counsel contends that the unlawful assistance to Local 531 and the unlawful discharge of the employees make a fair election impossible and a bargaining order is appropri- ate. Apart from the unlawful assistance rendered to Local 531, the only retaliatory action taken against the employees by the Company once Local 445 appeared on the scene was the ephemeral discharge-the loss of one hour near the close of the working day on March 5 but then the immediate reinstatement the following morning. Under these circum- stances, I do not believe it would effectuate the purposes of the Act to impose a bargaining order. Rather the employees should have the opportunity to express their preference in a Board-conducted election." Accordingly, I shall dismiss the 8(a)(5) allegation in the complaint. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Vernon Devices, Inc. is an employer engaged in com- merce within the meaning of Section 2(6) and (7)-of the Act. 2 Locals 445 and 531, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By granting recognition to Respondent Local 531 as exclusive bargaining representative when said labor organiza- tion did not represent a majority of the employees in an summer employees having been excluded During this period eight em- ployees had never signed Local 531 cards Thus, it is apparent that were we to consider a period prior to September 13 to determine the majority, Local 531 did not reach that goal 21 Mr Wicke, Ltd, 172 NLRB 1680 (1968) VERNON DEVICES, INC. 481 appropriate unit, Respondent Company violated Section 8(a)(2) and (1) of the Act. 4. By accepting such recognition , Respondent Local 531 violated Section 8(b)(1)(A) of the Act. 5. By entering into and maintaining a collective -bargaining agreement containing union -security and checkoff provi- sions, at a time when Respondent Local 531 did not represent a majority of the employees in an appropriate unit, and by enforcing said provisions , Respondent Company violated Section 8(a)(1), (2), and (3) of the Act and Respondent Local 531 violated Section 8(b)(1)(A) and (2) of the Act. 6. By discharging the following named employees, the Re- spondent Company has violated Section 8(a)(3) and (1) of the Act. Eugene Strollo Victor Galino John Procidano Francisco Garcia Jorge Marquez Dominick Infante Jesus Reina Jose Otalora Victor Contreras Carlos Munoz Jose Navarro Josephius Bennett Juan Vasquez Alberto Saldarriaga 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondents have not engaged in any other unfair labor practices as alleged in the complaint. The Remedy In order to effectuate the policies of the Act, the Respond- ent Company will be ordered to withdraw and withhold recognition from Local 531 as the bargaining representative of the employees in the appropriate unit , and Respondent Local 531 will be ordered to cease acting as the exclusive bargaining representative of such employees, unless and until Respondent Local 531 has been certified by the Board as the exclusive bargaining representative of such employees, and both Respondents will be ordered to cease and desist from giving any force or effect to their collective-bargaining agree- ment executed January 23, 1974, or any modification, exten- sion, renewal, or supplement thereto. In view of the admissions that the provisions of the con- tract which included a mandatory union-security clause have been maintained and enforced, the Respondents will be re- quired jointly and severally to reimburse all present and for- mer employees, except those excluded below, for all initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful union-security agreement,22 or any modifica- tions, extensions, renewals, supplements thereto, or any su- perseding agreement. Reimbursement, however, will not be ordered for those employees who may have voluntarily joined Respondent Local 531 prior to January 23, 1974, the date on which the collective-bargaining agreement was executed. It having been found that the Respondent Company un- lawfully discharged the above-named employees, I shall recommend that it be ordered to make them whole for the loss of earnings suffered by reason of the discrimination by 22 Interest at the rate of 6 percent per annum shall be added to such initiation fees, dues, or other moneys so paid or checked off payment to each of them the sum they would have earned but for the discrimination. I shall also recommend that the Respondents post appro- priate notices 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 recommended:23 ORDER A Respondent, Vernon Devices, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Recognizing or dealing-with Respondent Local 531 as the bargaining representative of its employees unless and un til Respondent Local 531 shall have been certified by the Board as the exclusive bargaining representative of such em- ployees. (b) Assisting Respondent'Local 531 in any other manner to become the collective-bargaining representative of its em- ployees. (c) Giving effect to, performing, or in any way enforcing the collective-bargaining agreement executed with Respond- ent Local 531 on January 23, 1974, covering its employees, or to any modification, extension, renewal or supplement thereto; provided however that nothing herein shall require Respondent Company to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with said employees which have been established in the performance of any such agreement or to prejudice the assertion by such employees of any rights they may have thereunder. (d) Encouraging membership in, or activities on behalf of, Respondent Local 531, or discouraging membership in, or activities on behalf of, Local 445, by discriminating against its employees in regard to their hire or tenure of employment or any terms of conditions of employment. (e) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Respond- ent Local 531 as the representative of its employees for the purposes of collective bargaining, unless and until the said labor organization shall have been duly certified by the Board as the exclusive representative of such employees. (b) Jointly and severally with Respondent Local 531 reim- burse each of its present and former employees except those who joined said labor organization prior to execution of the contract on January 23, 1974, for any and all initiation fees, dues, and other moneys, if any, paid by or withheld from them pursuant to the terms of the aforesaid collective-bar- gaining agreement , together with interest at the rate of 6 percent per annum. 23 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 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Make whole the employees named above for loss of earnings they may have suffered by reason of the discrimina- tion against them in the manner set forth in the section of this Decision entitled , "Remedy." (d} Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary and relevant to determine the amount of backpay due under the terms of this recommended Order. (e) Post at its Mount Vernon, New York, plant, in both the English and Spanish language, copies of the attached notice marked "Appendix A."24 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent Company's representative, shall be posted by Respondent Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notice to its employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Post at the same places and under the same conditions as set forth in (e), above, as they are forwarded by the Re- gional Director, copies of Respondent 531's notice marked "Appendix B." (g) Mail signed copies of the attached notice marked "Ap- pendix A" to the Regional Director for posting at Respond- ent 531's offices and meeting halls. (h) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent Com- pany has taken to comply herewith. B. Respondent, Local 531 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of the 24 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Respondent Company's employees for the purpose of collec- tive bargaining, unless and until it shall have been certified by the Board as the exclusive representative of said em- ployees. (b) Giving any force or effect to the collective- bargaining agreement with Respondent Company executed on January 23, 1974, covering the Respondent Company's employees, or to any modification, extension, renewal, or supplement thereto. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Company reim- burse each of the Respondent Company's present and former employees, except those who joined Respondent Local 531 prior to execution of the contract on January 23, 1974, for any and all initiation fees, dues, and other moneys, if any, paid by or withheld from them pursuant to the terms of the aforesaid collective-bargaining agreement, together with in- terest at the rate of 6 percent per annum. (b) Post at its offices and meeting halls in both the English and Spanish language, copies of the attached notice marked "Appendix B."25 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent 531's representative, shall be posted by Re- spondent 531 immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent 531 to insure that said notices are not altered, defaced or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b), above, as they are forwarded by the Re- gional Director, copies of Respondent Company's notice marked "Appendix A." (d) Mail signed copies of the attached notice marked "Ap- pendix B" to the Regional Director for posting at the Re- spondent Company's plant as heretofore directed (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of the Order, what steps Re- spondent 531 has taken to comply herewith. 25 See fn 24, supra