Oilfield Maintenance Co., Inc.

National Labor Relations Board - Board DecisionsJun 21, 1963

142 N.L.R.B. 1384 (N.L.R.B. 1963)

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that Respondent did not violate Section 8 (a)(1), (3), and (5) of the Act in its notification to the Illinois Department of Labor. CONCLUSIONS OF LAW 1. The American Ship Building Company, South Chicago , Illinois, is engaged in, and during all times material herein was engaged in , commerce within the mean- ing of Section 2(6) and (7 ) of the Act. 2. The allegations of the complaint that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3 ), and (5 ) of the Act have not been sustained by substantial evidence. RECOMMENDATION It is recommended that the complaint be dismissed in its entirety. Oilfield Maintenance Co., Inc. , and Oilfield Maintenance & En- gineering Co., Inc. and Building Trades Council of Santa Barbara County and Building Trades Council of Ventura County and Oil , Chemical and Atomic Workers International Union , AFL-CIO , and its Ventura Local Union 1-120, Parties to the Contract Oilfield Maintenance Co., Inc. and Southern California District Council of Hod Carriers & Laborers Locals 585 and 591 and Oil, Chemical and Atomic Workers International Union, AFL- CIO, and its Ventura Local Union 1-120, Parties to the Con- tract. Cases Nos. 21-CA-1,p772-1 and 21-CA-4772-f. June 21, 1963 DECISION AND ORDER On November 27, 1962, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents I had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Intermediate Report. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondents, the General Counsel, and the Charging Parties filed exceptions to the Intermediate Report and briefs 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 Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 1Oilfield Maintenance Co., Inc., herein called Oilfield, and Oilfield Maintenance and Engineering Co., Inc., herein called Engineering . Oilfield and Engineering shall also be collectively referred to as the Respondents. 142 NLRB No. 141. OILFIELD MAINTENANCE CO., INC., ETC. 1385 The rulings are hereby affirmed. The Board has considered the In- termediate Report and the entire record in the case, including the exceptions and briefs, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations, except as modified herein. 1. We agree with the conclusion of the Trial Examiner, for the reasons set forth in the Intermediate Report, that Engineering is the alter ego of Oilfield. We also agree that Oilfield and Engineering violated Section 8(a) (1) and (2) in assisting the Oil Workers2 by extending recognition to and contracting with it, violated Section 8(a) (1) and (3) by requiring membership in the Oil Workers as a condition of employment, and violated Section 8(a) (1) and (5) by withdrawing recognition from certain labor organizations' at a time when the Respondents were bound to continue such recognition under valid, existing contracts, and by failing to maintain such con- tracts in effect for the remainder of their terms. The facts established, in summary, that Engineering, owned and controlled by the same persons who own and control Oilfield, signed a contract, covering all field employees, with the Oil Workers and shortly thereafter completely took over the operations of Oilfield. At the time of the "transfer" Oilfield was party to five separate con- tracts covering various units of its field employees. Respondent nevertheless ceased observing the terms and conditions set forth in --these contracts and instead substituted the terms of the Oil Workers' contract. Respondents attempt to place their actions under the statutory pro- tection of Section 8(f) .' We find such reliance misplaced. That section was designed to accommodate the unique problems of the building and construction industry to the basic policies of the Act.5 The very provision which allows an employer in the building and construction industry to sign a prehire agreement with a building 2 011, Chemical and Atomic Workers International Union, AFL -CIO, and its Ventura Local Union 1-120. 3 United Brotherhood of Carpenters and Joiners of America , herein called the Car- penters . International Union of Operating Engineers Local Union No 12, herein called the Engineers ; Southern California District Council of Laborers , herein called the Laborers ; Teamsters Joint Council No. 42 and Teamsters Local Union No 87, herein called the Teamsters ; and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 250, herein called the Pipefitters. 4 In pertinent part that section provides, "It shall not be an unfair labor practice under subsections ( a) and (b) of this section for an employer engaged primarily in the build- ing 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 , maintained, 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, .. . . 5 See the discussion of Congressman Thompson, comparing the transitory and sporadic nature of employment in the building and construction industry and the fixed nature of employment in manufacturing. Leg. Hist. of the Labor-Management Reporting and Dis- closure Act of 1959 , pp. 1577 ( 3)-1578(2). 1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and construction industry labor organization excludes from such privilege labor organizations which are "established, maintained, or assisted by any action defined in Section 8(a) of this Act as an un- fair labor practice." The latter language was inserted into the sec- tion in order to restrict the utilization of the section to the legitimate legislative purpose.6 Accordingly, we find that Respondents' course of conduct in contracting with the Oil Workers while bound to main- tain recognition of the five other unions during the contract terms,, falls outside the purpose and protection of Section 8(f). 2. The Trial Examiner did not recommend that Respondents be ordered to bargain with the five unions which were parties to the repudiated contracts. The Charging Parties and the General Counsel objected to this omission. Except as to the Pipefitters, we agree with the Trial Examiner. The General Counsel established that Respondents violated Section 8(a) (5) by repudiating the five contracts, and by the substitution of the Oil Workers' contract.' However, with the exception of the Pipe- fitters, the General Counsel has not established the majority repre- sentative status of the unions at the time Respondents repudiated their contracts. The General Counsel attempted to show such majority status by the introduction of the contracts with the Engineers, the Laborers, the Carpenters, and the Teamsters. These contracts contained ex- clusive recognition and 30-day union-security clauses. In Shamrock Dairy 8 the Board, in a situation comparable to the one herein in cer- tain respects, found that the union involved was the majority repre- sentative basing that finding upon two related presumptions. First, it was presumed that the union was the majority representative at the time it was recognized as bargaining agent; for otherwise the em- ployer would have been guilty of an unfair labor practice. Secondly, it was presumed that such majority status continued; i.e., that the union continued to be the majority representative after the execution of the contract. But the Shamrock Dairy presumptions are not con- trolling here. Specifically, with respect to the presumption of continued majority status, Moore, who is vice president of and in charge of labor relations 6 Ibid. See also Leg. Ilist. p. 1643 ( 3). The testimony of Respondents' own witnesses indicates that the Oil workers was a stranger union to the employees until after its contract was put into effect. Indeed , the business representative of the Oil workers testified at this late date he was introduced to the employees by the employer as "the bar- gaining representative for the Oilfield Maintenance & Engineering Company, Incorporated " ' See Sexton Furniture Company, 111 NLRB 342 ; New England Lead Burning Com- pany, Inc, 133 NLRB 863. Cf . Ray Brooks v N L R B., 348 US 96. Also see Section 8(d) of the Act which provides in pertinent part that "where there is in effect a collective- bargaining contract . . . the duty to bargain shall also mean that no party to such con- tract shall terminate or modify such contract , unless the party desiring such termination or modification . . . ( 4) continues in full force and effect . . . all the terms and condi- tions of the existing contract . . until the expiration date of such contract." B Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc, and Shamrock Milk Transport Co., 119 NLRB 998 and 124 NLRB 494 , enfd . 280 F. 2d 665 (C.A.D C.). OILFIELD MAINTENANCE CO., INC., ETC. 1387 at both Respondents, testified, without contradiction, that he knew only 30 of the 95 employees to be members of these unions, that based upon this knowledge he paid health and welfare contributions for only these 30. He further testified that the Unions never demanded the discharge of any employees for not becoming members or main- taining their membership despite the union-security clauses in the contracts, and that despite exclusive hiring hall provisions in these contracts, he hired employees directly as well as through the hiring halls. Although there is no specific evidence that the Unions knew and acquiesced in this latter contractual violation, it appears that busi- ness representatives did on occasion visit the sites, and would presum- ably have been aware that some of the employees had not been referred through the halls. We also note that the only picketing which oc- curred was limited to a protest against "substandard conditions" and that only 18 employees refused to cross the lines. Accordingly, on this record we find that the Respondents have introduced sufficient evidence to rebut the presumption of continued majority. Since the General Counsel and the Charging Parties did not come forward with addi- tional evidence of majority status, we find that there was a failure to prove majority status prior to the commission of the unfair labor prac- tices. Accordingly, we do not find that the Respondents had a duty to bargain with the Engineers, the Laborers, the Carpenters, and the Teamsters after their contracts expired. We therefore omit a present order to bargain as to these Unions. The Pipefitters, however, are in another posture because we find that they are presently party to a valid contract with the Respondents. On March 19, 1962, when Engineering signed the contracts with the Oil Workers, Oilfield was party to a contract with the Pipefitters, which contract had renewed automatically on October 1, 1961, for a 2-year term in the absence of notice. On March 28, 1962, Oilfield signed a new contract with the Pipefitters with an October 1, 1966, termination date. Although, for the reasons set forth above, the majority status of the Pipefitters prior to the commission of the un- fair labor practices has not been demonstrated by the General Coun- sel, the Pipefitters' 1962 contract would still be valid under Section 8 (f) .0 Since we have found that Engineering is the alter ego of Oil- field, we conclude that the Respondents, whether operating as Oilfield or as Engineering, are bound by that contract until its termination date, subject to the provisions of Section 8 (f) .10 BAs the Pipefitters is a labor organization "not established, maintained, or a8sisted by any action defined in section 8 ( a) . . . as an unfair labor practice" (as distinguished from the conduct surrounding the signing of the Oil workers contract), we find that this new contract comes within the purpose of Section 8(f) 1Bwe specifically note in this regard the final proviso to Section 8(f), which provides, "That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to Section 9(c) or 9(e) " 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The General Counsel excepts to the omission of a remedy for the unilateral changes instituted by Respondents on or about April 2, 1962. We find merit in this exception and hereby include an order making the employees whole by restoring to them the amounts lost by such unilateral changes, with interest at the rate of 6 percent per anilum.l1 However, since we have found that the Respondents' duty to bar- gain with the Carpenters, the Laborers, the Teamsters, and the Engi- neers ceased at the expiration of their respective contracts, the Respondents were free to make such changes at those times. Accord- ingly, we shall limit our order of restoration to the duration of the contracts. We shall also order the Respondents at this time to make such health and welfare payments for the class of employees for whom they had previously contributed and would have continued contribu- tions had they not abrogated the now expired contracts. 4. We also find merit in the exceptions filed by the General Counsel and the Charging Parties as to the absence of a Resnick 12 remedy for the Section 8(a) (2) violation and the exception filed by the Charging Parties as to the order pertaining to the refusal to bargain with them, to the extent that it limits recognition of them too narrowly. We hereby modify the order in accordance with these conclusions. ORDER The Board adopts the Recommended Order of the Trial Examiner with the changes indicated below.i3 11 See Continental Bus System , Inc., d/b/a Continental Rocky Mountain Lines , Inc, 138 NLRB 894 Interest than be computed in the manner set forth in Isis Plumbing & Heat- ing Co, 138 NLRB 716. 'a J,ultus Resnick, Inc , 86 NLRB 38 13 Paragraph 1(a) is changed to read: (a) Refusing to bargain with the Pipefitters , the Carpenters , the Engineers, the Laborers , or the Teamsters at any time when any of these labor organizations is law- fully entitled to recognition. Paragraph 2(a) is changed to read: (a) Withdraw and withhold recognition from the Oil Workers as the collective- bargaining representative of Respondents ' employees unless and until such labor organization shall have been certified by the National Labor Relations Board Insert the following paragraph as paragraph 2(c) and renumber 2(c), 2(d ), and 2(e) as, respectively , 2(d), 2(e), and 2(f). (c) Revoke the unilateral changes in wages , hours, and working conditions instituted after April 2, 1962, and put into effect the wages , hours, and working conditions set forth in the Pipefitters ' contract , executed March 28, 1962, for the unit of employees covered by that contract . Make whole any and all employees , including those cov- ered by the expired contracts with the Carpenters , the Engineers , the Laborers, the Pipefitters , and the Teamsters, for any loss of pay, plus 6 percent interest per annum, which they may have suffered by reason of the unilateral changes. Make such health and welfare payments for the class of employees for whom they had previously contributed and would have continued to contribute had they not abrogated the now expired contracts. The notice which is attached hereto is substituted for the notice attached to the Inter- mediate Report. OILFIELD MAINTENANCE CO., INC., ETC. APPENDIX NOTICE TO ALL EMPLOYEES 1389 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL withdraw and withhold recognition from the Oil Workers and cease giving effect to the March 19, 1962, contract with that organization, or any renewal or extension of that in- strument, until such labor organization shall have been certified by the National Labor Relations Board. WE WILL make restitution to any and all employees who by reason of the contract with the Oil Workers have paid initiation fees, dues, or assessments to the Oil Workers, with interest at 6 percent per annum. WE WILL revoke the unilateral changes in wages, hours, and working conditions instituted after April 2, 1962, and put into effect the wages, hours, and working conditions set forth in the Pipefitters' contract, executed March 28, 1962, for the unit of employees covered by that contract. WE WILL make restitution to any and all employees for any loss of pay suffered by them by reason of the unilateral changes instituted on April 2, 1962, with interest at 6 percent per annum. WE WILL make health and welfare payments for that class of employees for whom we previously contributed and would have continued to contribute had we not abrogated the now expired contracts. WE WILL NOT refuse to bargain with the Carpenters, the Engi- neers, the Laborers, the Teamsters, or the Pipefitters at any time when any of these labor organizations is lawfully entitled to recognition. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in their exercise of the right to self-organization, to form, join, or assist the Carpenters, the Engineers, the Labor- ers, the Teamsters, or the Pipefitters, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by a valid agreement requiring 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employ- ment consistent with Section 8(a) (3) of the Act. OILFIELD MAINTENANCE Co., INC., AND OILFIELD MAINTENANCE & ENGINEERING CO., INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. The employees may communicate directly with the Board's Re- gional Office, 849 South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Extension 1031, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed April 17, 1962 , by Building Trades Council of Santa , Barbara County and Building Trades Council of Ventura County, herein called the Trades Council , and upon a further charge filed May 9 , 1962 , by Southern California Dis- trict Council of Hod Carriers & Laborers Locals 585 and 591 , herein called the District Council , the General Counsel of the National Labor Relations Board, herein called the Board , issued a complaint dated June 12, 1962 , alleging that Oilfield Maintenance Co., Inc ., herein called Oilfield , and Oilfield Maintenance & Engineering Co., Inc., herein called Engineering , by entering - into and- enforcing a contract with Oil , Chemical and Atomic Workers International Union , AFL-CIO, and its Ventura Local Union 1-120, herein called the Oil Workers , and by other conduct had engaged in unfair labor practices affecting commerce within the mean- ing of Section 8 (a)(1), (2), (3 ), and (5 ) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended, herein called the Act. The separate an- swers of Oilfield and Engineering deny the commission of unfair labor practices and interpose affirmative defenses. Pursuant to due notice, the matter came on to be heard before Trial Examiner Wallace E . Royster in Los Angeles , California, on August 13 and 14 , 1962. Fol- lowing the close of the hearing , briefs were filed with me by counsel for the Trades Council , by counsel for Oilfield and Engineering , and by counsel for the General Counsel. The unopposed motion of counsel for the General Counsel to correct the transcript in four particulars is hereby granted and the motion is made a part of the record in this proceeding. Counsel for the Trades Council has moved to reopen the record to show that Oilfield subsequent to the close of the hearing took action which caused it to be- come a party to contracts with labor organizations affiliated with the Trades Coun- cil. Because I consider that the establishment of such a fact is not material to the issues in this case or to any remedy the motion is denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS In the course of the hearing all parties entered into a stipulation in respect to the business operations and other aspects of Oilfield and Engineering , herein col- lectively called the Respondents . The stipulation which with immaterial changes is set forth below is hereby found accurately to reflect fact: Oilfield Maintenance Co.. Inc ., herein called Oilfield is a California corpora- tion , with its principal office and place of business located at 254 Wells Road, Saticoy, California; OILFIELD MAINTENANCE CO., INC., ETC. 1391 -During the 12-month period immediately preceding April 1, 1962, Oilfield, in the course and conduct of its business operations, performed services valued in excess of $500,000 of which services valued in excess of $50,000 were furnished to, among others, Standard Oil Company of California, Phillips Petroleum Company, Richfield Oil Company, Texaco and Continental Oil Co., each of which enterprises annually produces and ships goods valued in excess of $50,000 directly to points outside the State of California, wherein said en- terprises are located; -Between October 1, 1961, and April 1, 1962, 30 percent of the gross revenue of Oilfield was derived from the installation of pipe lines, 60 percent from the installation of tank settings and compressor settings, and 10 percent from miscellaneous services; -During that period 30 percent of the gross revenue derived from services performed in the category "installation of pipe lines" was derived from replac- ing pieces of pipe lines in existing branch pipe lines, 40 percent from con- struction of new branch pipe line on existing pipe lines, and 30 percent from removing old branch pipe lines and installation of new branch pipe lines. -During that period 60 percent of the gross revenue derived from services performed in the category "installation of tank settings and compressor settings" was derived from replacing pieces of existing tank settings and compressor settings, 20 percent from building new tank settings and new compressor settings and 20 percent from removing old tank settings and old compressor settings and replacing them with new ones; -The services performed in the category "miscellaneous" consist of cutting weeds, cleaning oil spills and other janitorial work. -Since it commenced its operations, Engineering has obtained the same per- centages of its gross revenue for the same type of services as did Oilfield for the period of October 1, 1961, to April 1, 1962; -Since it commenced its operations, Engineering has furnished services to, among others, Standard Oil Company of California, Phillips Petroleum Com- pany, and Richfield Oil Company. -Engineering's principal office and place of business is located at 254 Wells Road, Saticoy, California. The following persons occupy the indicated positions with respect to Re- spondents: OFFICERS Respondent Oilfield Co. President: N. P. Van Valkenburgh Vice President: Glenn G. Moore (from and after March , 1962) Vice President: Glenn F. Moore, (son of Glenn G. Moore) Secretary: Selma Peddicord Respondent Engineering Co. N. P. Van Valkenburgh Glenn G. Moore John Leichliter Selma Peddicord DIRECTORS Respondent Oilfield Co. Respondent Engineering Co. N. P. Van Valkenburgh Glenn G. Moore Glenn F. Moore John Leichliter Otis L. Moore (brother of Glenn G. Selma Peddicord Moore) -Until April 7, 1962, Glenn G. Moore was President of Engineering. -Glenn G. Moore and N. P. Van Valkenburgh are the sole stockholders of Oilfield and Engineering. -Glenn G. Moore was at all times material herein in charge of the labor relations policies of Oilfield and is now, and has been at all times material herein, in charge of labor relations policies of Engineering. On the basis of the stipulated facts, coupled with the testimony of Glenn G. Moore, I find that Engineering took over all aspects of business of Oilfield with which we are here concerned; that Engineering is owned by the same persons who own Oilfield; that the supervisory personnel of Oilfield became the supervisory personnel of Engineering; that all employees of Oilfield who desired to do so became employees of Engineering; that nearly all of Oilfield's employees did accept employ- ment with Engineering; that Engineering has maintained the same business cus- tomers as previously held by Oilfield; and that, in consequence, Engineering is the alter ego of Oilfield. Thus as the business of Oilfield has been carried on without 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD break by Engineering , I find that the operations of Oilfield and Engineering are in and affect commerce and that the Board has jurisdiction to entertain the complaint. H. THE LABOR ORGANIZATIONS INVOLVED In May 1957, Oilfield became a member of Engineering and Grading Contrac- tors Association, herein called EGCA, a trade association admitting to membership firms engaged in building and construction activities which exists, in part, for the purpose of representing its employer-members in collective bargaining with labor organizations. Having authorized EGCA as its bargaining representative and having agreed to be bound by the terms of contracts negotiated by EGCA, Oilfield, in 1959, became party to collective-bargaining agreements with United Brotherhood of Carpenters and Joiners of America, herein called the Carpenters; the International Union of Operating Engineers Local Union No. 12, herein called the Engineers; the Southern California District Council of Laborers, herein called the Laborers; and Teamsters Joint Council No. 42 and Teamsters Local Union No. 87, herein together called the Teamsters. The Carpenters agreement was, by its terms, effec- tive to April 30, 1962; the Engineers until June 1; and the Laborers and Teamsters until May 1. It is not suggested that any of these contracts were invalid in any respect. The contract with the Carpenters required Oilfield to make payments for each employee to a health and welfare trust and to a pension fund. The Engi- neers contract contained similar provisions; that of the Laborers and the Teamsters required payments to a health and welfare fund only. In March 1960, Oilfield terminated its membership in EGCA. In addition to the contractual relationships arising through membership in EGCA, Oilfield, in 1957, entered into a collective-bargaining agreement with United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 250, herein called the Pipefitters, which by reason of its terms, in the absence of notice, renewed itself biennially. On March 28, 1962, Oilfield and the Pipefitters executed a new agreement. On March 19, 1962, Engineering entered into a collective-bargaining agreement with the Oil Workers covering substantially all classifications of employment. At the time the agreement was executed, Engineering had not begun operations and had no employees. It is obvious, and I find, that the Carpenters, the Engineers, the Teamsters, the Laborers, and the Pipefitters are labor organizations within the meaning of Section 2(5) of the Act. The three first-named are affiliated with the Trades Council. I further find that Oil Workers is such an organization. III. THE UNFAIR LABOR PRACTICES After Engineering had signed a collective- bargaining agreement with the Oil Workers it posted, on March 26, 1962, the following bulletin: Notice to All Employees of Oilfield Maintenance Co., Inc.: Oilfield Maintenance & Engineering Co., Inc., will assume the oilfield opera- tions of Oilfield Maintenance Co., Inc., as of March 26, 1962. All employees who so desire, will be retained by Oilfield Maintenance & Engineering Co., Inc. A list of new wage rates are attached. OILFIELD MAINTENANCE & ENGINEERING CO., INC., By (S) John Leichliter, JOHN LEICHLITER. In early April, Engineering's Superintendent Otis Moore introduced a representa- tive of the Oil Workers to employees, telling them that membership in the Oil Work- ers was a requisite of continued employment. On several occasions thereafter, with the permission of Engineering, a representative of the Oil Workers came to Engineer- ing's premises, near the close of the workday, to solicit employees as members. On April 13, counsel for the Trades Council, by telegram in behalf of Laborers, Teamsters, Pipefitters, Engineers , and Carpenters demanded that Oilfield and En- gineering continue to give effect to contracts with the several-named unions, that Oilfield and Engineering bargain with those unions, and that no effect be given to the contract with Oil Workers. On April 16, the Laborers established a picket line at the premises used by Oilfield and Engineering. Earlier in this report I have found that Engineering is the alter ego of Oilfield. Engineering, thus, is in the same position in respect to according or withholding recognition of unions claiming to represent its employees as Oilfield. If it would have OILFIELD MAINTENANCE CO., INC., ETC. 1393 been lawful for Oilfield to contract with the Oil Workers in March then it was lawful for Engineering to do so; and the converse is true. The Respondents disagree with this view of the case. They see Engineering as a new business entity without em- ployees and entitled under Section 8(f) of the Act as "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 ." without regard to majority status. Oilfield and Engineering are, it is conceded, engaged in the building and construction industry and I find upon the basis of evidence in the record that the Oil Workers is a labor organization "of which building and construction employees are members." Does Section 8(f) have application to the situation of Oilfield or Engineering in March? The cited section carves out an exception to the otherwise clear rule that an employer may not contract with a labor organization unless there is sound reason to believe that the Union is in fact the majority representative of the employees affected. Recognizing that in the construction industry employers have need to know what their labor costs will be before embarking upon a venture and in the further recogni- tion that many construction projects entail short or intermittent periods of work, the Act was amended in 1959 to permit such employers to enter into "prehire con- tracts"; thus to arrange for a supply of labor for contemplated construction at predictable costs. It seems obvious and I find that this exception to the basic rule against recognizing a union not reasonably believed to be a majority representative is applicable only to a situation where employees already on the payroll are with- out a bargaining representative and where the ordinary and usual manner of deter- mining a bargaining representative is impractical. Engineering faced no such dilemma. Its working force was to be taken over from Oilfield. It had no problems of hire for it seems clear that the employees recruited over the years by Oilfield con- stituted a stable work force. If Engineering was in doubt that the Charging Unions actually represented the employees, as it says that it was, it could have filed a petition with the Board to make that determination. It could not arrogate to itself that decision and select a bargaining representative which, for whatever reason, it preferred over those with whom it was bound, through Oilfield, by contract. I find that by extending recognition to the Oil Workers in March 1962, Oilfield and Engineering assisted that organization and thus interfered with, restrained, and coerced employees in the selection of a bargaining representative in violation of Section 8(a)( I) of the Act. By the extension of recognition and by entering into a contract with Oil Workers, Oilfield and Engineering contributed support to the Oil Workers in violation of Section 8(a) (2) of the Act. As has been said at the time when Engineering signed its agreement with the Oil Workers no employees were on Engineering's payroll. There is no evidence that any of the approximately 90 workers then employed by Oilfield were members of the Oil Workers. Having found that Engineering is the alter ego of Oilfield and it being the fact that substantially all of Oilfield's employees were placed on the payroll of Engineering, it follows that whatever obligation Oilfield had to recognize or bargain with a representative of its employees became that of Engineering when it succeeded to Oilfield's business and took over the Oilfield employees. It is thus necessary here to determine which if any of the labor organizations involved in this proceeding were entitled then to recognition. It is the contention of the General Counsel that a presumption of regularity attaches to the fact that in 1959, through EGCA, Oilfield entered into contracts with the Carpenters, the Laborers, the Engineers, and the Teamsters; that the same presumption is operative in respect to the contracts with the Pipefitters. This presumption is bottomed upon the premise that an employer is unlikely to contract with a labor organization which is not in fact a majority representative. Perhaps the presumption would quickly give way to even very slight evidence of its un- reliability for it is of course true that minority unions are sometimes recognized and, as in this case, the rights of employees which the Act guarantees are not always respected. But the majority status of none of the contracting unions (other than the Oil Workers), as of the time the contracts were made, has been challenged i in this proceeding. I conclude therefore and find that the Carpenters, the Engineers, the Laborers, the Teamsters, and the Pipefitters each was at :the time of the 1959 and 1957 contracts the majority representative of the employees comprising the several units. The Respondents assert that in any event in March 1962 there was no reason to believe that any of these organizations retained that status. Although required ' Other than by pro forma denials in the answers. 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by contract to pay moneys into various union funds for all employees , Oilfield without objection from any of the unions made payments in behalf only of those whom it knew to be union members; about a third of those on the payroll . However, in March 1962 , Oilfield was , by reason of contracts not yet expired , bound to continue recognition of the Carpenters , the Engineers , the Laborers, the Teamsters , and the Pipefitters . True, Oilfield had in 1960 terminated its membership in EGCA and when the contracts resulting from EGCA representation expired Oilfield would be free to examine the representative status of the several unions by reference to the desires of its employees only and any majorities the unions might have in the larger EGCA units would become irrelevant. On March 28 , 1962 , Oilfield signed a collective -bargaining agreement with the Pipefitters . Glenn Moore explained in his testimony that he told the Pipefitters' representatives that Oilfield had no employees and that Engineering was under contract with the Oil Workers . In these circumstances I find that the March contract with the Pipefitters has no relevance to a determination of what labor organization was entitled to represent Engineering 's employees in Pipefitter classifications. Because of the existence of the unexpired 1957 and 1959 contracts Oilfield and Engineering were obliged in March 1962 to continue recognition of the Carpenters, the Engineers, the Teamsters , the Laborers , and the Pipefitters until the contracts expired. The Respondents could reasonably have doubted the majority status of these organizations after that event for then the employees of neither Oilfield nor Engineering would have been included in the multiemployer bargaining units for which the contracts had been negotiated . Evidence that any of these labor organiza- tions represented a majority of the employees of Oilfield or Engineering in any other unit is lacking . Thus I conclude that an order requiring the Respondents or either of them now to bargain with those unions would be inappropriate However, the extension of recognition to the Oil Workers and the contracting with that organiza- tion in respect to Engineering 's employees was a withdrawal of recognition from the Carpenters , the Engineers , the Laborers, the Teamsters , and the Pipefitters at a time when the Respondents were bound by contract to continue such recognition. Thus by recognizing and contracting with the Oil Workers the Respondents engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. Claude Everett, an employee who refused to go through the picket line on April 16 and thereafter, testified that on April 16 Glenn Moore said that those who refused to work behind the picket line would be terminated . Moore denied that he said anything of the sort and testified that he had been warned by counsel before the appearance of the pickets to avoid making threats of any nature in respect to such situations. Carlton Little , another employee who did not work because of the picketing, testified that on April 17 Otis Moore, the superintendent first for Oilfield and then for Engineering , told a group of employees that those who did not report through the picket line would be fired . Otis Moore denied that he made such a threat to Little or to any one. Here is posed a straight credibility problem of the "he did ," "I didn 't" variety. I believe that both Glenn Moore and Otis Moore had been advised before the picketing began that they should carefully avoid making threats of this character but my observation as a trier of fact of comparable situations convinces me that men do not always act in accord with good advice and that the emotional stresses of the moment often find expression in words and deeds later regretted and some- times disavowed . Both Everett and Little impressed me as truthful witnesses and I have no doubt but that each testified to the best of his recollection as to what he heard and saw . But my impression of Glenn Moore and his brother Otis on this point is not markedly different . Although I do not doubt that Everett heard what he said that he heard on this point I am not convinced that he is correct in attributing the threat to Glenn Moore . As to the testimony of Little I react similarly. No doubt such a threat came to his ears and no doubt he believes that it was uttered by Otis Moore. With somewhat less assurance than in the case of Everett, I find however that Little is mistaken in his belief that Otis Moore expressed himself as Little testified In consequence I will recommend that this aspect of the com- plaint be dismissed. , The March 1962 contract with the Oil Workers required membership in the Oil Workers as a condition of employment . Everett and Little testified that in early April, before the picketing began , each of them applied for membership in the Oil Workers in order to remain in their employment . Whether either actually paid anything to the Oil Workers for initiation or as dues is unclear . No doubt others joined that union under the same compulsion . I find that by conditioning employ- ment upon membership in the Oil Workers, Oilfield and Engineering discriminated OILFIELD MAINTENANCE CO., INC., ETC. 1395 in regard to tenure of employment to encourage membership in the Oil Workers and thereby engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III , above, occurring in connection with the operations 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. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondents unlawfully recognized and contracted with the Oil Workers, thus assisting that organization, it will be recommended that they withdraw recognition from Oil Workers and cease giving effect to the March 19, 1962, contract or any supplement , extension , or renewal thereof. Because the con- tract, by requiring membership in the Oil Workers as a condition of employment, unlawfully restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act , it will be recommended that all employees who paid moneys to the Oil Workers after the signing of this contract , for initiation fees, dues, or assessments , be reimbursed by the Respondents for such outlays with interest at the rate of 6 percent per annum .2 In the interest of administrative feasibility interest shall be computed on the basis of separate calendar quarters. Although I have found that the Respondents unlawfully refused to bargain with the Carpenters , the Engineers , the Laborers , the Teamsters , and the Pipefitters in March and April 1962 , because of the circumstances of this case as set forth in the body of this report , it will not be recommended that the Respondents be required to bargain with any of these labor organizations. 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. The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Carpenters, the Engineers , the Laborers, the Teamsters, the Pipefitters, and the Oil Workers are each labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing and entering into a contract with the Oil Workers, the Respond- ents have interfered with, restrained , and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and have contributed support to the Oil Workers in violation of Section 8(a)(1) and (2) of the Act. 4. By entering into a contract with the Oil Workers requiring membership in that organization as a condition of employment , the Respondents have discriminated in regard to hire or tenure of employment to encourage membership in the Oil Workers and to discourage membership in the Carpenters, the Engineers, the Laborers, the Teamsters, and the Pipefitters , and thus have engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 5. By refusing to bargain with the Carpenters, the Engineers , the Laborers, the Teamsters , and the Pipefitters , in March and April 1962, the Respondents have engaged in unfair labor practices within the meaning of 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 Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , I recommend that the Respondents , Oilfield Maintenance Co., Inc., and Oilfield Maintenance & Engineering Co., Inc., their officers, agents, successors , and assigns , shall: 2 Seafarers International Union of North America , Great Lakes District , AFL-CIO, 138 NLRB 1142. 1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Refusing to bargain with the Carpenters, the Engineers, the Laborers, the Teamsters, or the Pipefitters at any time when any such labor organization is entitled to recognition under a valid existing contract. (b) Giving effect to the March 19, 1962, contract with the Oil Workers or any modification, renewal, or extension thereof. (c) Requiring membership in the Oil Workers as a condition of employment or in any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Carpenters, the Engineers, the Laborers, the Teamsters, or the Pipefitters, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by a valid contract requiring membership in a labor organization as a condition of employment con- sistent with Section 8(a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Withdraw and withhold recognition from the Oil Workers as the collective- bargaining representative of any of Respondents' employees until such time as that labor organization may become lawfully entitled to recognition. (b) Make whole any and all employees who since March 19, 1962, have paid initiation fees, dues, or assessments to the Oil Workers under the requirements of the March 19, 1962, contract with that organization, in the manner set forth in that section of this report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant or necessary to a determination of the amounts due by reason of payments to the Oil Workers. (d) Post at its premises in Saticoy, California, the attached notice marked "Ap- pendix." 3 Copies of such notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after having been duly signed by Respondents' representa- tives, be posted immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps the Respondents have taken in compliance herewith.4 It is finally recommended that the allegation that representatives of the Respond- ents threatened to discharge the employees refusing to cross the picket line be dismissed. 3In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." * In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL withdraw and withhold recognition from the Oil Workers and cease giving effect to the March 19, 1962 , contract with that organization, or any renewal or extension of that instrument. WE WILL make restitution to any employee who by reason of the contract with the Oil Workers has paid initiation fees, dues, or assessments to the OR Workers, with interest at 6 percent per annum. BROWNING INDUSTRIES, INC. 1397 WE WILL NOT refuse to bargain with the Carpenters , the Engineers, the Laborers , the Teamsters, or the Pipefitters at any time when we have an obliga- tion to do so by reason of a valid existing contract. WE WILL NOT in any manner interfere with , restrain , or coerce our employees in their exercise of the right to self-organization, to form, join, or assist the Carpenters , the Engineers , the Laborers, the Teamsters , or the Pipefitters, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such rights may be affected by a valid agree- ment requiring membership in a labor organization as a condition of employ- ment consistent with Section 8 (a) (3) of the Act. OILFIELD MAINTENANCE CO., INC., AND OILFIELD MAINTENANCE & ENGI- NEERING CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office , 849 South Broadway , Los Angeles , California , 90014 , Telephone No. Richmond 9-4711, Extension 1031 , if they have any question concerning this notice or compliance with its provisions. Browning Industries , Inc. and Local 1710, International Brother- hood of Electrical Workers . Case No. 21-CA-4915. June 21, 1963 DECISION AND ORDER On February 28, 1963, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting 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 Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 1 In the absence of exceptions thereto we adopt pro forma the findings of the Trial Examiner that ( 1) the Respondent did not violate Section 8(a) (1) of the Act by a state- ment to the employees that they did not need a union but could deal with the manage- ment through an employee representative ; and (2 ) it was unnecessary to decide whether a threat that there would be a number of discharges if the Union won the pending elec- tion was a violation of Section 8(a) (1) of the Act in "the absence of a supporting allega- tion In the complaint." 142 NLRB No. 148.