Desco Vitro-Glaze of Schenectady

DESCO VITRO-GLAZE OF SCHENECTADY Desco Vitro-Glaze of Schenectady, Inc.' and Local 59, International Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers, Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO 2 Local 6, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL- CIO3 and Local 59, International Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers, Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO Local 16, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CIO4 and Local 59, International Associa- tion of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers, Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO. Cases 3-CA-5993, 3-CB-2498-1, and 3-CB-2498-2 June 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On December 22, 1976, Administrative Law Judge Michael 0. Miller issued the attached Supplemental Decision in this proceeding. Thereafter, Respondents filed exceptions and supporting briefs, and the General Counsel filed cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,5 and conclusions of the Administrative Law Judge and to adopt his recommended Order, 6 as modified herein. We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent Desco variously violated Section 8(a)(l), (2), and (3) of the I Herein Respondent Desco. 2 Herein Local 59 or the Helpers Union. 3 Herein Respondent Local 6. 4 Herein Respondent Local 16. 5 Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. I General Counsel contends that the Administrative Law Judge erred in failing to order Respondents jointly and severally to make Local 59 whole 230 NLRB No. 42 Act, and that Respondent Locals 6 and 16 violated Section 8(bX)(IXA) and (2) of the Act. We also agree with the Administrative Law Judge's finding that Local 59 at all times material was the collective-bargaining representative of Respondent Desco's employees classified as helpers and that Respondent Desco violated Section 8(aX5) of the Act by, inter alia, withdrawing recognition from Local 59. In light of these findings, we find that Respondent Desco further violated Section 8(a)(5) by unilaterally discontinuing its monthly contribution on behalf of its helpers7 to the pension and savings fund main- tained by Local 59. Accordingly, we shall order that Respondent Desco make whole the employees represented by Local 59 by paying into the aforesaid funds all contributions which it has, since January 1975, failed to deposit therein on their behalf. We disagree, however, with the Administrative Law Judge's finding that Respondent Desco violated Section 8(a)(5) of the Act by refusing to execute a contract with Local 59. The record demonstrates, as the Administrative Law Judge found, that Desco has for many years recognized Local 59 as the exclusive bargaining representative of its employees classified as helpers and has consistently applied to these employees many of the terms of the agreements negotiated by Local 59 and the Capitol District Tile, Marble, Terrazzo and Slate Contractors' Association. The record also demonstrates, however, that Respon- dent Desco is not a member of this Association and has never directly negotiated or signed a collective- bargaining agreement with Local 59. Thus, Desco's refusal in December 1974 and January 1975 to sign the Association contracts, as requested by Local 59, was not contrary to its practice. In these circum- stances, we perceive no factual or legal basis for concluding that Desco's refusal to sign the contract violated Section 8(aX5) of the Act. Accordingly, we do not adopt that portion of the Administrative Law Judge's recommended Order which requires Respon- dent Desco to sign the Local 59 agreement. Finally, we adopt the Adminstrative Law Judge's recommended Order requiring that Respondent Desco cease and desist from recognizing and bargaining with Respondent Locals 6 and 16. Nothing in that order shall be construed, however, as for any dues, fees, and assessments it lost by virtue of Desco's unlawful assistance to, and recognition of, Locals 6 and 16. We find no merit in this contention. The Administrative Law Judge properly ordered Respondents jointly and severally to reimburse Desco's helpers for any dues, fees, and assessments they may have paid to Respondent Locals 6 and 16 by virtue of the latter's collective-bargaining agreement with Respondent Desco. In these circumstances, a further requirement that Respondents also reimburse Local 59 for the same moneys would not be warranted. 7 Although the complaint does not allege this unilateral action as a separate violation of the Act, we find that it is sufficiently covered by the complaint's other allegation of 8(aX5) misconduct. Furthermore, the facts surrounding Desco's unilateral actions with respect to the pension and savings funds were fully litigated at the hearing. 379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requiring Respondent Desco to withdraw, vary, or abandon any benefits which it may have granted to its helpers under its collective-bargaining agreement with Locals 6 and 16.8 AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 5: 5. By the foregoing conduct which tended to undermine Local 59's status as collective-bargaining representative of Respondent Desco's helpers, by its withdrawal of recognition from Local 59 and its refusal to meet or negotiate with Local 59, and by its unilateral changes in the terms and conditions of employment of its helpers, Respondent Desco has violated Section 8(a)(5) and (1) of the Act. 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 as modified below and hereby orders that the Respon- dents, Desco Vitro-Glaze of Schenectady, Inc., Schenectady and Albany, New York, its officers, agents, successors, and assigns, Local 6 and Local 16, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for section A, 1, of the recommended Order: "A. Respondent Desco, its officers, agents, suc- cessors, and assigns, shall: "1. Cease and desist from: "(a) Interrogating its employees concerning their union membership; soliciting its employees to withdraw their membership in Local 59, Internation- al Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers, Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO, or any other labor organization; soliciting its employees to join Local 6 or 16, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CIO, or any other labor organization; threatening its employees with discharge unless they joined Local 6 or Local 16, or any other labor organization, or otherwise assisting Locals 6, 16, or any other labor organization to secure memberships from its employ- ees. "(b) Withdrawing recognition from and refusing to recognize and bargain with Local 59 as the exclusive collective-bargaining representative of its employees (hereinafter called helpers) in the following appropri- ate unit: "All marble, stone and slate polishers, rubbers and sawyers, tile and marble setters helpers, and terrazzo workers helpers employed by Respon- dent Desco at its plant and jobsites within the geographical jurisdiction of Local 59, excluding all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act, and all other employees. "(c) Unilaterally, without prior notice to or negotiation with Local 59, discontinuing its pay- ments to the pension and savings funds on behalf of its employees in the above-described bargaining unit. "(d) Recognizing Local 6 or Local 16, as the collective-bargaining representative of its helpers in the bargaining unit described above and extending its contracts with Locals 6 and 16, including the union-security provisions thereof, to its helpers. "(e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act." 2. Substitute the following for paragraph A, 2(a): "(a) Withdraw and withhold all recognition from Respondent Locals 6 and 16 as the collective- bargaining representatives of its helpers in the above- described bargaining unit unless and until said labor organizations have been duly certified by the National Labor Relations Board as the exclusive representative of such employees." 3. Insert the following as paragraph A, 2(c) and reletter the subsequent paragraphs and renumber the subsequent footnote, accordingly. "(c) Make whole the employees in the above- described bargaining unit who were adversely affect- ed by Respondent's failure to pay for their pension and savings funds, contributions, as provided in the past, by granting them all interest, emoluments, rights, and privileges in the pension and savings funds which would have accrued to them but for Respondent's unlawful conduct, found herein; and, further, henceforth make such pension and savings funds contributions until such time as Respondent negotiates in good faith with the Union either to an agreement or to an impasse. 16 " Is See Fullerton Transfer & Storage Limited, Inc., 224 NLRB 480 (1976). See also Impressions, Inc., 221 NLRB 389 (1975)." 8 See. e.g., Stayer's Johnsonville Meats, Inc., 174 NLRB 693 (1969). 380 DESCO VITRO-GLAZE OF SCHENECTADY 4. Substitute the attached Appendix A for that 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 WE WILL NOT interrogate our employees con- cerning their union membership. WE WILL NOT discourage our helpers from membership in Local 59, International Associa- tion of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers, Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO, or any other labor organiza- tion, and WE WILL NOT encourage our helpers to join Local 6 or Local 16, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CIO, or any other labor organization, by soliciting them to join another organization, or by threatening them with discharge unless they join Local 6 or Local 16. WE WILL NOT assist or contribute support to Local 6 or Local 16 by assisting them to organize our helpers or by recognizing either of them as the collective-bargaining representative of our helpers in the bargaining unit described below, unless and until they have been certified as such representa- tive by the National Labor Relations Board. WE WILL NOT unilaterally, without notice to or negotiation with Local 59, discontinue our contri- butions to pension and savings funds on behalf of our helpers in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL withdraw recognition of Local 6 and Local 16 as the collective-bargaining representa- tives of our helpers in the bargaining unit described below, and WE WILL NOT apply the collective-bargaining agreements between our- selves and Locals 6 and 16 to our helpers. However, we are not required to withdraw, vary, or abandon any term or condition of employment which may have been established or confirmed within said collective-bargaining agreements. The workers covered thereby will not be prejudiced with respect to their assertion of rights derived from said collective-bargaining agreements. WE WILL recognize and bargain with Local 59 as the exclusive collective-bargaining representa- tive of our helpers in the bargaining unit described below and, upon request, WE WILL execute a signed agreement embodying any contract negotiated between Local 59 and our- selves. WE WILL offer all unreinstated unfair labor practice strikers immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, discharging if necessary any replace- ments, and WE WILL make them whole for any earnings lost as a result of our refusal to reinstate them, plus interest at 6 percent per annum. WE WILL make whole our helpers in the bargaining unit described below who were ad- versely affected by our failure to pay for their pension and savings funds contributions, as provided in the past, by granting them all interest, emoluments, rights, and privileges in their pen- sion and savings funds which would have accrued to them but for our unlawful conduct and, further, WE WILL henceforth make such pension and savings funds contributions payments until such time as we negotiate in good faith with the Union either to an agreement or to an impasse. WE WILL, jointly and severally with Local 6 and Local 16, make our helpers whole for all initiation fees, dues, and other moneys paid or checked off pursuant to our contracts with those Unions, with 6 percent per annum interest. The appropriate bargaining unit in question is: All marble, stone and slate polishers, rub- bers and sawyers, tile and marble setters helpers, and terrazzo workers helpers em- ployed by Respondent Desco at its plant and jobsites within the geographical jurisdiction of Local 59, excluding all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act, and all other employees. DESCO VITRO-GLAZE OF SCHENECTADY, INC. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: This matter was heard in Albany, New York, on June 2 and August 3, 4, and 5, 1976, upon charges filed by Local 59 on 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 4, 1975,1 and amended on April 14, and a consolidated complaint which issued on April 18 and was amended on May 27, June 2, and at the hearing herein. The complaint, the substantive allegations of which were denied by each Respondent, alleged that Desco Vitro- Glaze of Schnectady, Inc.,2 violated Section 8(a)(1), (2), (3), and (5) by interrogating its employees, assisting and recognizing Local 6, Bricklayers, Masons, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CI03 and Local 16, Bricklayers, Mason, Plasterers, Marble, Tile and Terrazzo Workers International Union, AFL-CIO,4 and applying Local 6 and 16's contracts containing union-security clauses to its helper-employees, refusing to recognize and bargain collectively with Local 59 International Association of Marble, Slate and Stone Polishers, Rubbers, and Sawyers, Tile and Marble Setters Helpers, Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO,5 and unilaterally changing terms and condi- tions of employment of its helper-employees without bargaining with Local 59. It further alleged that Locals 6 and 16 violated Section 8(b)(l)(A) and (2) by accepting the fruits of that assistance and by causing or attempting to cause Desco to unlawfully discriminate against its employ- ees in violation of Section 8(a)(3). The hearing was held by me herein pursuant to an Order of the Board, dated March 1, 1976, directing a hearing de novo. A prior hearing had been held, before a different Administrative Law Judge, and a Decision therein had issued on September 8, 1975. The Board found that in that hearing both General Counsel and Respondents had been denied due process of law because they had been denied the opportunity to fully present and develop relevant evidence. Accordingly, it remanded the matter for this de novo hearing. Upon the entire record in this case, 6 including the brief filed by the General Counsel, and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. RESPONDENT DESCO'S BUSINESS AND THE UNIONS' LABOR ORGANIZATION STATUS Respondent Desco, a New York corporation, is engaged at Schenectady and Albany, New York, as a construction contractor in the application of floorings, decks, and coatings. During the year preceding the issuance of the consolidated complaint said Respondent purchased goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported directly to it in New York State directly from other States. I find and conclude that Desco is an employer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7),of the Act. Local 6, Local 16, and Local 59 are and at all times material have been, labor organizations within the meaning of Section 2(5) of the Act. I All dates hereinafter are 1975 unless otherwise specified. 2 Herein Respondent Desco. 3 Herein Respondent Local 6. 4 Herein Respondent Local 16. Collectively, Local 6 and Local 16 will be referred to herein as Respondent Unions or the Mechanics Unions. n. THE UNFAIR LABOR PRACTICES A. Collective-Bargaining History The controlling issue to be determined herein is whether, prior to January 1975, Desco had recognized and main- tained collective-bargaining relations with Local 59 on behalf of an appropriate collective-bargaining unit of its employees, the helpers. Desco had come into being around 1953, having been founded by Joseph T. LePore, Jr. It was engaged in the installation of terrazzo flooring. Initially, this involved heavy cement materials. Gradually since 1953, the materi- als have changed and been improved through the introduc- tion of thinner, lighter compositions utilizing latex, epoxies, and acrylics. Traditionally in the area, and specifically at Desco during the period of LePore's ownership of the business, 1953-73, two classifications of employees worked at the installation of this flooring. Employees known as helpers did the unloading, mixing, and distribution of the flooring materials and prepared the floor for the installa- tion. Other employees, "mechanics," worked with trowels, applying the composition to the floor. The helpers would then clean, sand, grind, and grout the floor. During the period of LePore's management, Desco maintained collective-bargaining relationships with Re- spondent Locals 6 and 16 on behalf of the mechanics. These relationships were maintained through Desco's membership in the Eastern New York Construction Employer's, Inc., an association to whom it assigned its collective-bargaining rights. Desco continued to maintain contractual relations with Locals 6 and 16, covering the mechanics, subsequent to Joseph Cordi's acquisition of the business from LePore, in early 1973. According to the testimony of LePore, which I credit, at all times during his tenure Local 59 was recognized as the collective-bargaining representative of the helpers. Desco, however, executed no contracts with Local 59; neither did it belong to any associations through which it contracted wtih Local 59. Rather, it acceded to the terms of the agreements negotiated between Local 59 and the Capital District Tile, Marble, Terrazzo and Slate Contractors' Association. When requested, as in 1967, Desco executed letters of intent to be bound by the terms of the agreement to be negotiated by those parties and to pay the wages and benefits of that agreement, retroactively. It was the wages and benefits prescribed in the agreements between Local 59 and this Association which Desco paid to its helpers throughout this period. During this same period, Desco's helpers were either members of Local 59, were referred to it by Local 59, or if hired off the street when the Local had no helpers available, were referred to that Union if their performance was satisfactory to the employer and they were interested in taking up the trade. Joseph Cordi was employed by Desco in February 1972, in order to learn the business and to introduce a painting operation into it, with the intention of acquiring that business from LePore. The acquisition was completed 5 Herein Local 59 or the Helpers' Union. s General Counsel's unopposed motion to correct transcript is granted. 382 DESCO VITRO-GLAZE OF SCHENECTADY about January 1973. LePore testified that by virtue of Cordi's position and activities during that period, Cordi had to be aware of Local 59's status. When asked whether he was aware of Local 59's representative status, Cordi, however, testified before me that he "was not that familiar with Local 59 and their activities." In his testimony in the prior hearing (of which I have taken administrative notice without limitation as to its evidentiary effect), Cordi admitted that he "was aware" at that time "that Local 59 was the Collective-Bargaining Representative for the Tile, Marble and Terrazzo Workers Helpers." Based upon LePore's testimony, Cordi's admissions in the earlier hearing and the weighty probability that a businessman acquiring a labor-intensive business in a heavily unionized area would ascertain the collective-bargaining obligations of the business before committing his effort and capital, I conclude that Cordi did, in fact, acquire Desco with awareness of Local 59's status as the helpers' collective- bargaining agent. Similarly, the record reflects that for the period from February 1973 until December 1974, Desco continued to pay its helpers the wage rates specified in the contract between Local 59 and the Capitol District Tile, Marble, Terrazzo and Slate Contractors' Association. In the initial hearing, Cordi admitted to having a copy of that contract and utilizing that wage schedule. In the instant hearing, however, Cordi asserted that he was only paying prevailing wage rates. In addition to its compliance with the contractual wage rates, Desco made monthly payments to several union-maintained funds on behalf of its employees. Thus, each month after December 1972, Cordi signed a "Monthly Report of Savings Deposits for Tile, Marble and Terrazzo Workers Helpers of the Metropolitan Capital District," listing certain employees and the amounts deposited in each employee's name. Similarly, Cordi executed monthly reports, listing those same employees, and detailing contributions on their behalf to the Capital Area Mason's Pension Fund. That form provided for separate itemization of deposits to three additional funds but set forth that only pension funds were required on behalf of "No. 59-Tile Helpers." According to these report forms, Cordi did not make contributions on behalf of these employees to the other funds, as would have been required for members of Locals 6 or 16. The deposits reflected in these 2 monthly reports were consistent with the employer obligations set forth in article 11 of the agreement between Local 59 and the association with which it negotiated. These same monthly reports indicate that between December 1972 and December 1974, Desco employed between four and nine employees on whose behalf these payments were made. Throughout 1974, there were five or six such employees, comprised at various times of Christos Glantizis, Raymond Ingoldsby, Allie Mohamad, Dominick Marotta, Giovanni Segatto, Domenico Coppola, and Constantinos Psarras. Glantzis was a member of Local 59 until October 1974, when he was upgraded to mechanic and left the local. Ingoldsby's name does not appear on the I The record reflects that the Helpers' Union was utilized as a training ground or apprenticeship program for mechanics. It was an accepted practice for experienced helpers to move on to the mechanics' classification and become members of the mechanics' local, with the approval of both the forms after July 1974 and Psarras was hired in October 1974. As of December 1974, according to the reports, there were five employed as helpers: Marotta, Mohamad, Segatto, Coppola, and Psarras. All were members of Local 59; Cordi admitted knowing of the membership status of the first four so listed. Psarras testified, additionally, that when he was hired he was told by Kenneth King, Desco's superintendent (an admitted supervisor), that he would have to join Local 59. In the following month, three additional employees, contended by General Counsel to be helpers, were hired: J. C. Hamilton, Dimitrios Evangelides, and John Sitiriou. The record reflects that Hamilton and Sitiriou made efforts to join Local 59. Respondent Desco contended, in substance, that because of changes in the industry, there ceased to be work for a separate unit of helpers, that all of its employees worked as a team interchangeably performing the same functions. The record evidence fails to bear out this contention. Thus, the changes which occurred in the industry had been taking place throughout Desco's existence and involved the materials being installed rather than the division of work. The employees themselves credibly testified that they spent the majority of their time performing the work traditionally assigned to the helpers. On occasion, for small portions of their time, the more experienced helpers did some work with the trowel. 7 Based upon all of the foregoing, I conclude that at all times material herein, from Desco's 1953 inception to February 1975, there was a unit of helpers employed by Desco, described in the complaint and Association con- tract as follows: All marble, stone and slate polishers, rubbers and sawyers, tile and marble setters helpers, and terrazzo workers helpers employed by Respondent Desco at its plant and jobsites within the geographical jurisdiction of Local 59, excluding all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act, and all other employees. This unit consists of a clearly identifiable and functionally distinct group of employees, with common separate interests, and is a traditional separate craft unit within the construction industry. The employees within this unit receive different wages and fringe benefits than are received by those considered mechanics. The Board deems such a separate unit appropriate for the purposes of collective bargaining. See R B. Butler, Inc., 160 NLRB 1595 (1966), and cases cited therein. Within this unit, I further conclude, Local 59 has consistently maintained majority status and, at least until December 1974, Desco recognized Local 59 as its collective-bargaining representa- tive. B. The Refusal To Bargain On December 12, 1974, David Lavenberg, Local 59's business agent, sent Cordi copies of the Association employer and the Helpers' Union business agent. This was the progression which Glantzis followed; indeed, the fact that he followed this progression tends to establish the existence of the helper's unit. 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement with which, as the prior discussion reveals, Desco had been complying. When Lavenberg asked him to sign that agreement, at that time and again later in the month, Cordi put him off. When Lavenberg repeated his demand in late January, Cordi finally told him that he had no intention of signing the agreement. At a jobsite meeting on February 18, Gerald Bombassa- ro, an international representative of the Helpers' Union, repeated the request that Cordi sign the agreement. According to Bombassaro, 8 Cordi stated that he had changed his method of doing business, no longer needed Local 59 members to do his work and therefore had no reason to sign an agreement with Local 59. Cordi spoke of alleged harassment by business agents of Local 59 and alluded to his membership in another association (National Association of Decorative Architectural Finishers-NA- DAF), pursuant to which he was party to contracts with a "Chemical Products" division of the Bricklayers (BMPIU) and Painters (IBPAT) International Unions. Cordi refused to sign Local 59's agreement. Cordi testified that prior to January 1975, he was under the mistaken impression that Desco was a member of NADAF. Upon learning that he was in error, he alleged, Desco joined NADAF sometime in January 1975. Assuming the credibility of this testimony, Desco's membership in NADAF as of January 1975 is irrelevant. Selection of a collective-bargaining representa- tive is the right of the employees, not the employer, and an employer cannot substitute another representative for that chosen by his employees merely by joining an association which purports to contract with another labor organiza- tion. Moreover, the NADAF-BMPIU-IBPAT Jurisdiction- al and Work Rules Agreement placed in evidence by Desco only purports to assign the installation of the materials according to traditional work techniques (bricklayers use a trowel, painters use rollers or brush). It does not appear to preclude assignment of traditional helpers' work to mem- bers of some other labor organization. Finally, in this regard, I note that Cordi's lack of specificity as to when he joined NADAF or what authority he assigned to that organization, and the absence of any documentary evi- dence corroborating Desco's membership therein, casts considerable doubt as to the veracity of his testimony. When, in late January, Desco's employees who were within the previously described helper's unit made applica- tion to Locals 6 and 16 (discussed in more detail infra). Cordi raised their wages and/or fringe benefits to the higher rates specified in the agreements maintained by those Unions. Cordi alleged that this was the result of upgrading or promotion, but the credible evidence establ- ishes that there was no change in the work of these s To the extent that there are conflicts between Bombassaro's testimony and that of Cordi, I credit Bombassaro, with whose demeanor I was favorably impressed. Moreover, Bombassaro's testimony was corroborated by that of Lavenberg, another credible witness. 9 See Marquis Elevator Company, Inc., 217 NLRB 461 (1975); Manor Research, Inc., 165 NLRB 909 (1967). t0 King's response (undenied, as King did not testify), to the effect that Sitiriou could have waited a couple of weeks before joining, is further acknowledgment of Local 59's presence as the helpers' bargaining representative. 1i Cordi claimed that King had reported pressure being placed against these employees. Hamilton did not testify and Sitiriou denied that his application was other than an act of free will. The record contains no employees. The newest and least experienced employees, Psarras, Evangelides, and Sitiriou were entitled "impr- overs," a classification below that of "mechanic." They received no wage increases but some improvement in fringes. The foregoing evidence establishes that Desco, after recognizing Local 59 for a long course of years, declined to sign the contract to which it was obligated and with which it had been complying, refused to continue its recognition of that Union during the term of the agreements and, not withstanding that there was no evidence of any loss of majority, purported to recognize other labor organizations as the representatives of the same employees, and changed the wages and benefits accorded to the unit employees without negotiation with representatives of Local 59. By all of the foregoing conduct, and as will be seen in the next section, by conduct intended to undermine Local 59's status as bargaining representative, I conclude, in agree- ment with the General Counsel, Respondent Desco has violated Section 8(aX5) of the Act. C. Alleged 8(a)(1) and (2) and 8(b)(IXA) and (2) Violations On January 24, 1975, Lavenberg came on to Desco's jobsite in the Empire State Plaza. He received applications for union membership and down payments on the initiation fees from J. C. Hamilton and John Sitiriou. Shortly thereafter, Sitiriou told Superintendent King that he had joined Local 59.10 On January 26, Cordi called Lavenberg and accused him of sneaking onto the jobsite and coercing employees into applying for union membership." Lavenberg denied doing so and agreed to meet Cordi on the jobsite the following day. On January 27, before Lavenberg came to the site, Cordi and King went to Sitiriou. They asked Sitiriou whether he had joined Local 59. He replied that he had and that he had given Local 59 a $100 deposit. He asked whether he had done something wrong and both replied, "No, that's okay." When Lavenberg arrived, he went with Cordi and King to Hamilton. As Lavenberg testified,12 Cordi asked Hamilton whether Lavenberg had coerced him into making his application. Hamilton replied affirmatively. Lavenberg denied that there was any coercion but returned Hamil- ton's deposit to him. They then went to Sitiriou and the same question was asked. Cordi asked Sitiriou whether he was with them (Local 59) or with him (Cordi). Sitiriou said that Cordi was the man who paid him so he was with Cordi. Cordi asked him if he wanted his money back and, probative evidence of coercion upon these or any other employees by Local 59. 12 To the extent that there are conflicts between Lavenberg's testimony and Cordi's, I credit Lavenberg. Cordi's testimony throughout is best characterized by its lack of responsiveness, its tendency to be shaded so as to improve Respondent Employer's arguments (as, for example, Cordi's claims that the employees did not have specific job responsibilities but worked as a "team," that he paid "prevailing rates" rather than complying with a contract, and that he did not know "that much" about Local 59 when he took over the business), and the contradictions between his testimony in the initial and remanded hearings. Lavenberg's testimony was essentially corroborated by Sitiriou and I was more favorably impressed by the demeanor of Lavenberg and Sitiriou than by that of Cordi. 384 DESCO VITRO-GLAZE OF SCHENECTADY when Sitiriou said that he did, Lavenberg returned his deposit. General Counsel contended that by the foregoing conduct, Respondent Desco interrogated its employees and solicited them to withdraw from Local 59, in violation of Section 8(a)(1) of the Act. I agree. Cordi's statements and actions made clear to these two new employees that he did not want them to join Local 59, that he wanted them to withdraw their membership applications and that going "with him" rather than "with them" was what was expected of them. By this conduct, Desco interfered with, restrained, and coerced Hamilton and Sitiriou in the exercise of their right to join Local 59, and violated Section 8(a)(1). On January 29, King told Psarras: "the company decided to not have anymore helpers, so instead of losing your job, do you mind if you become a mechanic." Psarras asked how he would become a mechanic and King told him:"you're going to join another Union but you're still going to do the same job as a helper you are now but we're going to stop having anything to do with the helpers. So what do you want to dof?r' King also asked Mohamad whether he wanted to become a mason. Mohamad asked when it would take place and what he would be doing. King told him that his job would not change and that the business agent from Local 6, Aldo Malossi, would be there to speak to him on the following day. According to Cordi, King similarly surveyed the other helpers. On January 30, King told Mohamad that Malossi was present at the jobsite and he could sign up. They went to the office. Mohamad questioned what his status would be in Local 6 and was assured that he would be a journeyman. He tendered a deposit to Malossi and received a receipt. Cordi testified that Hamilton was similarly brought to the office; he (Cordi) asked Hamilton if he was interested in becoming a mechanic, Hamilton said that he was, and Hamilton gave Malossi some money. On January 31, the scene was repeated with Vince Riggi, business agent of Local 16 and employees Psarras, Sitiriou, Evangelides, Marotta, Segatto, and Coppola. Cordi asked them if they wanted to join Local 16 and loaned money to Psarras and Sitiriou to make down payments on the initiation fees. Riggi returned to the jobsite office on February 7 and, again in the presence of Cordi and King, requested money for the down payments from Psarras, Evangelides, and Sitiriou. They made arrangements to pay. Thereafter, Evangelides and Sitiriou made an attempt to give Riggi additional money, which Riggi refused, appar- ently because someone was questioning the procedure. On February 27, as he was passing out their paychecks, Cordi asked Psarras and Evangelides whether they had completed their payments to Local 16. They replied that they had not and Cordi told them that they had better do so or they would lose their jobs.13 Cordi admitted that its contracts with Locals 6 and 16 were extended to cover the helpers. 13 Psarras' and Evangelides' testimonies are mutually corroborative. Cordi's testimony acknowledges that he asked them what their status was with Local 16 and advised them of the risks of running afoul of the union- security requirements in Local 16's contract. No further efforts were made by either Local 6 or Local 16 to collect initiation fees or dues and neither Union sought to invoke the union-security clause of their agreements against any of these employees. As the foregoing evidence makes clear, Respondent Desco was the moving force in its employee's alienation from Local 59 and their applications for membership in Locals 6 and 16. By such assistance and support of those unions, at a time when it was obligated to continue recognition of Local 59, and by its recognition of Locals 6 and 16 for those employees and the extension of its contracts with those Unions to those employees, Respon- dent Desco has violated Section 8(aXl) and (2) of the Act. By accepting that support and the extension of their contracts to the employees so coerced, Respondent Locals 6 and 16 violated Section 8(bXIXA). International Ladies' Garment Workers Union (Bernhard-Altmann Texas Corp.) v. N.LR.B., 366 U.S. 731, 738-739 (1961); Captive Plastics, Inc., 209 NLRB 749 (1974). Contrary to Respondent Unions' contentions, scienter is not an element of the violation. Even assuming that Riggi and Malossi were unaware of Desco's obligations toward Local 59 (which is most unlikely) or of Cordi's unlawful support of their organizations, the acceptance of recognition under such circumstances violates the Act. Berhard-Altmann, supra. Moreover, as the contracts extended to these employees contained provisions requiring union membership as a condition of continued employment, Respondent Desco has violated Section 8(aX3) and Respondent Locals 6 and 16 have violated Section 8(bX2) of the Act. Melbet Jewelry Co., Inc., and I.D.S.-Orchard Park, Inc., 180 NLRB 107 (1969). D. The Unfair Labor Practice Strike On March 31, Local 59 began a strike against Desco and picketed for a period of about 2 weeks at the Empire Plaza jobsite and for I week at another Desco jobsite. The strike and picketing were caused by the above-described conduct and, I find, this was an unfair labor practice strike. 4 On June 19, Lavenberg made an unconditional offer to return to work on behalf of all of Desco employees. CONCLUSIONS OF LAW 1. The helpers employed by Respondent Desco consti- tute an appropriate unit for collective bargaining. 2. By interrogating its employees concerning their union membership and by soliciting them to withdraw their membership in Local 59, Respondent Desco has engaged in unfair labor practices in violation of Section 8(aXl) of the Act. 3. By soliciting its employees to join Respondent Locals 6 and 16, by assisting Respondent Locals 6 and 16 to secure membership applications from its employees, by threatening its employees with discharge unless they joined Respondent Locals 6 or 16, by recognizing Respondent Locals 6 and 16 as the collective-bargaining representative 14 Allie Mohamad and Dimitrios Evangelides participated in the strike. After approximately I week, Evangelides had returned to work. However, he rejoined the strike prior to its conclusion. 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its helpers and by applying its contracts with Respon- dent Locals 6 and 16 to its helpers, Respondent Desco has violated Section 8(a)(2) and (1) of the Act. 4. By unlawfully applying its union-security contracts with Respondent Locals 6 and 16 to its helpers, Respon- dent Desco has violated Section 8(aX3) and (1) of the Act. 5. By the foregoing conduct which tended to under- mine Local 59's status as collective-bargaining representa- tive of Respondent Desco's helpers, by its withdrawal of recognition from Local 59 and its refusal to meet, negotiate, or execute its agreement with Local 59, and by its unilateral changes in the terms and conditions of employment of its helpers, Respondent Desco has violated Section 8(a)(5) and (1) of the Act. 6. By accepting Respondent Desco's assistance in their organizational efforts among Desco's helpers, by demand- ing and accepting recognition as the exclusive collective- bargaining representative of Respondent Desco's helpers, by applying their collective-bargaining contracts with Respondent Desco to the helpers employed by Desco, and by extending the union-security provisions of those contracts to those helpers, Respondent Locals 6 and 16 have violated Section 8(b)(iXA) and (2) of the Act. 7. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The strike which began on March 31, 1975, was caused and prolonged by Respondent Desco's unfair labor practices and was an unfair labor practice strike. THE REMEDY Having found that Respondent Desco and Respondent Locals 6 and 16 have engaged in unfair labor practices in violation of Section 8(aX)(1), (2), (3), and (5), and (b)(l)(A) and (2) of the Act, I shall recommend that they take the actions described in the following section of this Decision, entitled "Order," which are necessary in order to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 A. Respondent Desco, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interrogating its employees concerning their union membership, soliciting its employees to withdraw their membership in Local 59 or any other labor organization, soliciting its employees to join Local 6 or 16, or any other labor organization, threatening its employees with dis- charge unless they joined Local 6 or Local 16, or any other labor organization, or otherwise assisting Locals 6, 16, or any other labor organization to secure memberships from its employees. '5 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. (b) Recognizing Local 6 or Local 16 as the collective- bargaining representative of its helpers and extending its contracts with Locals 6 and 16 including the union-security provisions thereof, to its helpers. (c) Withdrawing recognition from and refusing to recognize and bargain with Local 59 as the exclusive collective-bargaining representative of its helpers or refus- ing to execute, upon request, its collective-bargaining agreement with Local 59. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Respon- dent Locals 6 and 16 as the collective-bargaining represen- tatives of its helpers unless and until said labor organiza- tions have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Jointly and severally with Respondent Locals 6 and 16 reimburse its helpers, including former employees, for all initiation fees, dues, and other monies paid or checked off pursuant to its contracts with those labor organizations, with interest at 6 percent per annum, as provided by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Upon request, bargain collectively with Local 59 as the exclusive collective-bargaining representative of its helpers, and if requested, embody its contract with Local 59 in a written signed agreement. (d) Offer each of the former unfair labor practice strikers immediate reinstatement to his former position or, if such job no longer exists, to a substantially equivalent position, without loss of seniority or other rights or privileges, discharging if necessary any replacements hired, and make each of these employees whole for any loss of earnings he normally would have earned from 5 days after the unconditional offer to return to work was made on behalf of the employees, to the date of Respondent Desco's offer of reinstatement, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum. Isis, supra. (e) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all records concerning payroll, personnel, social security payments, timecards, disbursements and all other records necessary to ascertain the backpay and reimbursement of union fees and dues owed under the terms of this Order. (f) Post at its office and each of its jobsites copies of the attached notice marked "Appendix A." 16 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent Desco's representative, shall be posted by Respondent Desco immediately upon receipt thereof, and shall be maintained it 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." 386 DESCO VITRO-GLAZE OF SCHENECTADY by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Desco to insure that said notices are not altered, defaced, or covered by any other material. (g) Post at the same places and under the same conditions as set forth in (f) above, as they are forwarded by the Regional Director, copies of the attached notices marked "Appendix B" and "Appendix C." (h) Deliver or mail signed copies of the attached notice marked "Appendix A" to the Regional Director for posting by Respondent Locals 6 and 16, as provided hereinafter. (i) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent Desco has taken to comply herewith. B. Respondent Local 6, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Accepting unlawful assistance or support from Respondent Desco or any other employer in the organiza- tion of employees, or accepting recognition or entering into collective bargaining as the representative of Respondent Desco's helpers unless and until certified by the National Labor Relations Board as the exclusive representative of said employees pursuant to Section 9(c) of the Act. (b) Giving effect to, or requesting Respondent Desco to give effect to, the collective-bargaining contract between Respondent Desco and Respondent Local 6 as applied to the helpers employed by Desco. (c) In any other manner restraining or coercing the helpers employed by Respondent Desco in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Desco reim- burse Desco's helpers, including former employees, for all union initiation fees, dues and other moneys, paid or checked off pursuant to the contract between Respondent Desco and Respondent Local 6, with interest at 6 percent per annum. Isis, supra. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all records necessary to ascertain what is owed in reimburse- ment of union fees, dues, and other moneys under the terms of this Order. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."' 7 Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region 3, Respondent Local 6 shall cause the copies to be signed by an authorized representa- tive and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Local 6 to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver or mail signed copies of the attached notice marked "Appendix B" to the Regional Director for posting by Respondent Desco and Respondent Local 16, as provided herein. (e) Post and maintain at the same places and under the same conditions provided in paragraph B 2, (c) above, as soon as forwarded by the Regional Director, copies of the attached notices marked "Appendix A" and "Appendix C." (f) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent Local 6 has taken to comply herewith. C. Respondent Local 16, its officers, agents, and representatives shall: 1. Cease and desist from: (a) Accepting unlawful assistance or support from Respondent Desco or any other employer in the organiza- tion of employees, or accepting recognition or entering into collective bargaining as the representative of Respondent Desco's helpers unless and until certified by the National Labor Relations Board as the exclusive representative of said employees pursuant to Section 9(c) of the Act. (b) Giving effect to, or requesting Respondent Desco to give effect to, the collective-bargaining contract between Respondent Desco and Respondent Local 16 as applied to the helpers employed by Desco. (c) In any other manner restraining or coercing the helpers employed by Respondent Desco in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Desco reim- burse Desco's helpers, including former employees, for all union initiation fees, dues and other moneys, paid or checked off pursuant to the contract between Respondent Desco and Respondent Local 16, with interest at 6 percent per annum, Isis, supra. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all records necessary to ascertain what is owed in reimburse- ment of union fees, dues, and other moneys under the terms of this Order. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix C." 18 Immediately upon receipt of said notice, on forms to be provided by the Regional Director for Region 3, Respondent Local 16 shall cause the copies to be signed by an authorized representa- tive and posted, the posted copies to be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Local 16 to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver or mail signed copies of the attached notice marked "Appendix C" to the Regional Director for posting by Respondent Desco and Respondent Local 6, as provided theretofore. (e) Post and maintain at the same places and under the same conditions provided in paragraph C, 2, (c) above, as soon as forwarded by the Regional Director, copies of the 17 See preceding footnote. 387 18 See preceding footnote. DECISIONS OF NATIONAL LABOR RELATIONS BOARD attached notices marked "Appendix A" and "Appendix B." (f) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent Local 6 has taken to comply herewith. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT seek or accept recognition as the collective-bargaining representative of the helpers employed by Desco Vitro-Glaze of Schenectady, Inc., unless and until we have been certified as such a representative by the National Labor Relations Board. WE WILL NOT seek to enforce or apply our contract with Desco to the helpers employed by that company. WE WILL NOT in any other manner restrain or coerce employees of Desco in the exercise of rights guaranteed in Section 7 of the Act. WE WILL, jointly and severally with Desco, make Desco's helpers whole for all initiation fees, dues, and other moneys paid or checked off pursuant to our contract with Desco. LOCAL 6, BRICKLAYERS, MASONS, PLASTERERS, MARBLE, TILE AND TERRAZZO WORKERS INTERNATIONAL UNION, AFL-CIO APPENDIX C NOTIcE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT seek or accept recognition as the collective-bargaining representative of the helpers employed by Desco Vitro-Glaze of Schenectady, Inc., unless and until we have been certified as such a representative by the National Labor Relations Board. WE WI. NOT seek to enforce or apply our contract with Desco to the helpers employed by that company. WE WILL NOT in any other manner restrain or coerce employees of Desco in the exercise of rights guaranteed in Section 7 of the Act. WE WILL, jointly and severally with Desco, make Desco's helpers whole for all initiation fees, dues, and other moneys paid or checked off pursuant to our contract with Desco. LOCAL 16, BRICKLAYERS, MASONS, PLASTERERS, MARBLE, TILE AND TERRAZZO WORKERS INTERNATIONAL UNION, AFL-CIO 388