Mego Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 300 Mego Corp. and Samet and Wells, Inc. and Local 101 International Brotherhood of Craftsmen, Professionals and Allied Trades and Local Union No. 807 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract Local Union No. 807 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Local 101 International Brotherhood of Craftsmen, Professionals and Allied Trades and Mego Corp. and Samet and Wells, Inc., Party to the Contract. Cases 29- CA-7291, 29-CA-7347, 29-CB-3861, and 29- CB-3888 DECISION AND ORDER January 14, 1981 BY CHAIRMAN FANNING AND MEMBERS TRUESDALE AND ZIMMERMAN On November 5, 1980, Administrative Law Judge Elbert D. Gadsden issued the attached Deci- sion in this proceeding. Thereafter, Respondent Employer and Respondent Union filed exceptions and supporting briefs. The General Counsel filed limited exceptions to certain findings of the Admin- istrative Law Judge, and a brief in support of the remainder of the Administrative Law Judge's Deci- sion. 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- t Respondent Employer and Respondent Union have excepted to cer- tain 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 incor- rect. Srandard 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. The Administrative Law Judge's Decision contains several errors which we note: (I) the date of the hearing in this matter as referenced in the "Statement of the Case" should be in the year 1980; (2) in sec. I,C, the address of Respondent Employer's leased plant space is corrected to read "50 Emiay Boulevard"; (3) the "no reprisal" telegram sent to strik- ings,' and conclusions 2 of the Administrative Law Judge as modified herein. In the first paragraph of the Administrative Law Judge's "Analysis and Conclusions," he states that the complaint alleges that Respondent Union vio- lated Section 8(b)(1)(A) and (2) of the Act, inter alia, by causing the discharge of striking employees and employees who refused to join Respondent Union. While the Administrative Law Judge found, ing employees on July 2, 1979, was signed by Nobile and Carillo, not Ro- tenberg as stated in sec. IlL, F; (4) in the "Analysis and Conclusions" sec- tion in the paragraph immediately following subpar. (k), the plain mean- ing of that paragraph dictates that the second "not" be deleted, and the word "accredited" be changed to read "accreted"; (5) also in the "Analy- sis and Conclusions" section, in discussing his conclusion that the Brent- wood employees are not an accretion to Respondent's Bohemia bargain- ing unit, the Administrative Law Judge twice transposed the words "Brentwood" and "Bohemia." Accordingly, that paragraph should read in pertinent part ". .. Respondent Employer's Brentwood, as opposed to its Bohemia, plant did not have a centralized personnel management de- partment," and, "as distinguished from the Bohemia plants .... " 2 The Administrative Law Judge found in sees. E, F, and his "Analysis and Conclusions" that Respondent Employer and Respondent Union signed a "Memorandum of Settlement" on June 29, 1979, which was later incorporated into a new collective-bargaining agreement covering the Bohemia and Brentwood employees, and that it has since implemented this agreement. The agreement provided for wage increases, benefits, and contained a union-security clause. Having found that the Brentwood em- ployees are not an accretion to the Bohemia bargaining unit, the applica- tion of this agreement, and its consequent effect on the working condi- tions of the Brentwood employees, is a violation of Sec. 8(aX3). Howev- er, in his Decision, the Administrative Law Judge omitted reference to this violation in the section entitled "The Remedy" and in his Conclusion of Law 3. Accordingly, the remedy section is modified to delete "8 (aX1) and (2)" and substitute in its place "8(aXI), (2), and (3)." Likewise, Con- clusion of Law 3 is modified to delete "8(a)(1)" and substitute in its place "8(aX3) and (1)." In secs. E, F, and in the "Analysis and Conclusions," the Administra- tive Law Judge found that Respondent Employer and Respondent Union violated Sees. 8(a)(2) and 8(b)(2), respectively, by various acts, including threats, promises, discharges, and the implementation of an unlawful col- lective-bargaining agreement in order to coerce employees to join Re- spondent Union. However, the Administrative Law Judge failed to in- clude these violations in his Conclusions of Law. Conclusion of Law 6 is hereby modified to delete "8(a)(l)" and substitute in its place "8(aXl) and (2)"; Conclusion of Law 7 is changed to delete "8(a)(l) and (3)" and sub- stitute in its place "8(aXl), (2), and (3)"; Conclusion of Law 8 is modified to delete "8(a)(3) and (1)" and substitute in its place "8(aXI), (2), and (3)"; and Conclusion of Law 9 is modified to delete "8(bXlXA)," and substitute in its place "8(bXl)(A) and (2)." The parties admit, and the record supports the conclusion, that Re- spondent Union is a labor organization within the meaning of Sec. 2(5) of the Act. The Administrative Law Judge failed to include this conclusion in his Conclusions of Law. Accordingly, Conclusion of Law 2 is hereby renumbered as 2(a), and Conclusion of Law 2(b) is added as follows: "Local Union No. 807 International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of the Act." 254 NLRB No. 31 MEGO CORP. and the record supports the conclusion, that Re- spondent Union did violate Section 8(b)(l)(A) and (2) as alleged in the complaint by accepting recog- nition and executing and enforcing a collective-bar- gaining agreement, including a union-security clause and dues-checkoff provisions on behalf of the Brentwood employees of whom it did not rep- resent a majority, the complaint does not allege, nor does the record evidence support, the finding that Respondent Union caused the discharge of said employees. In the same section, the Administrative Law Judge found that on and since July 11, 1979, Re- spondent Employer complied with Respondent Union's request that it discharge employees who refused to join Respondent Union. While Respon- dent Employer did unlawfully apply the terms and conditions of the collective- bargaining agreement to its Brentwood employees, the record establishes that it did not discharge any employees after the Union's request for such discharges. AMENDED REMEDY We have found that Respondent Employer vio- lated Section 8(a)(l), (2), and (3) of the Act by ex- ecuting and maintaining a contract with Respon- dent Union when the Union did not represent a majority of the employees at the Brentwood plant and by various other acts as delineated in the Deci- sion, and that Respondent Employer has, since on or about July 1, 1979, implemented the terms and conditions of the June 29 Memorandum of Settle- ment, and their subsequent memoralization in an agreement effective July 1, 1979, through June 30, 1982. Said agreement includes increases in rates of pay and establishes certain other benefits, including health and welfare benefits. To remedy this viola- tion, the Administrative Law Judge recommended that Respondent be ordered to cease and desist from giving effect to said agreement until such time as Respondent Union is certified as the repre- sentative of the Brentwood employees. We adopt that recommendation. However, it would contra- dict the purpose of the Act if the Brentwood em- ployees were penalized by an order that on its face would seem to require Respondent Employer to withdraw certain benefits which have inured to the employees under the agreement unlawfully applied to them. Accordingly, our Order, as to Respondent Employer, provides that the abrogation of said agreement shall be without prejudice to the em- ployees' wages or other economic conditions of employment now in existence; and that with regard to any hospitalization, medical, sickness, or similar casualty or other coverage or indemnities, reason- able provision shall be made by Respondent Em- ployer to provide employees with substitute cover- age. Hartz Mountain Corp., 228 NLRB 492 (1977). We have also found, in agreement with the Ad- ministrative Law Judge, that Respondent Employ- er violated Section 8(a)(3) of the Act by discrimin- atorily discharging striking employees because they engaged in a protected economic strike and be- cause they refused to join Respondent Union. However, the Administrative Law Judge's recom- mended remedy for this violation fails to establish the dates for computing backpay. In accordance with established Board precedent, we do not re- quire that the discharged strikers unconditionally request reinstatement in order to trigger the Em- ployer's backpay obligation. Abilities and Goodwill, Inc., 241 NLRB 27 (1979), reversed on other grounds 612 F.2d 6 (st Cir. 1979). Instead, we find that the discharged strikers in the instant case are entitled to receive backpay from the date of their discharge until the date of their reinstatement in ac- cordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As part of his proposed remedy for Respondent Union's unfair labor practices, the Administrative Law Judge recommended that Respondent Union be required to post a "Notice to the Union" at its offices and at its meeting and hiring halls. Howev- er, few, if any, Brentwood employees, the employ- ees affected by the unfair labor practices, are mem- bers of Respondent Union. Consequently, a "Notice to Members" or "Notice to the Union" posted at Respondent Union's premises would probably not be seen by the Brentwood employees, and, further, such a notice would lack the neces- sary reassurance to these employees as non- members of Respondent Union that they can exer- cise their Section 7 rights without fear of restraint or coercion. Peninsula Shipbuilders' Association (Newport News Shipbuilding and Dry Dock Compa- ny), 239 NLRB 831 (1978). In light of these cir- cumstances, we shall require that the notice signed by Respondent Union be entitled "Notice to Em- ployees and Members," and that it be posted both at Respondent Union's offices and halls and that it be forwarded to Respondent Employer's Brent- wood and Bohemia plants where the latter shall be required to post such notice as well as its own "Notice to Employees." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: 301 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Respondent Employer, Mego Corp. and Samet and Wells, Inc., of New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing Local Union No. 807 Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, covering em- ployees at the Brentwood facility, when said Union does not represent a majority of the employees. (b) Giving effect to any contract entered into be- tween Mego Corp. and Samet and Wells, Inc., and Local Union No. 807 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, covering employees at the Brentwood facility, when said Union does not represent a ma- jority of the employees, or to any of its terms or conditions and refrain from any renewal or exten- sion thereof without prejudice, however, to any wages or benefits granted to Brentwood employees thereunder. With regard to any insurance or in- demnity coverage maintained by or through said Teamsters Local 807, Respondent Employer shall forthwith provide an equivalent substitute so that no such coverage shall be discontinued or lapse while in Respondent's employ. (c) Warning Brentwood plant employees not to join or assist the Charging Party Union, Local 101 International Brotherhood of Craftsmen, Profes- sionals and Allied Trades. (d) Threatening Brentwood plant employees with discharge if they join the Charging Party Union (Local 101). (e) Telling Brentwood plant employees they must join or pay dues to Respondent Union in order to retain their employment. (f) Promising and granting benefits to employees to induce them to refrain from joining or assisting the Charging Party Union (Local 101). (g) Discriminatorily discharging employees for engaging in a protected economic strike and be- cause they refuse to join Respondent Union. (h) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affect- ed by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Offer to all discharged striking employees re- instatement to their former positions or, if such po- sitions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by reason of the discrimination against them, with in- terest, in the manner described in the section of this Decision entitled "Amended Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at Respondent Employer's places of business in Brentwood and Bohemia, New York, copies of the attached notice marked "Appendix A."3 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent Employer's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said no- tices are not altered, defaced, or covered by any other material. Respondent Employer shall also post copies of Appendix B in the same manner as provided for the posting of Appendix A and for the same period of time. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply herewith. B. The Respondent Union, Local Union No. 807 International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Accepting recognition and executing a collec- tive-bargaining contract on behalf of Brentwood employees of whom Respondent Union does not represent a majority. (b) As an organization, or collaborating with Re- spondent Employer, telling striking employees they have to join Respondent Union (Local 807) in order to keep their jobs with Respondent Employ- er. (c) In any other manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: a 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." 302 MEGO CORP. (a) Post at its offices, meeting halls, and hiring halls and forward to Respondent Employer for posting at the latter's Brentwood and Bohemia, New York, plants copies of the attached notice marked "Appendix B." 4 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an autho- rized representative of Local Union No. 807 Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union 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 from the date of this Order, and thereafter on a weekly basis of steps taken to comply with the Order herein until such Order has been complied with. · See fn. 3, supra. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing 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 interfere with, restrain, or coerce employees by recognizing Respondent Union (Local Union No. 807 International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America), or any other labor organization which does not repre- sent an uncoerced majority of employees. WE WILL NOT give effect to any contract entered into between Mego Corp. and Samet and Wells, Inc., and Local Union 807 Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, cov- ering employees at the Brentwood facility, when said Union does not represent a majority of the employees or to any of its terms or con- ditions and refrain from any renewal or exten- sion thereof without prejudice, however, to any wage or benefit granted to Brentwood em- ployees. With regard to any insurance or in- demnity coverage maintained through Team- sters Local 807, we will forthwith provide an equivalent substitute so that no such coverage shall be discontinued or lapse. WE WILL NOT warn employees not to join or assist Local 101 International Brotherhood of Craftsmen, Professionals and Allied Trades. WE WILL NOT threaten employees with dis- charge if they join Local 101, or any other labor organization. WE WILL NOT tell employees they have to join Local 807, or any other labor organization which does not represent a majority of em- ployees, in order to retain their jobs. WE WILL NOT promise or grant benefits to employees to induce them to refrain from join- ing or assisting Local 101, or any other labor organization of their choosing. WE WILL NOT discourage membership in Local 101 International Brotherhood of Crafts- men, Professionals and Allied Trades, or any other labor organization, by discharging em- ployees or otherwise discriminating in any manner in respect to their tenure of employ- ment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise and enjoyment of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL offer to all discriminatorily dis- charged employees immediate and full rein- statement to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to the se- niority and other rights and privileges previ- ously enjoyed by them and make them whole for any loss of pay they may have suffered by reason of their discharge, with interest. All of our employees are free to become, remain, or refuse to become or remain, members of said Union, or any other labor organization, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. MEGO CORP. AND SAMET AND WELLS, INC. 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To EMPLOYEES AND 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 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 accept recognition and ex- ecute a collective-bargaining contract on behalf of employees for whom we do not rep- resent a majority or have been certified. WE WILL NOT singly or in collaboration with Respondent Employer (Mego Corp. and Samet and Wells, Inc.) tell employees they must join Local Union 807 International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, in order to keep their jobs with Respondent Employer. WE WILL NOT in any other manner restrain or coerce employees in the exercise and enjoy- ment of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by such lawful agreements in accord with Section 8(a)(3) of the Act. LOCAL UNION No. 807 INTERNA- TIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon charges of unfair labor practices filed in Cases 29- CA-7291 and 29-CA-7347 on June 27 and July 20, 1979, respectively, by Local 101 International Brotherhood of Craftsmen, Professionals and Allied Trades, herein called Local 101 or the Charging Party, against Mego Corp. and Samet and Wells, Inc., herein collectively called Re- spondent Employer, and in Cases 29-CB-3861 and 29- CB-3888 by Local 101, against Local Union 807 Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, herein called Respondent Union, the General Counsel of the National Labor Rela- tions Board issued an order consolidating the cases and a complaint and notice of hearing on August 13, 1979. In substance the consolidated complaint alleges, inter alia, that Respondent Employer violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, herein called the Act, by: recognizing Respondent Union and executing and maintaining a contract with Respondent Union at one of its plants (Brentwood) when said Union did not represent a majority of the employees at said plant, warning employees not to join or assist the Charg- ing Party Union, threatening employees with discharge and other reprisals if they joined the Charging Party, telling employees they had to join and/or pay dues to Respondent Union in order to retain their employment, promising and granting benefits to induce employees to refrain from joining or assisting the Charging Party Union, and discharging employees for engaging in a pro- tected strike at said plant; and that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act, by accept- ing recognition and executing a collective-bargaining agreement at a time when Respondent Union did not represent a majority of the employees at said Brentwood plant, and causing and/or attempting to cause Respon- dent Employer to discriminate against said employees by requesting them to join or pay dues to Respondent Union in order to retain their employment. Respondent Employer and Respondent Union filed an- swers on August 28 and August 30, 1979, respectively, denying that they have engaged in any unfair labor prac- tices as alleged in the consolidated complaint. A hearing in the above matter was held before me in Brooklyn, New York, on May 5-8 and June 16 and 18, 1979. Briefs have been received from counsel for the General Counsel, counsel for Respondent Employer, and counsel for Respondent Union, respectively, which have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Mego Corp. and Samet and Wells, Inc., collectively, Respondent Employer herein, are, and have been at all times material herein, corporations duly organized under, and existing by virtue of, the laws of the State of New York. It has maintained a principal office and place of business at 41 Madison Avenue in New York City, New York, known herein as the New York office, as well as warehouses and plants at 100 Orville Drive, 110 Orville Drive, 70 Orville Drive, and 125 Wilbur Place in the Village of Bohemia, New York, and 50 Emjay Boule- vard in the Village of Brentwood, New York, herein re- spectively called the Bohemia plants and the Brentwood plant. Respondent also has other places of business in the United States and foreign countries, all of which are and have been at all times material herein engaged in the manufacture, sale, and distribution of toys and related products. During the past year, a representative period, Respon- dent Employer, collectively, in the course and conduct of their business, each purchased and caused to be trans- ported and delivered to their plants, plastic, rubber, corn syrup, toy parts, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to their places of business in interstate commerce directly from States of the United States other than the State in 304 MEGO CORP. which they are located, and in foreign commerce direct- ly from foreign countries. The record also shows that, at all times material herein, Respondent Employer has been an affiliated busi- ness with common offices, ownership, directors, and op- erators; that it constitutes a single integrated business en- terprise; and that the directors and operators formulate and administer a common labor policy for the aforen- amed Companies or plants, affecting the employees of said Companies or plants. The consolidated complaint alleges, Respondent Em- ployer's answer admits, and Respondent Union denies because of insufficient knowledge but, since Respondent Employer admits, I find that Respondent Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, Respondent Employer admits, and I find that Local 101 International Brotherhood of Craftsmen, Professionals and Allied Trades, herein called the Charging Party or Local 101, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The complaint alleges, Respondent Employer admits, and I find that Local Union No. 807 International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent Union herein, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Mego Corp. and Samet and Wells, Inc., herein collec- tively called Respondent Employer, is a New York cor- poration engaged in the manufacture, sale, and distribu- tion of toys and related products. Respondent Employer maintains a principal office and place of business at 41 Madison Avenue, New York, New York, and warehouse plants at 100, 110, and 70 Orville Drive, and 125 Wilbur Place in Bohemia, New York, and 50 Emjay Boulevard, Brentwood, New York, hereinafter respectively referred to as the Bohemia and Brentwood plants. As of March 1980, Samet and Wells have been merged into and are now Mego Corporation. Respondent Employer and Respondent Union ad- mitted that the following parties occupied the positions following their respective names and are supervisors and agents of Respondent Employer, within the meaning of Section 2(11) and (13), respectively, of the Act: Harold (Harry) Rotenberg-vice president; Robert McGrath, Sr.-Brentwood plant foreman; Robert Nobile-vice president in charge of production and personnel; and Thomas Carillo-plant manager, Brentwood plant. The parties stipulated for the admission of pages 197(a) through 611(a), General Counsel Exhibit 2 (the court transcript in the 10(j) proceeding, 79 Civil 2443), which shall constitute the testimony and motions with respect to all matters therein, except that the answer "Yes" on line 18 at page 478(a) of the court's transcript and the General Counsel Exhibit 2(a) is changed to "No." More specifically, the parties further stipulated that the testimony of the following named witnesses in the court transcript (79 Civil 2443), over which there appears to be no dispute and which I credit, shall be admitted and ac- cepted in this proceeding: (I) General Counsel Exhibit 2(B), Jose Guzman at pages 475(a)-529(a); (2) General Counsel Exhibit 2(C), Angelo Rodriguez at pages 529(a)-538(a); (3) General Counsel Exhibit 2(D), Robert Brommage at pages 389(a)-429(a); and (4) General Coun- sel Exhibit 2(E), Julio Rivera at pages 558(a)-566(a). In 1976, Local 807 was certified the collective-bargain- ing representative for the appropriate unit of employees at Respondent Employer's Bohemia, New York, plants. A contract was subsequently signed covering employees in those plants in 1977. However, in the late spring of 1979, Respondent Employer opened an entirely new plant operation in Brentwood, New York, 10 miles away from its Bohemia plants. Employees in the Brentwood plant were hired from the local community of Brent- wood and most of them were able to walk to work. The employees in the Bohemia plants worked exclusively in the Bohemia plants, the employees in the Brentwood plant worked exclusively in the Brentwood plant, and there was no interchange of employees between the two operations. The Brentwood plant was established to manufacture a new line of stretch skin dolls which were not manufac- tured at the Bohemia plants, and which constituted about 60 percent of the Brentwood operation. Respondent Em- ployer exercised some administrative control over the Bohemia and Brentwood operations. However, the day- to-day management and supervision of employees, in- cluding hiring (until July 1979), substantial quality con- trol, and substantial production were carried out by Brentwood Plant Manager Thomas Carillo and Plant Foreman Robert McGrath. A substantial portion of the Brentwood plant operation required different skills and functions than those per- formed at the Bohemia complex. There was no collec- tive-bargaining history between the Brentwood plant and Local 807, but in May 1979, pursuant to its agreement with Respondent Employer, Local 807 demanded recog- nition for the Brentwood employees on the basis of an accretion clause in the agreement. Local 807 did not seek or obtain certification through the National Labor Rela- tions Board or through authorization cards from a major- ity of the Brentwood employees. On June 27, 1979, the Brentwood employees walked off the job in protest of Respondent Employer's failure to award them increases after 30 days' employment and for their concern about other benefits and working conditions. Respondent Em- ployer and Respondent Union immediately proceeded to tell the Brentwood employees they were covered by the agreement with Local 807. The Brentwood employees rejected this claim and contacted and signed authoriza- tion cards for Local 101. The defense of Respondent Employer and Respondent Union to the allegations in the complaint is that the Brentwood employees are accreted to the appropriate 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit of the Bohemia employees, pursuant to the accretion clause in the April 14, 1977, agreement between Respon- dents. The central issue presented for determination herein is whether the Bohemia and Brentwood business oper- ations, the employees, machinery, manufacturing process, and managerial control are so integrated as to constitute a single employer with a multiplant bargaining unit, thereby forming the basis for a proper and an appropri- ate application of the doctrine of accretion, or whether accretion can be achieved, as Respondents contend, through the accretion clause in the collective-bargaining agreement. Having obtained authorization from the Board, the Re- gional Director for Region 29, pursuant to Section 10(j) of the Act, filed a petition for temporary injunction with the United States District Court for the Eastern District of New York on September 13, 1979. On February 9, 1980, the court entered an opinion and issued a supple- mental order on March 3, 1980, granting the temporary injunctive relief sought. The hearing on the consolidated complaints herein commenced on May 5 and concluded on June 18, 1980.1 B. Respondent's Bohemia Plants' Operations and Its Relationship to Local 807 The undisputed and credited evidence of record estab- lishes that during the past 5 or 6 years Respondent Em- ployer has been a rapidly expanding business enterprise. Approximately a year or more prior to September 8, 1976, Respondent Employer carried on business oper- ations at 100 Orville Drive and 70 Orville Drive, Bohe- mia, New York. On September 8, 1976, in Case 29-RC- 3390, Respondent Union was certified by the National Labor Relations Board as the exclusive representative of all of the production and maintenance employees at both of the above addresses, exclusive of all other employees, salesmen, office clerical employees, guards, and supervi- sors as defined in the Act. Subsequently, Respondent Employer and Respondent Union executed a collective-bargaining agreement on April 1, 1977, covering the aforedescribed unit employ- ees, effective from July 1, 1977, through July 30, 1979. The agreement contained, inter alia, provisions requiring good standing membership in Respondent Union 30 days after employment as a condition for continued employ- ment, employees' authorized dues checkoff, made pay- able to Respondent Union, and an accretion clause which read as follows: In the event that the Employer divides the oper- ation of its business or departmentalizes or further subdivides any of its operations, either at the same locations or at different locations, and under the same name or different names, directly or indirect- ly, in whole or in part, all of the employees in all parts of the operation, wherever located, will be in- cluded in this unit and all of the parts of subdivi- sions of the operations of the Employer under The facts set forth above are either agreed on by the parties or not disputed and, therefore, are not in conflict in the record. whatever name and whatever entity, whether a person, firm, or corporation and regardless of whether other individuals or persons may also have an interest in the entity, will be bound by the terms and provisions of this Agreement with the same force and effect as if it or they were a party signa- tory at the time of its execution. [G.C. Exh. 3.] At a later time in 1977, Respondent Employer com- menced operating a small warehouse at 125 Wilbur Place, Bohemia, New York, to accommodate the over- flow from its 100 Orville Drive operation. Two of its warehouse employees were transferred to the Wilbur Place warehouse and their coverage under the collec- tive-bargaining agreement continued. Respondent Em- ployer and Respondent Union commenced negotiations on February 1, 1979, for a successor agreement to their April 1977 agreement. C. The Expanding Subjects of Production, Manufacturing Processes, Personnel Staffing, and Functional Operations of Respondent Employer's Plants Prior to July 1979, Respondent Employer manufac- tured 40 separate toys and games at its 100 Orville Drive (the other side of which was 1195 Lakeland Avenue) and 70 Orville Drive plants in Bohemia. Stuffed toys were made at 70 Orville Drive and both plants were approxi- mately 100 yards or feet from the other. A warehouse was also opened and operated at 125 Wilbur Place, Bo- hemia. There were approximately 160 employees at 100 Orville Drive, of which 35 were warehousemen who earned more than $2.90 per hour during the first half of 1979. On December 13, 1978, Respondent Employer leased plant space at 40 Emjay Boulevard, Brentwood, New York. It commenced moving machinery into the plant in mid-January 1979 and started production several weeks thereafter (March or April 1979). The new plant at Brentwood was established primarily to produce a new line of "stretch skin" (expandable items) toys such as Su- perman, Spiderman, Incredible Hulk, Batman, and Plas- ticman, etc. Such toys were never produced at the Bohe- mia plants and their production at the Brentwood plant constitutes 60 percent of total production. The rubber stretch skins and the corn syrup filler with which they are filled or inflated are purchased from independent contractors and delivered directly to the Brentwood plant. The syrup filler is transported to the Brentwood plant by tank cars on a railroad siding adjacent to the Brentwood plant. Such railroad siding did not exist at Bohemia and that is one of the reasons Respondent pro- cured the facility at Brentwood. Manufacture of the ex- pandable items requires a different machine operation from the manufacturing process carried on at Bohemia. In fact the manufacturing process at Brentwood requires special training and skills which are not required by the employees at the Bohemia operations. The remaining 40 percent of the Brentwood operation consists of dolls and toys shipped from Respondent Em- ployer Bohemia and Hong Kong manufacturing plants 306 MEGO CORP. for packaging at the Brentwood plant. However, only 5 percent of the packout operation at Brentwood was ever performed at Bohemia, and that 5 percent was trans- ferred to Brentwood in May 1979. Consequently, a sub- stantial majority of the work performed at Brentwood was never performed at Bohemia. Moreover, all of the Brentwood employees were employed from the commu- nity of Brentwood and none of them ever went to work at Bohemia. Likewise, none of the Bohemia nonsupervi- sory employees were ever transferred to the Brentwood plant and there was no interchange of employees be- tween the two operations. Moreover, hiring for both the 70 Orville and 100 Orville Drive plants in Bohemia was carried on jointly at 100 Orville Drive since 1978. When operations at 70 Orville Drive were terminated in late 1979, the employees from there were transferred to 100 Orville Drive. In any event, all of these operations at 70, 100, and 110 Orville Drive, 1195 Lakeland Avenue, and 125 Wilbur Place, Bohemia, herein referred to as the Bo- hemia complex, are situated within a few hundred yards of each other. The Brentwood plant is located 10 miles from the Bohemia plants complex and most of the Brent- wood employees walk to work. D. Managerial or Supervisory Control The daily operation of the Brentwood plant was car- ried out under the direction and control of Thomas Car- illo, plant manager, and Robert McGrath, foreman, until July 1, 1979, when he was replaced by Al Blaine. Re- spondent Employer's vice president, Harry Rotenberg, visits the Brentwood plant once or twice a week. Train- ing of new Brentwood employees was carried out by Carillo and McGrath, including assignment of work, transfer of employees between operations, and training and discipline of employees. They were also responsible for setting up assembly lines, correcting imbalances in production, and seeing to it that normal production was achieved. They were the highest ranking managerial offi- cials at the Brentwood plant on a day-to-day basis. Prior to July , 1979, they did all of the hiring and firing at Brentwood. Throughout the first half of 1979, the 100 Orville Drive plant had a complement of about 160 employees, of which about 120 were production employees and 35 or 40 were warehousemen. Subsequent to July 11, 1979, the number of employees increased to 300, while there were 30 production employees at 70 Orville Drive and 2 warehousemen at 125 Wilbur Place. In July 1979, the 100 Orville Drive operation moved to 110 Orville Drive where a variety of stuffed animals were produced. Con- versely, in early 1979 the Brentwood plant had only 5 production employees but by May 8, 1979, that number had increased to 22, and by June 27 to 70 production employees, 2 drivers and 8 warehouse employees for a total of 80 employees. Additionally, since July 1979 the Brentwood plant employee complement has increased to over 150 employees, none of whom are from the Bohe- mia community. Prior to July , 1979, Respondent had a quality con- trol manager at Bohemia and a quality control person, Ken Leonard, at Brentwood, latently said to be super- vised by someone from Bohemia during the day. Although all of the plants had their separate payroll documents, Respondent nevertheless exercised a degree of centralized control over the operations of all of its plants with respect to payroll, production control data, production scheduling, managerial guidance, and labor relations through the main office located at 41 Madison Avenue, New York, New York. E. Collective-Bargaining Agreements Between Respondent Employer and Respondent Union and the Applicability of Said Agreements to the Brentwood Employees Respondent Employer and Respondent Union com- menced negotiations for a successor agreement to their current (April 14, 1977) agreement on February 1, 1979. Respondent Employer did not involve its Brentwood Plant Manager Carillo in any negotiations as a part of its team. During a negotiation session on or about April 19, 1979, Respondent Union demanded recognition as the representative of the Brentwood production, mainte- nance, and warehouse employees, pursuant to an accre- tion clause in their April 14, 1977, agreement. Respon- dent Employer refused recognition and Respondent Union submitted the issue to arbitration on April 11, 1979. Thereafter, Respondent Union renewed its demand for recognition on May 8 and 21, 1979. On May 21, 1979, Respondent Employer's attorney recognized Re- spondent Union's demand and agreed to apply the April 14, 1977, agreement to the Brentwood employees, pursu- ant to the accretion clause therein. The undisputed evidence of record herein shows that since on or subsequent to May 21, 1979, Respondent Union has failed to present any evidence (authorization cards or otherwise) that it represented an uncoerced ma- jority of the Brentwood employees. The evidence is also clear that Respondent Union's claimed representation of the Brentwood employees is predicated on the parties in- terpretation of an "accretion clause" in their agreement, and their purported application of said clause to the Brentwood employees. In this regard, Respondent's Vice President Rotenberg testified that the Brentwood plant employees were covered by the Local 807 contract be- tween May 21 and July 1, 1979. However, Rotenberg acknowledged in his testimony that the Employer did not tell the Brentwood employees they were members of Respondent Union (Local 807) until June 27, 1979, when said employees walked off the job in protest of their not having received raises after being on the job 30 days. Prior to that date the Brent- wood employees did not know of the existence of Local 807 in any of Respondent Employer plants. Correspond- ingly, no dues-checkoff cards had been received from the Brentwood employees and none of them had paid initi- ation fees or dues to Local 807 as did the Bohemia em- ployees. Nor were contributions made by the Brentwood employees to Respondent Union's pension and welfare funds prior to June 30, 1979. The Brentwood employees had not seen an agent from Respondent Union prior to June 27, 1979, and the collective-bargaining agreement was not posted at the Brentwood plant before June 30, 1970. All of the above actions with respect to accreting 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Brentwood employees in the Bohemia unit were car- ried out by Respondents without the knowledge or con- sent of Brentwood employees. Although the plant managers from the Bohemia plants (100 Orville and 70 Orville Drive) were on the negotiat- ing team, Rotenberg's explanation for the absence of the Brentwood manager, Carillo, was that he could not be spared to sit in negotiations for such long periods when he was needed to keep the Brentwood plant operating. 2 Prior to June 30, 1979, all production and maintenance employees, except a high-low driver at the Brentwood plant earned $2.90 per hour. The one high-low driver earned less than the contractual rate while many Bohe- mia employees worked at a substantially higher rate of pay. The only benefit the Brentwood employees received prior to July 1979 was a paid holiday for Memorial Day, May 28, 1979. F. Brentwood Employees' Work Stoppage-Strike and Both Respondents' Reactions Thereto While negotiations for a successor agreement were in progress between Respondent Employer and Respondent Union on the morning of June 27, 1978, essentially all of the Brentwood employees walked off the job at 11:22 a.m. in a concerted work stoppage because they had not received safety gloves, safety glasses, or a wage increase after being on the job 30 days as they were promised, and because they wanted to organize a union other than Local 807. The employees congregated on the plant's parking lot where they elected a committee composed of Julio Rivera, Jose Guzman, and Betty Sutton to repre- sent them with management and present their list of grievances. Meanwhile, an employee contacted Local 101 and requested them to send a representative to the Brentwood plant. The representative arrived at the plant around noon and commenced distributing literature and soliciting employees to sign authorization cards. Just prior to noon on the same day (June 27) Plant Manager McGrath advised the employees through their committee, for the first time, that they were represented by Respondent Union (Local 807) which was in the pro- cess of negotiating a new contract at the time. He said a representative from Local 807 would be at the plant as soon as the new agreement was executed and he directed them to refrain from signing cards for Local 101. McGrath also urged the employees to return to work and promised them that he would present their griev- ances to higher management. He told them that by walk- ing off the job they had jeopardized their jobs. Vice President Harry Rotenberg met with the employ- ees' committee and informed them that a meeting was in progress at the Pickwick Hotel between Respondent Em- ployer and Respondent Union (Local 807) to ratify a new collective-bargaining agreement covering the Brent- wood employees and other employees at Bohemia; that 2 I do not credit Vice President Rotenberg's testimony in this regard because not only was I not persuaded by his demeanor that he was tell- ing the truth, but also his explanation is contrary to all of the credited evidence, supra and infra, from which may be reasonably inferred that Respondent did not intend for the Brentwood employees to he involved in its ongoing negotiations or to know about the representative status of its Bohemia plants' employees prior to June 27, 1979. the agreement would be ratified within a few days; that he would like the employees to return to work, so he could negotiate their grievances; and that they would get a wage increase and other benefits under the agreement. The employees told Rotenberg that they were disap- pointed that Local 807 did not come and talk with them. Vice President Rotenberg continued to testify as fol- lows: Q. Now, after you spoke to the committee on June 27th isn't it true that the committee went out and spoke to the employees who were out on strike in the parking lot, on your suggestion to do so, to convey what you had told to them? A. Yes. Q. And did not Mr. Jose Guzman tell you at that time that they returned to the plant a few minutes later, that the employees were seeking representa- tion by Local 101? And wanted nothing to do with Local 807 and that was the position of the employ- ees? A. Yes .... Q. Now when Mr. Guzman told you on June 27th that the employees were seeking representation by Local 101 and did not want anything to do with Local 807, did you not explain to Mr. Guzman in the course of your conversation at that time that you were bound by a contract to Local 807? And that the contract was expiring on June 30, 1979 and there would be no time to negotiate with Local 101? A. Yes I did. Q. And did you then phone over to the Pickwick hotel and ask to have a local 807 business agent sent down to the Brentwood plant? A. Yes. Vice President Rotenberg also told the employees that their walkout was illegal and he promised them not only wage increases but safety glasses by Monday, July 2, 1979, if they returned to work, but if they did not return to work they would be discharged. The committee took the proposal by Rotenberg to the employees on the park- ing lot who refused to accept Respondent Union and clearly stated that they preferred Local 101 as their rep- resentative. Thereafter, Rotenberg telephoned the Pick- wick Hotel and asked to have the business agent of Local 807, Jack Lanahan, sent to the Brentwood plant to explain to the Brentwood employees what benefits they had under their existing contract and the one that was in process of negotiation. Agent Lanahan did explain these matters to the employees on the Brentwood parking lot on June 27. Later, on the same day, or on the next day, Robert Brommage entered the Brentwood plant with the employees' committee and advised management (Roten- berg) that Local 101 represented a majority (by authori- zation cards) of the Brentwood employees and Respon- dent told Brommage it could not recognize Local 101 because it (Respondent) had a contract with Local 807. Brommage showed Rotenberg the recognition agreement (G.C. Exh. 7). 308 MEGO CORP. Vice President Rotenberg further acknowledged that he called his superior, Pierce, another vice president of Respondent Employer, and the latter told him to do ev- erything possible to try to get the employees back to work, and to hire a new crew to replace the strikers. On June 29, Respondent proceeded to hire a new crew when it received a letter from Local 101 requesting rec- ognition and making contractual demands on the Em- ployer. At this juncture, Rotenberg requested the Brent- wood employees' committee to meet with him, and they did. At that time he asked the committee to reconsider their walkout and return to work. The employees asked for a letter of "No reprisal" and Respondent (Rotenberg) gave the employees such a telegram letter (G.C. Exh. 9) which was sent to all employees on July 2, 1979. In es- sence the telegram further stated that unless the employ- ees returned to work on Tuesday, July 3, thereafter they would be deemed to have quit. Rotenberg said those employees who did not return to work on July 3 were deemed to have quit their employ- ment. He acknowledged Respondent made no effort to notify the Brentwood employees of the ratification meet- ing between Local 807 and management (Respondent) on June 29. He said he assumed Local 807 would have noti- fied the employees. Rotenberg met with the Brentwood employees again on July 5 at which time he gave them a copy of the old contract (G.C. Exh. 3) and a copy of the new agreement (G.C. Exh. 11). The new agreement showed an increase in wages above what the Brentwood employees were earning. He told them that they should think about the strike and he further testified that the committee said they wanted to come into work without any union; that a lobby should decide who was going to represent them, but that he told them if they came in to the plant they were subject to the rules and regulations of the contract signed between Mego and Local 807; that they would have to sign Local 807 union cards; that he would not return to the Brentwood plant; and that this would be the last day for them to change their minds be- cause he had already terminated them by sending them the telegram. However, he also told them that, if they returned to work and joined Local 807, they could retain their jobs. A "memorandum of settlement" (G.C. Exh. 6) be- tween Respondent Employer and Respondent Union (Local 807) on June 29, 1979, was essentially adopted and incorporated into the new agreement (G.C. Exh. 11) which was signed by Respondent Employer on Septem- ber 24, 1979, and by Respondent Union on October 3, 1979. The agreement covered employees at 100 Orville, 70 Orville, and 125 Wilbur Place, Bohemia, and the Brentwood plant. It contained the wage increases which were explained to the Brentwood employees by Respon- dent. On September 24, 1979, the memorandum was rati- fied at a Local 807 meeting of which the Brentwood strikers were not notified. On two occasions on July 2, 1979, Robert Nobile, per- sonnel manager of domestic plants, Respondent's desig- nee to send the July 2 telegram letter to the strikers, in the presence of a Local 101 representative requested to meet with the employees' committee. On both occasions he advised strikers that they had "10 minutes" to decide. When the Local 101 representative, on each occasion, asked to be present, Nobile responded in the negative stating that the employer had a contract with Local 807 and did not recognize Local 101. During his meeting with the committee, Nobile presented and discussed the wage rates from the memorandum of agreement of June 29. On a third occasion on July 2, Nobile again invited the committee into the plant and advised them that they had "5 minutes" to decide, or otherwise he (Nobile) had his orders. Subsequently, on the same date, in response to a request by the striking employees, Nobile composed and presented a letter to the employees in which the Employer promised not to take any disciplinary action or terminate the strikers, providing they report to work on July 3, 1979, and thereafter. At 4:30 p.m. on the same date (July 2, 1979) Nobile transmitted the aforedescribed telegram to the striking employees. On July 5, 1979, Vice President Rotenberg and Per- sonnel Manager Nobile met with the employees at which time the committee proposed that the employees return to work at Brentwood without either Union (Local 807 or Local 101) and allow the two Unions to determine the issue in accordance with Board procedures. Rotenberg rejected the offer and counterproposed that the employ- ees could return to work if they signed for membership in Respondent Union. He offered them the wage in- creases outlined in the June 29 memorandum of settle- ment, of which he gave each employee a copy. He also agreed to extend the date for employees to return beyond July 3 if they accepted his proposal. However, he further admonished the employees that if they did not sign applications for membership in Respondent Union on their return to work they would be discharged. Nobile made similar assurances to employee Rodriguez on July 6, 1979. if the employees returned to work and joined Respondent Union. On July 9, 1979, Nobile dis- tributed a letter stating the Union wage increase as com- pared to current rates with Respondent Union on July 9, 1979. The record further shows that Local 101 sent the Em- ployer a letter on behalf of the striking employees offer- ing to return to work and Respondent by return letter, dated July 10, 1979, accepted the offer. In a letter dated July 10, Local 101 advised Respondent Employer that the strikers would return to work on July 11, 1979, which the employees did. On and since July 11, 1979, Respondent Union representatives proceeded to distrib- ute Local 807 literature regarding the contractual bene- fits to the employees and holding themselves out as rep- resentatives of the Brentwood plant employees. Local 807 also asked employees to sign membership and check- off applications and requested the discharge of employ- ees who failed or refused to join Respondent Union. Notwithstanding the Brentwood employees' rejection of Respondent Union, Respondent Employer nevertheless continued to hold out Respondent Union as the represen- tative of the Brentwood employees. Additionally, for the period ending June 30, 1979, Respondent Employer made pension and welfare contributions to Local 807 trustees (date of payment unknown) for the Brentwood employees. 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions The complaint herein alleges that Respondent Employ- er and Respondent Union on numerous occasions during 1979 interfered with, restrained, and coerced the Brent- wood plant employees in the exercise of their Section 7 rights (self-organization, selecting a bargaining represen- tative of their own choosing, and engaging in other con- certed activities for their mutual aid and protection), in violation of Sections 8(a)(1) and (2) and 8(b)(1)(A) of the Act; that Respondent Employer discriminatorily dis- charged employees at its Brentwood plant for engaging in an economic strike and rejecting the representation of Respondent Union, in violation of Section 8(a)(1) and (3) of the Act; and that Respondent Union caused the dis- criminatory discharge of said employees, in violation of Section 8(b)(1)(A) and (2) of the Act. However, the validity of all of the above-described al- legations depends on a preliminary determination as to whether the employees in Respondent Employer's Brent- wood plant can be accreted to the unit of employees in the Employer's Bohemia plants, by virtue of an accretion clause in the collective-bargaining agreement, even if suf- ficient Board-established factors for accretion are not present, or if such accretion would abrogate the Section 7 rights of the Brentwood employees. An examination of Peter Kiewit Sons Co. and South Prairie Construction Co., 231 NLRB 76 (1977), cited by counsel for the General Counsel, reveals some of the fac- tors which determine the breadth of an employer's oper- ation. However, such factors are not conclusively deter- minative of the scope of an appropriate unit. More specifically, in determining whether a new bar- gaining unit accretes to a preexisting unit, the Board held in Melbet Jewelry Co., Inc., and I.D.S.-Orchard Park, Inc., 180 NLRB 107, 109 (1969): The Board, here, must examine fundamentals and put the Section 7 rights guaranteed the employees and the appropriate unit concept of Section 9(b) into proper perspective. Excessive preoccupation with "appropriate unit" in the circumstances of this case leads to the abrogation of those rights. Section 7 of the Act is not subordinate to Section 9(b). As the Board indicated in Haag Drug [169 NLRB 877 (1968)], quite the opposite is true. Section 9(b) dir- ects the Board to select units to "assure to employ- ees the fullest freedom in exercising the rights guar- anteed by this Act . .."-which rights of course, are those set out in Section 7. Further examination of Board cases reveals a number of factors which the Board considers in determining whether employees in separate facilities should be accret- ed to the employerwide unit of employees. Some of those factors are as follows: (a) Centralization of hiring in all plants and personnel management (in charge of personnel matters including grievances) with a common labor policy. Tungsten Con- tact Manufacturing Company, Incorporated, 189 NLRB 22 (1971), and Caron International, Inc., 222 NLRB 508 (1976). (b) The degree or percentage of employee interchange and transfers. Unelco Electronics Corporation, 199 NLRB 1254 (1972). (c) Geographical proximity of plants, one to the other, and the significance of their separation. Unelco Electron- ics Corporation, supra. (d) Frequency of transfer of machinery between or among plants. U-Wanna-Wash Frocks, Inc., 203 NLRB 174 (1973). (e) Similarity in work and required skills performed. Unelco Electronics Corporation, supra. (f) The degree of functional integration of business op- erations, U- Wanna- Wash Frocks, Inc., supra. (g) Frequent visitation of production manager to all employer plant facilities. U-Wanna-Wash Frocks, Inc., supra. (h) Commonality of supervision at all plants. U- Wanna- Wash Frocks, Inc., supra. (i) Uniformity of wages, hours, and working condi- tions. Borg-Warner Corporation, 113 NLRB 152 (1955). (j) History of collective bargaining and community of interest of the employees in the facility sought to be ac- creted. Kiewit Sons Co., supra. (k) Local control over the day-to-day operations of the plant in which the employees are the subject of ac- cretion. While the cases do not indicate that the above list of factors is in any way exhaustive and conclusive, it would appear from an examination of the cases that the pres- ence of all, or any substantial combination, of these crite- ria can provide a reasonable basis to support a conclu- sion that the business operations (the complement of workers, the production processes, etc.) are not so inter- twined with the overall operation of the employer that the employees in the new facility should be accreted to the employerwide unit. Thus a comparative analysis of the facts in this pro- ceeding viewed against the above-discussed factors of ac- cretion are as follows: The undisputed evidence of record reveals that prior to July 1, 1979, hiring and a portion of personnel matters were under the direction and control of the individual plant managers in each of the Employer's plants, includ- ing Brentwood. However, sometime in the late spring of 1979 Respondent Employer commenced centralizing per- sonnel management and expanding and implementing its common labor policy for its Bohemia and Brentwood plants. It is particularly observed that although at the time of the administrative hearing herein Employer had centralized personnel management and had implemented expansion of its common labor policy for all of its plants (Bohemia and Brentwood), it nonetheless did not com- plete centralization of personnel management and exten- sion of common labor policy until after June 27, 1979, when the charges in the current proceeding were first filed. Hence, for all practical purposes, Respondent did not have centralized personnel management and the ex- panded common labor policy during the most relevant period herein (between January and June 27, 1979). The record evidence is unequivocally clear that all nonsupervisory employees in the Brentwood plant lived 310 MEGO CORIP. within the Brentwood community or relatively proxi- mate thereto. Although the Brentwood plant manager and foreman (Carillo and McGrath, respectively) were permanently transferred from the Bohemia plants to the Brentwood plant, none of the nonsupervisory Bohemia employees ever worked at or was transferred to the Brentwood plant. Correspondingly, none of the nonsu- pervisory employees at the Brentwood plant ever worked at or was transferred to the Bohemia plant. Con- sequently, I find that there was no degree of interchange or transfer of employees between Respondent Employ- er's Bohemia and Brentwood plants. The uncontroverted evidence of record shows that Respondent Employer's Bohemia plants are all located within a few hundred yards from one another while its Brentwood plant is located 10 miles from the Bohemia plant complex. The evidence also shows that Respondent Employer is a rapidly expanding business enterprise and that it contends that one reason why it leased the Brent- wood building was because one side of the building pro- vides for railroad service. Although the latter reason for securing the Brentwood facility appears to be plausible, when it is evaluated against most of the factors of accre- tion, its significance is reduced by other factors clearly indicating a substantial degree of independence and autonomy of the Brentwood plant, thereby rendering any multiemployer unit conclusion untenable. The essentially undisputed and credited evidence of record also shows that 60 percent of the business oper- ations at Brentwood involve the manufacture of stretch skin dolls (expandable items) which were never manufac- tured at the Bohemia plant. Moreover, manufacture of the stretch skin items at Brentwood requires a different manufacturing process than the processes existing at the Bohemia plants, and the duties performed by the Brent- wood employees require different training from the train- ing required by employees in the Bohemia operation. Since the remaining 40 percent of the Brentwood oper- ation consists of dolls and toys shipped from Employer's Bohemia and Hong Kong manufacturing plants for pack- aging at the Brentwood plant, of which only 5 percent was ever performed at Bohemia, it is clear that the degree of functional integration of business operations between the Bohemia and Brentwood plants is, and I so find, comparatively small. While at least 60 percent of the manfacturing process at Brentwood is different from the manufacturing pro- cess at Bohemia, 80 percent of the work performed at Brentwood was never performed at Bohemia. The evi- dence shows, and I so find, that there was no inter- change or transfer of machinery between the Bohemia and Brentwood plants. On June 27, 1979, there was some disparity in wage rates between the high-low drivers at the Bohemia plant and the high-low drivers at the Brentwood plant. The high-low drivers at the Brentwood plant earned less than the high-low drivers at Bohemia until after July 1, 1979, when Respondent Employer increased their wage rate to the same wage rate as that for the Bohemia high-low drivers. Thus, wage hours were not exactly uniform throughout Employer's plants. Local day-to-day control of the operation of the Brentwood plant was carried out by Plant Manager Thomas Carillo, and Plant Foreman Robert McGrath prior to July 1, 1979. During the same period, both man- agerial officials hired and trained employees for the Brentwood operation and, therefore, commonality of su- pervision at all of the plants did not exist. Respondent Employer has a brief history (3 years and a few months) of collective bargaining with Respondent Union, Local 807, at its Bohemia plants, but no bargain- ing history at the Brentwood plant. At all times material herein Respondent has exercised centralized control over the operations of the Bohemia and Brentwood plants with respect to payroll, produc- tion scheduling, production data control, labor relations, and managerial guidance. Also, overall production in all of Employer's plants are under the direction of its Vice President Harry Rotenberg, who communicates with each plant by telephone daily and visits the Brentwood plant once or twice a week. There were only five production employees at the Brentwood plant in early 1979. By June 27, 1979, there were 70 production employees, 2 drivers, and 8 ware- house employees, bringing the total number of employ- ees to 80. Since July 1979 the number of employees at Brentwood has increased to over 150. On July 1, 1979, there were 160 employees at Bohemia of which about 120 were production employees and 35 or 40 were warehousemen. Subsequent to July 11, 1979, the number of employees at Bohemia increased to 300 while continuing to increase. Thus, in evaluating the above-found factors of accre- tion herein, it is noted, as pointed out by counsel for the General Counsel, that the issue of accretion here did not arise in a representation proceeding as it often does, but instead is asserted as a defense to the unfair labor prac- tices alleged herein. Under these circumstances, the above-found factors of acceretion must be evaluated against Respondent Employer's and Respondent Union's efforts to accrete the Brentwood employees to the unit of the Bohemia employees, in order to determine if such an accretion would have an adverse affect upon the exer- cise of the Brentwood employees' Section 7 rights to select a representative of their own choosing. Renais- sance Center Partnership, 239 NLRB 1247 (1979). With the above factors in mind, I conclude and find, based upon the foregoing evidentiary factors of accretion herein, that for all practical purposes, prior to June 27, 1979, Respondent Employer's Bohemia, as opposed to its Brentwood, plant did not have a centralized personnel management department and a complete common labor policy, any degree of employee interchange or transfers, any significant degree of similarity in work and required skills performed, any transfer of machinery between plants, any significant degree of functional integration of operations, any control over the day-to-day operations of the Brentwood plant, any commonality of supervision over all plant employees, any community of interest of the employees in the Bohemia as distinguished from the Brentwood plant, nor geographic proximity of the Brent- wood plant to the Bohemia plants. 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additionally, the Brentwood plant employee comple- ment grew to approximately one-third of the employee complement in the Bohemia plants by early June 1979. Consequently, based upon the foregoing findings and cited authority, I conclude and find that prior to July 1, 1979, there was an insufficient degree of functional inte- gration of operations and other indicia of accretion to obliterate separate identity of the Brentwood plant for a proper and an appropriate application of the doctrine of accretion. Sheraton-Kauai Corporation v. N.L.R.B., 429 F.2d 1352 (9th Cir. 1970), and Sun Maid Growers of Cali- fornia v. N.L.R.B., 618 F.2d 56 (9th Cir. 1980). Since the record is barren of any evidence of a dispute between the parties on the composition of the appropri- ate bargaining unit for employees in the Bohemia and Brentwood plants, the question remains as to whether an accretion of the Brentwood employees to the Bohemia Employerwide unit would deprive the Brentwood em- ployees of the fullest opportunity to exercise rights pro- tected by Section 7 of the Act; namely, the right to select a representative of their own choosing, to reject representation offered to them, and the right to refrain from engaging in any such organizing activities. Counsel for the respective Respondents argue that Re- spondent Employer is a functionally integrated manufac- turing business enterprise for which only a multiplant bargaining unit is appropriate. Assuming, arguendo, that Respondents' contention is correct, it is particularly noted that the conduct of Respondent Employer during the period January through May 21, 1979, is inconsistent with their identical contentions. Although Respondent Union demanded recognition on behalf of the Brentwood employees on April 19, 1979, pursuant to the accretion clause in the April 14, 1977, agreement with the Employ- er, Respondent Employer refused such recognition. Respondent Union subsequently submitted the question of its recognition to arbitration on April 11, 1979, and re- newed its demand to the Employer on May 8 and 21, 1979. Finally, on May 21, 1979, Respondent Employer agreed to recognize Respondent Union's demand even though Respondent Union has not at any time presented evidence that it represented an uncoerced majority of the Brentwood employees. At no time prior to June 27, 1979, did Respondent Employer or Respondent Union inform the Brentwood employees of the existence of Re- spondent Union (Local 807), or that they (Brentwood employees) would be accreted to the Bohemia unit. Nor was any attempt made by Repondents to secure dues- checkoff cards or initiation fees from the Brentwood em- ployees, and no collection of such fees or contributions for welfare funds or pensions were made by Rspondent Employer to Respondent Union on behalf of Brentwood employees before June 30, 1979. Although Respondent Union demanded recognition on behalf of the Brentwood employees pursuant to the ac- cretion clause in the contract several months before the Brentwood employees walked out and Local 101 made its demand upon Respondent Employer on June 27, 1979, Respondent Union nevertheless did not approach or solicit membership of the Brentwood employees before that date (June 17, 1979). Under these uncontro- verted circumstances, it is reasonably inferred that Re- spondent Employer did not contemplate, intend, or con- sider including the Brentwood employees in the Bohemia unit prior to the walkout. This position is further sup- ported when it is noted that neither Respondent Employ- er nor Respondent Union informed the Brentwood em- ployees that negotiations for a new agreement were in progress since February 1979. Just prior to noon on June 27, 1979, Respondent Em- ployer for the first time told the employees they were represented by Respondent Union and that a new con- tract was being negotiated. The Employer promised to take up their grievances with management and give them raises if they returned to work, but told them that they jeopardized their jobs by walking off the job. The em- ployees rejected the Employer's offers and advised the Employer that they did not want Respondent Union (Local 807) to represent them, but instead preferred Local 101 to be their representative. The Employer nev- ertheless persisted to urge the Brentwood employees to accept Local 807, and told them it (the Employer) could not recognize Local 101. After the employees rejected Respondent Employer's urging them to join Local 807, Respondent Employer nevertheless summoned the business agent of Local 807, Jack Lanahan, to explain the benefits under the existing contract and under the agreement still in negotiation. Lanahan did explain these matters to the employees on June 27, 1979. It is therefore unequivocally clear that Respondent Employer only became interested in bringing the Brent- wood employees under the representative umbrella of Respondent Union (Local 807) after it learned on June 27, 1979, that the employees had walked off the job and were obtaining representation by Local 101. After all, it is clear that the Employer resisted recognition of Local 807 for the Brentwood employees on two occasions prior to June 27. It is also clear that the belatedly asserted accretion claim by Respondent Employer and Respondent Union does not present a genuine question of representation, which justified Respondent Employer's refusal to recog- nize Local 101's demand for recognition. Centack Corp., 179 NLRB 313 (1969). As the Board held in The Wack- enhut Corporation, 226 NLRB 1085, 1089 (1977), where employees in a new or smaller facility are accreted or absorbed into an existing and larger areawide unit, the Section 7 rights of the accreted employees are more at stake, because they are deprived of the opportunity to participate in the representation issue as did the employ- ees in the larger unit. For this reason, the defense of ac- cretion has been narrowly construed. Further, the Board said: We will not, however, under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit to be included in an over- all unit without allowing those employees the op- portunity of expressing their preference in a secret election or by some other evidence that they wished to authorize the Union to represent them. 312 MEGO CORP. To allow the Brentwood employees to be accreted to the Bohemia unit under the circumstances in this case would certainly deprive the Brentwood employess of the fullest opportunity to exercise rights granted them by Section 7 of the Act. Sheraton-Kauai Corporation v. N.L.R.B., 429 F.2d 1352 (9th Cir. 1970) and The Wack- enhut Corp., supra. Respondent Employer refused to recognize Local 101 after the latter advised the Employer on June 27 or 28, 1979, that it represented a majority of the Brentwood employees and demanded recognition. The Employer thereafter asked the employees to return to work by July 2, 1979, and the employees requested a "No reprisal" letter from the Employer. The Employer gave employ- ees such a letter, adding that employees who did not return to work on July 2 would be deemed to have quit. The Employer extended its deadline for the employees to return to work to July 3 upon condition that they sign applications for membership in Respondent Union or be discharged. Meanwhile, the Employer proceeded to hire new employees on June 29, 1979. Respondent totally ignored Local 101 and continued to hold out Local 807 as the representative of the Brent- wood employees. When the employees did not return to work on July 3, Respondent Employer terminated their employment. Since the employees walked off the job on June 27, 1979, because their complaints of several weeks' duration regarding wages, safety glasses, and working conditions were either ignored or not remedied by the Employer, the Brentwood employees were engaging in an econimic strike against Respondent Employer. Re- spondent Union made grave efforts, with the blatant as- sistance of Respondent Employer, to represent the Brent- wood employees in defiance of the repeated and explicit rejection of Local 807 by the employees. Nevertheless, on and since July 11, 1979, representa- tives of Respondent Union have distributed literature about contractual benefits to the Brentwood employees, and continued to try to force their representative status upon said employees. It solicited their membership and checkoff applications, and requested Respondent Em- ployer to discharge those employees who refused to join Respondent Union. Respondent Employer complied with Respondent Union's request and has continued, in con- cert with Respondent Union, to force the latter's repre- sentation upon the Brentwood employees. Consequently, Respondent Employer discharged Brentwood employees and prolonged their strike because they refused to return to work and join Respondent Union, as a condition to remain in the employ of Re- spondent Employer. Based upon the aforedescribed conduct by Respondent Employer and Respondent Union, I thereupon conclude and find that Respondents violated Sections 8(a)(1), (2), and (3), and 8(b)(1)(A) and (2) of the Act, respectively. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Employer and Respon- dent Union set forth in section III, above, occurring in connection with the operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. They are unfair labor practices within the meaning of Sections 8(a)(l), (2), and (3), and 8(b)(1)(A) and (2), and 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent Employer and Respon- dent Union are engaged in unfair labor practices war- ranting a remedial order, I shall recommend that they cease and desist therefrom and that they take certain af- firmative action to effectuate the policies of the Act. It having been found that Respondent Employer inter- fered with, restrained, and coerced its Brentwood plant employees in the exercise of their Section 7 protected rights, in violation of Section 8(a)(1) and (2) of the Act, by executing and maintaining a contract with Respon- dent Union at the Brentwood plant when said Union did not represent a majority of the employees at said plant, warning employees not to join or assist the Charging Party Union, threatening said employees with discharge if they joined the Charging Party, telling said employees they had to join Respondent Union in order to retain their employment, promising and granting benefits to said employees to induce them to refrain from joining or assisting the Charging Party Union, by discriminatorily discharging said employees for engaging in a protected economic strike at said plant and because they refused to join Respondent Union and expressed their desire to select the Charging Party (Union), in violation of Section 8(a)(3) of the Act; and it having been further found that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act, by accepting recognition and executing a collec- tive-bargaining agreement covering said employees when Respondent Union did not represent a majority of the Brentwood plant employees, and causing Respondent Employer to discriminate against said employees, by re- questing them to join Respondent Union in order to retain their jobs with the Employer, the recommended Order will provide that Respondent Employer and Re- spondent Union cease and desist from engaging in such unlawful conduct. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent Employer and Respondent Union cease and desist from, in any manner whatever, interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (4th Cir. 1941). CONCLUSIONS OF LAW I. Mego Corp. and Samet and Wells, Inc., Respondent Employer herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 101 International Brotherhood of Craftsmen, Professionals and Allied Trades, is, and has been at all times material herein, a labor organization within the meaning of the Act. 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By recognizing Respondent Union and executing and maintaining a contract with Respondent Union at its Brentwood plant when said Union did not represent a majority of Brentwood employees. Respondent Employ- er violated Section 8(a)(l) of the Act. 4. By warning employees on several occasions not to join or assist the Charging Party Union (Local 101), Re- spondent Employer violated Section 8(a)(l) and (2) of the Act. 5. By the threatening employees on several occasions with discharge if they joined the Charging Party Union (Local 101), Respondent Employer violated Section 8(a)(1) and (2) of the Act. 6. By telling employees on several occasions they had to join or pay dues to Respondent Union in order to retain their employment, Respondent Employer violated Section 8(a)(l) of the Act. 7. By promising Brentwood plant employees on sever- al occasions and in fact granting benefits to them to induce employees to refrain from joining or assisting Charging Party Union (Local 101), Respondent Employ- er violated Section 8(a)(1) and (3) of the Act. 8. By discriminatorily discharging employees for en- gaging in a protected economic strike and for refusing to join Respondent Union, Respondent Employer violated Section 8(a)(3) and (1) of the Act. 9. By accepting recognition and executing a collective- bargaining contract on behalf of the Brentwood employ- ees of whom it did not represent a majority, Respondent Union violated Section 8(b)(l)(A) of the Act. 10. By collaborating with Respondent Employer in telling the striking employees they had to join Respon- dent Union (Local 807) in order to keep their jobs, Re- spondent Union concertedly caused the discriminatory discharge of said employees, in violation of Section 8(b)(l)(A) and (2) of the Act. II. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 314