First National Maintenance Corp.

FIRST NATIONAL MAINTENANCE CORPORATION First National Maintenance Corporation and Dis- trict 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale & Department Store Union, AFL-CIO Local 796, Amalgamated Workers Union of America and District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale & Department Store Union, AFL-CIO. Cases 29-CA-6647 and 29-CB-3467 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On August 15, 1980, Administrative Law Judge George F. Mclnerny issued the attached Decision in this proceeding. Thereafter, Respondent First National Maintenance Corporation filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief thereto. 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, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- t We shall modify the recommended Order, in accordance with Re- spondent First National Maintenance's exceptions, to omit the Adminis- trative Law Judge's recommendation that it be required to maintain the wages and other benefits set out in the now defunct collective-bargaining agreement, until the date the contract would have expired. This part of the recommended Order is neither consistent with our finding that the collective-bargaining agreement is unlawful, nor necessary to remedy the violations found. The General Counsel and Respondent First National Maintenance have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the reso- lutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In adopting the conclusion of the Administrative Law Judge that Re- spondent Employer violated Sec. 8(a)(2) and Respondent Union violated Sec. 8(bXIXA), we rely solely on his findings that the Union did not in fact represent a majority of the Employer's employees on March 17, 1978, the date when the parties signed a new collective-bargaining agree- ment, and that both Respondents knew that the Union lacked majority status. We, therefore, do not reach the question of whether the Union was, by virtue of a merger, the legal successor of Local 690, Amalgamat- ed Workers Union of America. fled below, and hereby orders that Respondent First National Maintenance Corporation, Ridge- wood, New York, its officers, agents, successors, and assigns, and Respondent Local 796, Amalga- mated Workers Union of America, Richmond Hill, New York, its officers, agents, and representatives, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph A, 1, (b): "(b) Giving effect to the collective-bargaining agreement with Local 796, dated March 17, 1978." 2. 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 After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT recognize, bargain with, or otherwise support or assist Local 796, Amalga- mated Workers Union of America, or any other labor organization, unless and until such labor organization is certified as the collective- bargaining representative of our employees, in an appropriate unit, by the National Labor Re- lations Board. WE WILL NOT give effect to the collective- bargaining agreement with Local 796 dated March 17, 1978. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the National Labor Rela- tions Act. FIRST NATIONAL MAINTENANCE CORPORATION DECISION STATEMENT OF THE CASE GEORGE F. MCINTERY, Administrative Law Judge: Based on charges filed on August 30, 1978, in Case 29- CB-3467, and on August 31, 1978, in Case 29-CA-6647 by District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale & Department Store Union, AFL-CIO, herein referred to as District 1199, the Regional Director for Region 29 of the National 254 NLRB No. 28 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board, herein referred to as the Board, issued an order consolidating these cases, a complaint, and a notice of hearing on October 18, 1978, alleging that First National Maintenance Corporation, herein re- ferred to as the Employer, or Respondent Employer, and Local 796, Amalgamated Workers Union of America, herein Respondent Union, had violated, respectively, Section 8(a)(1) and (2) and Section 8(b)(1)(A) of the Na- tional Labor Relations Act, as amended, 29 U.S.C. 151, et seq., herein referred to as the Act. On November 17, 1978,1 the Employer filed an answer to the complaint denying the commission of any unfair labor practices. The Employer also denied that District 1199 is a labor organization within the meaning of Section 2(5) of he Act, and, as an affirmative defense, alleged that Local 1199 is not a labor organization within the meaning of the Act in that it is affiliated "directly or indirectly with an organization which admits to member- ship guards and non-guard employees." Respondent Union did not filed an answer to the charges against it in the complaint. However, the affida- vit of service of that complaint, contained in the formal papers introduced into evidence by the General Counsel, shows that no service of the complaint was made on Re- spondent Union. Pursuant to notice accompanying the complaint, and an order rescheduling hearing issued by the said Region- al Director on March 7, 1979, a hearing was scheduled, and opened before me, on May 7, 1979. At that time it became apparent that Respondent Union had not been properly notified of the allegations in the complaint and of the time and place of the hearing. Accordingly, no testimony was taken, no evidence was received, and the matter was adjourned, with the concurrence of the par- ties who were present, until June 14, 1979. On that same day, May 7, 1979, the record shows that a copy of the order consolidating cases and complaint and notice of hearing was forwarded to Local 796. Thereafter, on May 11, 1979, Mitchell W. Goldblatt, who described himself as attorney for Local 796, filed an answer on behalf of Respondent Union denying the com- mission of any unfair labor practices and further denying "knowledge and information sufficient to form a belierf as to the status of the Employer as an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Then, on June 14, 1979, the hearing continued. Goldb- latt, the attorney for Local 796, did not appear, nor did he advance any reason why he did not appear, but in view of the fact that he had been properly notified of these proceedings, the hearing continued without him. At the opening of this day of hearing, the General Counsel moved to amend the complaint to allege that Respondent Employer had committed certain further violations of Section 8(a)(1) of the Act. Over the Em- ployer's objections I allowed the amendments and those allegations were denied. Following these amendments, and for reasons which will be discussed below, I dismissed the allegations in the complaint involving violations of Section 8(a)(2) and I The time for filing this answer had been duly extended by the Re- gional Director. Section 8(b)(1)(A), and approved an informal settlement of the additional 8(a)(1) allegations which had been added to the complaint on June 14, 1979. The General Counsel appealed my actions under Sec- tion 102.26 of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended, on June 25, 1979. This appeal was upheld by the Board on Septem- ber 4, 1979, in an Order remanding the matter to the said Regional Director to arrange the reopening of the hear- ing, and further ordering that I prepare and serve upon the parties a Decision containing findings of fact, conclu- sions of law, and recommendations upon the evidence re- ceived pursuant to the Order. Accordingly, the said Regional Director issued an Order on December 4, 1979, ordering that the hearing be reopened on December 10, 1979. The hearing did open on that date, and continued on December II and 12, at which time all parties2 were given the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally. Following the close of the hearingt the Respondent Employer and the General Counsel submitted briefs which have been carefully considered. Upon the entire record in this case, including my ob- servations of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT EMPI.OYER First National Maintenance Corporation is a New York corporation which maintains its principal office and place of business at 1535 Schaefer Street, Borough of Queens, New York, where it is engaged in the business of providing cleaning maintenance services and related services to various commercial enterprises including a health related facility called Haven Manor, which is the locus of the facts giving rise to this case. In the year preceding the issuance of the complaint herein, the Employer, in the course and conduct of its business, provided cleaning and maintenance services in excess of $50,000 to various commercial enterprises and firms, which firms sold goods valued in excess of $50,000 directly to firms located outside the State of New York. The complaint alleges, the Employer's answer admits, and I find that the Respondent Employer is an employer 2 Goldblatt was not present, although the record shows that he was duly notified of this recening of the hearing. : Toward the end of the hearing, the Respondent Employer asked that I hold an exhibit number open for receipt of an exhibit which he de- scribed as the payroll record of the employer for the month of April 1979. The General Counsel did not object to this and I agreed to hold Respondent Employer's Exh. 10 for this document. However, on January 23, 198(0, Respondent Employer forwarded to me a copy of its payroll, not for April 1979, but for October 27. 1978. together with a letter pur- porting to be a resignation by another employee and moved that these documents be admitted into evidence. The General Counsel thereafter filed all opposition to the admission of these documents in evidence. I find merit in the General Counsel's opposition. The documents submiltted are not those it was agreed to admit and no good cause has been shown as to why they should he admitted. Respondent Employer's motion is denlied. 290 FIRST NATIONAL MAINTENANCE CORPORATION engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4 II. THE LABOR ORGANIZAION INVOLVED A. The allegation in the complaint that Local 796 is a labor organization within the meaning of Section 2(5) of the Act, is admitted in the answers filed by both Respon- dents. I find that to be a fact. B. The Respondent Employer's answer denies that District 1199 is a labor organization within the meaning of the Act and further alleges as an affirmative defense that District 1199 is affiliated with an organization which admits both guards and nonguards to membership. The employer submitted no evidence in support of this asser- tion and I will disregard it. With respect to the denial of the status of District 1199 as a labor organization, the General Counsel introduced no evidence in support of this allegation in the com- plaint. However, the record does contain evidence that John Donalds filed an appearance on behalf of District 1199; that Donalds testified, under oath and credibly, that he is an organizer for that organization; and that several employees testified, again credibly, that they had signed authorization cards for District 1199, and had at- tended and testified at a hearing conducted by Region 29 in Case 29-RC-4224, a case filed by District 1199, in May 1978. As a result of that hearing, the Regional Di- rector for Region 29 made a finding that District 1199 is a labor organization. Because of these factors, I find that District 1199 exists, at least in part, for the purpose of representing employees in dealing with employers con- cerning wages, hours, and other conditions of employ- ment, and that it admits employees into membership, and that it is a labor organization within the meaning of Sec- tion 2(5) of the Act. Ill, THE ALLEGED UNFAIR LABOR PRACTICES A. Background The facts in this case show that the Respondent Fm- ployer is engaged in contracting with the owners or op- erators of nursing homes, or health related facilities, 5 to perform cleaning, laundry, and other housekeeping func- tions. In November 1974 the Respondent Employer began to perform such services at the Haven Manor Health Related Facility in Far Rockaway, New York. 6 In December of that same year, employees working for the Respondent Employer at Haven Manor were in- formed by their supervisor that they would be represent- ed for collective-bargaining purposes by Local 690, 4 The fact that the Respondent Union denied knowledge of facts on which to base an opinion as to the "commerce" allegations of the com- plaint does not put the matter inissue. In view of the employer's admis- sions I do not feel that the General Counsel need burden the record with facts showing what is already admitted. See. also, the Regional Director's findings in Case 29-RC-4224, and the Administrative Law Judge's Deci- sion in Case 29-CA-4631, affirmed by the Board on November 16, 1976. , There is a distinction between these based apparently on state regula- tion of staffing, depending upon the level of care furnished by the facili- ty. That distinction is not really material here. 6 See Administrative Law Judge Bisgyer's Decision in Case 29-CA- 4631, issued October 7, 1976, and in the absence of exceptions, adopted by the Board by Order dated November 16. 1976. Amalgamated Workers Union of America (AWUOA), herein referred to as Local 690. Subsequently, on May 9, 1975, the Respondent employer and Local 690 entered into a collective-bargaining agreement effective May 1, 1975, and expiring on April 30, 1978. There was considerable dissatisfaction among the em- ployees of the Respondent Employer over the terms of this agreement and the manner of its negotiation and ex- ecution. This in turn led to the events described in Ad- ministrative Law Judge Bisgyer's Decision, and also to the filing of a union-shop decertification petition under Section 9(e)(1) of the Act in Case 29-UD-108 on June 21, 1976. The record in this case does not show whether there was an issue on the appropriateness of a unit con- sisting only of the Haven Manor employees of Respon- dent Employer, but the statutory requirements must have been satisfied because the Regional Director for Region 29 issued a Decision and Direction of Election in that case on September 29, 1976, and a request for review of that Decision was denied by the Board on October 29, 1976. An election was then conducted under the auspices of the Regional Office on November 17, 1976 resulting in 17 votes in favor of deauthorization, 5 votes against, and 4 challenged ballots. The challenges were not deter- minative of the result of the election, which was certified by the Regional Director on December , 1976. There- after, as the parties stipulated none of the employees at Haven Manor executed any membership applications, collective-bargaining authorizations, or dues or fees checkoff authorizations on behalf of the Respondent Union.8 The next in the several series of events making up the background of this case occurred on May 1, 1977, when one Milton Linden, describing himself as the president of Local 106, International Production, Service and Sales Employees Union (IPSSEU), wrote a letter to Leonard Marsh, secretary-treasurer of the Respondent Employer, advising him that Local 690 had merged with and into Local 106. Then, on November 16, 1977, Linden, now describing himself as the business manager of Local 796, Allied Workers Union of America, again wrote to the Respondent Employer, informing it: "At a meeting on November 10, 1977, our members voted to disaffiliate from Local 106, IPSSEU, and to affiliate with Local 796, AWUOA." There is no evidence that the Respondent Employer ever undertook any investigation of the cir- cumstances of these affiliations and disaffiliations, or whether, indeed, it took any action at all with respect to the changes. All I can find, at this point, is that the union ' There are indications. but no actual evidence in the record, that Local 690 represented employees of Respondent Employer in a broader unit than only the Haven Manor employees. See Administrative Law Judge Bisgyer's Decision. fn. 6. 8 The Responldent Union did not join in this stipulation. However, by ilt failure to appear at this hearing after being dul and properly notified, and its failure to respond to subpoenas to appear and bring in records. the Resplxndeni Union has forfeited any right to object to my receipt of stip- ulations, as swell as any other evidence. at the hearing. I The General Counsel objected to the introduction of this letter and tuo others. I find that these letters were properly identified by Stephen Denrich, Respondent Employer's vice president as records regularly kept in the course Iof the Resplldent Employer's business. I find that these letters are admissable under the Federal Rules of Evidence Rule 803(6). 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop provisions in Local 690's collective-bargaining agreement had been canceled out by the union-shop deauthorization election, and that the employer forward- ed no dues or fees to any local. There is no evidence on the fate of Local 690, or of Local 106, whether these or- ganizations continued in existence or, in the cases of Locals 106 and 796, whether they ever had any existence at all other than as slips of paper in the typewriter of Milton Linden.' 0 In the late winter and early spring of 1978, the em- ployees at Haven Manor became interest in joining Dis- trict 1199. A number of them signed authorization cards for that organization. About May 15, 1978," District 1199 filed a petition in Case 29-RC-4224 to represent certain employees of the employer. The bargaining unit, "All housekeeping and maintenance employees employed by the Employer at its location at Haven Manor Health Related Facility, Far Rockaway, New York, excluding all other employees, guards and supervisors within the meaning of the Act," was stipulated by the parties, thus putting to rest any question about the scope of the unit covered by the collective-bargaining agreement. If that had been an issue, it could have been raised by Local 796, which appeared at the hearing in that case as an in- tervenor. Since the issue was not raised, but rather the unit was stipulated, I may infer and find that the unit was and is confined to the employees of Respondent Em- ployer at Haven Manor. In the meantime, during the period that the employees were organizing and signing authorization cards for Dis- trict 1199, the Respondent Employer and the Respon- dent Union executed an "addendum" to the collective- bargaining agreement then in effect between Local 690 and Respondent Employer. The addendum extended that agreement for an additional 3 years until April 30, 1981, continued the same terms and conditions in effect for that period, and provided for pay increases of $5 per week for all employees in each of the 3 years. The ad- dendum, or agreement, was executed on March 17, 1978, by Leonard Marsh for the employer and by Milton Linden, now describing himself as "President" of Local 796. There is no evidence in this record as to any of the circumstances of this arrangement, either on the execu- tion of the document itself, or the negotiations, if any, which led to its adoption by the parties. The new agreement was, however, advanced by Local 796 at the hearing in Case 29-RC-4224 as a bar to the petition. A hearing was then held before a hearing offi- cer of the Board assigned by the Regional Office. In that hearing the validity of the March 17 addendum to the Local 690 agreement with Respondent Employer was litigated. The Regional Director for Region 29 then issued a Decision and Direction of Election on July 28, 1978. tO I have, of course, found that Local 796 is a labor organization within the meaning of Section 2(5) of the Act. This finding, based on the answer filed by Respondents, does not imply that it is an active labor or- ganization. "' This date is calculated from the Regional Director's Decision and Direction of Election in Case 29-RC-4224, since it does not appear else- where in the record. In that Decision the Regional Director made it clear that evidence was received at the hearing concerning the nonpayment of dues by employees at Haven Manor, and the mergers or affiliations between Locals 690, 106, and 796.'2 It is also clear from the Regional Director's deci- sion that he considered the failure of the employer to im- plement the wage increase called for in the March 17 ad- dendum until a week after the petition was filed in Case 29-RC-4224,13 and the failure of Local 796 to appoint a shop steward for the processing of grievances, in arriv- ing at his decision that the addendum, or contract, dated March 17, 1978, and asserted as a bar did not, "as admin- istered, chart with adequate precision the terms and con- ditions of the employees in issue," nor did it "provide them with sufficient guidance in day to day labor rela- tions," citing Appalachian Shale Products Co., 121 NLRB 1160, 1163 (1958). The Regional Director added that "the agreement fails to impart a sufficient stability in labor relations to withhold a present determination of representation," citing Raymond's, Inc., 161 NLRB 838 (1966). On reviewing this Decision, the Board was "unable to find that the contract between the employer and the in- tervenor (Local 796) has been abandoned, or that the wages, hours and working conditions at the facility are so at variance with the contract's terms as to remove the bar quality from the contract." The Board vacated the Decision and Direction of Election, found the Local 796 contract to be a bar, and dismissed the Petition. The Board's Decision was dated August 23, 1978, and the charges in the instant case were filed on August 30 and 31, 1978. On June 14, 1979, at the hearing on this matter, I dis- missed those portions of this complaint alleging viola- tions of Sections 8(a)(2) and 8(b)(1)(A). No testimony had been received at that time, but the Board's Decision quoted above had been entered in evidence. It seemed to me at that time that the Board had decided that the con- tract was a bar, and was, therefore, a valid contract. Hence, that decision was res judicata as to the status of the contract which, in this case, the General Counsel was alleging was entered into unlawfully and was, conse- quently, invalid. In reversing my decision, the Board referred to Sec- tion 11228 of the Casehandling Manual, cited above, to the effect that "evidence of the unfair labor practices al- leged herein by the General Counsel could not be and was not, considered by the Board in the underlying rep- resentation case." 12 Evidence as to this was stricken from the record, not because it was not permitted under the strictures of Sec. 11228 of the Board's Casehan- dling Manual for representation cases, but because the witness who testi- fied about these matters refused to answer questions about them His entire testimony was stricken from the record. It may not be material. but it is interesting to note that the number 796 represents the sum of the numbers 690 and 106. : If the addendum was reached around its effective date, May 1. I would not consider 3 weeks too long a period for implementation of a wage increase, but it was in fact executed on March 17. giving the em- ployer plenty of time to arrange for payment at the new rate on May 1. 292 FIRST NATIONAL MAINTENANCE CORPORATION This Decision by the Board would seem to be consis- tent with its prior ruling in E & R Webb d/b/a Town and Country, 194 NLRB 1135 (1972). In that case the union had filed charges alleging Sec- tions 8(a)(2) and 8(b)(1)(A) a situation similar to this and, concurrently, had filed a petition for an election request- ing that the petition be processed despite the charges. In ruling on this request to proceed, the Board said at 1136: In the instant case the issues raised by Petitioner's charges and petition rest on resolution of the unfair labor practice charges. Thus, the contract between the Employer and the Intervenor constitutes a bar to this proceeding unless the Employer's recogni- tion of the Intervenor as the collective-bargaining agent was itself unlawful and in violation of Section 8(a)(2) and 8(b)(1)(A) and (2) of the Act. To make such a determination in this case [a representation case] would be contrary to established Board policy that unfair labor practice allegations are not proper- ly litigable in a representation proceeding. A party asserting such allegations may litigate them only in an unfair labor practice proceeding designed to ad- judicate such matters. There is a distinction between Town and Country and this case, in that, here, the Board has already declared that the contract is a bar, but here the unfair labor prac- tice charges were not filed until after the Board had made that Decision. In this case, then, the Board, by its remand of the case to me, seems to have said that its prior Decision in the underlying representation case is not res judicata on the allegations in the complaint alleging violations of Sec- tions 8(a)(2) and 8(b)(1)(A), and I will proceed to a deci- sion on the facts of this case on these issues. B. The 8(a)(2) and 8(b)(1)(A) Allegations The complaint alleges that on or about March 18, 1978, the Respondent Employer and the Respondent Union executed and have since maintained a collective- bargaining agreement, notwithstanding the fact that Re- spondent Union was not at the time of the execution of the contract, or at any time thereafter, duly designated or selected by a majority of the Employees of Respon- dent employer at Haven Manor as their collective-bar- gaining representative. Beyond the stipulation of the parties who appeared at this hearing that at no time material herein did any of the employees involved execute any membership applica- tions, collective-bargaining authorizations, or check-off authorizations for dues or fees, the evidence received at this hearing shows that on March 17, 1978, Local 796 did not represent a majority of the people employed at Haven Manor. Employees Doretha Monday, Eddie Brown, and Vesta Desrameaux all testified credibly 14 that in February or March 1978 the employees at Haven Manor were summoned to a meeting in the office of Harry Fuller, who, it was stipulated, was Respondent Employer's supervisor at Haven Manor. At this meeting 14 I do not consider any of these witnesses particularly reliable but their testimony in this instance is mutually corroborative and undenied Milton Linden appeared and spoke to the employees.' 5 Linden told the employees what union he represented and that just because they did not pay dues it did not mean that they did not have a union. Linden then asked employees for grievances and, as employees related those to him, he spoke into a tape recorder. After that, Linden passed around authorization cards designating Local 796 as a bargaining representative. 16 He informed the em- ployees that if they signed the cards he would get them a $10 raise, but if they did not he could not get them any- thing. None of the employees signed cards and Linden left. He returned about a week later and spoke to Eddie Brown, giving him some more cards to distribute among the employees. Brown threw the cards away. Both Brown and Doretha Monday testified, credibly, that no one signed cards for Local 796. These employ- ees, together with Herman Berry, Nizislay Melendez, Riccardo Melendez, Ann Cruz, Neil Moore, and Vesta Desrameaux, all testified that they did not pay dues to any union, and that there had been no notices, no meet- ings, and no information supplied then about any union before or after March 17, 1978. Based on this credible and corroborative testimony, to- gether with the failure of Milton Linden or anyone rep- resenting Local 796 to appear or testify at this hearing, I infer and find that on March 17, 1978, Local 796 did not represent a majority of the employees of Respondent em- ployer at Haven Manor.' 7 I further find that, because of his failure to recruit any employees in his visits to Haven Manor, as well as his failure to appear at the hearing with testimony or records on membership, Milton Linden knew that Local 796 did not represent a majority of the employees at Haven Manor when he executed the addendum or collective-bargaining agreement on March 17, 1978. There was a question in my mind at the hearing, and before any testimony was received, as to whether the actual recognition of Local 796 by the Respondent Em- ployer may have occurred at some time before the ex- ecution of the contract on March 17. There are two let- ters from Linden to the Respondent Employer, one dated May 1, 1977, showing the merger of Local 690 with Local 106, and one dated November 16, 1977, showing the affiliation with Local 796. While there is no evidence that the Respondent Employer ever did any- thing about these changes other than noting the contents of the letters and then filing them, the Respondent Em- ployer's continued substantial application of the wages, '' The estimates both of the number of people employed at Haven Manor, and the number who attended the meeting vary, but I find, based on the number who voted in the decertification election in Case 29-UD- 108 that there were 22 employees in the bargaining unit, of whom I find 10 or 12 attended this meeting. [K The record contains much testimony about which of two cards was actually distributed at this meeting. Certainly the extensive cross-exami- nation of Monday, Brown, and Desrameaux on this point casts serious doubt on their memories and their reliability as witnesses, but both cards (G.C. Exhs, 7 and 8) are applications for membership in Local 796. the difference between them being that one also authorizes the checkoff of dues and fees. This difference is not material to a determination of the issues here. 17 Indeed, the inference is permissible that none of the employees were members of Local 796. 293 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours, and working conditions, as found by the Board in Case 29-RC-4224, indicates that recognition was, indeed, extended to the two successors of the original contract- ing union. This action could have formed the basis for unfair labor practice charges, but such charges would have been barred, in this case, by the 6-month statute of limitations contained in Section 10(b) of the Act. The ex- ecution of the contract on March 17, 1978, within the 10(b) period, does not so depend on the earlier recogni- tion as to bring this case within the broad mandate of Local Lodge No. 1424, International Association of Ma- chinists [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411 (1960). It is not the implementation of the contract which is here charged as a violation of law, but its ex- ecution. The Respondent Employer argues, with some force, that in the absence of a good-faith doubt as to the con- tinuing majority of the incumbent union, it had a duty to continue to recognize it as the bargaining representative of its employees. This would be so, the argument contin- ues, even in the case of successor unions. N.L.R.B. v. Newspapers, Inc., 515 F.2d 334 (5th Cir. 1975); Amoco Production Company, 239 NLRB 1195 (1979). Much has been made in this case, and in the underly- ing representative case, about the validity of the mergers which finally resulted in the appearance of Local 796 as the purported bargaining representative of the employees at Haven Manor. There was no evidence submitted by either the General Counsel or the Respondent Employer on the subject. The reason for the lack of evidence was, of course, the failure of any representative of the Re- spondent Union, particularly, Milton Linden, to appear or to supply subpenaed materials. In view of my findings herein I do not consider the question of the validity of the mergers significant and I will presume for purposes of this decision that the mergers were valid.' 8 I have al- ready found that Linden, and through him the Respon- dent union, knew on March 17, 1978, that Local 796 had no members employed. For the reasons given below, I find that the Respondent Employer also knew that its employees or at least a majority were not members of Local 796. The Respondent Employer was aware of the union- shop deauthorization election held in 1976. It knew, and stipulated to the fact, that it had received no checkoff re- quests. There is credible testimony in the record that Harry Fuller, the employer's supervisor at Haven Manor, had told employees Doretha Monday, Eddie Brown, and Herman Berry that there was no union. I do not credit Fuller's denial of this. He did not impress me as a candid or open witness and his statement that he never discussed wages with prospective employees is simply preposterous. Finally the testimony of Eddie Is Thus, I will not consider in this Decision the question of whether the employer's rights were prejudiced by the General Counsel's refusal to enforce the Respondent Employer's subpoena dures tecum to Milton Linden. That subpena was particularly directed at obtaining evidence of the mergers. Since I assume the merger is valid. I can discern no preju- dice to the Respondent Employer in the General Counsel's action. Paren- thetically, I might say that the Board's Rules and Regulations. Series 8, as amended. Sec. 102.31(d) do not appear to lodge any discretion in the General Counsel in determining whether to enforce Respondent Employ- er's subpoena duces ecum. Brown and Doretha Monday concerning the meetings of employees with Milton Linden shows clearly that none of the employees were members of Local 796 or wanted to be members. I infer that the Respondent Employer had knowledge of these meetings because of Fuller's action, which he did not deny, in summoning employees to the first meeting, and the failure of Leonard Marsh to testify concerning any negotiations or conversations which led up to the execution of the contract with Linden on March 17, 1978. However, it is not really necessary to find that Re- spondent Employer knew of the lack of majority since good faith would not excuse its action in recognizing and supporting a minority union, International Ladies Gar- ment Workers Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731 (1961). By executing the contract on March 17, 1978, the Re- spondent Employer has violated Section 8(a)(2) of the Act and the Respondent Union has violated Section 8(b)(1)(A). C. The Violations of Section 8(a)(1) At the hearing in this case on June 14, 1979, the Gen- eral Counsel moved to amend the complaint to add a paragraph alleging that on or about May 1, 1979, the Re- spondent Employer, through Denrich and Fuller threat- ened its employees with reprisals if they gave testimony or appeared at the instant hearing. Over the Respondent Employer's objections I allowed the amendment. 9 The incident alleged to be a violation of Section 8(a)(1) of the Act apparently occurred at sometime in May 1978 before the hearing in Case 29-RC-4224. Vesta Desrameaux testified that she had been subpenaed to appear at that hearing and that she had shown the sub- pena to Harry Fuller. Sometime later on that day Fuller came up to her and said that Denrich had told him that if she took off on Monday she could take off for the rest of the week and that the next time she was off she could "forget about that." This testimony was corroborated by Doretha Monday, who did not mention this incident, but was called by the General Counsel in rebuttal, and then testified about the incident. Fuller denied the incident. In this case, while I generally found Fuller to be an unreliable witness, I believe his denial. Desrameaux, I find, was a poor witness. Her memory was bad and she evidenced an almost intractable inability to understand questions put to her or to answer questions directly. Monday was active on behalf of the Charging Party, and her memory was also not good, as may be seen in her replies to questions about the authorization cards passed out by Milton Linden. I do not credit her corroboration of Desrameaux's testimony. While there may have been some conversation between Fuller and Desrameaux about the latter's time off, I cannot find that this was a threat to discipline Desrameaux because she had asked for time off to answer a subpena for the Board. Indeed, 19 These objections were based on surprise and inability to prepare a defense. In view (of the fact that no testimony on these allegations was received until December 10. 1979. I do not feel that these objections are meritorious. 294 FIRST NATIONAL MAINTENANCE CORPORATION she testified that she returned to work after the hearing and nothing was said and nothing happened. The second incident apparently covered by this allega- tion of the complaint occurred at the hearing in the rep- resentation case on June 19, 1978. John Donalds, the or- ganizer for District 1199, testified that someone at Haven Manor had called him while he and a number of employ- ees were attending the hearing and told him that Fuller had told an employee that the employees who were at the Labor Board office were fired. Donalds then went up to Marsh, who was also in attendance, and asked him what gave him the right to fire the people who were at the hearing. Marsh replied that they had not informed their supervisor and the Respondent Employer's work was not covered. He further said he would call the su- pervisor and investigate further. About a half hour later Marsh returned and said the matter had been straight- ened out. He had talked to Fuller and said that there had been a misunderstanding and the employees were rein- stated with no loss of pay. Marsh himself testified that at the 1978 hearing he saw a number of employees present. He had thought that only two were to be at the hearing and, apparently an- noyed, said in a loud voice to the employees and union representatives there that because they were there with- out permission he was going to take "disciplinary ac- tions." He then made some telephone calls and found out that the employees did have permission to be at the hear- ing. He denied that he said the employees were fired or that he was going to reinstate them. On the basis of my observation of these two witnesses, Donalds and Marsh, I found Marsh to be the more credi- ble. Certainly, Marsh's description of Donald's reaction to his announcement of possible disciplinary action as consisting of "threats and sarcasm" accords with my ob- servation of Donalds' demeanor. Therefore, I find that this incident occurred as described by Marsh. In the context of this case I cannot find that the Gen- eral Counsel has established that the Respondent Em- ployer evidenced hostility or animus toward District 1199. Fuller's statements to employees, as related by Monday, that he had tried to help the employees get a union is evidence of a lack of animus, and accords with Adminstrative Law Judge Bisgyer's findings in Case 29- CA-4631 on Fuller's attitude. Marsh's generalized state- ment about disciplinary action, in a moment of anger, is not indicative of any underlying hostility toward District 1199 or the employees.2 0 Therefore I view this as an isolated incident, of mo- mentary significance only, which was almost immediate- ly rectified, with no effect which can be discerned in the record on these employees. In the light of all the circumstances of this case, I find that the General Counsel has not shown by a preponder- ance of the credible evidence that Respondent Employer has violated the law in these two incidents. 20 I specifically do not credit Donalds' testimony that, at the hearing in June 1978, he heard Marsch mutter the word "Reds" apparently in ref- erence to the union officials. THE REMEDY Having found that the Respondents employer and union, have engaged in unfair labor practices in violation of Section 8(a)(2) and (1) of the Act, I shall recommend that they cease and desist therefrom. In my view no af- firmative action, other than posting of notices and notifi- cation to the Regional Director of compliance steps, is necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW I. First National Maintenance Corporation is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Depart- ment Store Union, AFL-CIO; and Local 796, Amalga- mated Workers Union of America are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By recognizing and bargaining with Local 796, the Respondent Employer has violated Section 8(a)(2) and (1) of the Act. 4. By entering into a collective-bargaining agreement with Local 796 on March 17, 1978, the Respondent Em- ployer has violated Section 8(a)(2) and (1) of the Act. 5. By entering into a collective bargaining agreement with the Respondent Employer on March 17, 1978, the Respondent Union has violated Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent Employer did not violate the Act in any other manner. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Secticn 10(c) of the Act, I hereby issue the following recommended: ORDER2 I A. Respondent First National Maintenance Corpora- tion, Ridgewood, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Recognizing, or giving any form of assistance to Local 796 or any successor thereto, or any other labor organization, unless and until such labor organization is certified as the collective-bargaining representative of Respondent Employer's employees in an appropriate unit by the National Labor Relations Board. (b) Giving effect to a collective-bargaining agreement with Local 796 dated March 17, 1978, except that the wages and other benefits provided in that agreement shall not be reduced during the term of that agreement, that is, until May 1, 1981. :1 In the event no exceptions are filed as provided in 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. 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is de- signed to effectuate the policies of the Act: (a) Post at its Far Rockaway, New York, location copies of the attached notice marked "Appendix A."22 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Re- spondent employer's authorized representative, shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Respondent Employer shall take reasonable steps to insure that said notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days of this Order, what steps the Re- spondent Employer has taken to comply herewith. B. Respondent Local 796, Amalgamated Workers Union of America, Richmond Hill, New York, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Purporting to represent employees employed by the Respondent Employer at its Far Rockaway, New York, location, unless and until certified as the collec- tive-bargaining representative of these employees in an appropriate unit by the National Labor Relations Board. (b) Enforcing or attempting to enforce a collective- bargaining agreement dated March 17, 1978. (c) In any like or related manner interfering with, re- straining, or coercing employees of Respondent Employ- er in the exercise of their rights guaranteed them by Sec- tion 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its offices copies of the attached notice marked "Appendix B." 23 Copies of said notice, or forms provided by the Regional Director for Region 29, after being duly signed by Respondent Union's authorized rep- resentative, shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all 22 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 23 See fn. 22. places where notices to members are customarily posted. Respondent union shall take reasonable steps to insure that said notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days of this Order, what steps Respon- dent union 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 After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT purport to represent employees of First National Maintenance Corporation at its Haven Manor location in Far Rockaway, New York, unless and until we are certified as the collec- tive-bargaining representative of these employees in an appropriate unit by the National Labor Relations Board. WE WILL NOT enforce or attempt to enforce a collective-bargaining agreement with First National Maintenance Corporation dated March 17, 1978. WE WILL NOT in any like or related manner re- strain or coerce employees of First National Main- tenance Corporation in the exercise of their rights guaranteed them by Section 7 of the National Labor Relations Act. LOCAL 796, AMALGAMATED WORKERS UNION OF AMERICA 296