American Tempering, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1989

296 N.L.R.B. 699 (N.L.R.B. 1989)

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.