Lanco

LANCO Hydro-Air Equipment, Inc. d/b/a Lanco and Sheet Metal Workers International Association, Local 170, AFL-CIO and Teamsters Union Local 986, International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Party in Interest. Cases 31-CA- 11197, 31-CA-11197-2, and 31-CA-11528 31 October 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 15 December 1982 Administrative Law Judge Burton Litvack issued the attached decision. The Respondent and the Charging Party filed ex- ceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hydro-Air Equipment, Inc., d/b/a Lanco, Rancho Cucamonga, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 2(c) and insert the follow- ing. "((-,) Reimburse employees in the aforementioned appropriate unit for any and all initiation fees, dues, i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings 2 We agree with the judge that on 22 May 1981, when the Respondent recognized Teamsters Local 986, the Respondent was under an obligation to bargain with Sheet Metal Workers Local 170, because at that time a majority of employees at the new location had transferred from the old plant This fact distinguishes the instant case from Fraser & Johnston Co. v NLRB, 469 F 2d 1259 (9th Cir. 1972). Under the circumstances here, we find no need to pass on whether the Respondent would have had an obligation to bargain with Sheet Metal Workers Local 170 if only a "sub- stantial percentage" of employees had transferred from the old plant. See Westwood Import Co, 251 NLRB 1213 (1980), enfd. 681 F 2d 664 (9th Cir. 1982) 3 In his recommended Order and notice the judge stated that reim- bursement shall not extend to any employee who voluntarily joined and became a member of the Teamsters "subsequent" to 24 May 1981. The judge should have stated "prior to 24 May 1981," rather than subsequent to 24 May :981 The recommended Order and notice have been correct- ed accordingly. 85 or other moneys paid by said employees or with- held from them pursuant to the terms of the collec- tive-bargaining agreement with the Teamsters; however, said reimbursement shall not extend to any employee who voluntarily joined and became a member of the Teamsters prior to 24 May 1981." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT withdraw recognition from or refuse to bargain with Sheet Metal Workers Inter- national Association, Local 170, AFL-CIO (the Union), as the exclusive bargaining representative of employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping and receiving employees and truckdrivers, employed by this company at our facility located at 9175 Miliken, Rancho Cuca- monga, California; excluding all office clerical employees, professional employees, guards, watchmen and supervisors as defined in the Act. WE WILL NOT unilaterally, without bargaining to impasse with the Union as the collective-bargaining representative of the aforementioned appropriate unit of employees, implement a commutation pay- ment to certain of our employees who transferred from Glendale to Rancho Cucamonga. WE WILL NOT recognize Teamsters Union Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Teamsters) as the collective-bargaining rep- resentative of the aforementioned appropriate unit of employees. WE WILL NOT give effect to, perform, or in any way enforce the collective-bargaining agreement with the Teamsters, entered into about 24 May 1981, or to any modification, extension, renewal, or supplement thereof; provided, however, that noth- ing herein shall require us to vary or abandon any wage, hour, seniority, or other substantive feature of our relations with our employees which have been established in the performance of any such agreement or to prejudice the assertion by such employees of any rights they may have thereunder. 277 NLRB No. 12 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with replace- ment and/or discharge if they do not join the Teamsters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the, rights guaranteed you by Section 7 of the Act. WE WILL recognize and bargain, on request, in good faith with the Union as the collective-bar- gaining representative of the employees in the aforementioned appropriate unit with respect to wages, hours, and other terms and conditions of employment and, on request, embody in a signed agreement any final understanding reached by the parties. WE WILL bargain, on request, with the Union as to any commutation or any other expenses pay- ments to employees who transferred from the Glendale plant to the Rancho Cucamonga plant. WE WILL reimburse, with interest, employees in the aforementioned appropriate unit for any and all initiation fees, dues, or other moneys paid by the employees or withheld from them pursuant to the terms of the collective-bargaining agreement with the Teamsters; however, the reimbursement shall not extend to any employees who voluntarily joined and became a member of the Teamsters prior to 24 May 1981. HYDRO-AIR EQUIPMENT, INC. Richard Paradise, Esq., for the General Counsel. Michael Shelley, Esq, of Los Angeles, California, for the Charging Party. Mrs. Martha Hammer, Atty., of the Los Angeles, Califor- nia, for the Respondent. Robert D. Vogel, Esq., of Los Angeles, California, for the Party in Interest. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. These matters were tried before me in Los Angeles, California, on June 15 and 16 and July 7, 1982. On October 26, 1981, the Regional Director for Region 31 of the Nation- al Labor Relations Board (the Board) issued a consoli- dated amended complaint, which was based on unfair labor practice charges in Cases 31-CA-11197, 31-CA- 11197-2, and 31-CA-11528, filed by Sheet Metal Work- ers International Association, Local 170, AFL-CIO (the Charging Party) on June 4, July 10, and September 28, 1981, respectively, alleging that Hydro-Air Equipment, Inc. d/b/a Lanco (Respondent) engaged in acts and con- duct violative of Section 8(a)(1), (2), and (5) of the Na- tional Labor Relations Act (the Act). Respondent filed an answer, denying the commission of any unfair labor practices. At the hearing, all parties were permitted to examine and cross-examine witnesses, to offer any rele- vant evidence, to argue their positions orally, and to file posthearing briefs. Accordingly, based on the oral argu- ment of the General Counsel, the posthearing brief of Respondent, my perception of the demeanor of the wit- nesses, and the entire record, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is now, and has been at all times material, a State of California corporation engaged in the manu- facture of fan coils for heating and air-conditioning units. Until sometime in May 1981, Respondent maintained an office and principal place of business in Glendale, Cali- fornia. Commencing in May 1981, Respondent began re- locating the office and principal place of business to Rancho Cucamonga, California, which relocation was completed about June 5, 1981. During the course and conduct of its business operations, Respondent annually sells and ships goods and services valued in excess of $50,000 directly to customers located outside the State of California. Respondent admits that it is now, and has been at all times material, an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS The Charging Party and Teamsters Union Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Teamsters) are now, and have been at all times material, labor orga- nizations within the meaning of Section 2(5) of the Act. III. ISSUES 1. From April 19811 until about May 29 did Respond- ent violate Section 8(a)(1) and (5) of the Act by refusing to bargain with the Charging Party concerning the terms and conditions of employment of employees at its Rancho Cucamonga, California plant and thereby refuse to extend recognition to the Charging Party as the col- lective-bargaining representative of certain employees at the facility? 2. Did Respondent violate Section 8(a)(1) and (2) of the Act by extending recognition to the Teamsters on or about May 22 as the exclusive representative of certain of its employees at the Rancho Cucamonga, California plant? 3. - By extending such recognition to the Teamsters about May 22, did Respondent withdraw recognition from the Charging Party in violation of Section 8(a)(1) and (5) of the Act? 4. About May, did Respondent engage in conduct vio- lative of Section 8(a)(1) and (5) of the Act by unilateral- ly, without initially bargaining with the Union, instituting the payment of employees' commutation expenses for the trip from Glendale to Rancho Cucamonga, California? 5. About June 17 and 19, did Respondent violate Sec- tion 8(a)(1) of the Act by threatening employees with r Unless otherwise noted, all dates occurred in 1981. LANCO discharge if they did not become members of the Team- sters or sign dues-checkoff authorization cards on behalf of the Teamsters? IV. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts 1. The relocation of operations The record establishes that Respondent is engaged in business in the production of vertical and horizontal fan coils, air handlers, and coil surfaces and of cabinet model fans for the heating and air-conditioning of commercial buildings. Joseph M. Heuer and Dale Lanphere are each 50-percent shareholders of the corporation, with the latter acting as vice president and in charge of produc- tion and sales. On July 11, 1980, the Regional Director for Region 31 conducted a representation election, and a majority of Respondent's production and maintenance employees at its Glendale, California plant selected the Charging Party as their collective-bargaining representa- tive. On December 16, 1980, the Regional Director certi- fied the results of the election.2 There is no dispute that in the spring of 1981 Respondent relocated its office and plant operations to Rancho Cucamonga, California.3 The parties stipulated that as of May 30 the Glendale facility had been closed and manufacturing had been transferred to the new Rancho Cucamonga plant, and that by June 5 the entire relocation was completed. On December 22, 1980,4 and on January 23, Richard J. Scott, the Charging Party's financial secretary-treasur- er and business manager, sent letters to Respondent, re- questing the start of negotiation for a collective-bargain- ing agreement. In response, on January 27 Gene Hulsey, Respondent's labor relations consultant, sent a letter to Scott, signifying Respondent's willingness to engage in collective bargaining upon receipt of the aformentioned NLRB certification. Such was eventually received, and the parties engaged in initial contract negotiations, cover- ing nine bargaining sessions and 4 months-until May 29. The meetings were conducted at the offices of the Charging Party, with Hulsey representing Respondent and Scott and Joel Jimenez, assistant business manager 2 The Charging Party's certification encompassed the following unit of employees All production and maintenance employees, including shipping and receiving employees, and truckdrivers employed at the Employer's facility at 517 West Garfield Avenue, Glendale, California 91204, ex- cluding all office clerical employees, professional employees, guards, watchmen and supervisors as defined in the Act Part owner Heuer testified that Respondent had been housed in its Glendale facility for 5 years pursuant to a 3-year lease agreement and 2 option years and that due to various factors including notification from the lessor that the rental fee would double, a lack of space burdened by increased product demand, the lack of fire sprinkler systems and the overall condition of the facility, inefficient production caused by the lack of space, and the quality of the available labor supply, he and Lanphere concluded that they should seek a larger and more adequate facility Consequently, several different locations were considered and presum- ably inspected Finally, the lease for the Rancho Cucamonga plant was executed on March 25 . There is no allegation that Respondent was un- lawfully motivated in deciding to relocate. ' About this same time during an office Christmas party, Lanphere dis- closed to Respondent's office employees that he and Heuer were contem- plating moving operations to another facility 87 and business representative, representing the former. There is, of course, no allegation that Respondent en- gaged in overall surface or`bad-faith bargaining during the contract negotiations. Therefore, the following dis- cussion will concentrate upon the bargaining with regard to the Charging Party's representation of Respondent's production and maintenance employees at the Rancho Cucamonga5 plant. According to Joel Jimenez, he received a telephone call from one of Respondent's employees in early April, and the employee reported "that a heavy rumor was going around the plant to the favor of the Company planning to move." Jimenez, in turn, transmitted this in- formation to Scott, who was the Charging Party's chief negotiator. The latter testified that while he could not recall the date of the bargaining session, he did recall asking Hulsey whether Jimenez' report was correct. Hulsey replied that Respondent's lease was about to expire and that the Company was exploring several op- tions, including renewal of the lease and moving the plant. Scott "asked if there was going to be any problem in recognizing the [Charging Party] as the collective-bar- gaining representative for [Respondent's] employees, re- gardless of whether they renewed the lease or moved. And [Hulsey] reported there would be no problem, as long as we were able to reach an agreement." Scott fur- ther testified that he first learned that the plant reloca- tion was to be to Ontario on April 15. Thereupon he asked Hulsey for the address and the latter gave him the following address: 9175 Milliken, Ontario, California. Then, according to Scott, he asked about recognition at this location. "And I believe at each and every meeting I made a comment that I assume . . . that there would be no problem with recognizing the [Charging Party] wher- ever the plant located in our geographical, jurisdictional area. [Hulsey's] answer was continuously the same, that there would be no problem, assuming and predicated on reaching an agreement of the contract terms." Scott, who was ill during the hearing, identified Gen- eral Counsel's Exhibit 5 as a contract proposal which was presented to him by Hulsey at the start of the bar- gaining session on April 156 and testified that he placed the incorrectly spelled 9175 Milliken address to the right of the capitalized word "WITNESSETH" on the first page after Hulsey told him the Ontario plant address. Next, Scott identified General Counsel's Exhibit 67 as another contract proposal which was given to him by Hulsey at this negotiating meeting. Later, under ques- tioning by me, he termed the document a consolidation of what had been agreed on from the original positions 6 During the bargaining the participants were under the impression that the new facility would be located in Ontario, California; to avoid confusion, I shall refer to it also as the Ontario facility when dealing with the recollections of the witnesses 6 Examination of the record establishes that the exhibit appears to be identical to ft Exh. A(6)(a) which document, the parties stipulated, was Respondent's original contract proposal and which was submitted to the Charging Party no later than the April 6 bargaining session. ' Examination of the record establishes that the exhibit is identical to Jt Exh A(7) which, the parties stipulated, is a copy of a counterproposal submitted to the Charging Party by Hulsey at the April 15 bargaining session 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the parties. According to Scott, he had his secretary "combine everything so that we would have a new working document, a single document to work from, rather than various Union proposals, Company counter- proposals and whatever ." Thus, the aforementioned ex- hibit was a document incorporating all prior tentative agreements reduced down to a third document "so that we would have what I refer to as a `clean' copy of items that were tentatively agreed to." Whatever the origin of this latter document, examination thereof reveals that in the introductory paragraph Respondent's Glendale plant address is lined out and above it is written the new On- tario plant address . Further, the entire paragraph is en- closed by a bracket and the notation "OK EXCEPT ADDRESS." Scott identified the handwriting as his own and claimed that Hulsey was aware that Scott made the address change inasmuch as, while doing so, he asked Hulsey how to spell "Milliken" and the latter did not object to what Scott was doing. Next, during his testimo- ny, Scott identified Joint Exhibit A(8) as a document prepared by his secretary on April 15 during the parties' negotiating session that day. At the hearing, the respec- tive counsel for the parties stipulated that this document which is dated April 20 was reviewed by the Charging Party and by Respondent during the bargaining session on April 27 . Examination of it establishes that the spaces for Respondent's address on the first page were left blank. Scott explained , "The spaces were left blank due to the fact that . . . [Hulsey] had no idea when the Glen- dale facility would cease to exist . They were left blank so that if in fact we reached an agreement that had an effective date, prior to the closure of the Glendale facili- ty, we would insert both [facilities' adresses] so that all employees . . . would be covered under the collective- bargaining agreement." According to Scott, he specifi- cally instructed his secretary , in the presence of Hulsey, to leave blank the spaces for Respondent 's address, and Hulsey voiced no objection. Joel Jimenez testified that it was during an early April bargaining session that Scott raised the matter of the re- location rumor. "Mr. Hulsey's answer was that it was true that the Company, was losing the lease and . . . due to the financial situation with the Company, it has to move. . . . But it is true that they were planning to move." Scott, in response, asked if Hulsey foresaw any problems with recognition at a new location if such was within the Charging Party's territorial jurisdiction.9 Hulsey responded, "We don't have no problem with the recognition." Jimenez further testified that approximately a week later he was notified that management officials had informed employees that Respondent would relocate its operations to a new plant in Ontario, California and had asked if employees would be willing to work at the new location . According to Jimenez, this subject was 8 Hulsey admitted never having the exact date for the completion of the relocation to the new plant- "We kept getting tentative dates throughout the negotiations. I would get one date, and then another date. there was no firm date as to when the move was going to be com- pleted." ' The Charging Party's area of jurisdiction covers the State of Califor- nia below Santa Barbara and extends into Nevada , covering the southern part of that State raised at the parties' next bargaining session , April 15, and Hulsey confirmed that Respondent would move its operations to Ontario. Thereupon, he was asked again if there would be any problem with extending recognition to the Charging Party at the new facility . Hulsey replied, "Hell, no. Anyway if the Company don 't want to recog- nize you, the only thing you can do is go and organize. Why go into that problem again." At the start of the ses- sion, according to Jimenez, Hulsey had presented copies of a contract counterproposal to Scott and him; Jimenez identified General Counsel's Exhibit 4 as that document. Examination thereof establishes that it is identical to General Counsel's Exhibit 6, the document which Scott maintained was some sort of composite document pre- pared by his secretary . In any event, according to Jimen- ez, after Hulsey stated the address of the new plant, Ji- menez drew lines through the Glendale address which appears two times on the first page and, above each, wrote in the Ontario address. He is certain that such was done with Hulsey's "knowledge and consent" inasmuch as the latter specifically requested that Jimenez and Scott not type in the new address in the Charging Party's next proposal as it was not certain that any agreed -upon col- lective-bargaining agreement would become effective either prior to or subsequent to the relocation . Further examination of General Counsel's Exhibit 4 discloses that although the notation "O.K." and the date "4/15/81" ap- pears next to several sections, no such notation is next to either of the aforementioned address changes. Jimenez testified that it was "normally " his practice to place such a notation whenever an agreed-upon change is made; however, he asserted that the absence of such signifies nothing as sometimes he utilized such a notation and other times he would not. Gene Hulsey testified that the first work he received regarding Respondent's possible relocation came from Joel Jimenez at the parties' March 4 bargaining session. As "it was a surprise to me," Hulsey telephoned to Re- spondent, spoke to Heuer who told him "that there was nothing firm on the move, that they were contemplating a move" to a "more economical place," and reported on the conversation to Scott and Jimenez. Also at this meet- ing, Hulsey presented to the Charging Party negotiators Respondent's initial contract proposal, Joint Exhibit A(6)(a). He further testified that not until shortly before the next scheduled bargaining session did he become aware that Respondent would definitely relocate and that it had entered into a lease agreement for a facility in Ontario, California. According to Hulsey, he and Heuer discussed the ratifications of this, vis -a-vis, Respondent's obligation to recognize and bargain with the Charging Party, and "I made a decision and the company agreed with my decision, only to bargain for the certified loca- tion." Terming this "my charter," Hulsey maintained that he asserted this position during the remainder of the contract negotiations whenever Scott raised the subject of recognizing the Charging Party as the employees' col- lective-bargaining representative at the Ontario facility. The next scheduled negotiating session occurred on April 6. According to Hulsey , Scott did not have his copy of Joint Exhibit A(6)(a); Hulsey photocopied his LANCO and gave the copy to Scott. 10 Thereupon, the former in- formed Scott and Jimenez that Respondent , indeed, would relocate and that the new location was in Ontario. ]Hulsey testified that Scott asked if the Company was a "runaway shop," and he replied, "Hell, no. You know, it is strictly economics that is causing this move ." Scott then asked if Respondent intended to recognize the Charging Party at the new location; "and I said that we were negotiating for the certified unit at the certified lo- cation." Hulsey further testified that, prior to the next bargaining session which was scheduled for April 15, he prepared a document incorporating language submitted by both Respondent and the Charging Party, and that he presented copies to Scott and Jimenez at that meeting. At this point during his testimony, Hulsey identified Joint Exhibit A(7) as this document, stating that General Counsel's Exhibits 4 and 6 are copies, and Respondent's Exhibit 1 as the first page of his working copy of the proposal. According to the witness, after glancing at it, "Mr. Scott stated that he wanted the recognition and coverage sections of the contract to show recognition at the Ontario facility." As Scott made this demand, Hulsey testil ied, he was observed by Hulsey crossing out the Glendale addresses on his working copy of the proposal and writing in the Ontario address. "I said that I didn't agree to that, and I didn't change my copy."14 Hulsey believed that both he and Scott understood that there was a legal question over the Charging Party's right to represent the bargaining unit employes at the Ontario- fa-cility. Thus, he testified, Scott specifically inquired if Hulsey believed that Respondent could move to Ontario and, thereby, avoid its bargaining obligation with the Charging Party; the later responded "that I felt that there was a definite legal question there." According to Hulsey, Scott replied that he would seek an "advisory opinion" on that point. During his cross -examination, Scott admitted that he told Hulsey at this meeting he would seek such from his attorney. The parties' next bar- gaining session was on April 27. Hulsey testified that at its outset, Scott handed to him Joint Exhibit A(8) and that he immediately noticed and commented that the spaces on the first page for Respondent's address were left blank. "Mr. Scott smiled and said, `Of Course we can fill in Ontario address,' and wrote it on his copy. And I said, `No, I don't agree to it.' I said, `Why was it left blankk?' And he said that this was a summary of what we had agreed to, and that he wanted the Ontario address . .. and I did not agree to put it in there." The next bargaining session took place on May 21 at the Charging Party's offices. By this date, Respondent's plant relocation from Glendale to Rancho Cucamonga was in process. While Hulsey failed to testify regarding any discussion of recognition for the Charging Party at the new location, Scott testified that Hulsey reiterated that there would be no problem with recognizing the Charging Party there. Nevertheless, on the next day, May 22, under the threat of a strike, Respondent ex- 20 Hulsey identified G C Exh 5 as the photocopy that he made for Scott on April 6 11 Indeed, R. Exh I bears the following identical notations next to Re- spondent's Glendale address- "OK except U wants new address 4/15 " 89 tended recognition to the Teamsters as the collective- bargaining representative for its production and mainte- nance employees at the new plant. According to Hul- sey's uncontroverted testimony , such was granted to the Teamsters only after the latter 's agents presented to Heuer and Hulsey signed authorization cards from more than 50 percent of the bargaining unit employees at Rancho Cucamonga and after Respondent authenticated the signatures. Thereupon, Respondent and the Team- sters entered into a recognition agreement. The record reveals that as of May 22 there were 27 production and maintenance employees at the Rancho Cucamonga plant and that of this employee complement 14 workers were transferees from the Glendale plant. At the conclusion of the May 21 bargaining session, Scott and Hulsey scheduled another meeting for May 29.12 Notwithstanding that Respondent had extended recognition to the Teamsters at Rancho Cucamonga 7 days before, that morning Hulsey arrived at the Union's office to meet with Scott. At the outset, Hulsey handed Scott a contract counterproposal in which the Glendale address was set forth as the plant's location . According to Scott, who was aware of the recognition of the Team- sters at Rancho Cucamonga, he read the document and said it was, in reality, a 1-day contract as the Glendale plant was scheduled to close on May 30 and as recogni- tion was limited to that facility. "I asked about the On- tario facility. He told me that he had been approached by the Teamsters . . . that [Respondent] had agreed to recognize them." Scott responded that he understood that his union had been negotiating for all of Respond- ent's employees whether in Glendale or elsewhere. Hulsey responded, "Well, Dick, what can I say." Ac- cording to Hulsey, Respondent did not withdraw recog- nition from the Charging Party either during or prior to this May 29 meeting, he was presenting to Scott a legiti- mate economic counterproposal covering the Glendale plant production and maintenance employees, and such was not a "charade." He testified, "My purpose was to counter the wage proposal . . . that Mr. Scott had given me." Hulsey further testified that at this and at earlier meetings he offered to bargain with Scott regarding the closure of the Glendale plant; Scott denied that Hulsey ever did so. There have been no further meetings be- tween Respondent and the Charging Party subsequent to May 29. On August 14 Scott sent Hulsey a letter, re- questing a continuation of negotiations ; the latter did not reply. Major facets of Respondent's contention that it was and remains under no obligation to recognize the Charg- ing Party as the collective -bargaining representative of its Rancho Cucamonga plant production and mainte- nance employees are that there has been a substantial change in geographic location, that the Charging Party lacks majority status at the Rancho Cucamonga facility, that Respondent draws from a different "work pool" of 12 There is no dispute that at the May 21 bargaining session Scott pre- sented to Hulsey a new economic proposal The latter said that he would take it back to his client Scott suggested that he should meet with Heuer and Lanphere in order to explain the proposal, particularly the wage schedule 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD potential employees in the new plant 's surrounding area, and that there are numerous differences between the Glendale and Rancho Cucamonga operations . As to the Rancho Cucamonga geographic area , the record dis- closes that it and Glendale are approximately 50 miles apart and that travel time between the two areas is ap- proximately 75 to 90 minutes . 13 With regard to the qual- ity of labor in each area, part-owner Heuer testified that Respondent experienced "great difficulty in obtaining ... people with a competent knowledge to do the work" in Glendale and "great difficulty in training them." In contrast, Heuer found the potential employees within the Rancho Cucamonga geographic area to have had "previous experience in the type of job we are look- ing for" due to the industrialized nature of the area. Re- garding employee complements, the parties stipulated that prior to the start of relocation to Rancho Cuca- monga between 47 and 50 bargaining unit employees 14 worked in the Glendale facility; that all employees were offered jobs at the new plant; that commencing May 11 employees were performing work at the Rancho Cuca- monga plant; that by May 22 Respondent employed 27 presumably bargaining unit employees 15 of which total 14 workers were transferees from Glendale ; that the transfer of operations to Rancho Cucamonga was con- cluded about June 5; and that at full operation there were 47 bargaining unit employees at Rancho Cuca- monga, of which total 23 transferred from Glendale. As to the production differences between the Glendale and Rancho Cucamonga plants, Heuer testified that the former facility actually consisted of five separate build- ings, with different departments housed in each. He de- scribed the manufacturing process as follows: "the facili- ties ... were very inefficient. Material had to be han- dled and rehandled, and there was . . . not adequate room from storage. . . . Material would flow in from one building to another , it would go down to one end for processing and then clear back to where it came 13 Rancho Cucamonga, which is located in the same geographical area as the cities of Riverside, San Bernardino, and Ontario , California, and Glendale are located in different "labor areas " As defined by the United States Department of Labor, a labor area is "an economically integrated unit within which workers may readily change jobs without changing their place of residence." U.S. Department, "Directory of Important Labor Areas," introduction and p 7 ( 1980) However, I also note the, I believe, judicially noticeable fact that drivers in Southern California cus- tomarily commute significant distances from their residences to their places of employment 14 Stipulation 23 of Jt Exh. A states that Respondent's relocation to Rancho Cucamonga was completed on June 5 and continues "At full op- eration there were approximately 47 non-clerical and non-supervisorial employees employed at [Rancho Cucamonga] Approximately the same total number of employees were employed at [Rancho Cucamonga] as had been employed at [Glendale] prior to the relocation. Twenty-three of the approximately 50 workers at Glendale transferred . to Rancho Cucamonga between May 11 and June 5, 1981 and worked there for varying times " The foregoing may charitably be characterized as lacking a clarity regarding the size of the Glendale plant bargaining unit, accordingly, I have utilized the range of between 47 and 50 employees as the parameters . Further, contrary to Respondent, said stipulation does not say that 23 transferees did not work at Rancho Cucamonga at the same time Rather, the reverse is more likely to be true as the transferees more probably than not accompanied their respective jobs to Rancho Cuca- monga 15 The stipulation of facts, A. Exh. A, describes the employees as "non-clerical and non-supervisorial " from for testing, and then . . . out another door, into an- other building, which gave us very high cost of manu- facturing and very slow process of manufacturing...." With regard to how employees worked in Glendale, Heuer said that "the assembly area was cramped .. . and the assembly lines did not function as assembly lines . . . because the work was carried to the bench, set down, part by part. Each worker had to walk over to another department and pick up whatever part he was going to assemble, bring it back to the assembly line, as- semble the unit, and then carry it to the shipping area." As a consequence of the foregoing, according to Heuer, Respondent was unable to increase production of cabinet model fans,' 6 which business comprised 80 percent of the total market, and was forced to refuse orders for this product. Comparing the Glendale and Rancho Cuca- monga facilities, Heuer stated it may be equated to com- paring making fire by rubbing sticks together to utilizing a lighter or match. Thus, he testified, the latter plant is a 31,000 square foot facility with modern lighting and a modern sprinkler system. Heuer testified that each sepa- rate department was set up with ample room in which to function and that the plant was laid out to enable materi- al to flow smoothly from one department to another. In contrast to production at the Glendale plant, such is ac- complished on a "real" assembly line basis at the Rancho Cucamonga facility, with products stacked on moveable tables and moved between departments. Also in contrast to the old location, workers need not handcarry materi- als to their work station or move in order to utilize equipment . Rather, employees classified as expeditors bring products to the work stations on the aforemen- tioned moveable tables, and each worker has adequate equipment at his own work area. The foregoing has sig- nificantly lessened the amount of walking between de- partments, which was formerly required of employees- making the job "easier." This, combined with increased store space, has made work much more efficient and en- abled Respondent to increase production of cabinet model fans to 60 percent of its output . Despite the in- creased efficiency, however, it does not appear that Re- spondent's basic operations have actually changed as a result of the relocation. Thus employees Juana Ramos, Estrella De Sotomayer, Joe Guajardo, and Pablo Nal- varte, each of whom worked at the Glendale plant and transferred to Rancho Cucamonga, testified their work did not change and they utilized the identical tools at both locations. Further, James D. Kibble, who was the production manager at both locations, testified with regard to operations at both facilities as follows: "The product was identical . The method was identical. The tools were identical . All the tools used in Rancho Cuca- monga were moved from Glendale . . . . We streamlined the flow of assembly but the assembly techniques, meth- ods and tools were all the same." As to whether the work changes affected employees' work, Kibbie said, "The only thing it could have done was make it easier for them. Because the parts that they required were right 16 This particular product accounted for 20 percent of Respondent's production in Glendale. LANCO beside them, rather than having to walk to another build- ing to get them." 2. The payment of commutation expenses The parties stipulated that during May Respondent im- plemented a system of payment to Glendale employees who relocated to the Rancho Cucamonga facility by paying to any carpool drivers $2 .50 per day per employ- ee in the carpool for traveling expenses to the new plant during the initial 30 days of employment there. The con- solidated amended complaint alleges that the foregoing payment was instituted unilaterally by Respondent with- out bargaining with the Charging Party. With regard to the allegations, Joel Jimenez testified that at the April 15 bargaining session, he made an initial proposal on this subject "as soon as we found out that the Company was going to be moving." Hulsey replied that he would con- sult with his client. Jimenez further testified that at the parties' next bargaining session in late April or early May he asked Hulsey if if he had spoken to Respondent with regard to compensation for the employees who trans- ferred to the new plant: The answer was, "no," that Em- ployer would not be paying any gasoline expenses to the employees. At a future meeting, according to Jimenez, he proposed that Respondent provide a bus to transport employees to the Rancho Cucamonga plant; Hulsey re- sponded that there would be no compensation to em- ployees. Richard Scott testified that Jimenez initially proposed such employee compensation after Hulsey an- nounced that all Glendale bargaining unit employees would be offered jobs at the new plant. According to Scott, Jimenez suggested several alternative forms of ex- pense payment-mileage allowances , gasoline reimburse- ment, and the like. Hulsey's response was "No damn vvay." Scott further testified that at the May 29 bargain- ing session he raised the fact that Respondent had by then implemented the above-described compensation plan, that the Charging Party had requested similar pay- ment earlier in the bargaining, and that Hulsey refused such. Hulsey replied , "Well, Dick, what can I say." Contrary to the Charging Party witnesses, Hulsey tes- tified that the matter of some sort of compensation for transferring Glendale plant employees was initially raised by Jimenez at the parties' April 6 bargaining session. Thus, after Hulsey told Scott that Respondent would only bargain for the certified unit at the certified loca- tion, Jimenez asked what Respondent intended to do for the Glendale workers with respect to the relocation. Ac- cording to Hulsey, he offered to bargain with regard to the closing of that plant; however, Jimenez said such was riot important and stated that his concern was over the employees who followed Respondent to Ontario. He thereupon suggested that Respondent provide a bus to transport workers to the new location. Hulsey replied that a bus was not feasible, but that Respondent was "considering various economic-type compensation-type things for the people." Jimenez suggested that such be over and above wages, and Hulsey said it would be con- sidered. Bargaining on this subject stopped at that point as Scott suggested that the parties move on to another matter. During his testimony , Hulsey did not again dis- cuss this issue until recounting the May 21 bargaining 91 session. Testifying that he was unaware whether such had already been implemented, Hulsey says that he an- nounced "that the company was willing to pay $2.50 per head to the driver of the car pool for 30 days." Accord- ing to Hulsey, "there was no counter offer made at that time. I just offered it. That is what the company was willing to do." He also averred that had the Charging Party made a counterproposal , he would have taken such back to Respondent for consideration. Finally, Hulsey admitted that the employee payments had, at least, been implemented before the May 29 bargaining session. 3. The alleged threats to employees The parties stipulated that on May 24 Respondent and the Teamsters executed a collective -bargaining agree- ment for Respondent's Rancho Cucamonga plant, cover- ing the job classifications set forth in the Board's certifi- cation for the Glendale facility about which Respondent and the Charging Party continued to bargain . Article II, the union-security clause, reads, inter alia, as follows: 1. All employees covered by this Agreement and all employees subsequently hired must become and remain members of the Union in good standing after thirty-one (31) days of date of hire, or date of exe- cution of this Agreement, whichever is later, as a condition of employment. Article III, the dues-checkoff clause, reads, inter alia, as follows: 1. The Employer shall deduct from the first pay- check of each month and turn over to the Union for the duration of this Agreement, the dues and/or ini- tiation fees of such members of the Union as indi- vidually and voluntarily authorize such deduction in writing... . The parties also stipulated that representatives of the Teamsters were at the Rancho Cucamonga plant on June 17 with the permission of Respondent . Joseph Heuer tes- tified that such was authorized in order to enable the Teamsters officials to meet with groups of employees and solicit them to join the Union or to execute dues- checkoff authorizations . According to Heuer, he instruct- ed Production Manager Kibbie to have employees meet with the Teamsters representatives in a small office; he denied instructing Kibbie that employees were required to execute any documents . Employee Juana Ramos testi- fied that Kibbie approached her and four other employ- ees, including Estrella , De Sotomayor, and said that Teamsters representatives were waiting in an office in order to explain about the union and have them become members. Because Sotomayor does not understand Eng- lish, Kibbie asked Ramos to explain to Sotomayor what he said. The former said she could not translate well enough and suggested Kibbie get someone else . There- upon, according to Ramos, Kibbie called over employee Freddie Andrade and said that he needed the latter to in- terpret for him. Ramos further testified through Andrade Kibbie asked Sotomayor if she was going to sign a 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters membership card. The latter replied, no "be- cause it was not convenient for her." Kibbie then "told her . . . that if she was not going to sign the card to become a member of the Teamsters, she was going to be replaced by a Teamster union member." Sotomayor also recalled ,the incident, testifying that Andrade interpreted for Kibbie and "told us to sign for that union and I didn't think it was convenient. Kibbie told me that I would have to sign for that union, that if I did not sign that, I would lose my job." James Kibbie testified that Heuer instructed him to have groups of employees speak to Teamsters representatives who would be in the plant that day and that he acted accordingly. He could not recall specifically speaking to Sotomayor but denied stat- ing that she had to join that union. Kibbie also denied utilizing Andrade as an interpreter that day or that Ramos asked him to have Andrade translate for Soto- mayor and testified that no employee refused to speak to the Teamsters representatives. Finally, Kibbie said that he merely "motioned to follow me. Usually just by mo- tioning they were going to drop what they were doing and follow me anyway, whether I said anything or not." The parties next stipulated that on June 19 Respondent held a meeting for all employees at the Rancho Cuca- monga plant. The record establishes that it was conduct- ed near the shipping and receiving area, that Heuer and Hulsey spoke to the employees who stood around them in a circle, and that a Spanish-speaking employee inter- preted what was said." Heuer who had with him a copy of the new Teamsters contract spoke first and, according to employee Joe Guajardo, after setting forth their new fringe benefits, warned employees that those who failed to sign with the Teamsters "were going to be replaced by others." Employee Pablo Nalvarte testified that Heuer announced that the purpose of the meeting was to discuss the new collective-bargaining agreement and pro- ceeded to detail the new employee benefits. Next, Heuer referred to employee obligations under the contract, saying "that a certain amount of employees had already signed . . . and that we had to sign it . . . to become members, because otherwise we were going to be substi- tuted by other employees." According to Nalvarte, Heuer said the foregoing was required under the con- tract. Employee Sotomayor testified that Heuer "told us that we had to accept the Union . . . that if we did not accept it we were going to lose our jobs, that we had up until the 28th to sign." Hulsey referred to the Teamsters, and "he said that .. . that was the union that was going to give us good benefits and that was the union that was representing the company . . . that if we did not sign the contract we were going to lose our jobs, that we had up until [the 28th of June] . . . to sign it." Joe Guajardo tes- tified that Hulsey merely explained "points" of the con- tract. Heuer testified that the purpose of the meeting was to "clarify our position" where employees stood with regard to the Teamsters. According to him, both he and Hulsey spoke, and Hulsey read verbatim various sections " Employee Sotomayor testified that the interpreter, a Cuban, could not be heard by all employees and that he interpreted in a displeasing manner Consequently, employee Andrade translated for those near him of the recently executed Teamsters contract, including the union-security clause, to the employees and explained what they meant. Hulsey spoke next and "tried to go into more detail on such certain items. He tried to rein- force what I said." Heuer denied threatening to termi- nate employees. Hulsey testified that Heuer spoke first, and he "referred to the collective-bargaining agreement and particularly read from and spoke about the union-se- curity and checkoff provisions." Hulsey stated that he spoke next, summarized what Heuer said, and also said "that should [the employees] not join in accordance with the contract [the Teamsters] could ask the Employer to terminate them if they didn't join. And at that point the Employer would have to." He denied that either Heuer or him set a time limit for employees to join the Team- sters or be discharged. James Kibbie testified that he at- tended the meeting, that Heuer read from the contract to the employees, and that, as to joining the Teamsters, Heuer said "that with it being a union shop, they would have to be a member in order to work there, or they could be terminated." Hulsey spoke next and, according to Kibbie, he "basically elaborated on what Mr. Heuer had read." Kibbie also denied that any dates or deadlines were given employees to join the Teamsters. B. Analysis The consolidated amended complaint alleges that Re- spondent engaged in acts and conduct violative of Sec- tion 8(a)(5) and (1) of the Act by refusing to bargain with the Charging Party regarding the production and maintenance employees at its Rancho Cucamongo plant, by withdrawing recognition from the Charging Party as the collective-bargaining representative of the employ- ees, and by unilaterally, without bargaining with the Charging Party, implementing compensation payments for employees who transferred from Glendale to the new location. As to the initial two allegations the General Counsel argues that the Supreme Court decision, Ray Brooks v. NLRB, 348 U.S. 96 (1954), is controlling herein, establishing Respondent's absolute obligation to bargain with the Charging Party during its certification year; that the facts herein do not fall within the "unusual circumstances," set forth in Ray Brooks, which would excuse the obligation; and that assuming arguendo re- moval of a plant may constitute such an unusual circum- stance, the facts herein, do not warrant such a finding. Contrary to the General Counsel, Respondent's attorney denies the applicability of Ray Brooks, to the instant fac- tual situation and argues that recognition is not required at the new facility as there was a lack of majority status at the new plant, Rancho Cucamonga is located consid- erably distant from Glendale, the available labor pool at the Rancho Cucamonga location differs from that sur- rounding the Glendale plant, and the production process and product at Rancho Cucamonga differs substantially from that at Glendale. Regarding the alleged unilateral change, the General Counsel argues that the commuta- tion expense payments were instituted without any agree- ment having been reached with the Charging Party; Re- spondent asserts that neither Scott nor Jimenez voiced objection to such and the payment represents merely "an LANCO isolated change for a few employees." The consolidated amended complaint next alleges that Respondent violated Section 8(a)(2) and (1) of the Act by recognizing the Teamsters as the exclusive representative for purposes of collective bargaining of the production and maintenance employees at the Rancho Cucamonga facility. The Gen- eral Counsel argues that inasmuch as Respondent was under a continuing obligation at the time to bargain with the Charging Party, the extension of recognition was un- lawful. Respondent, for the reasons stated above, denies that any bargaining obligation was owed to the Charging Party at the Rancho Cucamonga facility and that, there- fore., recognition was lawfully extended to the Teamsters upon the latter's demonstration of majority status. Final- ly, it is alleged in the consolidated amended complaint that on June 17 and 19 Respondent violated Section 8(a)(1) of the Act by threatening employees with termi- nation. With regard to the employee meeting on June 19, Respondent concedes that the references by Heuer and Hulsey to the union-security clause requirements of the Teamsters' collective-bargaining agreement were unlaw- ful if the contract is unlawful. Such, of course, is depend- ent upon the validity of the recogntion of the Teamsters by Respondent. Initially, the record mandates that certain credibility resolutions be made concerning the bargaining over Re- spondent's relocation from Glendale to "Ontario" and the effect of such upon the Charging Party's status. Vari- ous Factors convince me that the more candid and forth- right accounts of the collective bargaining were those of Charging Party's witnesses Scott and Jimenez. First and foremost, I was impressed with the demeanor of each while he testified. In contrast, Hulsey appeared to be sig- nificantly less forthcoming during his testimony-espe- cially under cross-examination by both counsel for the General Counsel and for the Charging Party. Further, crediting Hulsey that he consistently, during the negotia- tions, refused to agree to the Charging Party's demand that Respondent extend its recognition to encompass em- ployees at Rancho Cucamonga leads to the rather in- credible conclusion that from, at least, April 6 onward Scott and Jimenez engaged in nothing more than a cha- rade--bargaining for a unit which they knew would cease to exist. It is entirely unreasonable to believe that such experienced negotiators would bargain to the extent, on May 21, of presenting an economic proposal and demanding to meet with Hulsey's principals in order to explain if they did not believe that the Charging Party would continue to be recognized as the bargaining agent of Respondent's production and maintenance employees at the Glendale plant and at the Rancho Cucamonga fa- cility. Moreover, in this regard, I cannot accept Hulsey's assertion that both he and Scott were aware that a legal question existed over the Charging Party's right to rec- ognition at Rancho Cucamongo. Assuming arguendo that Scott agreed to seek a legal opinion from his lawyer, I do not believe he would have continued to bargain unless Hulsey previously acquiesced in the Charging Party's demand for recognition there. Finally, Hulsey's testimony about his May 29 proposal seemed to be utter- ly disingenuous. It strains credulity that he reasonably expected Scott to bargain over a collective-bargaining 93 agreement which would expire in less than a week or that Hulsey presented it with any seriousness of purpose other than as a sham. Accordingly, based on the forego- ing credibility resolutions, and the record as a whole, I find that, commencing in early April and continuing through the bargaining session on May 21, whenever Scott or Jimenez raised the subject, Hulsey assured the Charging Party's representatives that Respondent would extend recognition to it as the bargaining representative for employees at the "Ontario" plant, that Hulsey never objected when Scott and Jimenez, in the full view of Hulsey, crossed out the Glendale plant address on Re- spondent's April 15 contract proposal and wrote in above the crossouts the "Ontario" address, and that the plant address was left blank on Joint Exhibit A(8), the April 27 proposal, inasmuch as neither Hulsey nor Scott and Jimenez was certain that any resulting agreement would be reached prior to or subsequent to the reloca- tion to the new facility.18 The foregoing, of course, does not resolve the matter of the legality of Respondent's acts and conduct herein. In so determining, I have initially concluded that Re- spondent's May 22 extension of recognition to the Team- sters as the collective-bargaining representative of the Rancho Cucamonga plant production and maintenance employees constituted a tacit withdrawal of recognition from the Charging Party as the bargaining representative of Respondent's production and maintenance employ- ees19 and that thereafter, as exemplified by the May 29 fanciful counterproposal, which was presented to Scott by Hulsey, and which defined and limited the scope of the bargaining unit to employes at the Glendale plant, and which, despite the agreed-upon term, would, in reali- ty, be effective for no more than 1 week, Respondent re- fused to bargain with the Charging Party-notwithstand- ing that the latter had been certified less than a year ear- lier. As mentioned above, the General Counsel relies on Ray Brooks, supra, in arguing that Respondent's conduct was, and remains, unlawful. Therein, the Supreme Court endorsed the Board's existing certification-year rule: that after a labor organization has been victorious in a Board- conducted election and after the result has been certified an employer must honor the certification, absent "unusu- al circumstances," for at least 1 year. The purpose of this rule is "to afford a newly certified union a reasonable time after its certification . . . in which to fashion a labor agreement free from interference by rival unions." Rocky Mountain Phosphates, 138 NLRB 292, 293 (1962). The aforementioned "unusual circumstances" which jus- tify a refusal to adhere to the certification-year rule are Is I note Hulsey's candid comment that, throughout the negotiations, he received no exact date for the completion of the relocation to Rancho Cucamonga. I place no reliance on R Exh 1, the reliability of which I doubt. Finally, I have made my credibility resolutions fully cognizant of Scott's apparent confusion with regard to the exhibits and Hulsey's more logical testimony as to them. Such does not detract from my conclusions as to the substantive portions of their respective testimonies. i9 This must be so as the relocation of operations to Rancho Cuca- monga was in its final stage and would be completed within 2 weeks. It defies reason to believe that Respondent ever intended to continue recog- nizing the Charging Party as its employees' bargaining representative. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in Ray Brooks as occurring in, at least, three sit- uations: the labor organization becomes defunct or dis- solves, as a result of schism substantially all the members and officers of the certified labor organization transfer their affiliations to another labor organization, or the size of the bargaining unit fluctuates rapidly in a short priod of time. Id. at 98-99. However, I note that the Supreme Court did not specifically limit the available factual cir- cumstances to just those enumerated above that, during his oral argument, the General Counsel conceded that plant relocation "certainly could be raised as an unusual circumstances" in the right factual context-which the instant case is not. I agree with the General Counsel that Ray Brooks, supra, sets forth the applicable legal princi- ples herein;20 the issue, then, concerns whether Re- spondent's relocation of operations is to be considered as an unusual circumstance, justifying its conduct. Neither the General Counsel nor Respondent has cited any prior Board decisions, which involve plant reloca- tions during the initial certification year and in which the Board set for criteria for determining whether such con- stitutes an unusual circumstance justifying a refusal to recognize the incumbent at the new facility, and I have been unable to locate any such cases. However, the Gen- eral Counsel, in order to establish such a test, analogizes to the criteria utilized by the Board in those cases in- volving similar events during the term of an existing col- lective-bargaining agreement, citing, in particular, Westwood Import Co., 251 NLRB 1213 (1980). Analysis of this and other similar Board decisions reveals a close parallel between the respective rights and obligations of the labor organization and the employer during the certi- fication year and the respective rights of a labor organi- zation and an employer during the term of a valid collec- tive-bargaining agreement. As set forth above, the ration- ale of the certification-year rule is to enable the newly certified labor organization to bargain effectively. Fur- ther, "[i]t is established law that a certified union enjoys an irrebuttable presumption of majority status during the certification year, and that an employer is obligated to bargain in good faith for at least that year." Automatic Plastic Molding Co., 234 NLRB 681, 683 (1978); Parkview Nursing Center II Corp., 260 NLRB 243 (1982); Marriott In-Flite Services, 258 NLRB 755, 767 (1981). Also, pursu- ant to Section 9(c) of the Act, the Board may not con- duct a second election in the same certified bargaining unit until the certification year has elasped. Likewise, the traditional rules in the latter situation are that a labor or- ganization enjoys an irrebutable presumption of majority status during the term of a collective-bargaining agree- ment and that an employer may not normally refuse to 20 Respondent argues that Ray Brooks, supra, is not applicable in the instant factual context, citing St. Bernadette's Nursing Home, 234 NLRB 835 (1978), wherein the Board rejected the General Counsel's argument that Ray Brooks, controlled the legality of the employer's conduct there- in However, I note that St. Bernadette's is factually distinguishable from this situation inasmuch as rather than finding that the employer had relo- cated its operations, the Board found that the facility, at issue, was a "to- tally new operation" and not merely a replacement for the old facility Id at 837. Further, the Board stated that if Ray Brooks was applicable, the radical fluctuation of the size of the bargaining unit excused the em- ployer's obligation to bargain Id Accordingly, I reject counsel's argu- ment in this regard continue dealing with the labor organization during this time period, during which period their agreement acts as a bar for purposes of the Board's representation proceed- ings. Baldor Electric Co., 258 NLRB 1325 (1981); Westwood Imports, supra. The rationale for this is that no representation petition will be entertained by the Board during the term of a valid contract and that it would be incongruous to permit an employer to lawfully, unilater- ally eliminate or change its employees' bargaining repre- sentative at a time when the Board will not permit such a change via its representation election procedures. Abbey Medical/Abbey Rents, 264 NLRB 969 (1982); Westwood Imports, supra at 1214. As to establishing crite- ria for determining whether the relocation of a company impacts upon said employer's obligations vis-a-vis an in- cumbent labor organization, the Board notes that the effect of such "is not substantial" and traditionally con- cludes that an existing collective-bargaining agreement survives relocation "provided operations and equipment remain substantially the same at the new location, and a substantial percentage of the employees at the old plant transfer to the new location." Westwood Imports, supra; Tricor Products, 239 NLRB 65, 69 (1978); California Foot- wear Co., 114 NLRB 765 (1955), enf, denied 246 F.2d 886 (9th Cir. 1957). I agree with the General Counsel that an analogy may properly be drawn between an employer's and a labor organization's respective rights and obligations during the year following certification and those during the term of a collective-bargaining agreement and that the criteria, which have been utilized by the Board for deter- mining the rights of an incumbent labor organization after a plant relocation in the latter situation, are equally applicable to the identical situation during the certifica- tion year. I so conclude, noting that an overriding pur- pose of the certification-year rule is to protect the newly certified labor organization's ability to bargain effectively for that 1-year period. Accordingly, I believe that whether the collective-bargaining relationship between Respondent and the Charging Party survived the reloca- tion of the former's operations from Glendale to Rancho Cucamonga depends on whether operations and equip- ment remained the same after the move and on whether a substantial percentage of employees from Glendale ac- companied Respondent to Rancho Cucamonga. As to the latter, the record establishes that of the approximately 47 to 50 bargaining unit employees at the Glendale plant prior to relocation 23 individuals, or between 46 and 48.9 percent of the total employee complement, transferred to Rancho Cucamonga. More significant, I think, is the sa- lient fact that on May 2, the day Respondent recognized the Teamsters as the production and maintenance em- ployees' bargaining representative at Rancho Cuca- monga,21 of the 27 bargaining unit employees then 21 The significance of this date cannot be overstated, for I believe that all of Respondent's subsequent conduct flowed from the events of this date Moreover, assuming arguendo that one looks at June 5 for examina- tion of the employees complement, the record reveals that 48 9 percent, or 23 of 47 employees, of the Rancho Cucamonga bargaining unit had transferred from Glendale There is no other record evidence of changes in the employee complement and particularly none as to whether the per- Continued LANCO working there 14 the individuals or approximately 52 percent had come from the Glendale plant. With regard to the equipment and operations at the new location, the record discloses that the identical equipment was-and is-used at the Rancho Cucamonga plant as had been utilized at Glendale and that the work is identical. Thus, Respondent's witness Kibbie corroborated employee wit- nesses Ramos, Sotomayor, Guajaro, and Nalvarte in this regard. The record further discloses that part-owner Heuer, during his testimony, grossly exaggerated the production differences between the Glendale and Rancho Cucamonga plants. Thus, while he drew the colorful analogy between producing fire by rubbing sticks together against using a lighter in contending that the latter facility's advantages completely altered the production process, Kibbie candidly testified that "We streamlined the flow of assembly, but assembly tech- niques, methods and tools were the same." Moreover, while the relocation has enabled Respondent to alter its product by increasing the percentage of cabinet-model fans produced, such appears to be the fruit of the addi- tional floor space at the new location rather than of any substantial variation in operating policy. W. T Grant Co., 197 NLRB 955, 956 (1972). Stripped to its essentials, then, the only significant change in Respondent's oper- ations was geographic. Mass. Machine & Stamping, 231 NLRB 801, 802 (1977). In short utilizing the criteria of the Board in relocation-during-a-contract's-term cases suggests that Respondent's relocation, indeed, had an in- substantial effect on Respondent's obligations towards the Charging Party. The main thrust of Respondent's defense to the allega- tion that it unlawfully refused to bargain with and with- drew recognition from the Charging Party as the collec- tive-bargaining representative of the Rancho Cucamonga production and maintenance employees is that there has been no record showing that the Charging Party repre- sents a majority of said employees and that such should be the most significant criterion herein. In support, coun- sel for Respondent cites several court decisions22 and one Board decision,23 in particular. At the outset, rather than establishing that the incumbent enjoys majority sup- port at the new location, it appears that the Board re- quires only that the General Counsel prove that a "sub- stantial percentage" of employees transferred from the old to the new facility. Thus, in Westwood Imports, supra, 40 percent of the employee complement at the new loca- tion was comprised of employees from the old location (id. at 1214, fn. 8), and in W. T. Grant Co., which also involved a relocation during the term of a valid contract and in which the Board found an unlawful refusal to bar- gain with the incumbent union, the figure was 45 per- centage of Glendale employees decreased. In any event, there can be no doubt that a "substantial percentage" of Glendale employees accepted Respondent's offer of employment in Rancho Cucamonga and comprised slightly less than a majority of the total Rancho Cucamonga employee complement as of June 5. 22 NLRB v Massachusetts Machine & Stamping, 578 F.2d 15 (1st Cir 1978), Fraser & Johnston Co v NLRB, 469 F 2d 259 (9th Cir 1979), Cooper Thermometer Co v NLRB, 367 F.2d 648 (2d Cir 1976). 22 Pierre Governor Co, 164 NLRB 9 (1967), enfd. sub nom Auto Work- ers v NLRB, 394 F 2d 757 (D C. Cir 1968), cert denied 393 U S. 831 (1968) 95 cent. The Board decision, Pierre Governor Co., supra, on which Respondent strongly relies, concerned a compa- ny's relocation of a plant subsequent to the termination of its collective-bargaining agreement with a union and during negotiations for a successor contract. I find that the Board's apparent reliance on the fact that less than a majority of the old plant's employees transferred to the new location to be of little relevance to the instant matter as here,the relocation of Respondent's operations occurred during the certification year. This is crucial, for, just as during the term of the collective-bargaining agreement, the Charging Party enjoyed an irrebuttable presumption of majority status during the bargaining with Respondent; while the union in Pierre Governor Co., enjoyed only rebuttable presumption of majority status. As to the relied-on court cases, Mass. Machine & Stamp- ing, supra; Fraser & Johnston, supra; and Cooper Ther- mometer, supra, Respondent cites them for the proposi- tion that recognition and bargaining with an incumbent at a new location is required only if a majority of the old location's employees comprise a majority of the bargain- ing unit at the new location. As to this, I note initially that I am bound by decisions of the Board, and not of the courts, unless reversed by the Supreme Court. Lumber and Mill Employers Assn., 265 NLRB 199 (1982); Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4 (1979). Next, I have specifically found that the Glendale plant employees, indeed, comprised a majority of the Rancho Cucamonga bargaining unit at the time Respond- ent withdrew recognition from the Charging Party.24 Further, contrary to counsel, as of June 5, the Glendale plant employees comprised over 48 percent of the new plant's bargaining unit, and it is entirely logical to infer that, as the relocation continued during the period May 22 until June 5, more than the eventual total of individ- uals would have transferred to Rancho Cucamonga from Glendale absent Respondent's recognition of the Team- sters at the new location, especially with the possibility that the Charging Party could have negotiated higher wages and fringe benefits. Cf. Fraser & Johnston, supra at 1265.25 In light of the foregoing, I find the most significant and compelling factors herein to be the fact that all events occurred during the Charging Party's certification year; the lack of any meaningful change in Respondent's business operations upon the relocation to Rancho Cuca- monga; the transfer of at least 46 percent of the Glendale plant employees to Rancho Cucamonga; the composition of the Rancho Cucamonga plant bargaining unit on May 22, a majority of which were Glendale plant employees; and the bargaining unit on June 5, at which time it was comprised of 48.9 percent Glendale plant employees. 24 Of course, even as late as June 5, the Glendale plant transferees ac- counted for 48 9 percent of the bargaining unit, certainly a "substantial percentage" 22 In this regard, I do not see the 50-mile distance between Glendale and Rancho Cucamonga as a detriment to individuals relocating along with the business Notwithstanding the Department of Labor's analysis of labor areas, anyone at all familiar with commuting habits within the Los Angeles basin area would conclude that workers willingly drive great distances to and from work Such, of course, is magnified by the econom- ic realities of this time. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These factors mandate findings that Respondent was, at all material times, under a continuing obligation to rec- ognize and bargain with the Charging Party as the bar- gaining representative of its employees no matter where employed; that by failing to do so, Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Act (West Imports, supra; W. T Grant, supra; California Foot- wear Co., supra); and that by, in such circumstances, ex- tending recognition to the Teamsters on May 22, and thereby tacitly withdrawing such from the Charging Party, Respondent engaged in conduct violative of Sec- tion 8(a)(1), (2), and (5) of the Act. King Radio Corp., 257 NLRB 521 (1981); Weeke Electric Co., 242 NLRB 955 (1979).26 Turning to the allegation that Respondent unilaterally, without bargaining, instituted commutation expense pay- ments to employees who transferred to Rancho Cuca- monga-in violation of Section 8(a)(1) and (5) of the Act, I credit the testimony of Charging Party's witnesses Scott and Jimenez over that of Respondent's labor con- sultant Hulsey. Reiterating what I said above, I found the former witnesses to be honest and forthright in their testimonies; Hulsey, on the other hand, never seemed to be entirely candid and always appeared to be tailoring his responses to fall within his own theory of the case.27 Accordingly, I find that whenever the Charging Party's representatives proposed at various negotiating sessions some sort of compensation for employees who trans- ferred from Glendale to Rancho Cucamonga, Hulsey re- plied that there would be none; that the commutation payment to carpool drivers by Respondent was instituted without prior notice to or bargaining with the Charging Party; and that on May 29 when Scott requested that he would not and said, "Well, Dick, what can I say." Such, I believe, was entirely consistent with the withdrawal of recognition from the Charging Party 7 days earlier. Based on the foregoing, there can be no question that the commutation benefit payment constituted a unilateral change in employee benefits and that such occurred during the course of contract negotiations. The Board holds that "absent a valid, preexisting impasse, or the consent of the union, an employer, during the course of contract negotiations, is not free to implement proposed changes or those tentatively agreed to by the parties." Marriott In-Flite Services, supra at 755 fn. 2. Because Hulsey never made any proposal on the subject of com- pensation for transferring employees, there is no issue of impasse and no credible record evidence that either Scott or Jimenez agreed to the commutation payment. 26 In so concluding, I make the ancillary finding that whatever bar- gaining Respondent carried on with the Charging Party after May 22 with regard to the Glendale plant employees was meant to be and, in fact, was a sham-nothing but the form without any substance at all Further, while Weeke Electric involved the repudiation of a collective- bargaining agreement, I believe such to be analogous to the situation herein where Respondent repudiated its bargaining relationship with the Charging Party by granting recognition to the Teamsters. 27 In this regard, I could not-and do not-believe that he entered ne- gotiations with the position that he was only negotiating for the certified unit at the certified location His legal basis for this was vague and struck me as an afterthought to justify the later recognition of the Teamsters and withdrawal of recognition from the Charging Party. Respondent clearly violated Section 8(a)(1) and (5) of the Act by said conduct.28 Finally, regarding the two independent 8(a)(1) allega- tions, as to the alleged statement attributed to Supervisor Kibbie by employees Ramos and Sotomayor that if the latter did not sign a Teamsters membership card, em- ployee Andrade interpreted Kibbie's words in the fore- going manner. In this regard, I do not credit Kibbie's denial that Andrade interpreted for him that day when he instructed employees to speak to the Teamsters repre- sentative who visited the plant.29 Such a threat of dis- charge is clearly violative of the Act, and I so find. Re- garding the employee meeting on June 9, from the testi- monies of several witnesses , including employee Nal- varte, Heuer and Hulsey referred to the new Teamsters collective-bargaining agreement while they spoke, and Heuer announced that said contract required employees to become union members or be replaced. As I believe that both Heuer and Hulsey merely explained the terms of the contractual union-security clause to the employ- ees, the legality of their comments depends on the validi- ty of the Teamsters contract. I have previously conclud- ed that Respondent recognized the Teamsters as the col- lective-bargaining representative of the Rancho Cuca- monga bargaining unit employees in violation of Section 8(a)(1) and (2) of the Act; it follows that the giving effect to a subsequent collective-bargaining agreement with said union, which contract contains a union securi- ty-clause, is likewise violative of the Act. McKesson Drug Co., 257 NLRB 468 (1981); Hollander Home Fashion Corp., 255 NLRB 1098 (1981); Sanford Home for Adults, 253 NLRB 1132 (1981). Therefore, the admitted state- ments of Heuer and Hulsey that Respondent would be required to terminate employees who did not join the Teamsters in accord with the union-security clause, on the Teamsters request, must be considered unlawful threats of discharge violative of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party and the Teamsters are labor or- ganizations within the meaning of Section 2(5) of the Act. 28 Respondent argues that the unilateral change represented merely "an isolated change for a few employees." Of course , this misses the point entirely, for if there had been meaningful notice and bargaining, other employees may have shared in the expense payment or it may have taken a different form The vice of Respondent's unlawful conduct is not the number affected but rather the bypassing of the Charging Party as the employees' certified bargaining representative Finally, it is entirely speculative to state, as does Respondent's counsel, that the payment "in no way thwarted or prevented" a majority of Glendale employees from relocating to Rancho Cucamonga. Coupled with the recognition of the Teamsters and the refusal to bargain with the Charging Party over Rancho Cucamonga, the instant unlawful unilateral change might well have dissuaded other employees from transferring-especially those who might not have been able to arrange carpools 29 While in many respects, I found Kibbie to be an honest witness, I did not believe his testimony about Sotomayor It is, of course , a normal occurrence to believe portions, but not all, of a witness' testimony. Fla- tiron Materials Co., 250 NLRB 554, 558 (1980) LANCO 3. All production and maintenance employees, includ- ing shipping and receiving employees and truckdrivers, employed by Respondent at its facility located at 9175 Milliken, Rancho Cucamonga, California; excluding all office clerical employees, professional' employees, guards, watchmen and supervisors as defined in the Act consti- tute an appropriate bargaining unit within the meaning of Section 9(b) of the Act. 4. The Charging Party, at all material times, has been, and is, the certified collective-bargaining representative of all employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition on May 22, 1981, from the Charging Party as the certified collective-bargaining representative of employees in the aforesaid appropriate unit; by thereafter refusing to bargain with the Charging Party as the certified collective-bargaining representative of employees in the aforesaid appropriate unit; and by unilaterally, without bargaining to impasse with the Charging Party as the certified collective-bargaining rep- resentative of employees in the aforesaid appropriate unit implementing a commutation payment to its employees, Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Act. 6. By recognizing and subsequently entering into a col- lective-bargaining agreement with the Teamsters as the collective-bargaining representative of employees in the aforesaid appropriate unit at a time when it was under a continuing obligation to bargain with the Charging Party as a result of the latter's certification as the collective- bargaining representative of employees in the aforesaid appropriate unit, Respondent engaged in conduct viola- tive of Section 8(a)(1) and (2) of the Act. 7. By threatening employees with replacement and/or discharge if they did not join the Teamsters, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated its collective- bargaining obligation to the Charging Party in violation of Section 8(a)(1) and (5) of the Act, unlawfully granted recognition to the Teamsters in violation of Section 8(a)(i) and (2) of the Act, and unlawfully threatened em- ployees in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent cease and desist from en- gaging in such conduct and take such affirmative actions which are designed to remedy said unfair labor practices. Having found that Respondent unlawfully recognized and, then, subsequently entered into a collective-bargain- ing agreement with Teamsters, I shall recommend that Respondent be ordered to cease and desist from giving effect to said agreement" and refrain from any renewal 11 Respondent objects to such an order, contending that this would re- quire it to withhold benefits from employees, which benefits have inured to the employees under the contract However, in cases, such at this, the Board "provides that the abrogation of said agreement shall be without piejudice to the employees' wages or other economic conditions of em- ployment now in existence ; and that with regard to any hospitalization, medical, sickness, or similar casualty or other coverage or indemnities, 97 or extension thereof and that Respondent withdraw and withhold all recognition from the Teamsters as the col- lective-bargaining representative of Respondent's produc- tion and maintenance employees at the Rancho Cuca- monga plant. Additionally, Respondent will be required to reimburse all present and former Rancho Cucamonga bargaining unit employees for all initiation fees, dues, or other moneys paid or checked off pursuant to the unlaw- ful union-security clause and dues-checkoff provisions of the aforesaid collective-bargaining agreement, with inter- est thereon to be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977).31 Having found that Re- spondent unlawfully withdrew recognition from, and re- fused to bargain with the Charging Party, as the collec- tive-bargaining representative of the aforesaid Rancho Cucamonga employees during the Charging Party's cer- tification year, I shall recommend that Respondent be or- dered to recognize and bargain with the Charging Party. In this regard, the Charging Party was certified as the bargaining representative of Respondent's employees32 on December 16, 1980, and the record establishes that Respondent's unfair labor practices commenced on May 22, 1981. Accordingly, inasmuch as the Charging Party has not been accorded an entire certification year, it shall be extended to "embrace that time in which the Employ- er has engaged in its unlawful refusal to bargain"; Re- spondent shall be required to bargain for that period, commencing on the date on which Respondent 'and the Charging Party resume bargaining; and if an agreement is reached, Respondent shall be required to embody it in a signed agreement . Mammoth of California, 253 NLRB 1167, 1172 (1981). Having found that Respondent unilat- erally, and unlawfully, instituted a commutation expense payment to employees who transferred from Glendale to Rancho Cucamonga, I shall recommend that Respondent bargain, on request, with the Charging Party on the sub- ject of expenses for the employees. On these findings of fact and conclusions of law and on the entire record, I issue the, following recommend- ed33 ORDER The Respondent, Hydro-Air Equipment, Inc., d/b/a Lanco, Rancho Cucamonga, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from, and refusing to bar- gain with, the Charging Party as the exclusive bargain- ing representative in the following appropriate unit: reasonable provision shall be covered by Respondent to provide em- ployees with substitute coverage " Mego Corp, 254 NLRB 300, 301 (1981) I shall recommend such in these matters. Si Respondent's counsel in her brief states that a reimbursement order is meaningless as the dues-checkoff clause has not been enforced due to a court order I shall leave a determination as to this to the compliance stage of the proceedings 32 It, of course, makes no difference that this certification sets forth the Glendale plant address. Ritthng Corp, 203 NLRB 355, 358 (1973) 33 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, includ- ing shipping and receiving employees and truck- drivers, employed by Respondent at its facility lo- cated at 9175 Milliken, Rancho Cucamonga, Cali- fornia; excluding all office clerical employees, pro- fessional employees, guards, watchmen and supervi- sors as defined in the Act. (b) Unilaterally, without bargaining to impasse with the Charging Party as the collective-bargaining repre- sentative of the foregoing appropriate unit of employees, implementing a commutation payment to certain of its employees who transferred from Glendale to Rancho Cucamonga. (c) Recognizing the Teamsters as the collective-bar- gaining representative of the aforementioned appropriate unit of employees. (d) Giving effect to, performing, or in any way enforc- ing the collective-bargaining agreement with the Team- sters, entered into about May 24, 1981, or to any modifi- cation, extension, renewal, or supplement thereto; pro- vided, however, that nothing herein shall require Re- spondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its em- ployees which have been established in the performance of any such agreement or to prejudice the assertion by such employees of any rights they may have thereunder. (e) Threatening employees with replacement and/or discharge if they did not join the Teamsters. (f) In any like or related manner interfering with, co- ercing, or restraining its employees in the exercise of their rights guaranteed under the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Bargain, on request, in good faith with the Charg- ing Party as the collective-bargaining representative of the employees in the aforementioned appropriate unit with respect to wages, hours, and other terms and condi- tions of employment and, on request, embody in a signed agreement any final understanding reached by the par- ties. (b) Bargain, on request, with the Charging Party as to any commutation or any other expenses payments to em- ployees who transferred from the Glendale plant to the Rancho Cucamonga plant. (c) Reimburse employees in the aforementioned appro- priate unit for any and all initiation fees, dues, or other moneys paid by said employees or withheld from them pursuant to the terms of the collective-bargaining agree- ment with the Teamsters; however, this reimbursement shall not extend to any employee who voluntarily joined and became a member of the Teamsters subsequent to May 24, 1981. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at office and plant, located in Rancho Cuca- monga, California, copies of the attached notice marked "Appendix."34 Copies of the notice,35 on forms provid- ed by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 34 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 11 The notice shall be in both English and Spanish