Jayar Metal Finishing Corp.

National Labor Relations Board - Board DecisionsJan 31, 1990

297 N.L.R.B. 603 (N.L.R.B. 1990)

JAYAR METAL CORP 603 Jayar Metal Finishing Corp. and Rosa Chevere and Local 113, National Organization of Industrial Trade Unions (Local 113, NOITU), Party to the Contract. Cases 29-CA-13147 29-CA-13213-1, and 29-CA-13213-2 January 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 13, 1989, Admimstrative Law Judge Howard Edelman issued the attached decision The Respondent and the Party to the Contract jointly 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 his decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified 1 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Jayar Metal Finishing Corporation, Brooklyn, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Recognizing or bargaining with Local 113, National Organization of Industrial Trade Unions (Local 113, NOITU), or any successor thereto, as the collective-bargaining representative of its em- ployees, unless and until Local 113, NOITU is cer- tified by the National Labor Relations Board as the exclusive representative, of an appropnate 'unit of the Respondent's employees (b) Maintaining or giving any force or effect to its collective-bargaining agreement with Local 113, NOITU of September 1987, and to any modifica- tions, extensions, supplements, or renewals thereof, or to any Local 113, NOITU deduction authoriza- tions that have been executed by its employees, or to any other contract, agreement, or understanding entered into with Local 113, NOITU, or any suc- 1 The recommended Order has been modified to correct various omis- sions and errors and to add an affirmative requirement that notices be in Spanish as well as English because of evidence in the record that a number of the Respondent s employees are primarily Spanish-speaking Domsey Trading Corp, referred to by the judge and of relevance to certain of the issues here Issued at 296 NLRB 897 (1989) The Board there also denied a motion to consolidate that proceeding with this pro- ceeding, and we likewise deny a similar motion to consolidate in this pro- ceeding cessor thereto covering its employees regarding rates of pay, wages, hours of employment, or other terms and conditions of employment, provided, however, that nothing in this Order shall be con- strued to require the Respondent to vary or aban- don any wage increases or other benefits, terms, and conditions of employment that it has estab- lished in performance of the agreement (c) Permitting agents of Local 113, NOITU, in- cluding its employees who have been designated as agents by Local 113, NOITU, to solicit member- ship or engage in other activities on behalf of Local 113, NOITU on the Respondent's premises during working time (d) Deducting union fees, dues, assessments, and other moneys from the wages of its employees on behalf of Local 113, NOITU, and from remitting the union fees, dues, assessments, and other moneys to Local 113, NOITU, unless and until Local 113, NOITU is certified by the National Labor Rela- tions Board as the exclusive bargaining representa- tive of the Respondent's employees and the em- ployees thereafter execute uncoerced authorizations for the deduction of union fees, dues, assessments, and other moneys from their wages pursuant to a valid collective-bargaining agreement (e) Informing employees that they have to become members of Local 113, NOITU as a condi- tion of continued employment or that they must execute dues-checkoff authorization cards (f) Threatening employees with discharge be- cause they engage in protected concerted or union activities (g) Discriminatorily discharging any employees because of their union activities or membership in any labor organization or because they engage in protected concerted activities within the meaning of the Act (h) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Withdraw and withhold recognition from Local 113, NOITU, or any successor, as the collec- tive-bargaining representative of its employees unless and until Local 113, NOITU is certified by the National Labor Relations Board as the exclu- sive representative of an appropriate unit of the Respondent's employees (b) Reimburse all of its present and former em- ployees for any dues, initiation fees, assessments, and other moneys deducted from their wages on behalf of Local 113, NOITU on or after April 1, 1987, together with interest thereon as provided in 297 NLRB No 88 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987) (c) Offer Rosa Chevere immediate and full rein- statement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered in the manner set forth in New Horizons for the Retarded, supra (d) Remove from its files any references to the discharge of Rosa Chevere and notify her in writ- ing, with an accompanying Spanish translation, that this has been done and that evidence of the unlaw- ful discharge will not be used as a basis for any future personnel action against her (e) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, any and all records necessary to determine the amounts of money due and payable to its employ- ees under the terms of this Order (f) Post in conspicuous places at its principal place of business in Brooklyn, New York, and at all other locations where notices to employees are posted, copies of the attached notice marked "Ap- pendix," 2 and simultaneously post notices contain- ing a Spanish-language translation of the original notice Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days thereafter Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 2 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 ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT recognize or bargain with Local 113, National Organization of Industrial Trade Unions (Local 113, NOITU), or any successor as the collective-bargaining representative of our em- ployees unless and until Local 113, NOITU is cer- tified by the National Labor Relations Board as the exclusive representative of an appropriate unit of our employees WE WILL NOT maintain or give any force or effect to our collective-bargaining agreement with Local 113, NOITU of September 1987, and to any modifications, extensions, supplements, or renewals, or to any Local 113, NOITU deduction authonza- tions that have been executed by our employees, or to any other contract, agreement, or understanding entered into with Local 113, NOITU, or any suc- cessor, covering our employees regarding rates of pay, wages, hours of employment, or other terms and conditions of employment, but WE WILL NOT seek to vary or abandon any wage increases or other benefits, terms, and conditions of employ- ment that we have established in performance of the agreements WE WILL NOT permit agents of Local 113, NOITU, including its employees who have been designated as agents by Local 113, NOITU, to so- licit membership or engage in other activities on behalf of Local 113, NOITU on our premises during working time WE WILL NOT inform our employees that they have to become members of Local 113, NOITU as a condition of continued em- ployment, or that they have to execute dues-check- off cards WE WILL NOT deduct union fees, dues, assess- ments, and other moneys from the wages of our employees on behalf of Local 113, NOITU, and WE WILL NOT remit union fees, dues, assessments, and other moneys to Local 113, NOITU unless and until Local 113, NOITU is certified by the Nation- al Labor Relations Board as the exclusive bargain- ing representative of our employees and employees execute uncoerced authorizations for the deduction of union fees, dues, assessments, and other moneys from their wages pursuant to a valid collective-bar- gaining agreement WE WILL NOT discriminatorily discharge our em- ployees because of their protected concerted or JAYAR METAL CORP 605 union activities or because of their membership in any labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act WE WILL withdraw and withhold recognition from Local 113, NOITU or any successor as the collective-bargaining representative of our employ- ees unless and until Local 113, NOITU is certified by the National Labor Relations Board as the ex- clusive representative of an appropriate unit of our employees WE WILL reimburse all our present and former employees for any dues, initiation fees, assessments, and other moneys deducted from their wages on behalf of Local 113, NOITU on or after April 1, 1987, together with interest WE WILL offer Rosa Chevere full and immediate reinstatement to her former or substantially equiva- lent position of employment without prejudice to her seniority or other nghts or privileges of em- ployment that she previously enjoyed WE WILL make Rosa Chevere whole for any loss of earnings, together with interest thereon, that she may have suffered by reason of the discrimination against her WE WILL remove from our files any reference to the discharge of Rosa Chevere and notify her in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for any future personnel action against her JAYAR METAL FINISHING CORP Martha Rodriguez, Esq, for the General Counsel Robert Sparago, Representative for Respondent and Local 113, NOITU DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge This case was tried before me on November 14, 15, and 16 and December 20, 1988 On July 27, 1987, Rosa Chevere, an individual, filed a charge in Case 29-CA-13147 against Jayar Metal Finish- ing Corp (Respondent) On September 25, 1987, a com- plaint issued alleging violations of Section 8(a)(1) and (3) of the Act On September 17 and 18, 1987, Chevere filed charges in Cases 29-CA-13213-1 and 2 against Respondent On October 30, 1988, a consolidated complaint issuedalleg- ing violations of Section 8(a)(1), (2), and (3) of the Act Briefs were filed by counsel for the General Counsel and by the Representative for Respondent and Local 113, NOITU Upon my consideration of the entire record, the briefs, and the demeanor of the witnesses, I Make the following FINDINGS OF FACT Respondent is a New York corporation engaged in the business of electroplating, finishing, and wholesale distri- bution of metal products Respondent annually sells and ships from its facility located in Brooklyn, New York, goods, products, and materials valued in excess of $50,000 directly to firms located outside the State of New York Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Local 113, Solidarity of Labor Organizations Interna- tional Union (Local 113, SOLO) and Local 113, NOITU are and have been at all times matenal herein labor orga- nizations within the meaning of Section 2(5) of the Act A The Recognition of Local 113, NOITU In January 1984, Armando Ponce was the president of a labor organization called Local 601, International Shield of Labor Alliances (Local 601, ISLA) Local 601, ISLA had a collective-bargaining agreement with Re- spondent covering Respondent's production and mainte- nance and shipping and receiving employees which ex- pired on January 26, 1987 Sometime dunng the latter part of 1984 the officers of Local 601, ISLA with the exception of Ponce were con- victed of various labor related cnmes and sent to jail Ponce and his legal advisor, Robert Sparago, thought it best, in view of this situation to affiliate with another International, SOLO, with whom Ponce was also an offi- cer Such affiliation was completed 1 The president of SOLO was Edmund() Perez Local 113, SOLO was then incorporated Ponce and Sparago testified that Ponce and Perez made a "deal" that Ponce's shops formerly represented by Local 601, ISLA would remain "Ponce's shops" notwithstanding the new affiliation In accord- ance with the new affiliation Respondent signed a collec- tive-bargaining agreement with Local 113, SOLO adopt- ing the terms of the Local 601, ISLA agreement This agreement expired on January 26, 1987, and replaced the Local 601, ISLA agreement The employees employed by Respondent were required to execute new Local 113, SOLO membership applications and execute Local 113, SOLO dues-checkoff cards Respondent checked off the dues pursuant to a valid union-secunty clause and mailed the dues to the offices of Local 113, SOLO Respondent also made contractual contributions to the Local 113, SOLO funds which provided health and pension benefits Sometime in February 1986, there was a falling out be- tween Ponce and Perez Perez accused Ponce of embez- zling union funds His faction voted to dismiss Ponce as president of Local 113, SOLO and locked him out from the Local 113, SOLO offices In the meantime, Respond- ent and other companies, including Domsey Trading Corporation, 2 with whom Local 113, SOLO had collec- ' The legality of the affiliation of Local 601 with the SOLO Interna- tional is not alleged as an unfair labor practice 2 See Domsey Trading Corporation, JD(NY)-86-88 [296 NLRB 897 (1989)], presently pending before the Board This case Involved the same representational Issues as in the instant case 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive-bargaining agreements continued to remit dues and contributions to the funds to the office of Local 113, SOLO occupied by Perez and his associates In January 1987 a new collective-bargaining agreement was execut- ed between Local 113, SOLO and Respondent This agreement was to expire in 1990 Dues and fund contri- butions continued to be forwarded to Local 113, SOLO's office with Perez in charge Sometime between February and May 1986 Ponce ob- tained a charter from NOITU and formed Local 113, af- filiated with NOITU 3 In May 1986 Ponce brought suit in the State Court of New Jersey to be reinstated as the president of Local 113, SOLO The judge referred the case to an arbitrator who on March 13, 1987, issued an award effectively splitting the shops represented by Local 113, SOLO in half He awarded to Local 113, NOITU Respondent's shop, Domsey Trading and others He awarded to Local 113, SOLO, a group of other shops totaling about the same number of member employees as the Local 113, NOITU group 4 The award was effective as of April 1, 1987 This award was subsequently adopted by the New Jersey State Court On or about March 1987, pursuant to the above award Perez on behalf of Local 113, SOLO disclaimed interest in representing Respondent's employees Local 113, SOLO continued to represent those shops awarded to it by the arbitrator Sometime, during the latter part of March 1987, Ponce, armed with the arbitrator's award informed offi- cials of Respondent of such award Martin Mandel, gen- eral manager and an admitted agent of Respondent, granted recognition to Local 113, NOITU on the basis of such award, effective April 1, 1987 As of April 1, Re- spondent employed 38 unit employees As of April 1 Local 113, NOITU had only four signed authorization cards from employees employed by Respondent Beginning on April 1, Respondent deducted dues from its employees and remitted such moneys to Local 113, NOITU at its office in Newark, New Jersey, although these employees had not signed Local 113, NOITU checkoff authorizations Prior to April 1 Respondent had remitted such dues to Local 113, SOLO at its office in West New York, New Jersey Moreover the Local 113, NOITU dues were $14/month, an increase of $2/month over the Local 113, SOLO dues Beginning on April 1, Respondent also began making contributions to the NOITU funds Prior to April 1 Respondent made contri- butions to the SOLO funds It would be a reasonable as- sumption that the NOITU and SOLO funds provided different benefits Ponce testified incredibly in this case as in Domsey, that after obtaining recognition he met with Respond- ent's employees on Respondent's facility and told the employees the only thing that was changing was the name of the Umon He asked them if there was any oh- Ponce and Sparago repeatedly admitted such affiliation (Tr pp 8, 42, 84, 85, 343, 366) 4 The suit was titled Ponce, individually and as president of Local 113, SOLO vs Perez, individually and as officer of Local 113, SOLO' Somehow during the course of the arbitration it must have come to the arbitrator's attention that Ponce had obtained a charter from NOITU jection to this name change He testified the employees voted to accept the change As in Domsey and for similar reasons, I do not credit Ponce's testimony Neither Re- spondent nor the Union presented any employee to cor- roborate Ponce's testimony Moreover, Ponce's testimo- ny is not logical He had received a state court and arbi- trators' decision awarding Respondent's shop to Local 113, NOITU, and had received recognition from Re- spondent as the collective-bargaining representative of Respondent's employees Given the award and the rec- ognition, and his view that the change in Unions was merely a change in name, there was no logical reason to ask the employees to vote on whether they wanted to be represented by a local affiliated NOITU Affiliation was, in Ponce's mind, a fait accompli Following recognition Respondent permitted Lenny, an employee and Local 113, NOITU shop steward to so- licit membership application cards on Respondent's facil- ity during company time Lourdes Avellanet and Ceasar Guerra, Respondent's bookkeeper and supervisor respec- tively, were authorized by Respondent's general manag- er, Mandel, to solicit union authorization cards from unit employees During such solicitations they told employees that had to sign such cards as a condition of continued employment In September 1987 Respondent and Local 113, NOITU signed a collective-bargaining agreement which was retroactive to January 26, 1987, and which expired on January 26, 1990 On November 23, 1988, the above discussed decision in Domsey issued which concluded inter aim that Re- spondent recognized Local 113, NOITU at a time when it did not represent a majority of Respondent's employ- ees As a result of the Domsey decision, Ponce sought a clarification of the arbitrator's decision described above The arbitrator reopened the hearing Perez, a party to the original arbitration appeared by counsel at the sup- plemental hearing and opposed such reopening contend- ing that the original arbitration was a consent award and there could be no reopening withoutmutual consent, there was no longer a collective-bargaining agreement under which to arbitrate, and that the NLRB had ruled that it had exclusive jurisdiction in representational mat- ters The arbitrator overruled these contentions Perez did not participate in the substantive portion of the hear- ing which thereafter followed During the hearing Ponce testified to the merger between the ISLA and SOLO locals and the "deal" agreed upon, all of which is de- scribed above herein The arbitrator concluded "Local 113 Ponce which was designated Local 113, NOITU in the arbitration award of March 9, 1987 is the successor to the original local" It would appear the phrase "origi- nal local" refers to Local 113, SOLO There is no evi- dence that Local 113, SOLO, operating under the leader- ship of Perez has ceased to function Indeed, pursuant to the original arbitration It would appear that it is repre- senting the employees of the employers set forth in the arbitrator's decision JAYAR METAL CORP 607 B The Discharge of Chevere March 9 Rosa Chevere began working for Respondent in March 1984 as a packer Sometime during the January-February 1987 period, at the time when the new collective-bargaining agree- ment between Local 113, SOLO and Respondent was being finalized there was some employee unhappiness about the size of the employees' raise Ceasar Guerra, Respondent's supervisor circulated a petition among the employees seeking their approval for the raise set forth in the new agreement A -number of employees, including Chevere refused to sign such petition Chevere continued to complain to her fellow employ- ees about the size of the raise provided for in the new agreement In April Ceasar Guerra, an admitted supervi- sor, called Chevere into his office He told her if she kept complaining about the raise she could be fired 5 Sometime in Apnl 1987 Chevere became sick and went to a hospital, and thereafter to a private doctor for treatment During the May to June period when Chevere was not reimbursed for such treatment she made several complaints to Guerra about the poor medical benefits provided under the agreement After Local 113, NOITU was recognized by Respond- ent, Chevere refused to sign an NOITU authorization card She was informed by Respondent's bookkeeper and agent Avellanet that she had to sign such card in order to continue her employment with Respondent She even- tually signed a card In mid-June 1987 Chevere, an admittedly emotional woman, became involved in an angry dispute with the husband, one of Respondent's employees The husband was not employed by Respondent He was picking his wife up at the end of the work day Tempers rose and Chevere struck the husband with a pipe When Mandel tried to restrain Chevere, she bit him Chevere was not terminated or disciplined, nor was she given any warn- ings by Respondent On July 2 Chevere was given her paycheck and a check for vacation pay in Respondent's office The plant was to be closed for vacation for ,a 2-week period Che- vere looked at her vacation paycheck and concluded she was entitled to two more vacation days under the terms of the collective-bargaining agreement She became angry and demanded the extra vacation pay she believed she was entitled to Mandel told Chevere the difference in pay was due to her 3-month absence the previous year on a layoff or leave of absence status Chevere refused to accept this explanation or the vacation paycheck, pro- testing that she would speak to Ponce She then left Al- though Chevere was angry and spoke in a loud voice, Mandel did not contend that she used foul, abusive, or disrespectful language at any time during their exchange Respondent's plant reopened on July 13 Upon Che- vere's return to work she was given her nonce of termi- nation The notice set forth that she was being terminat- ed for 5 Guerra testified as a witness for Respondent He did not deny this statement 1 Intimidation of personnel 2 Disorder towards personnel during working hours and 3 Your own discontent over salary and union benefits [Emphasis added ] When Mandel was asked during the trial of this case why he terminated Chevere he replied Everything that led up, for that month, the way she had the fight, the way she was intimidating the other girls, she was threatening them, and every- thing like that And she kept fighting, badgering the foreman about a raise, on top of that [Emphasis added ] When Mandel was asked during the investigation of this case why he terminated Chevere he replied in his af- fidavit The real problem was the fight at the end of June was a very large factor in discharging her but when she refused and was complaining about her vacation pay, she had just gone too far and we had to terminate her [Emphasis added ] Mandel and Guerra testified that a major reason in ad- dition to the fight in June that Chevere was terminated was that she threatened and intimidated employees during the April-June period with various volatile state- ments However no direct evidence of such complaints was adduced Analysis6 A The Recognition of Local 113, NOITU The facts establish that following the dispute between Ponce and Perez, Perez functioned as the officer in charge of Local 113, SOLO Ponce obtained a charter from NOITU and formed Local 113, NOITU He also filed a suit in the New Jersey State Courts to wrest con- trol of Local 113, SOLO from Perez The facts also 'establish that during the year 1986 and until April 1, 1987, all employers under contract with Local 113, SOLO continued to recognize Local 113, SOLO as the exclusive bargaining representative of their employees, notwithstanding that Ponce had obtained a charter from NOITU in early 1986 These employers, in- cluding Respondent, continued, until April 1, 1987, to deduct dues from its employees and remit such dues to the offices of Local 113, SOLO, headed by Perez The same is true of as to fund contributions required by the SOLO agreement In fact, the employers, including Re- spondent, were bound by the terms of the SOLO agree- ment which obligated them to recognize Local 113, SOLO until January 1990 Thus Local 113, SOLO was the recognized bargaining representative for Respond- ent's employees until at least January 1990, and no ques- tion concerning representation could be raised Notwith- standing this, when Ponce showed Mandel the arbitra- 6 I take judicial notice of the factual findings and conclusions set forth in Domsey as they relate to the status of Local 113, SOLO, Local 113, NOITU and the conditions under which recognition was obtained 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tor's decision, which awarded his shop to Local 113, NOITU, he like the representatives of Domsey recog- nized Local 113, NOITU as the collective-bargaining representative of his employees, notwithstanding his bar- gaining agreement with Local 113, SOLO Moreover such recognition was granted at a time when Local 113, NOITU did not have signed authorization cards from a majority of Respondent's employees The Courts and the Board have consistently held such recognition to be un- lawful in violation of Section 8(a)(1) and (2) of the Act Ladies Garment Workers (Bernhard-Altmann Texas Corp) v NLRB, 366 U S 731 (1961), Yates Industries, 264 NLRB 1237 (1982) It makes no difference that both par- ties, Local 113, NOITU by Ponce and Respondent by Mandel believed that Local 113, NOITU had the legal right to represent Respondent's employees Bernhard-Alt- mann, supra Additionally, at the time recognition was granted by Respondent, Local 113, NOITU did not rep- resent a majority of the employees employed by Re- spondent Local 113, NOITU's recognition claim was based entirely on the arbitration award adopted by the New Jersey court decision Sparago, the representative for Local 113, NOITU, and Respondent contend that the second arbitration es- tablished that Ponce was at all times the true president of Local 113, SOLO and that the recognition of Local 113, NOITU by Respondent was lawful because Local 113, SOLO and Local 113, NOITU are really the same union" Sparago further contends that the change from Local 113, SOLO to Local 113, NOITU was merely a name change, that there was no real change in the Union other than the name He contends essentially that the employees of Respondent, Domsey, and other employers involved in this dispute really selected Ponce as their representative and that Ponce can freely affiliate with any union of his choice Thus, Sparago and Ponce appar- ently regard affiliations as merely name changes for con- venience, that do not require the consent of the unit em- ployees involved These contentions are utter and com- plete nonsense and contrary to established court and Board laws A local affiliated with NOITU is not the same labor organization as the same local affiliated with the Teamsters or the Garment Workers or the Carpen- ters Each international has different funds providing dif- ferent benefits, they have different dues and different constitutions and bylaws Because of these differences, and other differences, an employee may want to be rep- resented by one local affiliated with a particular interna- tional and not want to be represented by the same local affiliated with a different international Indeed, in the in- stant case, the benefits provided by Local 113, SOLO 7 The first arbitrator's decision arbitrarily awarded certain shops to Local 113, SOLO under Perez and other designated shops to Local 113, NOITU under Ponce The second arbitration appeared to hold that Ponce was the lawful president of Local 113, SOLO which thereafter af- filiated with NOITU However the second decision did not change the representative status of those shops which the arbitrator concluded were represented by Local 113, SOLO under Perez, which Local continues to function under Perez Both arbitrators' decisions when read together would appear to conclude there are two Local 113, SOLO s, one headed up by Perez which represents the shops awarded to Local 113, SOLO and the other headed up by Ponce which subsequently, and unlawfully affiliated with NOITU were different from those provided by Local 113, NOITU, the dues were different, and the constitution and bylaws different If, based upon the second arbitra- tion decision, it can be said that Local 113, SOLO with Ponce acting as president was at all times the lawful labor organization representing Respondent's employees, as contended by Sparago, then such labor organization was required to notify Respondent's employees of the proposed affiliation from SOLO to NOITU, provide time for discussion of such proposed affiliation and con- duct a secret-ballot vote on the proposed affiliation NLRB v Financial Institution Employees, 475 U S 192 (1986), Port Chester Nursing Home, 269 NLRB 150 (1984) The facts of this case established that such re- quirements were totally ignored There was no compli- ance with any of the above requirements Under these circumstances, recognition by Respondent of Local 113, NOITU and entenng into a contract thereafter with Local 113, NOITU constitutes a clear violation of Sec- tion 8(a)(1) and (2) Port Chester Nursing Home, supra Therefore whether Local 113, NOITU is considered a new labor organization or a successor to Local 113, SOLO which attempted to affiliate with NOITU recog- nition by Respondent, under either theory was unlawful and in violation of Section 8(a)(1) and (2) Further the evidence established that Respondent au- thorized its bookkeeper to solicit authorization cards on behalf of Local 113, NOITU During such solicitation employees were told they had to sign a Local 113, NOITU authorization card as a condition of continued employment I find such conduct constitute unlawful so- licitation and a threat to discharge employees in violation of Section 8(a)(1) and (2) Monfort of Colorado, Inc, 256 NLRB 612 (1981), affd 683 F 2d 305, (9th Cir 1982) Respondent further violated Section 8(a)(1) and (2) and additionally violated Section 8(a)(3) of the Act by entering into a collective-bargaining agreement with Local 113, NOITU in September 1987 containing a Union security clause Whether Local 113, NOITU had achieved a majority status by the time such contract was entered into is immaterial, in view of the unlawful recog- nition and unlawful assistance that followed Bernard Alt- mann, supra I also find Respondent's deduction of dues and other monyes from employees pursuant to checkoff authoriza- tions signed by its employees after April 1, 1987, which were remitted to Local 113, NOITU to be violative of Section 8(a)(1), (2), and (3) Monfort of Colorado, supra It is clear that deduction and remittance by Respondent to Local 113, NOITU of dues and moneys from the pay- checks of employees who did not sign checkoff authori- zations is similarly unlawful Soy Security Service, 247 NLRB 1266 (1980) Respondent and Local 113, NOITU contend that the Board must defer to the arbitrator's decision As in Domsey I reject such contention It is absolutely clear that the arbitrator's decisions arbitrarily decided which Locals should represent which shops It cannot be con- tended that the Board should defer to such decisions al- though, they may be adopted by the New Jersey State courts It is clear and well settled that representation JAYAR METAL CORP 609 issues involve the application of basic statutory policy and are matters for decision exclusively by the Board Thus the New Jersey State court and the arbitrator ap- pointed by such court did not have jurisdiction to deter- mine the representative status of Local 113, NOITU or Local 113, SOLO as the bargaining representative of Re- spondent's employees San Diego Building Trades Council v Garmon, 359 U S 236 (1959), Port Chester Nursing Home, supra and cases cited therein at 155, 156 Speilberg Mfg Co, 112 NLRB 1080 (1955) B The Discharge of Chevere It is clear that Chevere's protests concerning her wage rate, health insurance, and vacation were benefits emen- atmg from the collective-bargaining agreements between Respondent and Local 113, NOITU and thus protected activity within the meaning of Section 7 of the Act NLRB v City Disposal Systems, 405 U S 822 (1984) At- tempts by an individual to enforce provisions of an exist- ing collective-bargaining agreement are protected con- certed activities under the Act as long as the employees interpretation of the agreement has some reasonable in- terpretation under the Act lnterboro Contractors, 157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d Cir 1967), North Vernon Forge, Inc , 278 NLRB 709 (1986) The issue presented is whether Chevere was dis- charged for engaging in such protected activity on behalf of Local 113, NOITU General Counsel has the burden of proving that Chevere's protected activities were a motivating factor in such alleged discrimination Once such motivating factor is established, the burden of proof shifts to Respondent to establish the same action would have taken place in the absence of the employees' union or protected activities NLRB v Transportation Management Corp, 462 U S 393 (1983), Wright Line, 251 NLRB 15 1080 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) This rationale is like balancing weights on a scale The greater the weight of evidence in General Counsel's prima facie case, the greater the weight of evidence Respondent in his defense must place on the scale to shift the balance In the instant case, General Counsel has presented a very strong case primarily based upon Respondent's admissions and the timing of her discharge The General Counsel established that in April 1987, in connection with Chevere's complaints concerning the wage rates in the new collective-bargaining agreement that Ceasar Guerra, an admitted supervisor, threatened her with discharge if such complaints continued I con- clude such statement establishes Respondent's animus toward Chevere's activities and constitutes an independ- ent threat to discharge employees for their union or pro- tected activities in violation of Section 8(a)(1) of the Act The timing of the discharge is very suspicious The evi- dence established that Chevere's activities continued, fol- lowing Guerra's threat Thus sometime between April and June 1987 Chevere made various complaints about her medical coverage under the Local 113, NOITU agreement to Guerra Finally, on July 2 Chevere protest- ed her vacation benefits she claimed were due under the Local 113, SOLO and Local 113, NOITU agreements The plant closed on July 2 for vacation and reopened on July 13 when she was terminated Thus she was effec- tively discharged immediately following her protest con- cerning her vacation pay Finally, Respondent admitted Chevere was discharged for engaging in the protected activities described above In this connection her dis- charge letter written by Mandel stated as a reason for her discharge "your own discontent over salary and union benefits " The letter further stated "We are very sorry, but we cannot keep someone who is discon- tent" Mandel's investigatory affidavit contained a second admission of discriminatory motivation wherein he stated "When she refused and was complaining about her vacation pay she had just gone too far and we had to terminate her" Mandel's third admission was during his testimony at trial when he was asked why he terminated Chevere and he cited her fight, described above, intimi- dating other employees and then he added "and she kept fighting, badgering the foreman (Guerra) about a raise, on top of that" The animosity, the timing, and the ad- missions of Respondent establish an awesome case that her protected activities were a motivating factor directly causing her discharge Respondent although admitting that Chevere's protect- ed activities were a factor contends that other factors were her fight in mid-June, described above and her in- timidation of employees throughout the April through July 2 period However, Chevere was never disciplined nor given a warning after the fight I conclude Respond- ent either condoned it or it was at best a minor factor As to the alleged intimidation of employees, Respondent elicited no direct evidence of such conduct Moreover, although, Chevere was angry on July 2 when protesting her vacation benefits, she was not violent, nor did she threaten violence nor did she use abusive or insubordi- nate language The Board has permitted employees con- siderable latitude in making such protests Holiday Inn, 274 NLRB 687, 691 (1985), Spartan Plastics, 269 NLRB 546, 551 (1984) In short, I conclude Respondent has ut- terly failed to establish its Wright Line burden I also conclude Respondent discharged Chevere in violation of Section 8(a)(1) and (3) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of the Act, I shall recommend it cease and desist therefrom and take certain affirmative action to effectuate the the policies of the Act Since I have found that Respondent discriminatorily discharged and thereafter refused to reinstate Rosa Che- vere, I shall recommend that Respondent be ordered to offer her immediate and full reinstatement to her former job or, if it no longer exists, to a substantially equivalent position of employment, without prejudice to her seniori- ty or other rights and privileges I shall also recommend that Respondent make Chevere whole for any loss of earnings she may have suffered by reason of the discrimination against her from the date of her discharge until the date of her reinstatement or offer of reinstatement 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Backpay for the above employee shall be computed in accordance with the formula approved in New Horizons for the Retarded, Inc , 283 NLRB 1173 I shall also recommend that Respondent expunge from its records any reference to such unlawful termination and to provide written notice of such expunction to Che- vere, and to inform her that Respondent's unlawful con- duct will not be used as a basis for further personnel ac- tions concerning her Sterling Sugars, Inc , 261 NLRB 472 (1982) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Local 113, NOITU and Local 113, SOLO are labor organizations within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) and (2) of the Act by recognizing and bargaining with Local 113, NOITU as the exclusive representative of its production and maintenance employees and shipping and receiving employees, notwithstanding that Local 113, NOITU did not represent an uncoerced majority of Respondent's em- ployees 4 Respondent violated Section 8(a)(1), (2), and (3) by entering into, enforcing and maintaining a collective-bar- gaining agreement containing a union-security clause and checkoff provision, notwithstanding that Local 113, NOITU did not represent an uncoerced majority of Re- spondent's employees 5 Respondent violated Section 8(a)(1) and (2) of the Act by threatening its employees that they had to become members of Local 113, NOITU and sign Local 113, NOITU dues-checkoff cards 6 Respondent violated Section 8(a)(1) of the Act by threatening its employees with discharge if they made concerted complaints regarding Respondent's failure to provide benefits set forth in the collective-bargaining agreement between Respondent and Local 113, SOLO and Local 113, NOITU 7 Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily terminating the employment of Rosa Chevere 8 The aforesaid unfair labor practices affect commerce within the meaning of the Act [Recommended Order omitted from publication ]