Marvel Electric Co.

National Labor Relations Board - Board DecisionsDec 16, 1964

150 N.L.R.B. 473 (N.L.R.B. 1964)

MARVEL ELECTRIC COMPANY 473 In summary, we have found that, with but one exception, Respond- ents' conduct did constitute threats, restraint, or coercion within the meaning of Section 8(b) (4) (ii) (B) of the Act, but that it is not violative of the Act because of the protection afforded by the publicity proviso. We accordingly reaffirm our original dismissal of the complaint. James L. Bernoudy , d/b/a Marvel Electric Company and Inter- national Brotherhood of Electrical Workers, Local 11, AFL- CIO and District 50, United Mine Workers of America, Party of Interest and Party to the Contract . Case No. f21-CA-5350. December 16, 1964 DECISION AND ORDER On August 11, 1964, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and counsel for the General Counsel filed an answering brief to the Respondent's excep- tions, cross-exceptions, and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and for the reasons set forth below has decided to dismiss the complaint in its entirety. The critical facts in the case are not in substantial dispute. The Respondent, James L. Bernoudy, is the sole owner and manager of Marvel Electric Company, a contracting firm engaged in the installa- tion of electrical wiring on commercial, residential, and industrial construction projects in the Los Angeles, California, area. Marvel's business office was situated at the rear of Bernoudy's residence prior to March 16, 1961, when Bernoudy established Rite-Way Electric Company, at which time Marvel's office was removed to larger quar- 150 NLRB No. 42. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters located approximately one-half mile away. Marvel had main- tained contractual relations with IBEW for a number of years prior to the establishment of Rite-Way. The latest contract between Marvel and IBEW was executed on May 12, 1962, but covered the period from July 1, 1961, to June 30, 1964, and contained union- security and exclusive hiring-hall provisions. On March 16, 1961, James Bernoudy established Rite-Way Electric Company, in partnership with E. W. Carter, an accountant employed by Marvel and Rite-Way. Bernoudy owned all of the newly formed firm, except for a 5-percent interest in Rite-Way which Carter held. Rite-Way occupied the office in Bernoudy's residence previously vacated by Marvel. On June 18, 1962, Bernoudy executed a prehire contract on behalf of Rite-Way with District 50, UMWA. The agreement contained a union-security clause, provided for dues checkoff, and had an expiration date of June 18,1964. The record evidence shows that Marvel and Rite-Way operate under separate firm names and under separate contractor's licenses, with James Bernoudy listed as licensee of each company. Marvel and Rite-Way keep separate payrolls and other business records in their respective offices. Marvel and Rite-Way both are engaged in construction activity within the same geographical location but their job-bidding is done separately. Both companies employ men with comparable skills to perform identical work, but Marvel's work force has consisted of only three regular individuals at least two of whom were supervisors, whereas Rite-Way has regularly employed six electricians. Wage rates for the two groups of employees are markedly different. In addition to the foregoing, the record also shows that James Bernoudy regularly visits the jobsites of both companies to supervise operations, that James Bernoudy's brothers, Thomas and Vernon, although listed as employees of Marvel, have worked as foremen on projects of Rite-Way and Marvel, and in the course of an estimated 200 different projects Rite-Way employees worked at Marvel jobs on at most four occasions. On the foregoing evidence the Trial Examiner found that the employees of Rite-Way constituted an accretion to the unit described in the IBEW contract with Marvel, and on the basis of such find- ing he concluded that Respondent violated the Act in the respects alleged herein. We are of the opinion, and find, however, that the preponderance of the evidence does not support the Trial Examiner's conclusion that the employees of Rite-Way constitute an accretion to the unit of MARVEL ELECTRIC COMPANY 475 Marvel employees so as to make unlawful the separate collective- bargaining contract for the Rite-Way employees.'. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] 1 In view of our disposition herein, we find it unnecessary to pass upon the Respondent's contention that the General Counsel has failed to establish the commisssion of any unfair labor practices within the 10(b) period. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed by International Brotherhood of Electrical Workers, Local 11, AFL-CIO, on May 16, 1963, the General Counsel of the National Labor Relations Board, on December 11, 1963, issued a complaint alleging that James L. Bernoudy committed certain unfair labor practices flowing from the enforcement of a collective- bargaining contract with District 50, United Mine Workers of America, and from failing to abide by its collective bargaining agreement with the International Brother- hood of Electrical Workers, Local 11, AFL-CIO. A hearing in this matter was held before Trial Examiner Eugene K. Kennedy in Los Angeles, California, on February 24 and 25, 1964. Since the close of the hearing the General Counsel has submitted a motion to correct errors in the transcript. Notice of such motion was served on all parties and no objections have been received. The motion to correct the transcript as detailed by the General Counsel is granted. Dis- position of Respondent's motion to dismiss the complaint upon which ruling was reserved at the hearing is made by the following findings, conclusions, and recommendations. Upon consideration of the entire record, including my observation of the demeanor of the witness, and upon consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD AND BUSINESS OF RESPONDENT James Bernoudy, herein sometimes called Respondent, at the time of the alleged unfair labor practices in 1963 was the sole owner of Marvel Electric Company and also was the owner of 95 percent of the Rite-Way Electric Company. These com- panies had offices located within a half mile of each other in the city of Los Angeles, California, maintained separate records and books, and operated under separate busi- ness licenses. Both companies were engaged in electrical contracting work, and James Bernoudy was the manager of both companies and in control of their labor policies. The jurisdictional facts alleged in the complaint contain allegations that James Bernoudy was doing business under the name of Marvel Electric Company and a sepa- rate allegation that Bernoudy was an individual proprietor doing business under the name of Rite-Way Electric Company. The following allegation in the complaint was admitted by Respondent. "Bernoudy, in the course and conduct of his business opera- tions annually purchases and receives goods and materials valued in excess of $50,000 from enterprises who in turn obtain such goods and materials from points outside the State of California. The answer filed herein denies that the business entities of Marvel and Rite-Way at material times herein have been a single employer in a business affecting commerce. For jurisdictional purposes only at this juncture, it is found that Marvel Electric Com- pany and Rite-Way Electric Company constituted a single employer. In finding the two business entities constituted a single employer for jurisdictional purposes only, it does not necessarily follow that the employees of Marvel and Rite-Way constitute a single appropriate bargaining unit. Sakrete of Northern California, Inc. v. N.L.R.B., 332 F. 2d 902 (C.A. 9). Consistent with the holding in Sakrete, it is found that James Bernoudy d/b/a Marvel Electric Company and Rite-Way Electric Company was an employer engaged in a business affecting commerce within the meaning of the 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, as amended, herein called the Act. The factual bases for this finding are set forth in more detail in the portion of this Decision addressed directly to the question of unfair labor practices, including whether this was an "accretion" of Rite-Way's employees into the bargaining unit of Marvel employees. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, Local 11 , AFL-CIO, herein called Local 11 , and District 50, United Mine Workers of America (herein called District 50) are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts and issues James Bernoudy executed a collective-bargaining agreement with Local 11 on May 12, 1962, on behalf of Marvel Electric Company which he owned entirely. A provision in this agreement required Marvel to recognize I.B.E.W., Local 11, as the sole collective-bargaining agent for employees of Marvel and it also included a union- security provision. James Bernoudy had a contractual relationship with Local 11 since 1955. On June 18, 1962, for the first time, James Bernoudy executed a collective- bargaining agreement with District 50 on behalf of Rite-Way Electric Company. This agreement included a provision requiring Rite-Way to recognize District 50 as the exclusive bargaining agent of the employees of Rite-Way and a union-security provi- sion. As previously noted, Bernoudy was the principal owner of Rite-Way and his accountant, the only other holder of any interest, owned "about 5%." James Bernoudy's brothers, Vernon and Thomas, acted as foremen and were carried on Marvel's records as employees of Marvel. On some occasions employees of Rite-Way worked on projects for which Marvel had the contract and were super- vised by the Marvel foremen. On these occasions Rite-Way was reimbursed for the cost (presumably wage costs). The arrangement was characterized by Bernoudy 1 as a subcontracting arrangement. However in connection with his explaining the reasons for the mingling of the employees of both companies on construction projects, James Bernoudy explained that when work was slow for Rite-Way he would send those employees to a Marvel project in order to avoid laying them off, and the same practice would obtain when work was slow for Marvel and there was work available at Rite-Way. Marvel originally had its office headquarters at the rear of Bernoudy's residence. Bernoudy explained' that Marvel expanded to a point where it had to move to larger quarters and Rite-Way then occupied the quarters in the rear of the James Bernoudy residence as headquarters. Rite-Way was formed in 1961 and Marvel had been doing business since 1955. Although when this proceeding was initiated the two companies were personally owned by James Bernoudy, subsequently both were incorporated and, in December 1963, all the interest in Rite-Way was sold by James Bernoudy to his accountant, E. W. Carter, his brother Edwrice Bernoudy, and a Ben Marberry. James Bernoudy divested himself of his stock in Rite-Way and holds no position as officer or director with the Company and exercises no control over its affairs. The business was sold for $500 down with the balance of $24,500 to be paid over a 25-year period. The issues presented in this matter include the questions of whether Respondent violated Section 8(a)(1), (2), (3), and (5) of the Act. The complaint alleges that the maintenance of the collective-bargaining agreement with District 50 since Novem- ber 17, 1962,2 rendered unlawful assistance to District 50, thereby violating Section 8(a)(2). The complaint alleges that since November 17, 1962, Respondent, by enforcing the collective-bargaining agreement between Rite-Way and District 50 including the union- security provision, has discriminated with respect to the terms and conditions of employment of employees, thereby encouraging membership in District 50, and by reason thereof violating Section 8 (a) (3) of the Act. I The name "Bernoudy" used herein alone refers to James Bernoudy. 2 This date precedes the filing of the charge by 6 months and is the date selected by the General Counsel to conform to the statutory limitation Included In Section 10(b) which provides Insofar as Is here pertinent, ". . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board...:' MARVEL ELECTRIC COMPANY 477 The complaint alleges that Section 8(a) (5) was violated by Respondent' s failure to honor its agreement with Local 11. Specific instances of Respondent's failure to honor its agreement with Local 11, thereby violating Section 8 (a) (5), include the following: In the first week of May 1963, Malcolm Chapman, Local 11 business representa- tive, visited a Marvel jobsite and there found two District 50 electricians working. He asked Foreman Thomas Bernoudy why he did not abide by the I.B.E.W. agreement inasmuch as these employees had not been dispatched in accordance with that agree- ment. Thomas Bernoudy replied that he would use any men his brother James Bernoudy sent him. On May 14, 1963, another business representative of Local 11, one Edward Artone, visited another Marvel jobsite where Vernon Bernoudy, the brother of James Bernoudy, was foreman. Here also there were two District 50 members working who had not been dispatched by Local 11. Artone advised one of these employees that he had no business being there and at this point Foreman Vernon Bernoudy advised Artone he would hire and fire whom he wanted and nobody was to tell him what to do or whom to hire. Artone advised Vernon Bernoudy he was in violation of the agreement with Local 11 which required that Marvel employees be dispatched by Local 11.3 The complaint finally alleges that all of the acts described above constitute violations of Section 8 (a)( I). Respondent asserts as his defense to the foregoing claimed unfair labor practices the Supreme Court's decision in Local Lodge No. 1424, International Association of Machinists v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411. The applicability of this as a precedent will be considered after a resolution of the question of the appropriate-bargaining unit. If the appropriate unit was not composed of the employees of Rite-Way and Marvel, there would be no basis for any of the claimed unfair labor practices. The General Counsel describes his version of the appropriate unit as follows: All inside wire men on construction of Bernoudy, Respondent, and Rite-Way, who perform all electrical construction, installation or erection work and all electrical maintenance thereon, including the installation of all temporary power and light wiring, the installation and maintenance of all electrical lighting, heating and power equipment, and the installation and connecting of all electronic equip- ment, including computing machines and devices, exclusive of all other employees, office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a single unit appropriate for the purpose of col- lective bargaining within the meaning of Section 9(b) of the Act. The threshold question here then is whether there has been an accretion of the unit described in the collective-bargaining agreement between James Bernoudy, d/b/a Marvel Electric Company, by virtue of James Bernoudy's engaging employees to work for Rite-Way. A determination as to whether an accretion of employees in an already existing unit has occurred requires a balancing of the factors logically supporting an accretion with those opposed. The Great Atlantic and Pacific Tea Company (Family Savings Center), 140 NLRB 1011, 1021. The factors that suggest these units should be treated as separate include the follow- ing: Marvel and Rite-Way operated under separate business names with separate contractors' licenses. Approximately 5 percent interest in Rite-Way was owned by an individual other than James Bernoudy, the sole owner of Marvel. The complete divestment of any control or proprietary interest in Rite-Way by James Bernoudy is some retrospective indication that the unit of Rite-Way employees is an appropriate one standing alone. Exhibits which are payroll records of Marvel Electric Company from February 7, 1963, until May 16, 1963, reflect that during this entire period Marvel reported that it either had two or three employees on its payroll. Records indicating payment by Rite-Way on behalf of its employees to District 50 include six names, one of them being James Bernoudy. These records suggest that Rite-Way had more employees than Marvel and that consistent with the general appropriateness of according the wishes of the majority, some weight in connection with the selection of a bargaining representative, these records at least superficially suggest a factor militating against the accretion of Rite-Way employees to the unit of Marvel employees. Diluting the $Article II in subsection (1) of the agreement between Marvel and Local 11 provides as follows : "The Union shall be the sole and exclusive source of referral of applicants for employment." 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD significance of this factor in opposition to accretion is the fact that the District 50 agreement was a prehire type entered into under the sanction of 8(f) 4 Serious doubt as to the validity of the conclusion that Rite-Way had more employees than Marvel is suggested by the testimony of James Bernoudy. He testified that Marvel moved out of the office located on the premises in the rear of his residence because it had become too small and that Rite-Way occupied it after Marvel had vacated the premises. He also testified in connection with one construction project known as the Rimpau Street job that Marvel took it over from Rite-Way because the project was too big for Rite-Way. Because of these factors the larger number of Rite-Way employees as indicated by the payroll record is regarded as of minimal probative value in establish- ing that Rite-Way in fact had a greater number of employees than Marvel. The factors supporting the accretion of Rite-Way employees into the Marvel unit include the following: The employees of both Marvel and Rite-Way were electricians doing the same type of work, under the common supervision of James Bernoudy. The employees of Rite-Way and Marvel worked in the same geographical area of Los Angeles. The employees of Rite-Way and Marvel were under the supervision of James Bernoudy who owned 100 percent of Marvel and approximately 95 percent of Rite-Way. Rite-Way employees were sent by James Bernoudy to projects for which Marvel had the contract and there performed work under the supervision of Marvel foremen. James Bernoudy testified in general terms that employees of Marvel were sent to Rite-Way projects although no specific examples of this appear in the record. E. W. Carter, an accountant, was the recordkeeper for both Marvel and Rite-Way. On at least some occasions trucks of Rite-Way were used to deliver materials to Marvel jobsites. A review of the evidence set forth above has produced a conviction that the positive factors favoring accretion outweigh the negative ones and accordingly it is found that the appropriate unit of employees is that claimed by the General Counsel which is set forth above. The majority-representative status of Local 11 is established by meeting the require- ments of Section 8(f) set forth above, inasmuch as the parties stipulated both Marvel and Rite-Way were engaged in the construction industry. B. Respondent's asserted 10(b) defense James Bernoudy executed the collective-bargaining agreement with District 50 more than 5 months preceding the 6 -month statutory limitation period set forth in Section 10(b) of the Act, which specifies ". . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board...." The General Counsel concedes that the execution of the contract by Respondent with District 50 is time-barred, for the purpose of establishing an unfair labor practice. The question remaining with respect to the effect of the District 50 contract is whether the enforcement and maintenance of it within the permissible period can be a basis for finding unfair labor practices. Respondent relies entirely upon the Bryan case, supra, contending the allegations of unfair labor practices are time-barred. Before setting forth statements by the Supreme Court in the Bryan case which are regarded as pertinent, it is noted that the Bryan case involved a situation where the union and the employer executed a collective-bargaining agreement at a time when the union did not represent a majority of the employees. This agreement contained a union-security provision and the Board held that the enforcement of this contract, illegal at its inception beyond the 6-month statutory period, was an unfair labor practice. The majority opinion of the Supreme Court rejected this view and, * Insofar as pertinent here, 8 ( f) provides: (f) It shall not be an unfair labor practice under subsections ( a) and ( b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged ( or who, upon their employment, will be engaged ) in the building and construction industry with a labor organization of which building and construction employees are members ( not established, main- tained, or assisted by any action defined in section 8 ( a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement , or (2) such agreement requires as a condition of employment, mem- bership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer , or gives such labor organization an opportunity to refer qualified applicants for such employment . . . . MARVEL ELECTRIC COMPANY 479 as indicated in the quotations following, held that since the proof of the unfair labor practices within the 6-month statutory period depended upon events antedating such period, this evidence could not be utilized in order to make the enforcement of an agreement lawful on its face an unfair labor practice (362 U S. 411, at 422) : The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforce- ment, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Neverthe- less, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agree- ment invalid on its face or with one validly executed, but unlawfully administered. As the dissenting Board members in this case recognize, in dealing with an agree- ment claimed to be void by reason of the union's lack of majority status at the time of its execution, .. the circumstances which cause the agreement to be invalid existed only at the point in time in the past when the agreement was executed and are not thereafter repeated. For this reason, therefore, the continuing invalidity of the agreement is directly related to and is based solely on its initial invalidity, and has no continuing independent basis." 119 NLRB, at 516. In any real sense, then, the complaint in this case is "based upon" the unlawful execution of the agreement, for its enforcement, though continuing, is a continu- ing violation solely by reason of circumstances existing only at the date of execu- tion. To justify reliance on those circumstances on the ground that the mainte- nance in effect of the agreement is a continuing violation is to support a lifting of the limitations bar by a characterization which becomes apt only when that bar has already been lifted. Put another way, if the § 10(b) proviso is to be given effect, the enforcement, as distinguished from the execution, of such an agreement as this constitutes a suable unfair labor practice only for six months following the making of the agreement. The contract between Respondent and District 50 is lawful on its face. Evidence of circumstances existing at the time of its execution would fall without the 6-month statutory period. The factual distinction here is that there are two instruments exe- cuted by Respondent currently in effect. The District 50 contract executed subsequent to the Local 11 contract covering the employees in the same bargaining unit is unlawful by virtue of events established by this record within the 6-month period preceding the filing of the charge, as well as events without that period. The evidence relating to the accreted unit thus reasonably falls within the rule recognized by the Court at 416: It is doubtless true that § 10(b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admis- sibility of past events, due regard for the purposes of § 10(b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b.) ordinarily does not bar such evidentiary use of anterior events. The extant District 50 contract in effect within the statutory period and which was being maintained and enforced by Respondent is rendered unlawful because of its conflict with the earlier agreement executed between Local 11 and Respondent. The conflict is explained by the circumstances existing both before and during the 10(b) period establishing that the bargaining unit included in the Local 11 contract also included the employees of Rite-Way and that Respondent's conduct in maintaining and enforcing the District 50 contract was an unfair labor practice by reason of its conflict with a lawful existing contract extant also within the 10(b) statutory period. It must be conceded there is some degree of uncertainty experienced in holding the facts as set forth here are distinguishable from the ones in the Bryan case. This uncer- tainty stems from the sentence of the Court in the quotation set forth below as follows: Put another way, if the section 10(b) proviso is to be given effect, the enforce- ment, as distinguished from the execution of such an agreement constitutes a 775-692-65-vol. 150--32 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suable unfair labor practice only for six months following the making of the agreement. Taken alone this would rule out the utilization of the enforcement of the District 50 agreement as a suable unfair labor practice because it was executed more than 6 months prior to the filing of the charge. However, preceding that last quotation in the same paragraph , the Court also states: "In any real sense , then the complaints in this case are `based upon' the unlawful execu- tion of the agreement . For its enforcement , though continuing , is a continuing viola- tion solely by reason of circumstances existing only at the date of execution .' [Empha- sis supplied.] The analysis attempted herein suggests that the unfair labor practice stemming from the maintenance of the District 50 agreement was not a continuing violation solely by reason of circumstances existing at the date of execution. The extant contract of Respondent and District 50 and the factors supporting the accreted unit existed within the statutory period . This is a key factual distinction if the sense of the Court's opinion is that the enforcement of an agreement executed more than 6 months prior to the 10(b) period cannot be proved unlawful if it necessitates exclusive utilization of evidence antedating the 6 -months period in order to prove its illegality . It is believed a fair reading of the Bryan opinion limits its applicability as suggested. In light of these considerations the finding is here made that the enforcement of the District 50 agreement within the statutory period is not prevented from constituting an unfair labor practice by reason of its execution antedating the limitation period. It is appropriate to note that this record establishes unfair labor practices on the part of Respondent without reference to the District 50 agreement . The two episodes involving the attempts of the representatives of Local 11 to have Respondent abide by its contractual obligations and the repudiation of such obligations by Respondent's representatives not only violate the contractual obligation of Respondent with Local 11 but constitute unilateral action on the part of Respondent affecting the working conditions of employees in the unit found to be appropriate and are actions clearly in derogation of its bargaining obligation with Local 11 . Similarly, the payroll record of May 10, reflecting employees in the employ of Rite-Way who were not obtained through Local 11 , reflects further unilateral action on the part of Respondent in derogation of its obligation to bargain with Local 11 , with respect to a change in working conditions of employees in the unit. In the context of the events presented by this case, agreement is had with the con- tention of the General Counsel that the maintenance of the collective -bargaining con- tract with District 50 for employees then rightfully being represented by Local 11 is a violation of Section 8(a) (1) and ( 2) in that recognition to District 50 constituted unlawful assistance from and , after November 17, 1962 , until Respondent sold his interest in Rite-Way . Further , Respondent 's contract with District 50, containing a union-security provision requiring membership in District 50, is a violation of Sec- tion 8(a)(1) and (3). Oilfield Maintenance Co., Inc., et al., 142 NLRB 1384. HI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II above, occurring in connec- tion with the operations of the Respondent described in section I above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. e IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , it will be recommended that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The record reflects that the Respondent divested himself of ownership and control of Rite-Way sometime in December 1963. Those portions of the Recommended Order requiring remedial action on the part of Respondent will include the period from November 17, 1962, until the date that Respondent sold his interest in Rite-Way. It having been found that the appropriate unit here consisted of the employees of Marvel and Rite -Way, any conduct on the part of Respondent in unilaterally changing working conditions operating to the detriment of the employees of Rite-Way is deemed an appropriate subject for remedial recommendation. It will be recommended Respondent reimburse all employees on Rite-Way's payroll between November 17, 1962, and the date Respondent divested himself of his interest in Rite-Way for initiation fees, dues , or assessments paid by employees to District 50 by reason of Respondent 's contract with District 50 together with reimbursement for BEL-AIR DOOR , ETC . 481 any economic loss including loss of pay suffered by Rite-Way employees by reason of Respondent 's failure to accord them benefits of his contract with Local 11. All such reimbursements shall include interest at the rate of 6 percent per annum. Loss of pay shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289. Although James Bernoudy, Respondent , has divested himself of interest and control of Rite-Way, it is deemed appropriate to include in the Recommended Order a pro- hibition aimed at avoiding a repetition of similar action. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent James Bernoudy is engaged in commerce or in a business affecting commerce within the meaning of the Act. 2. Local 11 and District 50 are labor organizations within the meaning of the Act. 3. At all times material , Local 11 has represented the majority of the employees in the following-described bargaining unit: All inside wiremen on construction of Bernoudy, Respondent , and Rite-Way, who perform all electrical construction, installment , or erection work and all electrical maintenance thereon, including the installation of all temporary power and light wiring, the installation and maintenance of all electrical lighting, heating and power equipment , and the installation and connecting of all electronic equipment, including computing machines and devices, exclusive of all other employees , office clerical employees, guards , professional employees, and supervisors, as defined in the Act, con- stitute a single unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. From and after November 17, 1962, Respondent has violated Section 8 (a)(1), (2), and ( 3) of the Act, by reason of its contractual relationships with District 50. 5. By refusing to honor the obligation imposed upon Respondent by its contractual relationship with District 50 and by the statutory requirements of good-faith bargain- ing, Respondent has engaged in unfair labor practices violating Section 8 ( a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommended Order omitted from publication.] Bel-Air Door; Alhambra Metal Products , Inc.; and Tyre Mfg. Co., Inc. and Building Material & Dump Truck Drivers, Local No. 420, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and United Brother- hood of Carpenters & Joiners of America, Local 530, AFL- CIO. Case No. 21-CA-5517. December 16, 1964 DECISION AND ORDER On September 28, 1964, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed an answering brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. 150 NLRB No. 49.