American Tempering, Inc.

AMERICAN TEMPERING American Tempering, Inc. and Warehouse Employ- ees Local 169, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO' and Aluminum, Brick & Glass Workers Interna- tional Union, Local 510, AFL-CIO-CLC, Party to the Contract. Cases 4-CA-15985 and 4-CA- 15985-2 September 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On February 27, 1989, Administrative Law Judge Nancy M. Sherman issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. 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 brief and has decided to affirm the judge 's rulings, findings,2 and conclusions3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, American Tempering, Inc., Bensalem, Pennsylvania, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. I On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly , the caption has been amended to reflect that change 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 8 In agreeing that the poll conducted by employee Flores at the direc- tion of Superintendent George violated Sec 8(a)(1) of the Act , Chairman Stephens notes that he does not decide whether, to avoid a finding of an unlawful poll, an employer must satisfy all the requirements set out in Strucksnes Construction Co, 165 NLRB 1062 (1967), whenever-regard- less of the circumstances-it seeks through polling to determine whether an incumbent union has lost its majority support The poll here was clearly tainted by the preceding unlawful recognition of the Aluminum Workers and the threats aimed at coercing employees into signing cards for that union. Joel H. Levinson, Esq. and Ellen A. Farrell, Esq., for the General Counsel. Warren M. Davison, Esq. and John W. Kvle, Esq., of Balti- more, Maryland, for the Respondent. Marie A. Fritzinger, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE 699 NANCY M. SHERMAN , Administrative Law Judge. These consolidated cases were heard before me on August 23, 1988, in Philadelphia, Pennsylvania, pursuant to a charge filed in Case 4-CA-15985 on August 1, 1986, and amended on September 30, 1986 ; a charge filed in Case 4-CA-15985-2 on October 21, 1986 ; and a com- plaint issued on April 29, 1988. The charges were filed by Warehouse Employees Local 169, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (the Teamsters). The complaint alleges that Respondent American Tem- pering, Inc. (the Company) violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act (the Act) by recognizing the Aluminum, Brick & Glass Workers International Union, Local 510, AFL-CIO-CLC (the Aluminum Workers) as the exclusive representative of employees in the Company's laminating plant, and by executing with the Aluminum Workers a collective-bar- gaining agreement, which covered such employees and which contained a union-security provision, at a time when the Aluminum Workers did not represent an un- coerced majority of such employees . The complaint fur- ther alleges that the Company violated Section 8(a)(1) of the Act by interrogating employees regarding their union sympathies, threatening employees with discharge if they did not sign up with the Aluminum Workers, and threat- ening to close the laminating plant if the employees at that plant selected the Teamsters to represent them. The record in the instant unfair labor practice case in- cludes as an exhibit the record in a 1986- 1988 unit-clari- fication case, which record, in turn, includes as an exhib- it the transcript of testimony in a 1984 representation case; the parties in both cases consisted of the Company, the Aluminum Workers, and the Teamsters . On the basis of the entire record, including the demeanor of the wit- nesses who testified before me, and after due consider- ation of the briefs filed by the Company and by counsel for the General Counsel (the General Counsel),' I make the following FINDINGS OF FACT I. JURISDICTION The Company is a California corporation which is en- gaged in the processing and distribution of tempered, laminated, and insulated glass products in Bensalem, Pennsylvania, from two facilities referred to as the lami- nating plant and the tempering plant, respectively. During the year preceding the issuance of the complaint, the Company sold and shipped products valued in excess of $50,000 directly to customers located outside Pennsyl- vania. I find that, as the Company admits, the Company is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act. ' By letter dated September 28, 1988 , counsel for the Teamsters stated that they joined in the General Counsel's position as set forth in her brief 296 NLRB No. 90 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Aluminum Workers and the Teamsters are each labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In 1974, the Aluminum Workers was certified as the exclusive bargaining representative of the production and maintenance employees in the Company's tempering plant. At this time, the laminating plant was not yet in existence . Thereafter, the Company and the Aluminum Workers entered into a series of collective-bargaining agreements with respect to the tempering plant alone. Such a contract expired by its terms on June 30, 1986. When the laminating plant opened in about 1979, across the street from the tempering plant , the employees in the laminating plant were unrepresented. In 1982, the Aluminum Workers filed a unit-clarification petition con- tending that the employees in the laminating plant consti- tuted an accretion to the certified unit at the tempering plant. On July 12, 1982, the Regional Director issued a Decision and Order which found that the laminating plant employees did not constitute an accretion to the certified tempering plant unit, and dismissed the Alumi- num Workers' petition. The Board denied review. In 1984, the Teamsters filed a representation petition seeking certification of a unit limited to the production and maintenance employees at the laminating plant. Con- currently, the Company filed a unit-clarification petition seeking to accrete the employees in the proposed unit to the certified unit in the tempering plant. On April 10, 1984, the Regional Director issued a Decision, Order, and Direction of Election, finding that the laminating plant employees did not constitute an accretion to the certified tempering plant unit, dismissing the unit-clarifi- cation petition , and directing an election among the lami- nating plant employees. On May 10, 1984, the Board denied the Company's request for review of the Regional Director's Decision, Order, and Direction of Election. Following an election where the Teamsters prevailed by a vote of about 25 to 5,2 that union was certified on Feb- ruary 20, 1985, as the exclusive bargaining representative of the production and maintenance employees at the lam- inating plant. However, the Company and the Teamsters never reached agreement on a contract (see infra fn. 4). B. The Allegedly Unlawful Recognition of and Contract with the Aluminum Workers As previously noted, a collective-bargaining agreement between the Company and the Aluminum Workers, which was applicable to the tempering plant only, ex- pired by its terms on June 30, 1986. About June 1986, Robinson Wilks, who is the Company's director of human resources, and Victor Notarfrancisco,3 the Alu- 2 This finding is based on the 1986- 1988 representation-case testimony of laminating plant employee Joseph J . Beers It is unclear whether the Aluminum Workers appeared on the ballot and, if it did, how many votes it received, if any. a The record contains several spellings of this individual's surname. I -hall use the version attached to the Aluminum Workers' 1986-1989 bar- minum Workers' business agent, met with the laminating plant employees in the lunchroom of that plant. Notar- francisco said that "through accretion," the Aluminum Workers now represented the laminating plant employ- ees. He said that the Aluminum Workers did not want to see the laminating plant employees left out in the cold without representation . Laminating plant employee Joseph Beers asked what kind of contract provisions the Aluminum Workers was going to ask for. Notarfrancisco replied that he was not going to go into that with a member of management in the room . Beers said that the laminating plant employees were represented by the Teamsters. Notarfrancisco said that he had a letter from the Teamsters saying that it no longer intended to repre- sent the laminating plant employees . Beers asked to see the letter. Notarfrancisco said that he would get a copy for Beers. Later, Beers asked Wilks for a copy. Beers never received a copy of the letter. Gennaro Catalano, the Company's president and chief executive officer, was not associated with the Company between February 1982 and June 1986. After becoming the Company's president on June 15, 1986 , and beginning to participate in ongoing negotiations with the Alumi- num Workers for a contract to succeed the tempering plant contract due to expire at the end of June 1986, he learned about the Teamsters' February 1985 certification as the representative of the laminating plant employees. Catalano testified before me that he asked company counsel whether the Teamsters still represented the lami- nating plant employees , and was told, "No, one year had expired, and . . . they were no longer the representative of that group of people." Catalano further testified, at the 1986- 1988 representation case hearing, that in the latter part of June 1986, during the negotiations with the Aluminum Workers for a bargaining agreement to re- place the 1984-1986 contract, he asked the Aluminum Workers' chief negotiator, Roy Albert, "how we arrived to include" the laminating plant in the new contract, and that Albert replied. no negotiations had taken place after the Teamsters had been certified and they would be decertified.4 [The Aluminum Workers] felt accretion had taken place and [Albert] had a letter from the head of the local of the Teamsters, that they were no longer in- terested in . . . unionizing [the laminating plant] be- cause there were too few people and it would be better that they went with the [Aluminum Work- ers]. Catalano testified before me that he reported to company counsel Albert's assertions about this letter, and that counsel replied it was "all right" to include the laminat- ing plant employees in the new contract "so long as [the gaining agreement with the Company. Notarfrancisco died on an undis- closed date before February 13, 1987 4 As a Teamsters witness in the 1986- 1988 representation case hearing, laminating plant employee Beers testified that "I believe" the Teamsters had attempted to conclude a collective-bargaining agreement on behalf of the laminating plant employees Aside from such testimony and the testi- mony set forth in the text as to Albert's remarks, I can find no evidence as to whether the Teamsters made such attempts. AMERICAN TEMPERING Aluminum Workers] have that letter." Catalano went on to testify that he never did see such a letter, although on several occasions he had asked the Aluminum Workers for a copy. No such letter was offered into evidence. Wilks testified at the 1986-1988 representation case hear- ing that Albert had told him that the Teamsters "had backed out of their supposed coverage for" the laminat- ing plant employees, and that as far as the Aluminum Workers was concerned, it would now cover them in the contract negotiations . Although counsel for the Team- sters appeared at both that proceeding and the proceed- ing before me, the foregoing testimony about Albert stands undenied . On the other hand, aside from the rep- resentations made by Notarfrancisco to the laminating plant employees and by Albert to Catalano, there is no evidence as to the existence of a letter or letters from the Teamsters disclaiming representation of the laminating plant employees. As discussed infra, between August 1986 and at least October 1987 (and, perhaps, until April 1988), the Teamsters claimed representation status with respect to the laminating plant employees. Catalano testified at the 1986-1988 representation case hearing that as of the end of June 1986 he had no method at all of finding out that the laminating plant em- ployees wanted to be represented by the Aluminum Workers, that he did not ask for anything , and that nobody gave him anything in writing from these employ- ees indicating that they wanted to be included in the agreement. Wilks testified at that hearing that before the contract was agreed to, and at a time when the Compa- ny had in its employ 10 hourly laminating plant employ- ees, he saw 3 and only three cards signed by such em- ployees and authorizing the Aluminum Workers to rep- resent them. About June 28, 1986, the Company and the Union orally agreed to a new collective-bargaining agreement covering the laminating plant as well as the tempering plant. On December 11, 1986, Catalano testi- fied at the 1986-1988 representation case hearing that "some" laminating plant employees had "agreed to join" the Aluminum Workers and had signed cards; but that he was aware that after the contract was agreed to, em- ployees in the laminating plant had refused to join the Aluminum Workers and had filed grievances about the matter. After the contract had been orally agreed to, the Aluminum Workers distributed checkoff authorization forms among the laminating- plant employees. Most of these employees tore the authorizations up. On two oc- casions prior to February 13, 1987, but whose dates are not otherwise shown by the record, almost all the lami- nating plant employees signed authorization cards for the Teamsters. Catalano signed a written bargaining agreement with the Aluminum Workers in late July or early August 1986. This agreement recognized the Aluminum Workers as the exclusive bargaining representative of the produc- tion and maintenance employees in both the tempering and the laminating plants. The agreement included the following union-security clause: (a) It shall be a condition of employment that all employees of the Company covered by this Agree- ment, who are members of the Union in good stand- 701 ing on the date of execution or the effective date of this Agreement, whichever occurs later, shall remain members in good standing throughout the term of this Agreement. It shall also be a condition of employment that all employees of the Company covered by this Agreement, who are not members of the Union on the date of execution or the effec- tive date of this Agreement, whichever occurs later, shall on the 30th calendar day following the date of execution or the effective date of this Agreement, whichever occurs later, become and remain mem- bers in good standing of the Union throughout the term of this Agreement. It shall also be a condition of employment that all employees of the Company covered by this Agreement, who are hired on or after its date of execution or effective date, which- ever occurs later, shall on the 30th calendar day fol- lowing the commencement of such employment, become and remain members in good standing for the purpose of this Agreement shall be defined as payment of the Union initiation fee and periodic dues only. [Sic.] (b) In the event of any change in the law during the term or extension of this Agreement, the Com- pany agrees that the Union will be entitled to re- ceive the maximum Union security which shall be lawfully permissible. Shortly after the Company received copies of this agreement from the printer, Wilks arranged for distribu- tion of copies among the Company's employees. The tempering plant employees received theirs from a repre- sentative of the Aluminum Workers; the laminating plant employees received theirs from leadmen Wilks, Catalano, or Notarfrancisco. The Company applied most of the provisions of the July 1986 bargaining agreement to the laminating plant employees. However, as to at least most of these em- ployees, the Company put into escrow the amounts which it would be required to pay into the pension fund on their behalf if they were covered by the contract;5 Catalano testified at the 1986-1988 representation case hearing on February 13, 1987, and I accept such testimo- ny, that he believed these amounts were being held in escrow in the event the laminating plant employees became members of the bargaining unit, and that the Company took such action on the advice of counsel "to hold [the pension-fund payments] in escrow at such a time that this bargaining contract would be either ap- proved or disapproved."5 On December 11, 1986, Cata- lano testified at the 1986-1988 representation case hear- ing, and I accept his testimony in this respect, that he in- structed his subordinates not to enforce as to the laminat- 5 It is unclear whether such payments were made on behalf of the lam- inating plant leadmen . Cf., infra, fn 10 a Wilks testified on December 11, 1986, on the first day of the 1986- 1988 representation case hearing, that he did not know why these pay- ments were not being made On February 13, 1987 , the second day of the representation case hearing, he testified that as a result of his involvement in the negotiations he had acquired the understanding that the pension would be available to all employees if all employees belonged to the Alu- minum Workers. 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing plant employees the contractual union -security provi-, sions, and not to honor any checkoff authorizations which may have been executed by such employees; and that he issued such instructions on the advice of counsel. He was not asked the date on which he issued these in- structions. At the hearing before me, laminating plant employee Beers credibly testified without contradiction that about the week beginning Monday, July 7, 1986, Di- rector of Human Resources Wilks told Beers that he would have to join the Aluminum Workers to continue to work for the Company . On December 11, 1986, Wilks testified at the 1986-1988 representation case hearing that as to the laminating plant employees, the union-shop clause in the Aluminum Workers' contract was not being enforced . When asked on that date whether dues were being deducted from such employees ' pay, Catalano re- plied, "I presume no, it should be no . I haven't seen actual records, but we're not deducting . They have been told not to deduct."7 Finally, although a contractual pro- vision for a $200 bonus in July 1986 and a $250 bonus in December 1986 had been agreed to in lieu of wage in- creases, as to the laminating plant personnel, the Compa- ny made bonus payments to only the three leadmen,8 and not to the other hourly paid workers.9 Catalano tes- tified during the 1986-1988 representation case hearing that checks were drawn up for the laminating plant em- ployees to cover the bonus due July 1, 1986, with the in- tention of delivering them to the employees , but that these checks had been placed in a locked drawer because counsel had told the Company "not to make any pay- ments on the bonus agreement . . . but hold it in escrow at such a time that this bargaining contract would be either approved or disapproved." Catalano further testi- fied during that hearing that checks had been drawn up for the laminating plant employees to cover the bonuses due in December 1986, but that they were still unsigned and had been placed in a locked drawer . During the 1986-1988 representation case hearing on December 11, 1986, Catalano testified that he could not pay the bo- nuses to the laminating-plant employees "because if they don't go into [the Aluminum Workers] I have to termi- nate them by [Pennsylvania] law, if they are indeed in [the Aluminum Workers] which is the whole question here, and why would I pay somebody who I have to ter- minate and be out $200?" 10 He went on to testify that counsel had told him he could not release the bonuses until there was a determination of "who was in the union and where," and that if the Board at some time conclud- ed that the laminating plant was an accretion to the tem- pering plant, he intended to pay the bonus money to the laminaing plant employees and begin enforcing the union-shop provisions as to them . Wilks testified at the r The record falls to show whether any laminating plant employees ever executed checkoff authorizations a It is unclear whether they received the December 1986 bonus ° No contention is made that the Company 's withholding of these bo- nuses constituted a violation of the Act. 10 Catalano testified that the laminating plant leadmen had received at least the July 1986 bonuses because "they'll never be in the union " He testified that they were not covered by July 1986 contract with the Alu- minum Workers, which covers "warehouse leaders" but excludes "line leaders " Leaders at the laminating plant had been included in the Team- sters' certification representation case hearing on December 11, 1986, that the bonus had been omitted "because we at this point do not know whether [the laminating plant employees] are under one bargaining unit, another bargaining unit or are non-union." C. The Alleged Unlawful Threats by Company President Catalano On August 5, 1986, the Company received the first charge filed in the instant proceeding . That charge al- leged, inter alia, that the Company had violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the Teamsters and by improperly favoring "another labor or- ganization." On an undisclosed date in August 1986, President Catalano called a meeting of the laminating plant employees in the plant lunchroom . Also present at this meeting were Aluminum Workers Shop Steward Pat Garrity and Aluminum Workers Business Agent Notar- francisco, although they may not have been present during the entire meeting. Catalano said that the purpose of the meeting was to introduce himself to the employees, in light of the fact that he had recently arrived on the scene ; that he was now the president and part owner of the Company; and that he was going to try to get the right management to run the plant. He went on to say that the Company had signed a contract with the Aluminum Workers ; that ac- cording to the Aluminum Workers it had a letter from the Teamsters that it was no longer interested in unioniz- ing that plant and the Aluminum Workers should take it over; that "upon legal advice," the laminating plant em- ployees would get everything in the contract that the tempering plant employees would get. Employee Beers asked Catalano why the laminating-department employ- ees had not received the July 1986 bonus. Catalano re- plied that the Company had not paid the bonus because no cards had been signed for the Aluminum Workers, and that there would be no sense in distributing the bo- nuses to the laminating plant employees if they had to be terminated in 30 days for failure to sign cards for the Aluminum Workers. One employee (inferentially Beers) said that he did not want to be represented by the Aluminum Workers. Cata- lano asked what the problem was with the Aluminum Workers. Beers said that the laminating plant employees felt that the Aluminum Workers had negotiated a weak contract and that union did nothing but collect dues and did not do anything for the employees . An unidentified employee or employees asked Catalano why the Compa- ny was against another union and did not want two unions. He said that if he had to deal with two different unions, with two separate sets of work rules, with one shop always trying to catch up to the other shop 's bene- fits, with two contracts, with two unions striking at dif- ferent times, and with the interdependency of the two plants which depended on product from each other, "it probably would be such a financial burden" on the Com- pany that it "probably would not be able to remain com- petitive in this area, and [the Company] would close up and leave," perhaps to move down south where labor was cheaper. The Company had never had the situation AMERICAN TEMPERING 703 of having two different unions at two plants , with two different contracts . After this meeting, some laminating plant employees told Catalano that "they really didn't want any union at all, they wanted to go back to what it was." My findings as to what Catalano said during the August meeting are based on a composite of credible parts of the testimony of Catalano and employees Beers and Joseph Gage. Catalano testified at one point during the 1986- 1988 representation case hearing that he told the laminating plant employees that as to the $200 bonus, "I cannot pay you that under legal advice , but . . . when this is settled you will be paid ." He testified at another point in that proceeding , "I couldn't pay them because if they don't go into [the Aluminum Workers] I have to terminate them by [Pennsylvania] law, if they are indeed in this union which is the whole question here, and why would I pay somebody who I have to terminate and be out $200.... And this was told to the employees very clearly why they weren't getting this money . . . . That upon legal advice, I could not pay it to them although the checks are ready to go." Before me, he testified he told the employees that (1) "upon legal advice [the bo- nuses] wouldn't be paid unless the accretion was solved," and that (2) during a subsequent discussion, which his testimony did not connect to the bonus matter, that "if the accretion . . . did not take place and this contract was not a viable contract," the contract would be "out the window" and the employees would not have to sign cards for the Aluminum Workers; but if the accretion "does take place then they either have to sign to pay the union dues, or by [Pennsylvania] law they wouldn't be able to work there under the terms of the contract." Ca- talano denied that he referred to, or was even aware, of the 30-day grace period in the contractual union-shop clause. I do not credit Catalano's testimony about the 30- day grace period , or his implication before me that his remarks did not connect the payment of the bonus with the signing of cards for the Aluminum Workers, for de- meanor reasons because Catalano had negotiated not only the July 1986 contract but also three preceding con- tracts with the Aluminum Workers, because some of his representation case testimony did state that his discussion with the employees connected payment of the bonuses with signing union cards , and because at the 1986-1988 representation case hearing he testified to the opinion that by not going into the Aluminum Workers, the lami- nating plant employees had "chosen" not to receive the bonus. Also for demeanor reasons, I do not accept em- ployee Beers' testimony on direct examination that at one point Catalano threatened to discharge employees within 30 days if they did not join the Aluminum Work- ers, without the context of Beers' inquiry regarding the bonus; or Gage's confused testimony that Catalano said the plant would move if the employees failed to sign cards for the Aluminum Workers within 30 days. D. The Allegedly Unlawful Interrogation On a date in late summer 1986, and after Catalano's August 1986 meeting with the laminating plant employ- ees, Laminating Plant Superintendent Larry George, an admitted supervisor, approached laminating plant em- ployees Gage in his work area . George said to Gage that maybe "we" should take a poll to see which union the employees wanted. George went on to say that "by talk- ing to management and stuff' he would try to help the employees to "get this thing over with" and to "come to a conclusion." Initially, George asked Gage to talk to the . employees and ask them which union they wanted to go for. Then, George interrupted himself and called over leadman John Flores, not alleged to be a supervisor. George said that he wanted Flores to make up and pass around (but not during working hours) a "list of .. . which union the employees wanted," and that George would see what he could do to help the employees out. Thereafter, Flores prepared a sheet of paper with about five columns entitles, respectively, "Aluminum Workers," "Teamster," "In-House," "Other," and "Un- decided." After being approached by Flores, about 11 of the 15 to 18 laminating plant employees either signed the sheet in one of these columns, or had their names written in by Flores. Employee Gage signed the sheet, and the name of employee Beers was written on the sheet by Flores after talking to him. Beers and Gage credibly tes- tified that Flores did not tell them the purpose of the "list" whether they were required to sign it, and whether they would be subject to reprisal based on the answer that they gave. Beers credibly testified that nobody else from management told him what the list would be used for. There is no evidence that anyone from management discussed these matters with any of the employees who were asked to sign. Eventually, Flores gave this document to employee Truc Tron to sign. While Tron was holding it, Plant Foreman Frank Fry came down the steps from his office area and yelled, "What the hell [are you] doing?" Flores said that George had told him to make the list up. Fry said that he was not supposed to be doing that during working hours, told Tron to give Fry the "damned list," grabbed it, read it, and ran back up the steps to his office. On the following day, Wilks, the Company's director of human resources, approached employee Gage and asked what list Flores had made up. Gage said that George had told Flores to make it up and , inferentially, told Wilks what it was. Wilks got "all excited" and asked where it was. Gage replied that Fry had grabbed it and had taken it upstairs. This document was not offered into evidence. The record fails to show what preference it purportedly showed. The Company's posthearing brief states (R. Br. 10), "There is no evidence that the list was ever completed or relied upon by the [Company] for any purpose." E. Procedural Developments Between September 25, 1986, and February 12, 1988 On September 25, 1986, the Company filed with the Regional Office a petition to clarify the certified unit so as to include the production and maintenance employees at the laminating plant . The petition described the "present unit" as the employees in the tempering plant. On September 30, 1986, the Teamsters filed with the Re- gional Office a petition seeking certification as the repre- 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentative of the laminating plant employees , and claiming the support of at least 30 percent of the employees in the requested unit. The petition contained no entries in the boxes calling for the date of a request for recognition or a statement that the Petitioner was currently recognized ("whichever is applicable"), the "Recognized or Certi- fied Bargaining Agent (if there is none, so state)," or the date of expiration of "Current Contract, if any." In the box calling for other organizations which had claimed recognition or known to have a representative interest in any employees in the requested unit "if none so state," the petition stated "None." On that same day, September 30, the Teamsters filed a first amended charge in the in- stant proceeding, which (inter alia) reiterated its 8(a)(5) charge, added the allegation that the Company "caused the employees to be polled and despite the overwhelm- ing results favoring the Teamsters refuses to negotiate," and added an 8(a)(2) allegation, but did not claim that the Company had recognized or bargained with the Alu- minum Workers. On October 21, 1986, the Teamsters filed another 8(a)(5) charge in the instant case . By letter dated October 27, 1986, the Regional Director advised the Company that he and approved the withdrawal of the Teamsters' petition; the letter contained the notation that the Teamsters' authorization cards had been re- turned to it. On December 3, 1986, the Regional Direc- tor issued an order setting down the Company's unit- clarification petition for hearing. The unit-clarification hearing was conducted on De- cember 11, 1986, and February 13, 1987. At that hearing, counsel for the Teamsters stated that about July 24, 1986, and again about September 24, 1986 , the Teamsters had advised the Company in writing that the Teamsters rep- resented a majority of the Company's laminating plant employees and wanted to continue collective bargaining with the Company; these representations were not denied, but the alleged written bargaining demands were not produced during that proceeding or during the pro- ceeding before me. Also, Teamsters counsel stated that his client still represented the certified laminating plant unit. Company counsel and counsel for the Aluminum Workers contended at that hearing, and sought to estab- lish by the evidence , that the laminating plant employees constituted an accretion to the unit of production and maintenance employees at the tempering plant. On August 21, 1987, the Regional Director dismissed the unit-clarification petition. On February 12, 1988, the Board denied the Company's and the Aluminum Work- ers' respective request for review . The articulated bases for such action by the Regional Director and by the Board are discussed infra, sec . II, F,1. By letter dated April 28, 1988, the Regional Director advised the Company that with his approval the 8(a)(5) portions of the Teamsters' charge had been with- drawn." The complaint here issued on the following day, April 29, 1988. " Counsel's September 1988 posthearing brief for the Company asserts that before this withdrawal they were administratively advised by an agent for the Regional Director that no merit had been found to the 8(a)(5) allegations in the Teamsters' charges (p 5, fn. 4) Counsel's Sep- tember 1987 appeal in the unit-clarification case states that the Company had been administratively advised by the Regional Director that the F. Analysis and Conclusions 1. The recognition of and contracting with the Aluminum Workers with respect to the laminating plant employees When an employer newly recognizes a union as the representative of a group of employees and enters into a collective-bargaining agreement covering them, the em- ployer violates Section 8(a)(1) and (2) of the Act unless the recognized union represents a majority of the newly covered employees or unless such employees are an ac- cretion to the contract unit. NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 140-142 (3d Cir. 1976); Her- shey Foods Corp., 208 NLRB 452, 456-458 (1974), enfd. 506 F.2d 1052 (3d Cir. 1974); Arco Electronics, Inc., 241 NLRB 256, 261 (1979); Sav-On Drugs, Inc., 267 NLRB 639, 643-645 (1983). I agree with the General Counsel that when the Company recognized and contracted with the Aluminum Workers as the representative of a unit which included the laminating plant employees the Alu- minum Workers had not been selected by a majority of the laminating plant employees to act as their bargaining agent. Thus, Wilks, the Company's director of human re- sources, testified that before the contract was agreed to, and at a time when the Company had in its employ 10 hourly laminating plant employees, he saw only three au- thorization cards signed by such employees ; I infer that if the Aluminum Workers had obtained any other cards, they too would have been shown to the Company. Nor is there any evidence that any other employees signed such cards at any time material here. Indeed, Company President Catalano testified that as of the end of June 1986 (the contract was orally agreed to about June 28), he had no method at all of finding out whether the lami- nating plant employees wanted to be represented by the Aluminum Workers, that he did not ask for anything, and that nobody gave him anything in writing from these employees indicating that they wanted to be in- cluded in the agreement. Also, no claim that a majority of the laminating plant employees had selected the Alu- minum Workers was advanced when in June 1986 the Aluminum Workers told the Company and (in Wilks' presence) the laminating plant employees that they were now represented by the Aluminum Workers, or when the Company so advised them in August 1986. Rather, these assertions of representation status were all based on an "accretion" claim and on the claim that Teamsters no longer wanted to represent the laminating plant employ- ees. Further, although the Company merely put into escrow the contractually required pension contributions Region would dismiss the Teamsters ' 8(a)(5) charge on the ground that the Teamsters abandoned , through inaction, its status as majority repre- sentative of the laminating plant employees Elsewhere , the appeal states that the Regional Director "has investigated [the Teamsters'] contention that it is still the certified representative of the laminating employees, and has found that it is not Accordingly, he has notified the parties to this proceeding of his intention to dismiss [the Teamsters'] unfair labor prac- tice claims alleging that the [Company] violated Section 8(a)(5) of the Act by executing a collective-bargaining agreement with the [Aluminum Workers] " These September 1987 allegations were not disputed in the Teamsters' October 1987 opposition to the requests for review The record is otherwise silent as to this matter. AMERICAN TEMPERING on behalf of the laminating plant employees , Wilks testi- fied at the 1986-1988 representation case hearing that as a result of being part of the collective-bargaining proc- ess, he had gained the understanding that the pension would be availble to all the employees if all the employ- ees belonged to the Aluminum Workers. Finally, in August 1986 Company President Catalano told the lami- nating plant employees that they had not received the contractual bonus benefit because no cards had been signed for the Aluminum Workers. I conclude that at no material time did a majority of the laminating plant em- ployees under the Aluminum Workers' contract select that Union to represent them. The Company has never at any time contended that the Aluminum Workers enjoyed other than minority status among the laminating plant employees when the Company recognized and contracted with the Aluminum Workers with respect to such employees. Rather, the Company defends such action on the sole ground that they constituted an accretion to the certified unit of tem- pering plant employees. This accretion claim is disputed by the General Counsel on the basis of the Board's action in the 1986- 1988 unit-clarification proceeding. The Company, however, contends that such action either did not resolve the accretion issue, or is not dis- positive of that issue in the instant case. As to the Board's disposition of the 1986- 1988 unit- clarification proceeding, the record in that case, which was received into evidence as a joint exhibit in the in- stant case, shows as follow: The Company's September 25, 1986 petition in that case request "clarification of placment of certain employees" in a previously certified unit, described the "present unit" as the tempering plant employees, and stated that the "proposed clarification" was to include the laminating plant employees. At the outset of the hearing in that case, both the Company and the Aluminum Workers stated that the laminating plant employees constituted an accretion to the certified tem- pering plant unit, and the Teamsters contended that sepa- rate units for each respective plant remained appropriate. All three parties claimed that there was no question con- cerning representation-the Company and the Aluminum Workers on the ground that the Aluminum Workers al- legedly represented both plants, and the Teamsters on the ground that it allegedly still represented the laminat- ing plant unit for which the Teamsters had been certified in February 1985. Thereafter, the parties put in evidence (to some extent summarized infra ) which would bear on the accretion issue entirely apart from the Company's and the Aluminum Workers' unsuccessful 1982 and 1984 efforts to obtain a Board determination that the laminat- ing plant employees constituted an accretion to the tem- pering plant unit, and entirely apart from the Company's June-July 1986 action in recognizing and contracting with the Aluminum Workers with respect to the laminat- ing plant employees. The Regional Director's Decision and Order, dated August 21, 1987, summarized the prior unsuccessful ef- forts to obtain an accretion finding, and the Company's and the Aluminum Workers' action with respect to the inclusion of the laminating plant employees under the 1986-1989 bargaining agreement . Further, the Regional 705 Director made various findings regarding inter alia, the Company's production operations; its supervisory, ad- ministrative, and personnel functions ; the interchange of employees between the two plants; and the job classifica- tions and relative skill levels at the two plants. Then, after a general statement of the factors considered by the Board in determining whether a group of employees constitutes an accretion to an existing bargaining unit, the Regional Director went on to say: This is the third time in approximately five years that the same issue has been presented for decision. In 1982 and 1984, Decisions were issued in the cases referred to above finding that the production and maintenance employees of the laminating plant did not constitute an accretion to the production and maintenance unit at the Tempering plant, and that these employees constituted a separate appropriate unit for the purposes of collective bargaining. Not- withstanding this history and the subsequent certifi- cation of [the Teamsters] as the representative of the laminating plant employees, the Employer filed this petition after the Employer and [the Aluminum Workers] entered into a contract pursuant to which the Employer purported to recognize [the Alumi- num Workers] as the representative of the Laminat- ing plant employees . The record shows that the Employer was not presented with any evidence that a majority of these employees had designated or se- lected [the Aluminum Workers] as their collective bargaining representative at the time it entered into this contract. Moreover, there was no evidence of transfers or interchange of employees prior to the Decision, Order and Direction of Election in April 1984. In these circumstances, and based on the record evidence set forth above, I find that the Laminating plant employees do not constitute an ac- cretion to the Tempering plant unit. The Tempering plant and the Laminating plant perform different operations using different machinery and equipment. Day-to-day operation of the plants and supervision of the employees involved are handled by the re- spective plant managers. The employees at the two plants have separate seniority, punch separate time clocks, park in separate lots and use separate lunch- room facilities. While there is some interchange, it is an insignificant percentage of the total hours worked by employees at the two plants. These fac- tors and the case history described above are suffi- cient to support a finding that the Laminating plant employees do not constitute an accretion to the Tempering plant unit, notwithstanding the presence of other facts set forth above indicating how the two plants are linked and what they have in common. But in addition, it is apparent that the Employer and [the Aluminum Workers] are seeking to make the Laminating plant employees part of the Tempering plant unit without allowing them to ex- ercise their statutory right to select a bargaining representative of their own choosing. Accordingly, I find that the production and maintenance employ- 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees of the Laminating plant do not constitute an ac- cretion to the unit, and I shall dismiss the petition. The Company's and the Aluminum Workers' respec- tive requests for review, filed in late September 1987, contended that an accretion finding was required by the evidence which at least allegedly should have constituted the sole basis for the Regional Director's decision. The Company's request for review alleged that that decision was improperly based on "his perception " that the Com- pany and the Aluminum Workers "had improperly folded the laminating plant employees into [the Alumi- num Workers'] bargaining unit in the absence of evi- dence of [the Aluminum Workers'] majority status among such employees ." The Company's request for review further attacked the Regional Director's allusion to the earlier petitions for unit clarification and to the Teamsters' certification; and alleged that "the Regional Director has investigated [the Teamsters'] contention that it is still the certified representative of the laminating employees, and has found that it is not" (see supra fn. 11). The Aluminum Workers' request for review alleged that the Regional Director had relied "primarily and, we urge, inappropriately, on the existence of the prior UC case, and on the statement that 'the Employer and [the Aluminum Workers] are seeking to make the Laminating plant employees part of the Tempering plant unit with- out allowing them to exercise their own statutory right to select a bargaining representative of their own choos- ing.' . . . it is . . . not appropriate to hold [a new] elec- tion when previously unrelated units achieve a level of integration that constitutes an accretion ." The Teamsters' October 1987 opposition to the requests for review al- leged that "the factual findings made at the hearing are sufficient to support the Region's ruling that no accretion exists . . . the facts found by the Region are sufficient in and of themselves to support the Region 's determination, without supplementation from the previous case history in this matter." The Board's Order of February 12, 1988, stated in its entirety: Employer's and [the Aluminum Workers'] Re- quests for Review of the Regional Director 's Deci- sion and Order are denied as they raise no substan- tial issue warranting review . In denying review, the Board relies solely on the fact that the laminating plant employees historically have been excluded from the tempering plant unit. Accordingly, the laminating plant may not be accreted to the temper- ing plant unit. Plough Inc., 203 NLRB 818, 819 (1973). I agree with the General Counsel 's contention that this Order constitutes a finding by the Board that the lami- nating plant employees do not constitute an accretion to the tempering plant unit. I regard as unwarranted the Company's contention in its posthearing brief (R. Br. 13) that this Order "represents more than the Board's ap- proval of the dismissal of the unit clarification petition on the grounds that the Board's general practice is to avoid resolution of historical exclusions from the bar- gaining unit through the process of a UC petition." The Company does not appear to contend that this is a natu- ral reading of the terms of the Order itself; rather, the Company grounds its interpretation of the Board's Order on its citation of Plough. I regard as unwarranted the sig- nificance which the Company attaches to the Board's ci- tation of Plough . Plough was a unit-clarification proceed- ing in which the Board affirmed, as to two job classifica- tions (retained sample technician and glass and chemicals handler) the Regional Director's action in clarifying a certified unit to include them as accretions to the unit. However, the Board reached a different result with re- spect to the Director's clarification of the unit (1) as ac- cretions to the unit, to include two job classifications (forklift operators and quality control in process techni- cians), which had come into existence after the issuance of the certification and had been excluded from several subsequently negotiated contracts; and (2) on the basis of "the Board's duty to police its certification ," to include one classification (lead maintenance mechanic) which had allegedly been inadvertently excluded from the unit by the parties and another (leadman in the yard) which, after the certification had been reclassified to a job not named in the certification or in any subsequent contracts and had been removed from the unit. The Company here relies on the following Plough language in which the Board explained its disagreement with the Regional Di- rector (footnote omitted): We agree with the Employer's contention that the long period of exclusion of employees in the foregoing four classifications requires that the issues raised concerning their inclusion in the existing unit be resolved in a 9(c)(1) election proceeding. Con- trary to the Regional Director, the Board does not normally use its power to police its certification to include in a unit by way of clarification classifica- tions or categories of employees who historically have been excluded. The Company's contention that the Board's reversal action in Plough (and, by extension, the Board's Order with respect to the Company's unit-clarification petition) were based wholly on procedural grounds which did not encompass a rejection of the Regional Director's accre- tion finding is undermined by both the Board's affirm- ance in Plough of his accretion finding as to two job clas- sifications, and by cases which the Board cited in sup- port of the first sentence in the quoted language. Thus, the Board cited Brockton Taunton Gas Co., 178 NLRB 404 (1969), where a unit-clarification petition sought clar- ification with respect to the unit placement of dispatch- ers. The Board there said (footnotes omitted): Clarification of a certification or amendment of a unit description may be in order where a new em- ployee classification has been created , or an em- ployer's operations have been expanded subsequent to a certification, and the employees involved are normal accretions to the certified unit. Here, how- ever, the classification of dispatcher is not new, since it antedates the certification, and dispatchers do not constitute an accretion to the existing unit. Consequently, the proper procedure for resolving AMERICAN TEMPERING the issue concerning the unit placement of dispatch- ers would be that initiated by a petition filed pursu- ant to Section 9(c) of the Act, seeking an election. Accordingly, we shall dismiss the petition for clari- fication of the unit. In addition, the Board cited CF & I Steel Corp., 196 NLRB 470 (1972), where the Board said, "we find that the employees and classifications sought in the UC peti- tion [including jobs not included in the unit by contracts negotiated since the jobs came into existence] are not ac- cretions to the bargaining unit and we shall dismiss the petition." It is true that Plough stated merely that the Board does not "normally" use its unit-clarification pro- cedure to include categories of employees who histori- cally have been excluded from the unit. It is also true that Plough cited two cases suggesting that as to such categories the Board might nonetheless use that proce- dure in cases where recent changes have occurred.12 However, these circumstances do not point to interpret- ing the Board's Order in the instant unit-clarification case as leaving the accretion issue unresolved. Moreover, the Company's tendered interpretation of the Board's February 1988 Order in the unit-clarification case, and other, related company arguments discussed, infra, misconceive the relationship between the accretion doctrine and the Board's unit-clarification regulations. In consequence of Section 9(c)(1) of the Act, which re- quires the Board to conduct an election if certain kinds of petitions are filed and the record shows that a ques- tion of representation affecting commerce exists, under the Board's Rules and Regulations a unit-clarification pe- tition may be filed only "in the absence of a question concerning representation." See Section 102.60 (b) of the Board's Rules and Regulations; Section 101.17 of the Board's Statement of Procedure. A claim that a particu- lar group constitutes an accretion to a previously existing unit can as a procedural matter be properly advanced in a unit-clarification petition, because acceptance of such a contention would constitute a holding that as to that group no question concerning representation existed and no vote among them would be required. See the Third Circuit's opinion in Security-Columbian Banknote, supra, 541 F.2d at 140. However, where (as here) the Board dismisses the petition on the basis of a finding that a question concerning representation exists which the Board is empowered to resolve only in an election under Section 9(c)(1), and that finding is based on the same evi- dence (here, the bargaining history with respect to the disputed group) which substantively underlies a concom- itant finding by the Board that the disputed group does not constitute an accretion, such dismissal action does not constitute a mere procedural ruling which leaves to another day the question of whether the employer is free to recognize the union as the representative of a unit which includes the disputed group without regard to the wishes of that group. Rather, this question has been re- solved in the negative by the Board's nonaccretion find- ing. Although such a finding does not negate the em- 12 I.e., LuJXin Foundry & Machine Co, 174 NLRB 556 ( 1969). Monon- gahela Power Co., 198 NLRB 1183 (1972) 707 ployer's right to recognize the union without a Board election under Section 9(c)(1), in the absence of such an election "the law requires the majority consent of those to be added, expressed . . . by some other lawfully ac- ceptable method." Hershey Foods, supra, 208 NLRB at 458. Accord: King Radio Corp., 257 NLRB 521, 526 (1981). Because the Aluminum Workers did not enjoy the sup- port of a majority of the laminating plant employees, the Company's recognition of and contracting with the Alu- minum Workers as their representative violated the Act if the Board's finding in the unit-clarification proceeding, that they did not constitute an accretion to the tempering plant unit, is given effect in the instant unfair labor prac- tice proceeding. Such a finding is entitled to, at the very least, persuasive relevance. See Serv-U-Stores, 234 NLRB 1143, 1144 (1978). Because no party submitted to me in the unfair labor practice proceeding any evidence as to the accretion issue other than the record in the 1986- 1988 unit-clarification case, which was received by me as an exhibit, I adopt without any independent analysis of the record the Board's finding in that case that the lami- nating plant employees did not constitute an accretion to the tempering plant unit as of February 13, 1987, the last day of the hearing in that case. A fortiori, and still with- out any independent analysis of the unit-clarification record, I find that the same was true when the Company recognized the Aluminum Workers as the laminating plant employees' representative about June 1986, and before the Company began to apply to such employees on July 1, 1986, a collective-bargaining agreement cover- ing both plants. Accordingly, I find that the Company violated Section 8(a)(1) and (2) of the Act by recogniz- ing and contracting with the Aluminum Workers as the representative of such employees. Moreover, as to such employees the Company violated Section 8(a)(1), (2), and (3) by including in that contract a provision requiring such employees to join and remain members of the Aluminum Workers in order to keep their jobs. Such conduct violates the Act even if the union-security provision is never enforced. Eichleay Corp. v. NLRB, 206 F.2d 799, 803 (3d Cir. 1953); NLRB v. Gottfried Baking Co., 210 F.2d 772, 779-780 (2d Cir. 1954); Hershey Foods, supra, 208 NLRB at 458 fn. 19; Arco Electronics, supra, 241 NLRB at 261 fn. 19. I note, moreover, that in July or August 1986 the Company caused to be distributed to the laminating plant employ- ees copies of the contract (effective by its terms on July 1, 1986) which included them in the recognition clause and contained the union-security clause; that Company President Catalano told these employees in August 1986 that they would be discharged if they failed to join the Aluminum Workers within 30 days; that Director of Human Resources Wilks told laminating plant employee Beers in early July 1986 that he would have to join the Aluminum Workers in order to keep his job; and that there is no evidence that the Company ever advised any of these employees of Catalano's instructions to his sub- ordinates, on an undisclosed date before December 11, 1986, not to enforce as to them the contractual union-se- 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD curity clauses, and not to honor any checkoff authoriza- tions which they might execute. 2. The alleged threats and interrogation In view of my finding that the Company violated the Act as to the laminating plant employees by executing with the Aluminum Workers the contract which re- quired such employees to join the Aluminum Workers in order to keep their jobs, I find that the Company violat- ed Section 8(a)(1) when Company President Catalano thereafter told such employees that they would be termi- nated in 30 days if they did not sign cards for the Alumi- num Workers. In addition, I agree with the General Counsel that the Company also violated Section 8(a)(1) when President Catalano told the laminating plant employees that if he had to deal with two different unions, with two separate sets of work rules, with one shop always trying to catch up to the other shop's benefits, with two contracts, with two unions' striking at different times, and with the inter- dependency of the two plants which depended on prod- uct from each other, it probably would be such a finan- cial burden on the Company that it probably would not be able to remain competitive in the area and would close up and leave, perhaps to move down south where labor was cheaper . Where an employer makes a predic- tion as to the precise effect he believes unionization will have on his company, "the prediction must be carefully phrased on the basis of objective fact to convey an em- ployer's belief as to demonstrably probable consequences beyond his control . . . conveyance of the employer's belief, even though sincere, that unionizing will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of clos- ing is capable of proof." NLRB v. Gissel Packing Co., 395 U.S. 575, 618-619 (1969); see also Mon River Towing v. NLRB, 421 F.2d 1, 9-11 (3d Cir. 1969); 299 Lincoln Street, Inc., 292 NLRB 172 (1988); Patsy Bee, Inc., 249 NLRB 976 (1986); Standard Products Co., 281 NLRB 141 (1986), enfd. in relevant part 824 F.2d 291 (4th Cir. 1987). On the basis of these standards , Catalano's state- ment that the laminating plant employees' selection of a union other than the Aluminum Workers would prob- ably cause the plant to close up and leave constituted a unlawful threat of retaliation in violation of Section 8(a)(1) of the Act. Catalano admitted that he had never in fact had the situation of having two different unions at the two plants, with two different contracts; indeed, he to some extent undermined any alleged factual underpin- ning for his statement to the employees , about the al- leged evils of two unions as compared to one, by testify- ing that a strike in only one plant would cause a shut- down in both and would "break the Company in two weeks." Moreover, even as to the Teamsters (which at least at one time had represented the laminating plant employees while the tempering plant employees were represented by the Aluminum Workers) there is no evi- dence that it had ever sought the allegedly disruptive contract clauses described by Catalano; and whether such clauses would necessarily be sought by any other union which might be chosen by the laminating plant employees is a matter of sheer speculation. See Mon River Towing, supra, 421 F.2d at 9-11 (3d Cir. 1969); NLRB v. Price's Pic-Pac Supermarkets, 707 F.2d 236, 239- 240 (6th Cir. 1983); Walter Garson, Jr. & Associates, 276 NLRB 1226, 1231-1232 (1985); Mack's Supermarkets, 288 NLRB 1082, 1085 ( 1988). In addition, I find that the Company violated Section 8(a)(1) of the Act when leadman Flores circulated among laminating plant employees a sheet of paper on which each of them was to have his name written in the column which indicated his choice as to union represen- tation. Because Flores acted pursuant to the instructions of Laminating Plant Superintendent George, an admitted supervisor, which were issued in the presence of employ- ee Gage, and because Flores accurately advised employ- ees Beers and Tron that Flores was acting pursuant to George's authority , the Company was answerable for Flores' conduct even though he was not shown to be a supervisor. Hohn Industries, 283 NLRB 71 (1987); Arkan- sas Lighthouse for the Blind, 284 NLRB 1214 (1987), enf. denied on other grounds 851 F.2d 180 (8th Cir. 1988). The Company's poll failed to conform with the safe- guards set forth in Struksnes Construction Co., 165 NLRB 1062 (1967), in that, at the very least, the poll was not by secret ballot; no assurances against reprisal were given; and the poll was taken after the Company had unlawful- ly recognized the Aluminum Workers as to the laminat- ing plant employees and entered into a contract with it which contained a union-security clause, threatened to shut down if the laminating plant employees chose repre- sentation by a union other than the Aluminum Workers, and threatened to discharge the laminating plant employ- ees unless within 30 days they signed cards for the Alu- minum Workers. Certain portions of the Company's brief seem to con- tend that the Company conducted the poll in order to as- certain whether the laminating plant employees still wanted the Teamsters to represent them . The Company's contention in this respect is difficult to square with the fact that the poll was never completed, with the absence of evidence that the Company ever used the results for any purpose, with the Company's failure to tender any purpose of the poll to anyone but Flores and Gage, and with Superintendent George's vague statement to them that its purpose was to help him , "by talking to manage- ment and stuff," to help the employees "get this thing over with" and "come to a conclusion." In any event, the Company errs in contending that as to the safeguards set forth in Struksnes, that case "has no application where an employer has a reasonably-based doubt of a union's continued majority status and is investigating the matter further." Mingtree Restaurant v. NLRB, 736 F.2d 1295, 1297-1299 (9th Cir. 1984); Hassett Maintenance Corp., 260 NLRB 1211 fn. 2, 1216-1217 (1982); see also Hohn Industries, supra, 283 NLRB 71 fn. 2. No different rule is suggested by Hutchison-Hayes International, 264 NLRB 1300, 1304-1308 (1982) (cited by the Company), which (unlike here) involved an incumbent union which had been continuously recognized until the date of the poll in question. Hutchison-Hayes merely held that a poll held without an objective basis for doubting such an in- cumbent union's majority status violates Section 8(a)(1) AMERICAN TEMPERING whether or not the poll conforms with Struksnes. See Hassett, supra. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Aluminum Workers and the Teamsters are each labor organizations within the meaning of Section 2(5) of the Act. 3. The Company has violated Section 8(a)(1), (2), and (3) of the Act by recognizing the Aluminum Workers as the exclusive representative of employees in the laminat- ing plant, by contracting with the Aluminum Workers with respect to such employees, and by including in that contract a provision which required such employees to join the Aluminum Workers in order to keep their jobs. 4. The Company has violated Section 8(a)(1) of the Act by telling the laminating plant employees that they would be terminated in 30 days if they did not sign cards for the Aluminum Workers, by threatening employees that it will shut down and move if the laminating plant employees choose representation by a union other than the union which represents the tempering plant employ- ees, and by polling laminating plant employees about their desires for union representation. 5. The unfair labor practices set forth in Conclusions of Law 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has violated the Act in certain respects, I shall recommend that the Company be required to cease and desist therefrom, and from like or related conduct, and to take certain affirmative action to effectuate the policies of the Act. Affirmatively, the Company will be required to with- draw and withhold recognition from the Aluminum Workers with respect to employees in the laminating plant unless and until that union is certified by the Board as the exclusive collective-bargaining representative of such employees. Although there is no evidence that any laminating plant employees joined the Aluminum Work- ers after June 30, 1986, in view of the unlawful contin- ued presence of the contractual union-security clause the Company will be required to reimburse all present and former laminating plant employees who joined the Alu- minum Workers after that date for all initiation fees, dues, and other moneys they may have paid the Alumi- num Workers. In addition, the Company will be required to make the laminating plant employees whole for any losses they may have suffered by reason of any change in their employment conditions effected by any contract with the Aluminum Workers. Loss of pay due to separa- tion from employment is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).19 All sums due under this order are to be paid is Before the execution of the 1986-1989 bargaining agreement, each plant had a separate seniority list and no interplant "bumping" took place After the execution of that agreement, employees hired for either 709 with interest as computed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987).14 Nothing here shall be construed to authorize or re- quire the withdrawal or elimination of any wage in- creases or other improved benefits or terms or conditions of employment which may have been established pursu- ant to the agreement with the Aluminum Workers. The Company will also be required to post appropriate notices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER The Respondent, American Tempering, Inc., Bensa- lem, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Telling employees in Respondent's laminating plant that they will be terminated in 30 days if they do not sign cards for Aluminum, Brick & Glass Workers Inter- national Union, Local 510, AFL-CIO-CLC. (b) Threatening employees that it will shut down and move if the laminating plant employees choose represen- tation by a labor organization other than the labor orga- nization which represents the tempering plant employees. (c) Polling employees about their preference as to rep- resentation by labor organizations in a manner constitut- ing interference, restraint, and coercion. (d) Assisting or contributing support to Aluminum, Brick & Glass Workers International Union, Local 510, AFL-CIO-CLC, by: (1) Recognizing or bargaining with that labor organi- zation as the exclusive collective-bargaining representa- tive of Respondent's laminating plant employees unless and until that labor organization is certified by the Board as the collective-bargaining representative of such em- ployees. (2) With respect to Respondent's laminating plant em- ployees, executing, maintaining, or giving any force or effect to any collective-bargaining agreement, or any union-security agreement, with that labor organization, unless and until that labor organization is certified by the Board as the collective-bargaining representative of such employees; but nothing in this Order shall authorize or require the withdrawal or elimination of any wage in- crease or other improved benefits or terms or conditions of employment which may have been established pursu- ant to such agreement. plant after July 1, 1986, could be "bumped" by senior employees in the other plant who would otherwise be laid off 14 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621. Interest accrued before January 1, 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651 (1977). 16 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. 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Encouraging membership in that labor organization by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold recognition from the aforesaid labor organization with respect to laminating plant employees unless and until that labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Reimburse all former and present laminating plant employees who joined that labor organization after June 30, 1986, for all initiation fees, dues, and other moneys they may have paid to that labor organization, in the manner provided in the remedy section of this decision. (c) Make the laminating plant employees whole, in the manner provided in the remedy section of this decision, for any losses they may have suffered by reason of any change in their employment conditions effected by any contract with the aforesaid labor organization. (d) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records neces- sary or useful for analyzing and computing the amounts due under the terms of this Order. (e) Post at its laminating plant in Bensalem, Pennsylva- nia, copies of the attached notice marked "Appendix." t e Copies of said notice, on forms provided by the Regional Director for Region 4, after being signed by Respond- ent's representative, shall be posted immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply. 16 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT tell employees in our laminating plant that they will be terminated in 30 days if they do not sign cards for Aluminum , Brick and Glass Workers International Union, Local 510, AFL-CIO-CLC. WE WILL NOT tell employees that we will shut down and move if the laminating plant employees choose rep- resentation by a union other than the union which repre- sents the tempering plant employees. WE WILL NOT poll employees about their preference as to union representation in a manner constituting inter- ference, restraint, and coercion. WE WILL NOT assist or contribute support to Local 510 by: 1. Recognizing or bargaining with Local 510 as the exclusive collective-bargaining representative of our laminating plant employees unless and until Local 510 is certified by the Board as the collec- tive-bargaining representative of such employees or by 2. With respect to our laminating plant employ- ees, executing, maintaining, or giving any force or effect to any collective-bargaining agreement, or any union-security agreement, with Local 510 unless and until Local 510 is certified by the Board as the collective-bargaining representative of such employees. However, the Board has not authorized or required us to withdraw or eliminate any wage increase or other im- proved benefits or terms and conditions of employment which may have been established pursuant to such an agreement. WE WILL NOT encourage membership in Local 510 by discrimination in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE WILL withdraw and withhold recognition from Local 510 with respect to laminating plant employees unless and until Local 510 has been certified by the Board as the exclusive representative of such employees. WE WILL reimburse all laminating plant employees who joined Local 510 after June 30, 1986, with interest, for all initiation fees, dues, and other moneys they may have paid to Local 510. WE WILL make the laminating plant employees whole, with interest, for any losses they may have suffered by reason of any change in their employment conditions ef- fected by any contract with Local 510. AMERICAN TEMPERING, INC.