Caro Bags, Inc.

656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Caro Bags, Inc. and Solidarity of Labor Organiza- tions, International Union Local 734, Laborers International Union of North America, 'AFL-CIO and Solidarity of Labor Organizations, International Union. Cases 22- CA-14468 and 22-CB-5506 8 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 5 March 1987 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Respondent Employer and the Respondent Union filed exceptions 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 conclusions and to adopt the recommended Order. 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Employer, Caro Bags, Inc., Edison, New Jersey, its officers, agents, successors, and assigns , and the Respondent Union, Local 734, Laborers International Union of North America, AFL-CIO, Clifton, New Jersey, its officers, agents, and representatives, shall take the action set forth in the Order. i The Respondent Employer and the Respondent Union have excepted to some of the judge's credibility findings 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 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621. Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S.C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Gary A. Carlson, Esq., for the General Counsel. Michael R. Esposito, Esq. (Jackson, Lewis, Schnitzler & Krupman), for the Respondent Employer. Paul Montalbano, Esq. (Schneider, Cohen, Solomon, Leder & Montalbano), for the Respondent Union. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by, me on 3, 4, 6, and 17 November 19861 in Newark, New Jersey. The order consolidating cases, consolidated complaint, and notice of hearing, which issued on 27 August, was based on unfair labor practice charges and amended charges filed by Solidarity of Labor Organizations, International Union (SOLO), against Caro Bags, Inc. (Respondent Employer), and Local 734, Laborers International Union of North Amer- ica, AFL-CIO (Respondent Union), on 21 May and 22 August. The consolidated complaint alleges that about 12 May Respondent Employer recognized Respondent Union as the exclusive representative of its production and maintenance employees, and that about 23 May the Respondents entered into a collective-bargaining agree- ment, and 'since the date have maintained and enforced the agreement, covering the terms and conditions of em- ployment of these employees. The consolidated com- plaint further alleges that the 12 May recognition agree- ment and the 23 May collective-bargaining agreement contains a union-security clause requiring all unit em- ployees to join Respondent Union within 31 days of em- ployment or the effective date or execution date of the agreement. This much is admitted by the Respondents. What is alleged by the consolidated complaint and denied by the Respondents is that at the time of recogni- tion Respondent Union did not represent an uncoerced majority of the unit employees, at the time of recognition a valid petition to represent these employees was pend- ing at the Board, and at the time of recognition there ex- isted a real question concerning representation among these unit employees, by virtue of the fact that SOLO, with the knowledge of Respondent Employer, was ac- tively engaged in an ongoing organizing campaign among these employees. The Respondents deny these al- legations. It is alleged that by these activities, the Respondents violated Sections 8(a)(1), (2), (3) and 8(b)(1)(A) and (2) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed, I make the following FINDINGS OF FACT 1. JURISDICTION There being no dispute, I find that Respondent Em- ployer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS I find that Respondent Union, SOLO, and Local 113, National Organization of Industrial Trade Unions (NOITU Local 113) are each labor organizations within the meaning of Section 2(5) of the Act. ' Unless indicated otherwise, all dates referred to are in 1986 285 NLRB No. 97 CARO BAGS, INC. III. THE FACTS A. Background, The three Unions-SOLO, NOITU Local 113, and Respondent Union-were each involved in organizing the employees of Respondent Employer in April and May; the initial organization was conducted by SOLO commencing about late March or early April, although there is some question regarding whether they were suc- cessful (obtaining approximately 150 cards) or unsuccess- ful (less than 50 cards) in this endeavor. NOITU Local 113 actively organized these employees for only a few days commencing 7 May; on that date NOITU Local 113 received valid authorizations from 128 employees out of a unit composed of 254 unit employees; on that same day it filed a petition and charge with the Board. About 9 May, allegedly realizing it did not have, or could not get, the resources to handle such a large orga- nizational drive, NOITU Local 113 offered the "repre- sentation rights" of these employees to Respondent Union. On 12 May, about noon, Respondent Union re- ceived valid signed authorization cards from 183 employ- ees out of a unit on that date composed of 254 four em- ployees; of these 183 employees executing authorization cards for Respondent Union, 105 had executed cards for NOITU Local 113 on 7 May. On 12 May, about 1 p.m., Respondent Employer recognized Respondent Union; on 23 May the parties executed a collective-bargaining agreement. Armando Ponce, had been secretary-treasurer of SOLO and president of SOLO, Local 113; he was termi- nated by SOLO President Edmundo Perez on 9 April for alleged wrongdoing, He then obtained a NOITU charter for NOITU Local 113. Joseph Girlando, also a representative of SOLO and Local 113, at the time, was laid off by SOLO about 2 May solely for economic rea- sons allegedly caused by Ponce's wrongdoing; he imme- ditately began working for Ponce and NOITU Local 113. Girlando testified that he informed Charles Carmant, the initiator and principal supporter of the union movement at Respondent Employer, of the change from SOLO, Local 113, to NOITU, Local 113; Carmant denies this and testified that even after signing the final cards for Respondent Union on 12 May, he thought it was still the same union as 6 weeks earlier, SOLO. Regardless, it is clear that Girlando and Ponce's dual positions with SOLO and NOITU Local 113 caused, at the least, some confusion among Respondent Employer's employees. Carmant, like a vast majority-of Respondent Employ- er's employees, is Haitian; while living in Haiti he spoke the native language, Creole. Since arriving in this coun- try in 1978 he learned to speak and read English. He tes- tified haltingly in English; counsel for Respondents allege that his difficulty with English was selective; i.e., only in response to questions from them that he did not wish to answer. There is also an issue of how many of Respondent Employer's employees could speak or read English. 657 B SOLO Organization About mid-March, Carmant and fellow employee Willie Aviles2 discussed what they considered to be the poor working conditions at the plant and the need for a union. On the following day, Aviles gave Carmant the address and telephone number of SOLO. Carmant called the number from a public phone at the plant. He spoke to a woman and told her the name and location of the plant, and that they were interested in a union . He also told her his name and phone number. She asked him how many employees were working in the plant; Car- mant initially testified: "She asked me also how employ- ees [sic] working in there and I tell her you know about-and she ask me also." Later, on cross-examina- tion, Carmant was questioned further on this point. Q. Did she ask you about the size of the compa- ny? A. The size of the Company? Q. Yes. A. I don't know about the size of the company. Q. You didn't know any . . . you have any idea about the size of the company? A. I know it's a big company, it's a big plant. Q. Did she ask you how many employees? A. Yeah. Q. Oh, so she asked you how many employees? A. She asked me how many employees we have. Q. And what did you tell her? A. I tell her we got a lot of employees. She say "More than one hundred?" I say "yes." That's it. Q. You didn't say any more (No Response) How many more than one hundred? A. No, she don't ask me how many more than one hundred. Q. Why did you pick . . . did she pick one hun- dred or did you pick one hundred? A. No, no, no, I said that because you know, she asked me if you have more than one hundred, you know, I said "yeah." On rebuttal, Carmant testified: Q. Mr. Carmant, when if ever, did you tell Mr. Girlando that there were approximately 300 em- ployees employed at Caro Bags? A. When I call the first time on SOLO office. I let know we got about approximately 300 employ- ees in Caro Bag . . . . Further along, on rebuttal, Carmant was questioned by counsel for Respondent Employer on the subject: Q. Mr. Carmant, when did you first tell anyone from any Union the size of the company, the number of employees in the company? A. When? Q. When? A. When I first call SOLO. 2 Aviles did not testify 658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. How many employees did you say were in the company? A. I say about 300. Q. You said about 300. Mr Carmant, wasn't your testimony on direct examination that it was over 100 employees? A. No, never. Q. You didn't say that? You didn't answer over 100 employees to me on cross examination? (No re- sponse). MR. EsPOSTIO:... did you in fact recall answer- ing the question on cross examination posed to you by me. A. Never. Q. Never. Your testimony is right from the be- ginning you said it was more than 300 employees? A. Yes. JUDGE BIBLOwITZ: The question is did you ever testify here when you were here last time you told SOLO people there were more than 100 employees, not than there were 300? A. I say more than 300.3 When Perez and Girlando returned to the office later that day4 the secretary gave them the message; Girlando called Carmant at his home that evening and arranged for them to meet at the SOLO office in New Jersey on 22 March. On that day, Carmant met with Perez, Girlando, and William Fagello, a vice president of SOLO. Carmant tes- tified that he told them of the working conditions at the plant and that there were about 300 employees there; they explained their organizing procedure and how au- thorization cards are used. Girlando gave Carmant his business card, which identified him as "Regional Direc- tor" for SOLO.5 Girlando testified that at this meeting Carmant spoke of the number of employees: "It was my recollection that there was about a hundred people there from the conversation we had." Perez instructed Gir- lando to meet with Carmant and his fellow employees regularly, at a time and location convenient to them, and to solicit authorization cards from them. On the following Tuesday, by prearrangement, Car- mant and Aviles met Girlando at a McDonald's restau- rant near the plant; the procedure was followed on a weekly or twice weekly basis for the next few weeks as well. (Perez' affidavit given to the Board states that after his first meeting with Carmant at McDonald's, Girlando told Perez that he had obtained six or seven signed au- thorization cards) Girlando gave them approximately 250 authorization cards and petitions to have the employ- 3 This testimony is relevant to Carmant's general credibility and to the credibility of the extent of SOLO's organizational drive at Respondent Employer. 4 In testimony admitted , but not for the truth of what was said, Perez initially testified that the secretary told him that Carmant said there were about 300 employees Upon being shown his affidavit given to the Board that stated that she told him that Carmant gave the number of employees as "over 100 people," he testified that is what she said Girlando testified that he was told that Carmant said there were 100 employees 5 The card also contains the SOLO address and, what I assume is, the SOLO telephone number, as it is the same number as is on Perez' busi- ness card ees sign. On that day Carmant and Aviles signed cards and distributed them to other employees. Over the next few weeks, when he received signed authorization cards from employees, he called Girlando at his home tele- phone number he had given him and arranged to meet him at noon time at McDonald's, where he gave him the cards. Carmant testified that at all - these meetings he gave Girlando over 140 cards. About that time, Carmant suggested that they have a meeting at a restaurant in Brooklyn where many of the employees live; when they arrived they found that the restaurant had been closed by the fire department. Carmant placed a note on the door stating that the meeting would be held at his house. Carmant testified that about 15 employees attended this meeting, together with Girlando; no authorization cards were distributed, but about 15 employees signed a peti- tion stating that they authorized SOLO to represent them. He gave this petition to Girlando. Girlando testi- fied that only two other employees attended this meeting at Carmant's house; under these circumstances he left early and received no cards as a result. Carmant testified that after their third or fourth meeting at McDonald's, Girlando introduced him to Ponce as someone with whom he was working; Ponce gave him his card, which identified him as the president of SOLO, Local 113. Because the meeting at his house was not successful (not enough employees attended) Carmant asked Gir- lando to set up a meeting at the Pines Manor, a restau- rant near the plant. This meeting took place about 9 April and was attended by about 35 employees. Carmant testified that (in Creole) he introduced Girlando as the delegate from Local 113. Girlando said that he would like to represent the employees and negotiate with Re- spondent Employer on their behalf. While Girlando spoke in English, Carmant translated in Creole. After- ward they distributed SOLO authorization cards, which these employees signed and returned to Girlando. Gir- lando testified that this Pines Manor meeting took place 4 days after the meeting at Carmant's home. Approxi- mately 19 employees other than Carmant and Aviles at- tended; signatures on either authorization cards or peti- tions were obtained from all these employees. Girlando testified that from the first time he met Carmant to the end of April when he requested recognition from Re- spondent Employer, infra, he received 57 authorizations for representation. He received most of these at his meet- ings with Carmant at McDonald's, while the others were from the 9 April Pines Manor meeting. Shortly prior to 28 April, Perez instructed Girlando and Fagello to go to Respondent Employer's plant and demand recognition. On 28 April Girlando and Fagello went to the plant; Girlando testified that on that day he had 57 signed SOLO authorization cards in his hand for a unit that he then thought comprised approximately 100 employees. He and Fagello went to the reception area at the plant and asked for "Mr. Meyer" (actually Meyer Mory, Respondent Employer's manager) the name Car- mant had given them. He introduced himself, as did they, and Girlando told him that SOLO represented a majority of his employees and they would like him to recognize SOLO. (Girlando had the authorization cards CARO BAGS, INC. 659 in his possession, but did not show them to Mory nor did Mory ask to see them.) Mory answered that he did not believe that they had a majority of his people. At that point Girlando and Fagello left the plant and "We called a Mr. Sutton in Manhattan who I understand is one of the principals of the company"; how he learned this: "I don't remember. I don't know how I would have known that, except from Charles [Carmant]." Girlando spoke to Sutton and told him that he represented a majority of the employees at his plant, "and he said he doubted that very much, and that was the end of the conversation." They returned to the SOLO office and informed Perez of the results of their visit. Within the next few days, Mory held a series of meetings with employees, telling them that two men from SOLO had come to the plant to ask that he recognize SOLO as their representative. Mory told them that he did not want SOLO to represent them and he did not want them signing for SOLO. Perez testified that in late April Girlando told him that he was ready to demand recognition from Respondent Employer. Concerning the number of authorization cards Girlando had at the time: "The number 157-I don't know if he told me at that time or later on. That's the number I remember." Although he was aware that a re- quest for recognition was made, he testified that he does not recall that the Respondent Employer denied the rec- ognition request. He testified that Girlando told him that he was going to call Respondent Employer's principal to request recognition; he knows that Girlando made the call and spoke to the principal, but does not know the result of the call; Girlando never told him what he was told, and Perez never asked him what the principal or his attorneys replied. Perez also testified about a SOLO,petition to represent Respondent Employer's employees that he thought had been filed with the Board at that time; it was not. He tes- tified that in late April he observed Girlando with a "stack of cards"-authorization cards from Respondent Employer. Girlando6 was making an alphabetical listing of the names on these cards, as required by the Board, in preparation for filing a petition with the Board. Perez testified he "thumbed through the cards to make sure that the dates and names were clear." Although he did not count the cards, "the number that was given to me by Girlando was 157." He testified that the petition was typed at that time by Girlando, he believes, and Perez informed Girlando to bring it to the Board the next day on his way to work. Until mid-May, he assumed that it was. Perez produced an undated, typed petition to repre- sent the production and maintenance 'employees at Re- spondent Employer; he testified that he located it in Fa- gello's office. The SOLO address is listed on the petition, but not the union name. The petition is signed by Daniel Gonzalez, an organizer for SOLO. The reason Gonzalez signed the petition, Perez testified: "Darnel Gonzalez is the organizer. This was his first petition. We usually like to get our people involved in signing and getting ac- quainted with how to file petitions." Gonzalez was never 6 On cross-examination , he testified that Fagello, not Girlando, pre- pared this alphabetized list and that the two- to three-page list of names was already completed when it was shown to him involved in organizing Respondent Employer's employ- ees, but Perez testified that he asked him to sign the peti- tion because he "was the new man on the staff and I wanted him to get familiar with the petition, what the content of the petition is and how to sign a petition." Perez testified that sometime between 28 April and 2 May (when SOLO laid off Girlando for economic rea- sons) he asked Girlando whether he had filed the peti- tion and he said that he had.- Girlando testified that after Respondent Employer denied SOLO's request for recognition he reported this to Perez, who told him to count Respondent Employer's employees as they were leaving the plant. He went to the plant and "I stopped counting when it was about two hundred and twenty five people coming out," and he in- formed Perez and Fagello of this. He had no further dis- cussions of a petition being filed by NOITU because they did not have a 30-percent showing of interest. Girlando testified, as well, that during the SOLO organization of Respondent Employer's employees, Fagello, not he, had custody of all the authorization cards obtained. Perez testified that, at a certain time, he learned that no petition had been filed by Girlando on SOLO's behalf. On direct examination he was asked about what he had identified as the SOLO petition: Q. You said it was never filed with the Board. How did you come to find out that it was not filed with the Board? A. Charles called me up... . Q. I need his last name. A. I'm sorry. Carmint [sic]. Called the offices on Saturday, the 17th of May, and he asked me what's going on and I said well the petition has been filed and we're waiting now for the schedule of the formal hearing and the hearing and I hope we'll have an election. On cross-examination, Perez was asked: Q. Did you call the Board yourself. A. Yes, we ended up calling the Board on the 16th, the 15th or 16th . Mr. St. Bernard [the Board agent] was out sick. We left a message for him to get back to us. Later, during cross-examination, Perez attempted to clear up this contradiction by testifying: Q. On direct examination didn't you testify that you had first found out that what's been marked as General Counsel [Exhibit] 4 had not been filed until Charles Carmint [sic] called you on May 17th? A. That's correct. Q. Yet Mr. Fagello called the Board on the 15th or 16th? A. Sure. Q You weren't able to find out any information? A. No. There was no reason for us to ask any- thing other than who has been assigned to Bag Bazaar and Mr. St. Bernard was obviously assigned to Bag Bazaar but it wasn't our petition. 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On cross-examination, Perez was questioned about the 2-1/2-week period between the date he thought the peti- tion was filed and the date he called the Board about it after hearing nothing from the Board. He testified that about 9 May, a week after Girlando was laid off, he as- signed Fagello the responsibility of organizing Respond- ent Employer's employees; between 2 and 9 May, "no one in particular" was handling the organizing attempt. He was aware that the Board usually sends a response to the parties within 7 days; he did not contact the Board earlier because: "I had a few other things on my mind. I was at many Board hearings because of the disruption Ponce had caused." About I1 or 12 May Perez asked Fagello if he had heard from the Board regarding the pe- tition and Fagello said that he had not. He did not ask Fagello to follow up on it at that time because: "We had an appointment here at the Board in a couple of days so I just let it go until then." As stated, above, Perez discharged Ponce from his po- sition as president of SOLO, Local 113 on 9 April; on 2 May Girlando was laid off by Perez, not for any wrong- doing, but because of SOLO's financial difficulties alleg- edly caused by Ponce's actions. Girlando was infotmed at that time that when SOLO's difficult financial situa- tion was resolved, he would be rehired. Girlando testi- fied that on 2 May he was informed by Perez that he was being laid off effective that day due to economic reasons; when they improved he would be rehired. On either that day or the next day he called Ponce? (then the president of NOITU, Local 1138): We spoke over the phone and I knew Armando, ob- viously from before, and I told him what the story was with me and he- said well, come with me Monday. JUDGE BiBLOwLTZ; Had you spoken to him about the possibility of a job prior to that? THE WITNESS: No, I don't think so. He testified that he began working for NOITU, Local 113 on Monday, 5 May. In this regard, Nola Santos, a secretary for NOITU, testified that she first met Girlando about February or March when Ponce introduced him to her. At that time he spent a couple of hours at the NOITU office. She be- lieved that he was working for NOITU at the time. C. NOITU Organization Girlando testified that from his first meeting with Car- mant, they spoke on the phone regularly in the evenings. They had a telephone conversation on Tuesday, 6 May, where they discussed, inter alia, the scheduled meeting the following day at the Pines Manor. Carmant told him that the people were very much in favor of the Union, but the Respondent Employer was planning a layoff for the following day. Carmant told Girlando that the em- ployees agreed that if everyone did not work, nobody would work. Girlando told Carmant that he and Ponce 7 Ponce did not testify 8 Perez testified that Ponce obtained a Local 113 charter from NOITU about 21 or 22 April would meet him in front of the plant the following morning: "I told him that Armando is now with another union . . I told him I was with Armando." Girlando named NOITU, Local 113,9 but he went into no further detail and Carmant did not ask any questions about the change. Carmant testified that he spoke to Girlando on the evening of 6 May when he informed him of the layoff scheduled for the following day, but he was not told of NOITU, Local 113 until Girlando referred to it on the morning of 7 May, at the diner near the plant, to be discussed, infra. Carmant arrived at the plant about 7:30 a.m. the next day; Girlando and Ponce were waiting for him at the gate. Girlando attempted to enter the plant to go to work, but was stopped by Mory, who escorted him out of the plant. At that point, he, his helper, Sonny Weis- man, Girlando, and Ponce went to a nearby diner to talk. He testified that during this meeting: "Mr. Girlando tell me he change the name of the union, that's it." Q. Did he say what he changed the name to? A. No. He don't tell me anything. Carmant later testified that Girlando "he told me . .. he changed the name of the union best suited him, that's all." In answer to a question whether Girlando told him that he was then an employee and agent for NOITU, Local 113, Carmant testified: "No, no, never. He just tell me he change the name of the union that's still the same, that's it." Later that morning Ponce showed him his business card, which identifies him as president of Local 113, NOITU,1 ° with the NOITU address and telephone number. Carmant testified that he never saw Girlando's NOITU business card, and that at the meeting at the diner Girlando only referred to NOITU, not Local 113. He did not say when he made the change or why, and Carmant did not ask, "I don't ask him why, I don't ask him nothing because I know he represent the union, that's it." Girlando testified that he and Ponce met with Car- mant at the gate leading to the plant about 7:30 a.m.; they decided that if Respondent Employer did not permit all the employees to work, the Union would de- clare the Respondent Employer struck. Carmant went into the plant, and shortly thereafter he came out of the plant with Weisman; shortly thereafter the four went to the diner. At the diner, he and Ponce gave Carmant their business cards (as discussed in the footnote above) that Carmant kept. They told Carmant and Weisman that NOITU was a larger union than SOLO, it had more members, i i resources, and manpower than SOLO, and it had a health center in New York. Carmant's response was- "No problem." After this meeting at the diner, they returned to the plant; at that time a large percentage of the employees 9 Girlando's affidavit given to the Board refers to this conversation of 6 May, but does not say that he told Carmant that he and Ponce were then associated with NOITU, Local 113 10 On this card (as well as Girlando) "Local 113" is printed in heavy- type block letters, while "NOITU" is half the size in regular print 11 At the time, Local 113 of NOITU had no members although they did not tell this to Carmant CARO BAGS, INC. had walked out and were in the parking lot. Ponce told the employees that the strike had begun and they should '- st- iy away, from Respondent Employer's property. Car- maM, among others, spoke to the employees, as well, in Creole. Ponce and Carmant then informed the employees that they needed their signatures on a petition in order to be able to represent them before the Board. They passed these forms around for signatures. The form has "Local 113, National Organization of Industrial Trade Unions" at the top, and below states: "I hereby apply for mem- bership in Local 113, N.O.I.T.U. and designate this union to represent me for collective bargaining with my em- ployer."12, Carmant printed some of the names after the employees signed the petition, and he and Aviles placed the dates next to the names. Girlando testified that on that day, as well as the following picketing days, the police came to the premises and instructed the pickets to move their vans. These instructions were given by the police in English only and, according to Girlando's testi- mony, were understood by the pickets because they moved their vans without further instructions. After the police spoke to the employees Carmant, as well as other employees who spoke English, told their fellow employ- ees what the police had said. While Ponce remained on the picket line, Girlando then drove Carmant and Aviles to Newark; they first drove to the NOITU officers on Broad Street, about a block from the Board office, where they obtained picket signs, and from there they went to the Board office where they filed a petition and charge. Girlando testified that while driving to Newark, he told Carmant and Aviles that they were going to the NOITU office in Newark, that was close to the Board office, where they would park the car, obtain picket signs, and prepare a petition and charge that they would complete and then file with the Board. He again told them that NOITU was larger and better financed than SOLO and had a health clinic in New York. The NOITU office is on the ground floor of a two-story building; above the first floor there is a sign about 3-feet by 12-feet in size saying: "National Organization Industrial Trade Union." In a window about 2 to 3 feet from the entrance to the building was another sign containing the Union's name. When they ar- rived at the office he introduced Carmant and Aviles to Phil Glassman, a NOITU official, and to the two office secretaries. Carmant and Aviles assisted Glassman in pre- paring the picket signs14 (handwriting Local 113 on the 12 The parties stipulated that NOITU obtained enough signatures on this petition to file a petition with the Board to represent Respondent Employer's employees, which it did later that day. The parties also stipu- lated that Respondent Employer received notice of the petition the fol- lowing day la SOLO's office is in West New York, New Jersey. 14 The picket signs state "THE EMPLOYEES OF THIS ESTAB- LISHMENT ARE ON STRIKE LOCAL 113, NATIONAL ORGANI- ZATION OF INDUSTRIAL TRADE UNIONS " Received into evi- dence was such a picket sign with the letters S.O L O , scribbled in red ink, on the top of the signs barely legible Carmant testified that although he does not know who wrote S 0 L 0 on the sign, he saw Aviles picket- ing with that sign every day of the strike The other signs (about 16) were as stated, above Girlando testified that he observed Aviles picket- ing, but his sign never had S O.L O. written on it "It would not have been permitted " 661 signs) while Girlando prepared the petition and unfair labor practice charge to be filed with the Board.15 While doing so, he heard Aviles ask Glassman for a copy of the Union's constitution; he observed Glassman taking Aviles and Carmant to a back room where NOITU keeps such literature and he saw Glassman take two pieces of literature from each shelf of a cabinet and put them in envelopes, which he gave to Carmant and Aviles, although he was too distant to see what literature he gave them.16 They then filed the petition and charge with the Board and brought the picket signs back to the picket line. Carmant testified that neither Ponce nor Girlando dis- cussed the purpose of their trip with him before leaving; "No, they wasn't [sic] discuss nothing.' They just, you know, they take Willy and me." Girlando just told them that they were going to Newark. On cross-examination: Q Girlando asked you, Mr. Carmint, [sic] wheth- er you wanted to go to Newark with him, isn't that correct? A. Yeah. Q. Do you know why you were going to Newark? A. He tell me to-to file a charge against the company. When they arrived at the NOITU office, Girlando told them: "We're going in here" to get picket signs for the strike. Carmant was asked if he saw the NOITU sign when he entered the building in Newark; he testified: "I don't look at the sign." He did testify that he knew that the office was not the same as the SOLO office. He was in- troduced to Glassman who asked him what local union number to put on the sign. Whether he saw the name NOITU on the picket signs, he testified: "I didn't see that." Carmant was also asked: Q. Didn't you ask for him-ask from him and isn't it a fact that he gave you in an envelope or you called it a brown paper bag one time before, in an envelope, NOITU constitution and by-laws and other NOITU documents? Didn't he give them to you? A. No. Later, Carmant testified that he did see a copy of the NOITU dental plan while at the NOITU office on 7 May, but was not given that document or any of the other documents (constitution, hospital plan, etc.). Still later, he testified that while he and Aviles were at the NOITU office, they picked up and kept some NOITU booklets on their benefits. He testified that the docu- 15 Girlando testified that the unfair labor practice charge forms and the petitions are presigned by Ponce and those were the forms he brought to the Board office for filing At the Board office, Carmant wanted some additional names added to the charge and so a new unfair labor practice charge was written by the Board agent and signed by Gir- lando 16 Each of these items has the name NOITU in large letters on the front page 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments said NOITU printed in large type on the cover. Shortly thereafter, he was asked by counsel for Respond- ent Employer. Q Now, you saw pamphlets, you just testified, sitting around Little booklets. You saw them in the office of NOITU, isn't that correct? A. Yes Q. Did you see that they said NOITU on them? A. I saw I don't pay no mind to NOITU. Santos testified that on 7 May she observed Girlando come into the office with Carmant and a Spanish-speak- ing man , while in the back room, Glassman asked her for a "kit" (the folder that union booklets go into), which she gave him. She then observed Glassman take different booklets (constitution and bylaws, hospitalization, eye- glasses, dental plan, and life insurance), place them in the kit, and give it to Carmant. When they returned to the plant after filing the peti- tion and charge at the Board, Carmant informed the em- ployees that "we" filed a petition with the Board, and he gave them picket signs to wear. Sometime that day Gir- lando called Respondent Employer and asked what law firm was representing them; he was told that they were represented by Jackson, Lewis, Schnitzler & Krupman. Later that day (7 May) Ponce and Girlando had the scheduled meeting (the second) at the Pines Manor. Car- mant testified that approximately 200 employees attended this meeting; Ponce spoke to the employees in English and asked Carmant to translate into Creole. Carmant asked a fellow employee, "Alexandre," to translate "be- cause . . . sometime . . . I got [sic] a short breath." Ponce spoke of how poorly Respondent Employer treat- ed his employees and how he would negotiate on their behalf for more money and increased benefits. Ponce also told the employees that "he" had filed something with the Board. Alexandre did most of the translating. Carmant assisted him. Ponce and Girlando then distribut- ed authorization cards to the employees. Carmant testi- fied that he saw that this card was different from the SOLO authorization card, but "I don't take [sic] any at- tention from the card, because you know . . . I trust Mr. Ponce and Mr. Girlando, I don't know what's-what's going on." None of the other employees asked him why that card said NOITU and the earlier one said SOLO. Under cross-examination , however, after being asked nu- merous times about the cards that were distributed on 7 May, Carmant testified- "I don't remember when I see it was different " Carmant also testified that at this meeting neither Girlando nor Ponce referred to NOITU, Local 113, nor did they mention anything about NOITU bene- fits. Girlando testified that about 225 employees attended the Pines Manor meeting on 7 May; the room was very crowded. He testified further that "we" (presumably he and Ponce) told the employees that they had filed a charge and petition at the Board and then, We described to them about NOITU 113 . . . . We told them that it was a different union, but that Ar- mando Ponce and I would be working with them during the campaign and the strike. We compared to them the size, the structure between SOLO and NOITU We described to them about the health clinic in Manhattan At times, the employees broke into "spontaneous" cheer- ing after they said something, but before it was translat- ed. He testified that Carmant, "as well as other people," translated for them. His affidavit given to the Board says: "Carmant was the interpreter." D. Enter Respondent Union From 7 through 12 May the picketing at Respondent Employer's plant continued. On the morning of 9 May, Ponce and Girlando went to NOITU's national head- quarters and spoke to its president, Dan Lasky. Girlando testified that they told Lasky that they had good news and bad news; the good news was that about 225 em- ployees, about 95 percent of the work force, was striking and they were stopping about 70 percent of the trucks from making deliveries to the plant. Lasky asked what the bad news was; Girlando said- "The people can't stand to stay out much longer and that they [Respondent Employer] had Jackson Lewis representing them." Lasky said "Cut and run." He said that if the employees were weakening, and Respondent Employer was repre- sented by Jackson, Lewis, Schnitzler & Krupman, Local 113 would need financial and legal assistance, which he was not prepared to give them He recommended that they keep the petition and charge pending, with the hope, eventually, of an election and contract, but put the people back to work. Girlando testified. Ponce and I discussed this seriously and we didn't feel that that was in the best interest of the employ- ees at the time. We felt that there could have been or should have been some other way to conclude this campaign I told Armando that I was familiar with somebody else who knows the industry, and that we should try to go and see that person to see if there could be any advice or guidance that we could get. The individual Girlando was referring to was Steven Rozic, recording secretary and business agent for Re- spondent Union. Girlando and Ponce went to see Rozic directly from their meeting with Lasky. Rozic testified that Girlando and Ponce told him that they had been on strike for a few days and were "losing control of the strike"; that NOITU would not give them manpower nor legal assistance. He testified further- "What he basically wanted was some assistance to Caro Bags." Rozic was acquainted with Respondent Employer because he had unsuccessfully attempted to organize its employees twice in the prior 8 years. Rozic testified: [B]asically what I told him was that: Joe, I was working for a different organization to help you per se-I couldn't help him but what I would do since they felt that-he had explained to me during the conversation that there wasn't any way that they could control the strike. They didn't have the man- CARD;BAGS, INC power, strictly Girlando and Ponce, they did not have any legal assistance. We had plenty of both and since-I would not give it to them, I didn't have the authority to give it to him, what I did say to him though very 'simply was that if you no longer were going to represent them, that if you gave me some time to think it over I would prob- ably take it over and I would pursue it, if he would give me the representation rights because there just wasn't any way they could handle it at that point. Girlando told Rozic that because there was nothing they could do to sustain the strike, "if you want it and you feel you can handle it, bring it to a point or bring it to a resolution, then you can have it." Rozic said that if he agreed, he expected NOITU, Local 113 to withdraw any interest it had in representing these employees, and Ponce and Girlando agreed. Rozic said that he would speak to people he knew in the industry17 and would get back to Girlando and Ponce on Sunday, 11 May. Over the weekend Rozic spoke to some friends and business acquaintances. On the basis of these discussions, on 11 May he called Girlando and told him: ... that if he would turn the people over to me or let me speak to the people if they wished that I would represent them or let me represent them, that I would continue with the strike and I would try to hold up the strike or do whatever I could to resolve the problem.18 Rozic told Girlando to meet him at his office the following morning. Later that day Carmant called Girlando and told him that the em- ployees were receiving letters from Respondent Employer threatening that they would be replaced if they did not return to work and that these letters were influencing the employees. Girlando told Car- mant "to try to hold the people together to give us some time on Monday." Carmant testified that beginning on 9 or 10 May em- ployees informed him that they had received letters (in English and French) from Respondent Employer inform- ing them that if they did not return to work they would be replaced and that they therefore intended to return to work. He then called Girlando and informed him of this situation; Girlando told him to try to keep the employees from returning to work until about noon: "we can't go back to work like that because, you know, we on strike and he had to see his lawyer, the lawyer can decide if we can go back to work or not." On the morning of 12 May, at the picket line, Girlando told him to keep the people outside until 12 noon; Carmant then informed the employees that they should stay out until noon because Girlando was going to speak to "the lawyer of the union." About 10:30 Girlando left, saying that he was going to speak to, and get, the lawyer. Girlando testified that when he arrived at the picket line about 7:30 a.m. on 12 May, Carmant again told him of his conversations 17 Respondent Union represents one of Respondent Employer's princi- pal competitors. 18 Girlando testified that in this 11 May phone call Rozic simply said that Girlando should meet him at his office the following morning, "[tlhe mere fact that he called was encouraging to me " 663 with employees about receiving the Respondent Employ- er's letter, "and that the people had to go back to work. I told him I needed some time and I would be back to him by twelve noon." Girlando then drove to the Re- spondent Union's office, where Rozic told him that he thought he might be able to obtain recognition, if NOITU withdrew, and that he wanted to go to the picket line to talk to the employees, which they did, ar- riving about 11:45 a.m. Rozic testified that in this con- versation with Girlando he told Girlando that he wanted to represent Respondent Employer's employees, and since NOITU could not maintain the strike, "that I would be willing to take on the representation rights if the people would go along with it," and that he "might have a shot at getting recognition if I went in." Girlando agreed. Rozic testified: "Joe's main concern to me at that point was what would basically be right for the people. He was concerned about the people." He and Girlando drove to the plant, arriving about 11:30. Carmant testified that Girlando and Rozic arrived at the plant about 12:30 p.m., he initially testified that Gir- lando "present him to me and introduce him to me." On cross-examination, Carmant testified that when Girlando returned to the plant with Rozic, he did not say anything to introduce him: "He just show me Steve." Rozic intro- duced himself: "I am Steve Rosack [sic]. He don't say he is the lawyer." Rozic then spoke to the employees; Car- mant and Alexandre translated into Creole. He told them "he represent the AFL-CIO," be did not name Respond- ent Union. He said that Respondent Employer treated the employees poorly and he was going To ask them to sign an agreement that they will recognize the Union. If they refused to do so, the Union had the power to stop deliveries at the ports and at the plant and they could close down the Company. Rozic then distributed two sets of cards to the employees (union authorization cards and dues-deduction authorization cards). Carmant, and 182 other employees signed these cards and returned them to Rozic. Carmant observed that the cards19 had Respondent Union's name on it. He told Aviles: "some- thing maybe cooking. Why now we have a 734 there?" A lot of employees asked them about this, as well, so he and Aviles asked Ponce and Girlando about the card and they told Aviles not to worry, that it was the same union. After collecting the cards the employees had signed, Rozic said that he was going into the plant to make the Company sign an agreement recognizing the Union. He went with Girlando and Ponce. About 10 or 15 minutes later they came out of the plant and Rozic said that the Company had recognized the Union and ne- gotiations would begin on the following Monday. He also said that because work was slow, there would be a layoff. Rozic testified that he and Girlando arrived at the plant about 11:30 a.m. Girlando and Ponce first intro- duced him to Carmant and then went to get the employ- ees together. While they were doing this, Rozic gave 19 The top of the card states -Application for Membership in AFL- CIO Local 734 L I U, of N.A " The final sentence of the authorization states "this card supersedes and cancels all previous authorization made by me " 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Carmant his card (which gave his title as organizer for "Local 734, L.I.U. of N.A., AFL-CIO" with their ad- dress in Clifton, New Jersey). In addition, he introduced himself as "Steve Rozic, Laborers International Union of North America." He then told Carmant that the strike had been going for 4 or 5 days with some unresolved problems. He testified further: I said to Charles, "Charles , I want you to under- stand that both Girlando and Ponce cannot handle the strike, NOITU is a new union, doesn't have the manpower, doesn't have any legal people behind it and they just cannot go on and on like this, there is no way they can handle the strike. I would like to meet with the people and if you would be one of the interpreters or whoever could interpret for us, I would like them to interpret. If the people after I spoke to them wished to have me represent them and sign the card , at that point I would be their representative and I would try to do everything in my power to resolve the situation as it presently stands." Rozic testified that Carmant said- .. . there would be no problem at all if the people wanted a union or if it was going to be a new union and a stronger union to help the people, he was all for it, he was agreeable. Rozic testified that by the time he concluded his dis- cussion with Carmant , most of the employees had con- gregated in one area where Girlando was speaking to them; he heard him speaking about the AFL-CIO Gir- lando then introduced him as Steve Rozic for Laborers Local 734 of the AFL-CIO. He first introduced himself: Steve Rozic, Laborers Local 734, AFL-CIO. I told him that our parent offices were in Washington, D.C., the international offices, we had approximate- ly three-quarters of a million members in the Inter- national Union and everyone started to cheer and clap. I told them that at this point Girlando and Ponce were asking me to help them out and that I was going to represent the people I explained to them further that we were much stronger than NOITU was, that we had the manpower, we had the legal power, we had the ability to stop contain- ers on the piers from reaching the company. We had the ability to stop all trucks from coming in to either pick up or deliver. He testified that while he was speaking in English Car- mant and other employees were translating his speech into Creole for those who did not understand English. Most of the employees spoke Creole, but Carmant, and others, spoke English fluently. He knows that because "there was a lot of spontaneous cheering as I spoke." For example, "When I told them when everything was finished we will sign the cards , they started coming to- wards me right away for the cards . I said no, not now." In this regard: I then took out the union card First I asked if there was any question, did- they have any problem with Local 734 representing the people and everyone started to cheer again I then took out the authori- zation card that we had and read from the top of the authorization card whereby it basically ex- plained to them that if they signed the card they were now authorizing Local 734 to represent the people and that the signing of the card would cancel any previous cards that they had signed and they started to cheer and started trying to get cards. He also told the employees that if enough of them filled out the cards he would try to speak to the Company to obtain recognition. He testified that he specifically read out loud the words "supersedes and cancels," "because I wanted them to understand that we're all a different union. We were not NOITU. We had nothing to do with NOITU." Carmant testified that when Rozic spoke he did not speak about NOITU or Respondent Union, nor did he use the words supersede or cancel.20 Girlando testified that when he and Rozic arrived at the plant about 11:45 a.m., he located Carmant and intro- duced Rozic to him: "I said this is Mr. Steve, he's with Local 734 labor union, with the American Federation of Labor, Congress of Industrial Organization. I didn't say AFL-CIO." Girlando told Carmant that Rozic's union was affiliated with "the National Union" in the country, affiliated with people who work on the piers and docks where Respondent Employer receives its goods. These unions would cooperate with Rozic's union. He then ob- served Rozic giving Carmant his business card. When the employees gathered around, Girlando spoke first. I said this is Mr . Steve, the way they commonly refer to everyone, I was Mr. Joseph, et cetera, and that he is with Local Union 734 of the American Federation of Labor, Congress of Industrial Organi- zation, the national union in this country, and I told them that his union is much larger and much more influential than NOITU, and that his union was af- filiated with the people who work on the docks and in the piers and that they would be able to use their influence on whatever importing the company had, and the people cheered. Rozic then spoke, and at the conclusion of his speech cards were distributed to the employees During his and Rozic's speech, Carmant, as well as others, translated their speeches into Creole for those who could not un- derstand. Rozic, Girlando, and Ponce then went into the plant and asked to speak to Mory; they were told that he was out to lunch and they returned to the picket line About a half hour later they observed him returning to the plant and they returned to the plant Again they told the 20 On rebuttal, Carmant testified JUDGE BiBi.owirz Did Mr Roztc use the word cancel' THE WirNESS No, I don't know that Later, he was asked by counsel for Respondent Employer Q You knew what cancel means , didn't you' A Yeah, cancel I know CARO BAGS, INC. secretary that they were there to see Mory and he came out and Rozic and Girlando introduced themselves to him. Rozic told Mory what union he was with, that NOITU no longer wished to represent his employees and gave him the "representation rights" to the employees; that the employees had signed authorization cards for his union and he asked if Mory would recognize his union. Rozic then put the stack of his authorization cards on Mory's desk; Mory (who did not testify) took the cards and "rifled" through them for about a minute or two. He said that he was confused that Rozic said that he now represented the employees; he asked, "but what about NOITU?" Girlando and Ponce told Mory that they no longer wished to represent his employees. They said that if he recognized Respondent Union, they (Girlando and Ponce) would withdraw their petition and unfair labor practice charge filed with the Board. Mory asked them to leave, saying that he would call them to return short- ly. They waited in the foyer for about 15 minutes when Mory asked them to return. Mory asked what NOITU was going to do with its petition and charge at the Board; Ponce said that if he recognized Respondent Union, they would withdraw the petition and charge. Mory then said that with the understanding that Re- spondent Union represented his employees, and NOITU would withdraw its petition and charge, he would recog- nize Respondent Union. Rozic then gave Mory a stand- ard recognition form, which both signed. He then in- formed Mory that he would inform the employees of the recognition, and Ponce and Girlando would go to the Board to withdraw their petition and charge. SOLO was not mentioned at this meeting. Rozic, Girlando, and Ponce left the plant and gathered the employees together; Rozic told the employees that the Company had recognized his union and that they should return to work the following morning, which they did. On 23 May, Respondent Union and Respond- ent Employer entered into a collective-bargaining agree- ment containing a union-securil.y clause requiring mem- bership in Respondent Union on or after the 31st day of employment or the execution date of the agreement, whichever is later. On 12 May, after Mory recognized Respondent Union, Girlando and Ponce came to the Board office and signed withdrawal forms to request withdrawal of the pending petition and unfair labor practice charge. The Regional Director for Region 22 has refused to approve the with- drawal of NOITU, Local 113's petition to represent the employees of Respondent Employer. Sometime during the week of 12 May, Carmant as well as a number of other employees were informed that they were being laid off; 21 shortly after receiving notice of this layoff, Carmant called Perez on Saturday, 17 May.22 Carmant told Perez that he and about 75 other 21 There is no allegation before me that the layoff was unlawful 22 Carmant testified that he attempted to call Girlando the prior evening, but was unable to contact him. On the following morning, he called the SOLO office, not Perez specifically, he testified A You know, I didn't know Mr Perez has a-from the Union. Q, You didn't know Mr. Perez is a representative of the union A, No, I just know Mr Girlando 665 employees had been laid off and asked him what was going on; Perez said that a petition had been filed (the one he assumed was filed by Girlando) and they were waiting for the Board to schedule a formal hearing and he hoped that there would eventually be an election. Carmant said: "What are you talking about? We've been out on strike." When Perez asked what strike, Carmant said that Girlando and Ponce had taken them out on strike and then abandoned them. Perez said that he did not know anything about it and he asked Carmant to come to his office on Monday, 19 May, to talk about it. On that day Carmant and a large number of employees came to Perez' office and recited the story of what had occurred since about 7 May. Perez called the Board's office and later that day went with Carmant and his fellow employees to the Board office. It was on that day that he learned from the Board agent (for the first time according to his testimony) that no SOLO petition had been filed to represent Respondent Employer's employ- ees. IV. CREDIBILITY FINDINGS There are obviously numerous credibility determina- tions to be made here; I will begin in the order in which the witnesses testified. A. Perez My observation of Perez while he was testifying (for about a half day) did not disclose any obvious signs that he was a witness whose testimony was not believable. However, portions of his testimony border on the incred- ible. He testified that the authorization cards in SOLO's campaign at Respondent Employer were missing from the SOLO office, which is entirely possible considering the circumstances here of discharging the local president (with the resulting lawsuits and bad feelings) and laying off the other organizer active with the Respondent Em- ployer's campaign. However, Perez' testimony regarding the alleged 'petition takes one up to (and possibly beyond) the edge of believability. How do you explain a union president with extensive experience with organiz- ing and Board procedures waiting almost 3 weeks after he allegedly believed that a petition was filed before call- ing the Board to find out why he had not received any notification 'about the petition. I find that Perez did not call the Board to inquire about the petition until Monday, 19 May, and that if Carmant had not called him on 17 May, he might have delayed even longer than that. Also difficult to comprehend is why Gonzalez signed the alleged petition. Gonzalez had absolutely nothing to do with the organizing of Respondent Em- ployer's employees, yet Perez testified that he asked him to sign it because he was a new employee and Perez wanted to get him "involved in signing and getting ac- quainted with how to file petitions." If that were so, I assume that Perez would have had Gonzalez assist Gir- lando in the organizing attempt or go to the Board with him to file the petition. But no, the sole experience he gave Gonzalez was signing his name. Also strange was Perez' inattention to the SOLO campaign after Girlando was terminated; it is reasonable to assume that a union 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD president would not forget about a unit consisting of ap- proximately 250 potential members. However, other evidence indicates that rather than purposely falsifying his testimony at the hearing, Perez was simply negligent in his handling of the organization of Respondent Employer's employees . When Girlando told him of his unsuccessful visit with Mory on 28 April, it was perfectly reasonable for Perez to instruct Girlando to file a petition in the matter and to expect that it would be done within the next 4 days before Girlando was laid off. In Perez' defense, this was a time of turmoil for SOLO; Ponce's alleged wrongdoing was causing havoc to SOLO and was depleting its financial resources to the point where almost all of hill staff had to be laid off. During such a period , it is not unreasonable that Perez was concerned with SOLO's survival to the exclusion of the organization of Respondent Employer's employees. On the basis of all the evidence, and my observation of Perez, I find that the apparent inconsistencies in his testi- mony, and his negligence in the organization of Re- spondent Employer's employees was due to his preoccu- pation with the survival of his union at the time, and I therefore find that his testimony is generally credible. B. Carmant Almost half of the instant record is Carmant 's testimo- ny; this extraordinary amount of time he spent testifying is due to his extensive involvement with the instant situa- tion, as well as his apparent difficulty with the English language. There are numerous inconsistencies in Car- mant's testimony, beginning with how many employees he informed SOLO's secretary were employed by Re- spondent Employer, to whether he saw NOITU litera- ture at its office on 7 May, and whether he understood the word cancel . In addition, on numerous occasions during the hearing counsel had to repeat a question nu- merous times before Carmant answered it; at other times Carmant failed to answer certain questions . Counsel for Respondents attribute this to a conscious attempt by Car- mant to avoid answering certain questions; the General Counsel, I assume, attributes it rather to Carmant's occa- sional difficulty with English . I find it a combination of both. Counsel for the Respondents argued at the hearing that Carmant's difficulty with English was selective; i.e., he allegedly had more difficulty understanding their questions than the questions asked him on direct exami- nation by the General Counsel. This was certainly true, but readily explainable . I assume that, like all trial law- yers, the General Counsel prepared Carmant and the other witnesses prior to the trial by going over the ques- tions that would be asked . I also assume that, being a principal witness, Carmant was "prepped" for a substan- tial period of time. Prior to the trial , therefore, Carmant knew what the General Counsel's questions would be and (almost as important) became familiar with the Gen- eral Counsel's voice. On the other hand , he was not fa- miliar with the questions, or voices, of counsel for Re- spondents. Further, counsel for Respondents initially did not speak as slowly as the General Counsel in question- ing Carmant . However, I also find that Carmant was less than open and cooperative in answers to questions from counsel for Respondents. He was clearly antagonistic to them; he, along with Aviles had initiated the union movement at the plant and, in this regard , placed his trust in Girlando and Ponce . He ended up feeling sold out by them when he was laid off shortly after Respond- ent Union was recognized ; this animus was illustrated by his reference, on numerous occasions, to being fired rather than laid off. I believe these facts explain (al- though do no justify) Carmant's inability to answer cer- tain questions directly. C. Girlando I find much of Girlando's testimony palpably incredi- ble, as much of it simply defies reality. Initially, his testi- mony about being hired by Ponce resists belief. Without warning, he was laid off by SOLO on 2 May ; beginning 5 May (the following workday) he was working with Ponce at his new union . If that were all, it would not be so incredible. However, with all the local union numbers to choose from, what number does Ponce pick? Local 113, the same number Respondent Employer's employees knew from Girlando and Ponce's organizing campaign with SOLO. In addition, they immediately began orga- nizing Respondent Employer's employees as if there were no hiatus in the campaign . Further evidence of their intention is that on their new business cards, the local number (which the employees were familiar with) is twice the size as the union name. In addition , Girlan- do's alleged good faith is undercut by Santos' testimony that she saw Girlando at NOITU's office for months prior to the 7 May incident. Other aspects of Girlando's testimony crumbled on closer inspection . He testified that on the morning of 9 May he and Ponce told Lasky that although 95 percent of the employees were on strike and 70 percent of the trucks were respecting their picket line, "the employees can't stand to stay out much longer.'" Lasky told them to "cut and run." Initially, there is no evidence that, at that point, the employees' support for the strike was weaken- ing. They had only been on strike for 2 days and a news- paper article dated 9 May quotes Ponce as saying that 98 percent of the delivery trucks had refused to cross their picket line, and they were upbeat and positive about the strike: "Anytime [Respondent Employer is] willing to recognize the union, these people will get back to work." Additionally, at that time, the employees had not yet received the letter from Respondent Employer threatening them with replacement if they did not return by 12 May; this letter was effective in breaking the em- ployees' will, but was not received by the employees until after Girlando and Ponce's meeting with Lasky. With this in mind, and considering the effectiveness of the strike and that it had only been on for 2 days, I find it highly unlikely that NOITU would be so anxious to "cut and run." A union with such excellent support from the employees and the truckers, and potential yearly dues from the employees of approximately $50,000, would not bail out so quickly absent some other factor. Least convincing of all is Girlando's (and Rozic's) tes- timony regarding the 12 May meeting with Mory. Ac- cording to this testimony, Rozic , Girlando, and Ponce went (without an appointment) to see Mory; Rozic told CARO BAGS, INC. 667 Mory that the employees had signed authorization cards for his union, NOITU no longer wished to represent the employees, and he asked if he would recognize Respond- ent Union. Rozic handed the authorization cards to Mory, who "rifled" through them, When Mory asked about NOITU, Girlando and Ponce told him that if he recognized Respondent Union, they would withdraw their petition and charge pending before the Board. Mory asked them to leave for a few minutes and, when they returned, after being reassured by Girlando and Ponce that they would withdraw their petition and charge if he recognized Respondent Union, Mory agreed to do so and signed a recognition agreement with Re- spondent Union. At first flush, this story appears nice and neat, but a closer inspection reveals strong improb- abilities. Principal among these is that only 2 weeks earli- er, Girlando (along with Fagello) had requested that Mary recognize SOLO as the representative of his em- ployees. According to the testimony of Girlando and Rozic, at the meeting of 12 May nothing was said about SOLO. It appears to me totally incredible that after being approached for recognition by Girlando on behalf of SOLO, on 28 April, when Girlando appeared with Rozic on 12 May, as a representative of NOITU, Mory did not ask: "Wait a minute, you were here two weeks ago requesting recognition on behalf of another union." If for no other reason, as the manager of Respondent Employer's facility, one would expect that Mory would want to protect himself after learning that Girlando was an authorized representative of NOITU, Local 113. Mory asked Girlando a few times for assurances that he would withdraw the petition if he recognized Respond- ent Union, yet (according to Girlando and Rozic's testi- mony) he never asked for assurances that Girlando rep- resented NOITU, Local 113, even though 2 weeks earli- er he appeared as a representative of SOLO. Further sus- picion is cast upon the testimony of Girlando and Rozic when one compares their 12 May visit to Mory with the 28 April visit of Girlando and Fagello. On 28 April, Gir- lando told Mory that SOLO represented a majority of his employees, and requested recognition; Mory neither requested to see, nor saw the cards, but said that he doubted that SOLO represented a majority of his em- ployees. While in their car in Respondent's parking lot later that morning, Mory told them to leave the prem- ises. The reception Mory gave Rozic, Girlando, and Ponce 2 weeks later was totally different. When Rozic demanded recognition, Mory simply "rifled" through the authorization ,cards, received oral assurances from Gir- lando and Ponce that they would withdraw their petition and charge, and signed the recognition agreement. This change in. Mory's attitude over a 2-week period is too drastic to be believed. Further evidence of the lack of credibility of Girlando and Rozic is Rozic's alleged lack of knowledge of SOLO's organizing campaign at Respondent in March and April. He had attempted to organize Respondent Employer's employees in the past, is very familiar with the industry, and represents Respondent Employer's chief competitor's employees. In such circumstances, he should have been aware of SOLO's organizing drive, which occurred over a 5- to 6-week period prior to his involvement. More questionable, however, is Rozic's tes- timony that Girlando ("a friend of mine" for 4 or 5 years) did not tell him about SOLO's organizing drive at Respondent Employer, nor did Girlando tell him that he was employed by SOLO prior to his employment with NOITU. Rozic testified that it was not until about 19 May when Carmant angrily told him of his layoff that he learned that SOLO had previously been engaged in orga- nizing Respondent Employer's employees. Considering his relationship with Girlando, and Girlando's purpose in seeing him, I find that SOLO's past organizing effort was a subject that should have been discussed by Girlando and Rozic and, if it really was not, it then casts addition- al doubt on Girlando's good faith. For all of these reasons, I find Girlando and Rozic the least credible of the witnesses and I find that Girlando did his best to disquise the fact that after 2 May he was an agent for NOITU, Local 113. That is not to say (as found supra) that I found Carmant totally honest in his testimony in this regard. In fact, he was reluctant to admit that he became suspicious of Girlando; for exam- ple, after going to the NOITU office in Newark (rather than West New York where SOLO was located), and re- ceiving NOITU picket signs and literature with the NOITU name on the cover. In his behalf, it should be stated that Carmant and his fellow employees were un- skilled workers, many of whom could not speak or read English. Clearly, they were not familiar with the com- plexities of labor law. Carmant spent 5 weeks soliciting employees to sign SOLO cards and giving them to Gir- lando. When he saw Girlando and Ponce the following week, with "No." 113 beside their names, it was not un- reasonable for him to assume that nothing had changed. In this regard, I discredit Girlando's testimony that he specifically told Carmant that he' was working for a dif- ferent union after 2 May; rather, I find that he described it to Carmant as simply a name change. I make this find- ing because of my credibility findings discussed, supra, as well as the fact that if Girlando and Ponce really wanted to be honest with the employees about the change from SOLO to NOITU, they would have chosen a different local number on receiving a charter for NOITU (I assume that other numbers were available) and would have printed their business cards with NOITU more prominent than Local 113. IV. DISCUSSION AND ANALYSIS The sole issues here are: whether Respondent Employ- er unlawfully recognized Respondent Union, whether Respondent Union unlawfully accepted recognition, and whether Respondents further violated the Act by includ- ing a union-security clause in the collective-bargaining agreement executed on 23 May. The General Counsel has three theories regarding why the 12 May recognition violates the Act: 1. Under Midwest Piping & Co., 63 NLRB 1060 (1945), and Bruckner Nursing Home, 262 NLRB 955 (1982), Re- spondent Employer could not recognize Respondent Union because of NOITU's pending petition at the Board and the prior SOLO organizing campaign. 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Under the Board's dual card theory, there is no evi- dence that the employees who signed cards for SOLO and NOITU prior to 12 May repudiated those cards by signing authorization cards on behalf of Respondent Union on 12 May, and, therefor, Respondent Union lacked authorization cards from a majority of Respond- ent Employer's employees on that date. 3. When the employees executed authorization cards on behalf of Respondent Union on 12 May, they were under the misapprehension that they were executing cards for SOLO The principal case here is Bruckner, supra, which modified Midwest Piping In Bruckner, in early September Local 144 notified the employer that it possessed signed authorization cards from a majority of its employees and a date was set for a card count Shortly thereafter, Local 1115 sent a mailgram to the employer stating that it was engaged in organizational activities among its employees and it should not extend recognition to any other union, and Local 1115 filed 8(a)(1) and 8(b)(1)(A) charges with the Board Shortly thereafter, the card check showed that Local 144 had signed authorization cards from 80 to 90 percent of its 125 employees, at the same time, Local 1115 had two authorization cards. After the Local 1115 charges were dismissed, the parties commenced negotia- tions and entered into a collective-bargaining agreement. No petition was ever filed. Local 1115 filed charges chal- lenging the legality of the recognition and the contract The administrative law judge, finding that Local 1115 had a "colorable claim," found a violation. The Board decided that because of the difficulty of defining the "in- terest" that a union must have in order to trigger the op- eration of the Midwest Piping doctrine, and the refusal of some circuit courts to enforce these decisions, they would modify the Midwest Piping doctrine. In Bruckner, supra at 957, the Board stated: [W]e will no longer find 8(a)(2) violations in rival union, initial organizing situations when an employ- er recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board However, once notified of a valid petition, an employer must refrain from recognizing any of the rival unions In footnote 13 at this point in its decision, the Board stated that this modification of Midwest Piping does not affect the Board's longstanding rule that, even absent a petition, an employer will still be found to have violated the Act for recognizing a union that does not actually have majority employee support. For instance, if an occasion arises where an employ- er is faced with recognition demands by two unions, both of which claim to possess valid authorization card majority support, the employer must beware the risk of violating Sec 8(a)(2) by recognizing either union even though no petition has been filed. In such a situation, there is a possibility that the claimed majority support of the recognized union could in fact be nonexistent Consequently, the safe course would be simply to refuse recognition, as clearly authorized under Linden Lumber Division, Summer & Co. v. N.L.R.B., 419 U.S. 301 (1974). Either of the unions or the employer could then file a representation petition. In this regard, the Board also stated supra at 958: When a petition supported by a 30 percent showing of interest has been filed by one union, the reliabil- ity of a rival's expression of a card majority is suffi- ciently doubtful to require resolution of the compet- ing claims through the Board's election process. The Board later stated, supra- "[O]nce a properly sup- ported petition is filed, the employer may not circumvent an election by granting recognition to one of the two competing unions " In explaining its decision, the Board stated, supra We believe the proper balance will be struck by prohibiting an employer from recognizing any of the competing unions for the limited period during which a representation petition is in process even though one or more of the unions may present a valid card majority In Haddon House Food Products, 269 NLRB 338 (1984), enfd. 764 F.2d 182 (3d Cir 1985), in 1975 Local 115 filed a petition to represent the employer's employ- ees, and shortly thereafter filed unfair labor practice charges against the employer as well. The election peti- tion was held in abeyance pending results of the unfair labor practice charges. The Board found that the em- ployer violated the Act and the circuit court enforced this order. In 1981, after the circuit court's decision, but while the employer's petition for certiorari seeking Su- preme Court review was pending, Local 80 commenced an organizing campaign of the employer's employees and, after a card check certified that Local 80 had au- thorization cards from a majority of the employer's em- ployees (Local 115 was not notified of this card check nor was the card checker notified of Local 115's pending petition), the employer recognized Local 80 and entered into a collective-bargaining agreement with it. The Board found a violation, id. at 340: [N]otwithstanding the passage of several years, it is paramount that resolution of the question concern- ing representation be resolved ultimately by the Board's election processes rather than by an em- ployer's usurpation of this function by virtue of its, own grant of recognition to one of two rival unions. However, the Board also stated, ibid.: Despite the prolonged nature of the unfair labor practice proceedings, the essential facts remain that Charging Party Local 115 had substantial employee support when its petition was filed, that its petition was still pending before the Board when the unlaw- ful recognition here was conferred, and that Charg- ing Party Local 115 at all pertinent times maintained a continuing interest in representing Respondent Em- ployer's employees [Emphasis added.] CARO BAGS, INC. Unlike the emphasized language above, in the situation here, NOITU had no continuing interest in representing Respondent Employer's employees. However, all other requirements set out by the Board in Bruckner and Haddon House are satisfied. Principal among these re- quirements is that an election petition "has been" or "is" filed. At the time that Mory signed the recognition agreement with Respondent Union, that petition was still on file and "in process." Counsel for Respondent's posi- tion is that even though the petition was still formally filed, Girlando and Ponce assured Mory that once he recognized Respondent Union, they would withdraw the petition. The General Counsel, in brief, presents three ar- guments why the instant matter falls within the Bruckner rationale: first, SOLO, as well as NOITU, were "rival unions" and, even though SOLO did not file the petition, Respondent Employer must still refrain from recognizing Respondent Union while the petition was pending. Sec- ondly, that Respondent Employer "jumped the gun," i.e., that it arrogated the Board's responsibilities by recogniz- ing Respondent Union prior to the Regional Director ap- proving NOITU's withdrawal of its petition; and finally that Respondents' argument is inconsistent with the ra- tionale of Bruckner regarding undue influence and prob- lems of dual authorization cards. I find the General Counsel's first argument persuasive; the Board did not limit the Bruckner language to which union filed the petition. Rather, the Board stated: "where a labor organization has filed a petition" (emphasis added) and prohibits the employee "from recognizing any of the competing unions." (Emphasis added) This is especially true here when one considers the Board's foot- note referred to, supra, and the fact that at the time Wry recognized Respondent Union, he was aware of the recent claim by SOLO that they represented a ma- jority of Respondent Employer's employees. I find the General Counsel's second argument persuasive, as well. Section 102.60 of the Board's Rules and Regulations pro- vides: "the petition may be withdrawn only with the consent of the Regional Director with whom such peti- tion was filed." Clearly, a petition was on file at the time of recognition; Respondents never sought to explain why they could not delay recognition until NOITU, at least, sought to withdraw the petition. Respondents and NOITU attempted to usurp the Board's Rules by Re- spondent Employer's recognition of Respondent Union. As this recognition took place while a petition was pend- ing before the Board, this recognition violates Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act. I find it unnecessary to discuss the General Coun- sel's third argument. As stated, supra, as an alternative theory of violation, the General Counsel alleges that because of the dual cards signed, Respondent Union never obtained authori- zation cards from a majority of Respondent Employer's employees; i.e., that a majority of the employees never signed cards only for Respondent Union. The parties stipulated that on 12 May the unit was composed of 254 employees; on 12 May, 183 employees executed authori- zation cards for Respondent Union; of this number 105 employees had signed cards for NOITU on 7 May. How 669 many had signed cards for SOLO is not known as those cards are missing. If employees sign authorization cards for more than one union, they will not be counted toward either union's majority status, absent some positive proof that the employees intended to repudiate the earlier card by signing the later card. Unit Train Coal Sales, 234 NLRB 1265 (1978); Atlas Lumber Co., 237 NLRB 823 (1978). One situation in which the Board found such a repudi- ation is Wavecrest Home For Adults, 217 NLRB 227 fn. 3 (1975), the Board stated: Our finding that the complaint should be dismissed is based on the special circumstances of this case. It is clear from . . . the entire record herein that the em- ployees who signed authorization cards on behalf of Local 4, subsequent to indicating support for Local 1115, did so because of the failure of Local 1115 promptly to demand recognition or take some im- mediate action on their behalf.-[Emphasis added.] The Board law in dual card cases was set forth suc- cinctly by Administrative Law Judge Arthur Leff in Crest Containers Corp., 223 NLRB 739, 741 (1976): The general rule applicable in dual card situations is clear. The Board has held in, numerous cases that where an employee signs an authorization card for each of two unions, the card of neither union will be regarded as a valid designation that may be counted toward majority, as it is not then possible to determine from the cards which of the two unions the employee has selected as, an exclusive bargaining agent. Respondent is correct in asserting that the general rule is not an inflexible one that must be applied on a per se basis. But to justify a deviation from the general rule, the evidence must be of sufficient reliability and probative force to clearly dissipate the ambivalence as to intent that is inherent in dual card designations and to leave no doubt that, at the time material to the determination of the issue of majority status, the dual card signer intended only one of his dual cards-and which of them-to evidence his designation of a bargaining agent. Did Respondent Employer's employees evidence an intention to repudiate their NOITU authorizations by executing authorization cards on behalf of Respondent Union on 12 May? Hardly. They had signed authoriza- tion cards for NOITU on 7 May; over the next few days they picketed Respondent Employer's premises carrying NOITU signs. There is no evidence that between 7 and 12 May the employees became disenchanted (as was true in Wavecrest) with NOITU; rather, the evidence estab- lishes that they decided to return to work by 12 May be- cause of the letter they received from Respondent Em- ployer that threatened if they did not do so they would be replaced. Finally, the events of 12 May do not estab- lish any proof that by signing authorization cards for Re- spondent Union, the employees meant to repudiate their NOITU cards signed 5 days earlier. Until Rozic ap- 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD peared on that day, they did not know he was coming; until Girlando introduced him and he spoke, they did not know who he was, and in a matter of a few minutes the authorization cards were signed . The speed with which this occurred did not give the employees an opportunity to knowingly repudiate their previously expressed inter- est in NOITU. As Administrative Law Judge Joel Har- matz stated in Atlas Lumber Co., supra at 826: And the timespan of 12 days between the submis- sion of Local 326's request for recognition and the date recognition was conferred on Local 522, hardly enhances any conclusion holding the em- ployees to a binding choice. Furthermore, unlike Wavecrest, supra, the employees did not solicit Local 522, but signed up in the course of a single confrontation with representatives of that Union. I therefore find that Respondent Union did not possess authorization cards from a majority of Respondent Em- ployer's employees on 12 May; rather, they possessed only 78 cards out of a unit on that day composed of 254 employees. Respondents therefor violated Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act. Because of these conclusions , I find it unnecessary to decide the General Counsel's remaining arguments. CONCLUSIONS OF LAW 1. Caro Bags, Inc., Respondent Employer, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Local 734, Laborers International Union of North America, AFL-CIO, Respondent Union, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. Respondent Employer violated Section 8(a)(1) and (2) of the Act when it recognized Respondent Union on 12 May. 4. Respondent Union violated Section 8(b)(1)(A) of the Act when it accepted recognition from Respondent Em- ployer on 12 May. 5. Respondent Employer violated Section 8(a)(1), (2), and (3) when it executed a collective-bargaining agree- ment containing a union-security clause with Respondent Union on 23 May. 6. Respondent Union violated Section 8(b)(1)(A) and (2) when it executed a collective-bargaining agreement containing a union-security clause with Respondent Em- ployer on 23 May. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2), I shall recommend that they be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. In order to remedy the effects of the unfair labor prac- tices discussed above, I shall recommend that Respond- ent Employer be ordered to withdraw and withhold all recognition from Respondent Union as the collective- bargaining representative of Respondent Employer's pro- duction and maintenance employees, at its Edison, New Jersey location, and cease giving any force or effect to any collective-bargaining agreement with Respondent Union covering such employees, or to any modifications, extensions, supplements, or renewals of such contract or contracts, unless and until Respondent Union shall have been certified as bargaining representative pursuant to a Board-conducted election among such employees of Re- spondent Employer in a unit or units appropriate for col- lective bargaining. Further, I shall recommend that Re- spondent Union be ordered to withdraw from acting as bargaining representative of the aforesaid employees or giving any force or effect to such aforesaid bargaining agreement, unless and until Respondent Union shall have been certified as bargaining representative pursuant to a Board-conducted election. However, nothing in the Order set forth hereinafter shall be construed to author- ize or require Respondent Employer to withdraw or eliminate any wage increase or other benefits or terms and conditions of employment that may have been estab- lished pursuant to that agreement, except with respect to that agreement's union-security provision that may no longer be enforced. Respondents will be required jointly and severally to reimburse all present and former em- ployees for all initiation fees, dues, or other moneys paid pursuant to the unlawful union-security agreement with interest thereon to be computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). Although the unfair labor practices here are flagrant, I find the visitatorial clause requested by the General Counsel unnecessary. O. L. Willis, Inc., 278 NLRB 203 (1986); Northwind Maintenance Co., 281 NLRB 317 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 ORDER A. Respondent Employer Caro Bags, Inc., Edison, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Assisting, aiding, supporting, recognizing, or nego- tiating with Local 734, Laborers International Union of North America, AFL-CIO, as the exclusive collective- bargaining representative of all production and mainte- nance employees employed at Respondent Employer's Edison, New Jersey location, unless and until such labor organization is certified by the Board as the exclusive collective-bargaining representative of the employees pursuant to Section 9(c) of the Act. (b) Entering into, maintaining, enforcing, or giving effect to any collective-bargaining agreement with La- borers Local 734, dated 23 May 1986, pertaining to pro- duction and maintenance employees at its Edison, New Jersey location or any extension, renewal, or modifica- tion thereof; provided, however, that nothing in this 23 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 - CARO BAGS, INC 671 Order shall authorize, allow, or require the withdrawal or elimination or any wage increases or other benefits that may have been established pursuant to such agree- ment. (c) Requiring as a condition of employment that all production and maintenance employees at Respondent Employer's Edison, New Jersey location who are mem- bers of Laborers Local 734, remain members in good standing, or that those employees who are not members shall become members, as a condition of employment, within 30 days following their date of employment or ef- fective date of a collective-bargaining agreement and thereafter maintain their membership in good standing. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from La- borers Local 734, as the collective- bargaining representa- tive of its production and maintenance employees at its Edison, New Jersey location, unless and until that labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Jointly and severally with Laborers Local 734, re- imburse all present and former production and mainte- nance employees employed at its Edison, New Jersey lo- cation for all initiation fees, dues, assessments, or any other moneys that may have been paid by or withheld from them pursuant to the aforesaid collective-bargaining agreement together with interest on the moneys due, to be computed in the manner set forth in the remedy sec- tion.of this decision. (c) 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 determine the amount of all union dues, initi- ation fees, assessments, or other moneys that have been paid to Local 734, Laborers, and are subject to reim- bursement to employees under the terms of this Order. (d) Post at its location in Edison, New Jersey, copies of the attached notice marked "Appendix A."24 Copies of the notice, on forms provided by the Regional Direc- tor of Region 22, after being signed by the Respondent Employer's authorized representative, shall be posted by the Respondent Employer immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable seeps shall be taken by the Respondent Employer to ensure that the notices are not altered, defaced, or covered by any other material. This notice shall be in English, French, and Creole. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Employer has taken to comply. B. Respondent Local 734, Laborers International Union of North America, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Acting as exclusive bargaining representative of the production and maintenance employees employed at Re- spondent Employer's Edison, New Jersey location, for the purposes of collective bargaining, unless and until such labor organization shall have been certified by the Board as the collective-bargaining representative of em- ployees pursuant to Section 9(c) of the Act. (b) Entering into, maintaining,, enforcing, or giving effect to a collective-bargaining agreement with Re- spondent Employer dated 23 May 1986 pertaining to Re- spondent Employer's production and maintenance em- ployees at its Edison, New Jersey location, or any exten- sion, renewal, or modification thereof. (c) Requiring as a condition of employment that all production and maintenance employees employed at Re- spondent Employer's Edison, New Jersey location, who are members of Laborers Local 734, remain members in good standing, or that those employees who are not members shall become members, as a condition of em- ployment, within 30 days following their date of employ- ment or effective date of a collective-bargaining agree- ment, and thereafter maintain their membership in good standing. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with Respondent Employer reimburse all present and former production and mainte- nance employees employed at Respondent Employer's Edison, New Jersey location for all initiation fees, dues, assessments, or any other moneys that may have been paid or withheld from them pursuant to the aforesaid collective-bargaining agreements, together with interest on the moneys due to be computed in the manner set forth in the remedy section of this decision. (b) Post at its location in Clifton, New Jersey, copies of the attached notice marked "Appendix B."25 Copies of the notice, on forms provided by the Regional Direc- tor for Region 22, after being signed by the Respondent Union's authorized representative, shall be posted by the Respondent Union immediately on receipt and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by the Re- spondent Union to ensure that the notices are not al- tered, defaced, or covered by any other material. This notice shall be in English, French, and Creole. (c) Forward to the Regional Director for Region 22 signed copies of the aforesaid notice for posting by Re- spondent Employer at its Edison, New Jersey location 24 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 " 25 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 " 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for 60 consecutive days in places where notices to em- or withheld from them under our contract with Local ployees are customarily posted. 734, plus interest. Our employees have the right to join (d) Notify the Regional Director in writing within 20 any labor organization or to refrain from doing so. days from the date of this Order what steps the Re- spondent Union has taken to comply. CARO BAGS, INC. APPENDIX A APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government NOTICE To EMPLOYEES AND MEMBERS 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 or- dered us to post and abide by this notice. WE WILL NOT assist, aid, support, recognize, or negoti- ate with Local 734, Laborers International Union of North America, AFL-CIO (Local 734) as the collective- bargaining representative of employees at our Edison, New Jersey location, unless and until that labor organi- zation is certified by the National Labor Relations Board to act as such representative. WE WILL NOT enter into , maintain, enforce, or give effect to any collective bargaining with Local, 734 at our Edison, New Jersey location, including the agreement dated 23 May 1986, or any extension, renewal, or modifi- cation thereof; provided that WE WILL NOT withdraw or eliminate any wage increases or other benefits that have been put into effect as a result of any such agreement. WE WILL NOT require, as a condition of employment, that employees at our Edison, New Jersey location become or remain members of Local 734. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold recognition from Local 734, as the collective-bargaining representative of employees at our Edison, New Jersey location, unless and until that labor organization is certified by the Na- tional Labor Relations Board. WE WILL jointly and severally with Local 734, reim- burse all former and present employees at our Edison, New Jersey location for any initiation fees, dues, assess- ments, or any other moneys that may have been paid by The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT act as the collective-bargaining repre- sentative of employees employed at Caro Bags, Inc. in Edison, New Jersey, unless and until we are certified by the National Labor Relations Board to act as such repre- sentative. WE WILL NOT enter into, maintain, enforce, or give effect to any collective-bargaining agreement with Caro Bags, Inc. at its Edison, New Jersey location, including the agreement dated 23 May 1986 or any extension, re- newal, or modification thereof, and WE WILL NOT seek the withdrawal or elimination of any wage increases or other benefits that have been put into effect as a result of any such agreement. WE WILL NOT -require that employees employed by Caro Bags, Inc. in Edison, New Jersey, as a condition of employment, become or remain members of our labor or- ganization. WE WILL NOT in any like or related manner restrain or coerce employees and/or members in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL jointly and severally with Caro Bags, Inc. reimburse all former and present employees employed at its Edison, New Jersey location for any initiation fees, dues, assessments, or any other moneys that may have been paid or withheld from them under our contract with Caro Bags, Inc., plus interest. LOCAL 734, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO