Mgr Equipment Corp.

MGR EQUIPMENT CORP 353 MGR Equipment Corp. and Local 810, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and MGR Employees Union, Party to the Contract. Case 29-CA-10082 26 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 3 May 1984 Administrative Law Judge Thomas T Trunkes issued the attached decision The Respondent filed exceptions and a supporting 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,' and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, MGR Equipment Corp, Inwood, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Substitute the following for paragraph 1(d) "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights to self-organization, to form, join, or assist Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection, or to re- frain from any or all these activities" 2 Substitute the attached notice for that of the administrative law judge 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Order provision requinng the Respondent to cease and desist from violating employee nghts 'in any other manner" is modified to 'in any like or related manner" because in our view the Respondent has not shown a proclivity to violate the Act or a general disregard for employ ees' fundamental statutory nghts See litckmott Foods, 242 NLRB 1357 (1979) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT interfere in the formation or ad- ministration of MGR Employees Union, or any other labor organization of our employees, or give support to that labor organization WE WILL NOT offer, promise, or grant wage in- creases, increases in vacation time, or any other benefits for the purpose of discouraging member- ship in, or adherence to, Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization WE WILL NOT maintain in effect our existing col- lective-bargaining agreement with MGR Employ- ees Union, however, existing benefits will not be disturbed WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, Join, or assist Local 810, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities WE WILL withdraw and withhold all recognition from MGR Employees Union as the bargaining representative of our employees for the purpose of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that Union shall have been certified as their repre- sentative by the Board MGR EQUIPMENT CORP DECISION STATEMENT OF THE CASE THOMAS T TRUNKES, Administrative Law Judge The above-captioned case was heard in Brooklyn, New York, on May 25 and 26, 1983, based on a charge filed by Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 810 or the Charging Party), on November 22, 272 NLRB No 67 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1982,' and a complaint issued on January 5, 1983, alleg- ing that MGR Equipment Corp (Respondent) violated Section 8(a)(2) and (1) of the National Labor Relations Act (the Act), by participating in the formation of, and sponsoring and encouraging the organization of, the MGR Employees Union (the Employees Union), and by offering, promising, and granting to its employees wage increases, vacations, and other benefits and improve- ments in their working conditions and terms of employ- ment to induce them to refrain from becoming or re- maining members of Local 810, and to induce them to designate the Employees Union as their collective-bar- gaining agent In addition, the complaint alleges that about October 28 Respondent recognized the Employees Union as exclusive collective-bargaining agent of its em- ployees in a unit consisting of all production employees, and that about November 4 Respondent and the Em- ployees Union executed and enforced the collective-bar- gaining agreement, notwithstanding that at no time did the Employees Union represent an uncoerced majority of the employees in said bargaining unit Respondent filed an answer, denying the commission of the alleged unfair labor practices All parties participated at the hearing and had full opportunity to adduce evidence, examine and cross-examine witnesses, argue orally, and file briefs Oral arguments were presented at the close of the hear- ing by counsel for the General Counsel, counsel for the Charging Party, and counsel for Respondent In addition, Respondent submitted a timely brief and the General Counsel submitted a letter in lieu of a brief 2 The principal issues raised at the hearing were as fol- lows (1) Whether Jacob Credell is an agent of Respondent? (2) Whether Respondent particpated and assisted in the formation of the Employees Union? (3) Whether Respondent promised and granted wage increases and other benefits to its employees in order to discourage them from joining Local 810 and to encour- age them to form the Employees Union? (4) Whether the Employees Union represented an un- coerced majority of employees in an appropriate unit at the time recognition was accorded to it by Respondent? On the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Respondent, a New York corporation, with offices and principal place of business located in the Village of Inwood, Nassau County, New York, is engaged in the manufacture, sale, and distribution of refrigeration equip- ment and related products During the past year, Re- spondent purchased and caused to be transported and de- livered to its Inwood, New York facility refrigeration equipment and other goods and materials valued in excess of $50,000, of which goods and materials valued ' All dates hereinafter will refer to 1982, unless otherwise specified 2 The General Counsel, simultaneously with submitting her bnef, made a motion to correct transcnpt refernng to 11 errors found in the tran script Having received no objections to the motion by any of the parties, I grant the motion to correct the transcnpt in excess of $50,000 were delivered to its plant directly from States of the United States other than the State of New York Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATIONS Respondent admits, and I find, that both Local 810 and the Employees Union are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent operates a plant in Inwood, New York, where it manufactures, sells, and distributes refrigeration equipment and related products The president of Re- spondent is Gerald Ross and the vice president is George Mahnder, both admittedly supervisors within the mean- ing of Section 2(11) of the Act Undisputed testimony es- tablished that another individual named Al Gerald is a foreman at the plant 3 In addition to the above, all par- ties stipulated that as of November 8-9, 1982, there were 32 employees in the appropriate unit The parties further stipulated that on October 20, 1981, Local 810 filed a petition to represent the produc- tion, maintenance, and shipping and receiving employees of Respondent, the precise unit presently represented by the Employees Union An election was conducted by the Board on November 20, 1981, in which 22 eligible voters participated Eight votes were cast for Local 810, 13 votes were cast against it The results of the election were certified on February 1, 1982, indicating that a ma- jority of the employees had not selected Local 810 as their collective-bargaining representative In addition, the parties stipulated that on October 19, 1982, Local 810 filed an unfair labor practice charge against Respondent alleging, in substance, that about Oc- tober 13, Respondent discriminatorily discharged em- ployee Jose DeJesus The parties further stipulated that Region 29 dismissed the charge on December 30, 1982, and said dismissal was affirmed by the Office of Appeals of the General Counsel Luther Quinones, an organizer for Local 810, testified that throughout 1983 he and another organizer, David Popek, were in the vicinity of Respondent's plant for the purpose of organizing another facility and to speak with the employees of Respondent Throughout 1983, several times a week they held conversations with employees of Respondent at a lunch wagon which was stationed at the back entrance of the plant Sometime in September, sev- eral employees, including Jacob Credell, asked for union authorization cards During the course of the next 2 months, a majority of the unit employees had signed cards authorizing Local 810 to represent them Mean- 3 Foreman Gerald is not Involved in the Instant proceeding, and no evidence was presented relating to his supervisory status Accordingly, it is unnecessary to make a determination whether or not he is a supervisor within the meaning of Sec 2(11) of the Act MGR EQUIPMENT CORP 355 while, in October, employee Jose DeJesus was dis- charged by Respondent On October 21, Quinones, ac- companied by fellow organizers Popek and DeJesus, dis- cussed the discharge of DeJesus with Ross, president of Respondent The Local 810 representatives requested re- instatement of DeJesus, but Ross would not acquiesce Quinones indicated to Ross that sometime in the future if Local 810 became the bargaining agent of the employees, the reinstatement of DeJesus would be proposed at the negotiation table At no time during this conversation were Local 810 agents informed by Ross that Respond- ent's employees were forming their own committee and their own union By November 9, Local 810 had acquired 23 union au- thorization cards from Respondent's employees On that date Quinones and Popek met with Ross and,Vice Presi- dent Mahnder Quinones informed Ross that he had 23 union authorization cards and requested recognition Ac- cording to Quinones, he handed the cards to Ross who asked his bookkeeper to check the signatures After the check was made, the bookkeeper informed Ross that the signatures were genuine Quinones then asked for recog- nition to which Ross responded that he would contact his lawyer before making a decision To date, Respond- ent has not responded to the request for recognition Quinones then testified that he and Popek explained to the employees what had happened One of the employ- ees informed him that, "there was a piece of paper going around asking permission for the company to talk to them They would sign it I asked for a copy of it I didn't get a copy of it so I don't know what it said, but this is what was said, after I told him what I had done inside the office" David Popek, another organizer for Local 810, con= firmed in essential details the testimony of Quinones He added that during the November 9 request for recogni- tion, at no time did Respondent's representative inform him that employees had signed union cards and were al- ready covered by the terms of another collective-bar- gaining agreement He also stated that after he and Quin- ones departed from the premises he met with several em- ployees, including Credell, who informed him that "he was forced to go around with a petition" Popek further stated that, in a conversation with Credell on November 24, Credell stated that Ross and Mahnder called him to their office, gave him a sheet "to go around with," and told him that they were going to give the employees a 10-percent raise During the same conversation, Popek informed Credell that Quinones' car had been stolen, and all the union authorization cards, which Ind been in the car, were gone He asked Credell to sign a second card which he did at that time 4 The General Counsel called as her last witness Gerald Ross, president of Respondent He identified various pay- roll records of Respondent which were received into evidence He testified that the records indicated that Credell had received 80 hours paid vacation on the pay week ending January 20, 1982 When asked if the payroll 4 Popek testified that Credell had signed a card earlier at a time when he handed to Popek 17 union authonzation cards acquired from other unit employees register further indicated that Credell received a third week of paid vacation in the pay week ending November 29, Ross responded as follows "I would say that it is poossible I'd have to check this with my bookkeeper It would appear to me that Mr Credell was given a week's advanced vacation applicable to 1983 " He further ac- knowledged that nothing on the payroll records indicat- ed that the payment was an advance payment to Credell B Activity of the Employees Union Jacob Credell, an employee of Respondent, and the first and only president of the employees' Union, was the sole witness called by Respondent Credell testified that employee Kelvin Allen requested that he speak to Re- spondent about an increase in wages Thereafter, Credell asked Ross to grant Allen a wage increase Ross re- sponded that, as other employees had asked him for a raise at various times, Credell should form a committee after which further discussion relating to wage increases would be conducted Credell further asserted that on September 19 he had spoken to a lawyer about the legality of forming an em- ployees' union and was told that this was perfectly legal Thereafter, Credell spoke to the production employees in the shop during working hours and circulated a petition which was signed by a majority of employees on Octo- ber 28 He stated that none of Respondent's representa- tives was present at the time he obtained said signatures Although the petition was dated October 28, 1982, Cre- dell could not identify who had placed the date on the petition, which he presented on the same day to Ross and Mahnder requesting that Respondent's agents recog- nize and negotiate with his group Ross answered that he would consult with his attorney, whereupon Credell re- turned to the work area and informed his fellow workers what had occurred Credell further testified that on Oc- tober 29 Ross handed him a letter stating that Respond- ent would recognize and deal with the employees Cre- dell posted the letter on Respondent's bulletin board over the timecards 5 Thereafter, Credell spoke with em- ployees in the shop and they agreed upon certain de- mands to be made to Respondent Credell believed that the demands were written on October 29 Ross respond- ed that he would discuss the proposals with his partner and get back to the employees The next day, Ross called Credell and other committee members to his office and discussed contractual terms Most of the items re- quested by the employees were granted except for a 75- cent-an-hour increase in pay Instead, Ross stated that he would give each employee a 10-percent increase in salary Thereafter, 22 of 28 employees voted to accept Respondent's proposals Credell and the committee then returned to Ross' office and requested a contract as soon as possible Although Respondent wanted a 2-year con- tract, the employees insisted on a 1-year contract which was granted According to Credell, he requested that Respondent draft the contract, which was done, and eventually a contract was signed on November 4, 1982, effective for 1 year 5 Although allegedly wntten by Ross, the letter was not signed 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, Credell testified that at no time before 1982 had Ross urged him to speak to employees with respect to forming a union He further testified that at no time when Credell discussed the formation of a union with his fellow employees was Local 810 dis- cussed, although Credell conceded that at the time he was aware of Local 810's organizing campaign Al- though he admitted signing a union authorization card after his conversation with the employees regarding the formation of an independent union, he denied taking part in the distribution of Local 810 cards He further testified that he was not sure whether or not he received a third week of paid vacation for 1982 Credell conceded that Ross had given him permission to speak to the employ- ees while on the premises during working hours with re- spect to the formation of the Employees Union He fur- ther admitted that the Union had no money, and he had no idea how arbitrators are picked, should the arbitration clause of the contract be invoked Credell denied having a conversation with Popek con- cerning the circulation of a petition He did admit that Popek requested that he sign a second union authoriza- tion card in November, which was done He reluctantly admitted to having signed a card previously Again, he denied having handed to Popek any union authorization cards from other employees On redirect examination, Credell testified that during conversations with employees with respect to the forma- tion of the Employees Union, he did explain to fellow employees why Local 810 would not be to their advan- tage In addition to the oral testimony of the witnesses pre- sented by the parties, all parties stipulated to the follow- ing set of relevant facts 1 The appropriate bargaining unit consisting of pro- duction and maintenance employees on November 8-9, 1982, consisted of 32 employees 2 On November 11, Local 810 filed a petition for an election which was blocked by the instant matter 3 As of November 4, the only employee of Respond- ent covered by the collective-bargaining agreement who had 6 years of service was Manuel Arreaga 4 Angel Lopez was terminated in February 1983, at which time he received 2 weeks' vacation pay His se- niority date was March 10, 1981 5 Subsequent to November 4, 1982, a second employ- ee named Ron Phillips was terminated and did not re- ceive any accrued vacation pay because he had not suffi- cient seniority at that time 6 The only unit employee who will be eligible to re- ceive 3 weeks' vacation in 1983 under the terms of the contract was Jacob Credell, whose seniority date was April 14, 1977 7 Prior to the effective date of the collective-bargain- ing agreement (November 4, 1982), the employer's paid- vacation policy had been that any employee who has been employed for 1 year was entitled to 2 weeks' vaca- tion time The change in the collective-bargaining agree- ment made in that policy was that any employee with 6 years seniority was entitled to 3 weeks' paid vacation per year 8 The contract also provided employees with two ad- ditional holidays—the Friday after Thanksgiving and Good Friday 9 The Employer had not checked off and/or remitted dues to the Employees Union Discussion and Analysis Contention of the Parties The General Counsel contends that Respondent, through President Ross, unlawfully assisted in the forma- tion of the Employees Union by suggesting that Credell form a committee to meet with management about wage increases, and by inducing Credell to do this with the promise of benefits Additionally, the General Counsel contends that the fact that Credell held employee meet- ings and circulated a petition for the Employees Union on company premises and during paid working time is evidence that Credell was Respondent's agent, acting on Respondent's behalf, and that the employees viewed him this way Accordingly, the petition of the Employees Union signed by a majority of employees in the unit was obtained as a result of Respondent's violations of Section 8(a)(1) of the Act, and the recognition of and bargaining with said Union constitutes a violation of Section 8(a)(2) and (1) of the Act Respondent, on the other hand, contends that Ross' statement to Credell was protected under Section 8(c) of the Act, which permits free expression of opinion As no threats or promises were made to Credell, the suggestion that he form a committee to deal with Respondent did not violate the Act Moreover, Respondent, having re- ceived evidence that an uncoerced majority of employ- ees in an appropriate unit had designated the employees' Union as their representative, was obliged to recognize and bargain with that union In a recent case, Farmers Energy Corp, 266 NLRB 722 (1983), the Board stated the following In assessing the impact of a respondent's assistance to a union, the Board examines the totality of cir- cumstances to determine whether the respondent's conduct tainted the union majority status The total- ity of circumstances consists of post-recognition as well as pre-recognition conduct of a respondent See Siro Security Service, Inc , 247 NLRB 1266, 1271-1272 (1980) In the same case, the Board further explained that the Supreme Court indicated that, in these types of cases, events cannot be separated "artificially from their back- ground and consequences, and from the general contem- poraneous current of which they were integral parts" Machinists Local 35 (Serrick Corp ) v NLRB, 110 F 2d 29, 35 (DC Cir 1939), affd 311 U S 72, 78 (1940) Credibility of Witnesses In presenting their case, the General Counsel and the Charging Party relied on the oral testimony of two Local 810 representatives, Quinones and Popek, in addi- tion to various documents of Respondent and stipulations MGR EQUIPMENT CORP. 357 of the parties. The sole witness presented by Respondent was Credell, although Ross testified as an adverse wit- ness of the General Counsel. The evidence presented by the union officials relating to Local 810's organizational campaign in 1982 and its demand for recognition by Re- spondent was unrefuted. By the same token, much of the evidence furnished by Credell, although not supported by anyone else, could not be refuted by direct testimony of the General Counsel's witness. Nevertheless, there was conflict between the testimony of the General Coun- sel's and Respondent's witnesses. For the reasons stated below, where such conflict does exist, I credit the testi- mony of the General Counsel's witnesses against that of Credell and Ross. Although some of the testimony of Quinones and Popek was hearsay, or could not be imputed directly to Respondent, I found both witnesses to be forthright, sin- cere, trustworthy, and believable. On the other hand, I was not impressed with the testimony of Credell and Ross. I base my conclusion on the following. With respect to Ross, although Respondent's records revealed that Credell received a third week of vacation pay in 1982, when asked for an explanation, Ross was unable to do so, and stated that he would have to check with his bookkeeper before verifying that Credell did or did not receive a third week of vacation. No further evi- dence was presented by either Ross or his bookkeeper to explain the records. Whether Respondent's failure to provide further information to enlighten us resulted from inadvertence or a deliberate act is immaterial. As Ross had been subpoenaed by the General Counsel to explain the records, and his explanation shed no light as to the issue of the third week of vacation, as Ross was the president of Respondent with apparent, if not actual, knowledge of Respondent's operations, his failure to ex- plain the document satisfactorily leads me to conclude that the document is accurate and indicates that Credell was granted a third week of vacation in 1982. To further buttress my conclusion I refer to Credell's own testimony. When questioned on cross-examination on the subject of his vacation, he stated that he was not sure whether or not he received a third week of vacation in 1982. I cannot accept Credell's statement. This hearing took place in May 1983. An employee's testimony under oath that he does not recall whether or not he received 3 weeks' vacation the year before is incredible. I conclude that both Ross and Credell submitted vague testimony as to Credell's vacation time because both were aware that the General Counsel relied on the fact that Ross made promises which later were granted to Credell for his co- operation in obtaining signatures for the employees' Union. Neither of the two individuals could satisfactorily explain why Respondent's records revealed that Credell received a third-week vacation time in 1982 without jeopardizing their respective positions that no promises of benefits had been made or granted and, therefore, the agency of Credell could not be established. Although the signed petition reveals a date of October 28, Credell testified that he did not place that date on the document, and that it probably was placed by the person who typed the petition. Nevertheless, it is noted that the date was inscribed by hand, whereas the petition was typed. No evidence was received that anyone signed the petition on any specific date, although the petition con- tains 26 signatures. Credell would have us believe that the date was typed in by the typist. Neither the typist nor any other employee was called on to explain when the petition had been signed or who placed the hand- written date on the petition I therefore conclude that the petition was not signed on the date indicated. With respect to the demands of the employees' Union, Credell testified that he thinks the document was written on November 9, after a meeting with employees. Al- though I did not realize the significance of the number, I corrected him by asking him if he meant October 29. He answered affirmatively. In evaluating the evidence, I have concluded that Credell, in testifying, did mean the 9th—not October 9, but November 9. I base this conclu- sion on the testimony of Popek, who stated that at the time the Union was requesting recognition from Re- spondent on November 8 or 9, he was informed that Credell was circulating a petition among the employees. He further testified that Credell had admitted to him that Respondent had forced him "to go around with a peti- tion." Although Credell denied this, the totality of the evidence presented compels me to credit Popek against Credell I thus conclude that the petition was circulated by Credell on November 9 at the time Local 810 was re- questing recognition. To buttress this conclusion, I credit the unrefuted testi- mony of Quinones and Popek, both of whom credibly testified that when the Union demanded recognition, Ross failed to inform the union representatives that Re- spondent had already recognized and consummated an agreement with the Employees Union. This evidence was not refuted by Ross, although he did appear as a witness. It is illogical for Respondent not to have in- formed Local 810 officials that it had a contract with the Employees Union, if such contract existed. Had the col- lective-bargaining agreement been executed on Novem- ber 4 between Respondent and the Employees Union, it would have been simple for Ross to have shown the document to Local 810, thus averting its future problems with that union. Not only did Ross fail to show the col- lective-bargaining agreement, but, as I credit the union's version, Ross accepted the union authorization cards of Local 810 which indicated that it had an uncoerced ma- jority of Respondent's employees in an appropriate unit, and advised Local 810's agents that he would contact his attorney. I emphasize again that, although appeanng as a witness, Ross was not asked to, nor did he, refute the testimony of the union agents. I therefore credit their tes- timony with respect to the conversation they had with Ross at the time local 810 demanded recognition on No- vember 8 or 9. Further reasons why I cannot accept Credell's testimo- ny are the following. Although he acknowledged his awareness of Local 810's organizational activity, Credell initially testified that said activity never was discussed with employees when they were asked to sign the petition for their own company union. However, he later did testify that he ex- 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plained to the employees why joining Local 810 was not to their advantage. Credell was very hesitant as to dates certain important events occurred. He indicated very early in his testimony that he was not sure of dates. He testified that he spoke to employees in September, he thinks, "to form a get to- gether." As stated above, he thinks that the demands of the Employees Union were written on the 9th. When confronted with the fact that he signed a second union authorization card, he answered that he probably did sign a card. Considering that Credell was the sole wit- ness presented by Respondent, I was not impressed with his lack of recollection as to when or if certain events occurred. Although Credell acknowledges that before November 3 he signed two union authorization cards for Local 810, he did not satisfactorily explain why he had signed a second union card, or for that matter a first, in light of his efforts undertaken, purportedly without promised benefits by Respondent, on behalf of the Employees Union, Local 810's rival. Notwithstanding the fact that the agreement between Respondent and the Employees Union contains an arbi- tration clause, Credell admitted that he had no idea how arbitrators are chosen. He conceded that the Union had no money, "not a quarter," in its treasury and did not collect dues from employees. It is common knowledge that the use of labor arbitrators involves a payment of money. I therefore conclude that the arbitration clause was inserted in the agreement by Respondent without any knowledge or conception of its significance by Cre- dell. Further, I cannot accept Respondent's argument that it was unaware that Local 810 was organizing its employ- ees at the time it entered into a contractual relationship with the Employees Union. Undisputed evidence estab- lished that some time during October, when an employee of Respondent was discharged, Local 810 officials dis- cussed the discharge with Respondent. Not receiving sat- isfaction, Local 810 filed a charge with the Board, which was investigated and later dismissed for lack of evidence of an unfair labor practice. Undisputed evidence present- ed by the witnesses of the General Counsel further re- vealed that throughout the months of September and Oc- tober, while Local 810 agents were speaking to employ- ees of Respondent immediately within the area outside of Respondent's facility, they were observed by officials of Respondent. These two factors linked to the fact that in the previous year Local 810 had filed a petition for a Board-conducted election compels me to conclude that Respondent was aware of Local 810's organizational ac- tivity in the fall of 1982. Accordingly, based on the credible testimony of the General Counsel's witnesses coupled with the testimony, in part, of Credell and the records of Respondent, I con- clude that the following occurred: - Credell, who had many times previously acted as spokesman for fellow employees, sometime in the fall of 1982 requested that Respondent's president, Ross, grant a wage increase to a fellow employee. At this time, Ross, aware that Local 810 was in the process of organizing Respondent's employees, encouraged Credell, by a prom- ise of a third week of vacation and an increase in salary, to circulate a petition among its employees to form an in- dependent union. Credell, acting as a spokesman and agent for Respondent, did circulate a petition and obtain a majority of signatures of employees in the unit. Said circulation, performed on company premises during working time with permission of Respondent and with- out any diminution of wages, took place in November, concurrently with a demand for recognition being made by agents of Local 810. These agents, who had been signing up a majority of Respondent's employees for 2 months prior to their demand within the vicinity of Re- spondent's premises, were observed by Respondent's offi- cials. Following the execution of the agreement between the Employees Union and Respondent, the employees all received raises in salary Although the agreement calls for a wage increase of 10 percent, the records indicate that the wage increases range from 8 to 27 percent. In Elias Mallouk Realty Corp., 265 NLRB 1225 at 1236 (1982), my learned colleague, Administrative Law Judge Robert T. Snyder stated: It is settled law that an employer commits an unfair labor practice under Section 8(a)(2) of the Act where it renders unlawful assistance to a union. However, the Board has long held that not all em- ployer assistance to a union may be sufficient to hold an employer in violation of the Act. Thus, there have been cases where the union's use of com- pany time and property, provided by the employer, did not establish a per se unfair labor practice. In finding such a violation the U S. Supreme Court has observed that there must be an inference that the employer's assistance denied the employees their right to complete and unhampered freedom in choosing a bargaining representative, without regard to their employer's wishes. Each case must be judged according to its own particular facts. (Ci- tation omitted.) Agency Status of Jacob Credell In Serrick Corp., supra at 80-81, the Supreme Court held that an employer is liable for the acts of its nonsu- pervisory employees who act as its agents. In Community Cash Stores, 238 NLRB 265 (1978), the Board stated, "The critical issues in making this determination is whether under all the circumstances the employees would reasonably believe that [the employee] was re- flecting company policy and speaking and acting for management." The credible facts, undenied by Respondent, estab- lished that employees' meetings on the premises of Re- spondent during working time were conducted by Cre- dell. In addition, Credell acknowledged that he spent working hours on Respondent's premises in obtaining signatures. Credell further disclosed that permission had been granted by Ross for him to take part in these activi- ties, and no evidence was received that the employees' wages, including that of Credell, were diminished be- cause of these activities. Although no evidence was pre- sented that any of Respondent's supervisory or manageri- MGR EQUIPMENT CORP 359 al employees were present during these activities of Cre- dell, from the facts as listed herein, I conclude that the employees would reasonably believe that Credell was re- flecting company policy and speaking and acting for Re- spondent. Accordingly, I find that Credell was acting as an agent for Respondent in his organizational activities for the employees' Union. Alleged Assistance and Support of the Employees Union The credible evidence revealed that Local 810 was at- tempting to organize employees of Respondent, and that Respondent's officials had knowledge of this activity Thereafter, in order to forestall any possibility of Local 810 obtaining a majority of Respondent's employees and acquiring recognition from Respondent, Respondent, through Ross, promised benefits to Credell and utilized Credell as its agent to convince a majority of employees of the unit to form the Employees Union. Consequently, its facility was utilized during working hours by Credell, with the approval of Respondent, to induce and encour- age unit employees to form the Employees Union. I find that by providing the forum, the facilities, and the sug- gestion which eventually resulted in the creation of the Employees Union, Respondent assisted and supported a labor organization, contrary to Section 8(a)(2) of the Act. C & W Lektra-Bat Go, 232 NLRB 776, 778 (1977), and cases cited therein. In addition, by recognizing the Employees Union on the basis of the unlawful petition circulated by Credell, Respondent denied its employees a free choice of a bar- gaining representative guaranteed to them by the Act, thus further violating Section 8(a)(2) and (1) of the Act. Lastly, by offering, promising, and granting a third week vacation to Credell and wage increases to its employees, Respondent violated Section 8(a)(1) of the Act. Respondent argues that Missouri Heel Co., 209 NLRB 481 (1974), is directly on point in support of its position. In that case, the Board reversed an administrative law judge's decision, finding no violation of Section 8(a)(2) of the Act. The General Counsel, on the other hand, argues that Missouri Heel is Inapplicable. An evaluation of the facts and the law of Missouri Heel convinces me that there is merit in the General Counsel's argument. As stated earlier, each case must be decided on its own par- ticular set of facts. The facts of the instant case are dis- tinguishable from those of Missouri Heel. In Missouri Heel, the employees had been bargaining with their em- ployer for 10 years after forming their own committee, with no evidence of interference by their employer. Fur- thermore, although an outside union had petitioned for an election of the employees, the petition had been with- drawn and, although the petition was subsequently re- filed, the evidence revealed that the employer in that case had no knowledge that another union was interested in organizing its employees at the time it reached an agreement with the employees' committee. In the instant case, as detailed above, Respondent was well aware of the activities of Local 810, and the petition was circulat- ed among its employees concurrently with Local 810's request for recognition. Respondent further argues that Bruckner Nursing Home, 262 NLRB 955 (1982), is applicable to the instant case. The General Counsel disagrees. Again, I am in an agreement with the General Counsel. The rationale for my conclusion that Bruckner is inapplicable is based on my findings that the Employees Union in the instant case is not an uncoerced, unassisted union 6 CONCLUSIONS OF LAW 1. MGR Equipment Corp., an employer within the meaning of Section 2(2) of the Act, is engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 810, IBT, and MGR Employees Union are labor organizations within the meaning of Sec- tion 2(5) of the Act 3. By offering, promising, and granting benefits for the purpose of discouraging membership in, or adherence to, Teamsters Local 810, IBT, Respondent violated Section 8(a)(1) of the Act. 4. By interfering with, suggesting, and supporting the formation of MGR Employees Union, and by maintain- ing in effect the existing collective-bargaining agreement with MGR Employees Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action as set forth below designed to effectu- ate the purposes and policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 7 ORDER The Respondent, MGR Equipment Corp., Inwood, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interfering in the formation or the administration of MGR Employees Union, or any other labor organization of its employees, or giving support to such labor organi- zation. (b) Offering, promising, and granting wage increases, increases in vacation time, or any other benefits for the purpose of discouraging membership in, or adherence to, Teamsters Local 810, IBT, or any other labor organiza- tion. 8 After bnefs were filed, Respondent alerted me to a recent Board de- cision, Film Consortium, 268 NLRB 436 (1983), which it claims tends to support its argument However, I find this decision, like Bruckner, to be inapplicable for the reason cited above 7 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. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Maintaining in effect the existing collective-bar- gaining agreement with MGR Employees Union; provid- ed, however, that nothing herein shall be construed as requiring it to rescind, abandon, or vary any economic benefits or any terms and conditions of employment granted the employees thereunder (d) In any other manner interfering with, restraining, or coercing employees in the exercise in their rights to self-organization, to form, join, or assist Teamsters Local 810, IBT, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from MGR Employees Union as the bargaining representative of Re- spondent's employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment unless and until said Union shall have been certified as such representative by the Board. (b) Post at its facility in Inwood, New York, copies of the attached notice marked "Appendix." 8 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board"