Vernon Devices, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1974

215 N.L.R.B. 475 (N.L.R.B. 1974)

VERNON DEVICES, INC. 475
Vernon Devices, Inc. and Local 445, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Local 531, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Party to the
Contract.
Local 531 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America
and Local 445, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America and Vernon Devices, Inc., Party to the Con-
tract . Cases 2-CA-13241 and 2--CB-5556
December 11, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 21, 1974, Administrative Law Judge Ber-
nard Ness issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
As more fully set forth in his Decision, the Adminis-
trative Law Judge found that the Employer and Local
531, IBT, respectively had violated Sections 8(a)(1),
(2), and (3) and 8(b)(1)(A) and (2) of the Act and that
the Charging Party, Local 445, IBT, had been selected
by a majority of the employees in an appropriate unit
as their exclusive collective-bargaining representative.
In his view, however, the unlawful assistance the Em-
ployer provided to Local 531, IBT, and the "ephe-
meral" discharge of every employee in the unit because
they refused to accept representation by Local 531 or
join that Union, but persisted in their desire for rep-
resentation by Local 445, did not require the imposi-
tion of a bargaining order to effectuate the purposes of
the Act. In support of that conclusion he relied on the
Board's decision in Mr. Wicke, Ltd., 172 NLRB 1680
(1968).
We do not agree. In our view, Mr. Wicke, which
predated NL.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969), is readily distinguishable on the facts and
the law.
In this case, the effect of the unlawful assistance
rendered Local 531 by the Employer and the dis-
criminatory discharge of all the employees in the unit,
when the Employer learned that they wished to be
represented by Local 445 and refused to accept the
Union favored by the Employer, cannot be cured by
traditional remedies. The mass discharge, stemming
only from the employees' attempt to select their own
bargaining representative, whether ephemeral or not,
cannot but have a telling and lasting effect on the em-
ployees in the unit. That effect cannot be eradicated
merely by making the employees whole for the minimal
wages lost and the posting of a notice that the Em-
ployer was found to have violated the Act and has been
ordered not to violate the Act again in a like manner.
The Employer's readiness to enforce its choice of a
bargaining representative for its employees over that
which they had chosen for themselves, and the extent
to which it was willing to go to achieve that purpose,
harshly demonstrated its contempt for the rights of its
employees, and we cannot presume it will be so readily
forgotten. A free and fair election, in these circum-
stances, is unlikely.
We conclude, contrary to the Administrative Law
Judge, that an order requiring the Respondent to bar-
gain with Local 445 is necessary in order to remedy the
Respondent's unfair labor practices and to effectuate
the purposes of the Act, and shall amend his recom-
mended Order and notice accordingly.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that Respondent Vernon Devices, Inc.,
New York, New York, its officers, agents, successors,
and assigns, and Respondent Local 531, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, its officers, agents, and
representatives, shall take the action set forth in the
Administrative Law Judge's recommended Order, as
modified herein:
1. Insert the following as paragraph A,2,(e) and re-
letter the succeeding paragraphs accordingly:
"Upon request, recognize and bargain collectively
with Local 445, IBT, as the exclusive collective-bar-
gaining representative of the employees in the appro-
priate unit, and, if an agreement is reached, embody it
in a signed agreement."
I Member Fanning adopts the Administrative Law Judge's finding that
the Respondent did not violate Sec 8(a)(5) of the Act, pro forma, because
there was no exception, and concurs in the conclusion that Respondent's
unfair labor practices can be remedied only by issuing a bargaining order
215 NLRB No. 62
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached Appendixes A and B for
those of the Administrative Law Judge.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
the rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT recognize or deal with Local 531,
testified Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
representative of our employees unless and until it
has been certified by the National Labor Relations
Board as the exclusive bargaining representative of
our employees.
WE WILL NOT give any force or effect to the Janu-
ary 23, 1974, agreement made with said Local 531
or to any renewal, extension, modification, or sup-
plement thereof.
WE WILL NOT assist said Local 531 in any other
manner to become the representative of our em-
ployees.
WE WILL NOT discharge or otherwise discriminate
against any employee to encourage activities in
support of Local 531 or to discourage activities on
behalf of Local 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers, or any other labor organization.
WE WILL NOT in any like or related mariner inter-
fere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL recognize and, upon request, bargain
collectively with Local 445, IBT , as the exclusive
collective-bargaining representative of our em-
ployees and embody any agreement that may be
reached in a signed contract.
WE WILL withdraw and withhold all recognition
from Respondent Local 531 as the representative
of our employees for the purposes of collective
bargaining , unless and until the said labor organi-
zation shall have been duly certified by the Board
as the exclusive representative of such employees.
WE WILL make whole the following named em-
ployees for any loss of pay they may have suffered
as a result of their discharge on March 5, 1974.
Josephius Bennett Jose Navarro
Victor Contreras Jose Otalora
Victor Galindo John Procidano
Francisco Garcia Jesus Reina
Dominick Infante is Alberto Saldarriaga
Jorge Marquez Eugene Strollo
Carlos Munoz Juan Vasquez
WE WILL jointly and severally with said Local
531 reimburse all present and former employees
except for those who joined Local 531 prior to
execution of the January 23, 1974, agreement, for
any initiation fees, dues, or other moneys, paid or
withheld from them pursuant to the aforesaid
agreement or to any agreement superseding it.
VERNON DEVICES, INC
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
TO ALL MEMBERS OF LOCAL 531, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA AND ALL EMPLOYEES OF VERNON DEVICES, INC.
WE WILL NOT act as the collective-bargaining re-
presentative of the employees of Vernon Devices,
Inc., unless and until we have been certified by the
National Labor Relations Board as the exclusive
representative of such employees.
WE WILL NOT give any force or effect to our con-
tract with Vernon Devices, Inc., executed on Janu-
ary 23, 1974, or to any modification, extension,
renewal , or supplement thereto.
WE WILL jointly and severally with Vernon De-
vices, Inc., reimburse their present and former em-
ployees, except those who joined us prior to execu-
tion of the January 23, 1974, contract, for any
initiation fees, dues , or other moneys paid or with-
held from them pursuant to the aforesaid agree-
ment or to any agreement superseding it.
LOCAL 531, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: These cases
were heard before me on May 30-31 and June 18, 1974, at
VERNON DEVICES, INC. 477
New York, New York, on a consolidated complaint' issued
by the General Counsel of the National Labor Relations
Board. The amended complaint alleges that Vernon Devices,
Inc., herein called Respondent Company, and Local 531,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called Respondent
Local 531, have engaged in unfair labor practices within the
meaning of Section 8(a)(1), (2), (3), and (5) and Section
8(b)(1)(A) and (2) of the Act, respectively. Both Respondents
have denied the commission of any unfair labor practices. At
the conclusion of the hearing the parties waived oral argu-
ment and indicated they intended to file briefs. Neither Re-
spondent Local 531, who had requested and was granted an
extension of time to file a brief, nor Respondent Company
filed any brief.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the brief filed by the
General Counsel, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
ing representative of its employees notwithstanding that Lo-
cal 531 did not represent an uncoerced majority of the em-
ployees and on about January 23, 1974, the Company and
Local 531 executed a collective-bargaining agreement con-
taining a union-security provision and that the contracting
parties have maintained and enforced this contract despite
the fact that Local 531 did not represent an uncoerced
majority of the employees at the time of execution of the
contract or at any time thereafter. The General Counsel con-
tends that by engaging in the foregoing conduct, when Local
531 did not represent an uncoerced majority of the em-
ployees, the Company violated Section 8(a)(1), (2), and (3) of
the Act and, correspondingly, Local 531 violated Section
8(b)(1)(A) and (2) of the Act. The complaint further alleges
that the Company violated Section 8(a)(5) and (1) of the Act
by refusing to recognize the Charging Party, Local 445, on
or about February 27, 1974, as the bargaining representative
of the employees. Finally, the complaint alleges that the
Company violated Section 8(a)(3) and (1) of the Act by dis-
charging its employees, 14 in number, on March 5, 1974,
because of their support for Local 445 and their refusal to join
or assist Local 531.
The facts found herein are based on the pleadings and the
admissions made at the hearing. The Company, a New York
corporation, is engaged in the manufacture, sale, and distri-
bution of tools and other mechanical equipment, and related
products at its place of business in Mount Vernon, New York.
During the year preceding the issuance of the complaint,
which period is representative of its annual operations, it
purchased and caused to be transported and delivered to its
place of business, within the State of New York, tools, equip-
ment, and other goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its place of busi-
ness in interstate commerce directly from outside the State of
New York. The parties agree and based on the foregoing, I
find that the Company is engaged in commerce and in opera-
tions affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the parties agree, and I find that
Local 445 and Local 531 are labor organizations within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction
The complaint alleges that on about November 28, 1973,
the Company recognized Local 531 as the exclusive bargain-
' The original order consolidating cases, consolidated complaint, and
notice of hearing was issued on April 19, 1974, and was predicated upon
charges filed by Local 445, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein called Local 445, on
March 4 and served on March 5, 1974, on the respective Respondents On
May 6, 1974, the Regional Director for Region 2 issued an amended order
consolidating cases, consolidated complaint, and notice of hearing
2 An obvious but significant error appears on p 16, 1 22 of the transcript
The word "September" is hereby corrected to read "December "
B. The Recognition of Local 531
The evidence relating to the circumstances surrounding the
recognition of Local 531 was adduced through the testimony
of Herbert Burstein, a member of the law firm representing
the Company during the period relevant herein and during
the hearing.' Apart from Burstein who was called by the
Company's counsel, no other witnesses were called by either
Respondent.'
The uncontradicted testimony of a number of employees
called by the General Counsel disclosed that in the summer
of 1973 they were solicited outside the plant by representa-
tives of Local 531 to sign authorization cards on its behalf.
None of those who testified signed a Local 531 authorization
card.
We now turn to the testimony of Burstein. He testified he
received a telephone call from the Company's general coun-
sel, Myron Shapiro, asking him to represent the Company in
a labor relations matter Burstein was told that Local 531 had
requested recognition. Burstein met with Shapiro and New-
mark, vice president of the Company, on September 13,
1974.5 At this meeting, Newmark related that Charles
Kranitz,6 Local 531's vice president, had approached him
and demanded recognition, claiming he had authorization
cards from a majority of the employees.' Burstein then ad-
vised the Company of his view of the law, including the right
to ask for an election if there was a good-faith doubt of Local
53 I's majority.' Burstein then called Kranitz in the pres-
3 Mr Burstein's participation at the hearing was limited to his appearance
as a witness on the third day of the hearing
4 Jerome Newmark, the Company's vice president was called as a 43(b)
witness by the General Counsel His testimony was limited only to furnish-
ing the names of the employees on the payroll during the pertinent periods
herein
5 Burstein said he received the call from Shapiro within a week prior to
the meeting of September 13
6 Sometimes incorrectly spelled Cranitz in the transcript
7 According to Burstein, Newmark placed this request for recognition at
"either the first week in September or shortly before our meeting "
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence of his client and in response to his inquiry, Kranitz said
he had a majority. Burstein then informed Kranitz he would
instruct the Company to negotiate an agreement with Local
531. Burstein further testified he had dealt with Kranitz in
the past and Kranitz never made any misrepresentations to
him. Burstein met with Kranitz on September 26 at which
time they discussed provisions of a contemplated contract.
Burstein testified he did not know the precise date when the
Company extended recognition but that it was after his meet-
ing with the Company on September 13 and before September
26, when he met with Kranitz. He stated there would have
been no purpose in his meeting with Kranitz on September
26 unless the Company had already recognized Local 531.
Burstein's explanation leads me to the logical conclusion that
recognition was extended between September 13 and Septem-
ber 17. It was on this latter date that Burstein sent a letter
to Kranitz confirming the date of September 26 for a meeting
between the two. Under these circumstances, it is hardly
likely Burstein would have arranged to meet with Kranitz for
purposes of negotiations had the Company not yet extended
recognition. Although the precise date of recognition cannot
be determined from the record, as will be shown below, Local
531 did not represent a majority of the employees during the
entire period from September 13 through September 26. By
letter dated October 19 to Kranitz, Burstein itemized several
proposals for a contract and also requested that Kranitz make
available to him copies of the authorization cards. As Bur-
stein stated in his letter, "I do not want to be in the position
of signing an agreement where the Union does not represent
at least the majority of the employees. My clients are pre-
pared to go forward, subject to all applicable provisions of the
law and with the complete rgservation of their rights if, in
fact, you do represent a majority of the employees."9 In re-
sponse to Burstein's request for the cards, Kranitz appeared
at his office in the second or third week of November. Kranitz
showed him six cards. What next occurred is best described
in Burstein's testimony which follows:
A. It was my understanding that at the time he ob-
tained the cards there were 14 employees in all. Six were
not enough. I said that wouldn't do it.
He said there were three cards that had been mis-
placed in the back of an automobile and the automobile
had been traded in or some other cocamamy. I don't
recall at this moment and that the cards were not availa-
ble, but there were such cards.
I think I spoke with either Joe Buttalucci or with
Carmine Valenti, and they assured me that was so. I
wanted confirmation because Charlie said he had not
obtained the cards. They had been obtained by someone
else in the union.
Q. Did at any time thereafter the three cards make an
appearance?
A. Not to me they didn't. They may have been in this
hearing, but I never saw them.
Q. To your knowledge, were there at any time more
than six cards?
8 Local 531 had not shown any cards to the Company
9G C Exh 4
A. To my knowledge, there were only six cards shown
to me. That's all I know of, six cards.1°
Burstein also testified as follows:
In any event, I did not at that time compare the signa-
tures, and I didn't check the cards against the list of
employees as of the date when the cards were obtained,
but I did ask Mr. Kranitz whether these were regular
employees or those who qualified as employees within
the meaning of the act.
He assured me that he did. I accepted his assurance
and proceeded with the completion of the contract and
that was my sole and total connection with the matter.
Burstein had no list of names of the employees in the unit. All
he had was a total number of the employees in the unit by job
categories as of the time the Union requested recognition
which he said "would be either the first or second week in
September." The collective-bargaining agreement between
the Company and Local 531 was executed on January 23,
1974, effective as of January 1, 1974. The contract contained
an otherwise valid union-security clause requiring member-
ship in Local 531 and also contained a check-off provision.
C. The Majority Question Relating to Local 531
The parties stipulated and I find that the appropriate bar-
gaining unit consisted of all production employees and ma-
chine operators, excluding clerical and office employees,
guards, professional employees, and all supervisors as defined
in Section 2(11) of the Act.
The General Counsel presented eight witnesses who were
employed since before August 1, 1973 and, at the time of the
hearing, were still employed in the bargaining unit." Each
credibly testified he had at no time signed an authorization
card on behalf of Local 531. In addition to the above em-
ployees, the following named bargaining unit employees who
began their employment during the week appearing alongside
their names credibly testified they likewise never signed Local
531 authorization cards:12
Carlos Munoz (9/9-9/15/73)
Jose Navarro (10/4-10/20/73)
Juan Vasques (10/28-11/3/73)
Alberto Saldarnaga (1/21-1/26/74)
No authorization cards on behalf of Local 531 were pre-
sented at the hearing . Seventeen names are listed as having
been employed in unit classifications during the week of Sep-
tember 9-15, 1973. Included are the names of the eight listed
10 The word "cocamamy" used by Burstein in his testimony is a colloqui-
alism which, in the context used, here would reasonably be interpreted to
mean a weird story straining one's credulity Buttalucci and Valenti, men-
tioned in his testimony, were two business agents of Local 531
" Strollo, Procldano, Marquez, Relna, Contreras, Garcia, Infante, and
Gomez
12 Their names first appear on the list (G C Exh 5) for the pay period
shown but there is nothing which discloses the specific date of employment
VERNON DEVICES, INC. 479
in footnote 11, supra, and Carlos Munoz who commenced his
employment during that week, all of whom never signed
Local 531 authorization cards. Included also in the list of 17
are Gabriel Valencia, terminated on September 14, and John
Bonuomo, a college student employed only for the summer
and who was terminated on September 17. For purposes of
determining the number of employees in the bargaining unit,
I would not include Bonuomo. The sole evidence as to his
employment status is what appears alongside his name in the
list produced by the Company-"college student-summer
only." The Board excludes such employees where there is no
expectation of permanent employment." Moreover, it is
clear the Company did not consider the summer employees
as within the unit.14 In this connection, Burstein, when
questioning Kranitz as to the number of cards asked Kranitz,
"whether these were regular employees or those who quali-
fied as employees within the meaning of the Act." Burstein
also stated the number in the unit was 14 or possibly less at
the time of the request for recognition. Interestingly, during
the period from August 1 through September 1, 1973, there
were no more than 14 regular employees in the unit. During
this same period, also on the payroll were two to three sum-
mer employees. During the week of September 2-8, 1973, 15
regular employees were listed and 2 summer employees. Ac-
cordingly, I find that during the week ending September 15,
there were no more than 16 employees to be considered at any
given time that week. Since at least eight employees, and
possibly nine if we were to include Munoz, did not authorize
Local 531 to represent them, Local 531 did not represent a
majority at any time that week. Nor did Local 531 attain a
majority at any time thereafter. Fifteen names appear on the
list as having been employed in unit job classifications during
the September 16-22 week and from September 16 through
December 1, no more than 16 were employed in the bargain-
ing unit during any given period. At the time the Company
and Local 531 executed their contract on January 23, 1974,
17 employees were in the bargaining unit. Of this number, 12
employees, including Saldarriaga, had not signed Local 531
authorization cards. 15
E. The Discharge of the Unit Employees
The facts summarized below are based on the credible and
undisputed testimony of employee Marquez , substantially
corroborated by employee Strollo. As stated above, Newmark
who was present throughout the hearing, was questioned only
about the payroll. Kranitz was also present throughout the
hearing but was not called as a witness.
On February 28, the Company called a meeting of the
employees and introduced Kranitz and another Local 531
agent , Martinez, to the employees. They were told a contract
had been executed with Local 531. When employee Marquez
questioned Local 531's status, stating that the employees
never authorized that labor organization to represent them,
Kranitz responded that a majority had signed up for Local
531. The employees were then asked by Kranitz to sign cards
providing for medical benefits.16 The employees refused.
The following day Kranitz reappeared at the plant and told
the employees of the contractual benefits and again met with
a blanket refusal from the employees to sign the medical
benefit cards. Again on March 5 Kranitz returned to the
plant and spoke to the employees about the benefits under the
contract but once more was unsuccessful in obtaining signa-
tures on the medical benefit cards. A committee of three
employees, Marquez, Procidano, and Strollo, then met with
Newmark, General Manager Becker and Shop Foreman
Ganz. Marquez told Newmark he had signed a card for Local
445 and none of the employees wanted Local 531 to represent
him. Newmark then told Marquez he was discharged for
signing a Local 445 card. When Marquez remarked that all
the men signed cards for Local 445, Newmark said they were
all fired. Newmark then told all the men they were dis-
charged. All the employees then punched out, 1 hour before
their normal quitting time. The testimony does not shed
much light on how their return was arranged but, in any
event, the employees returned to work the following morning
at the regular time with no further recriminations . Fourteen
employees were subjected to this short-lived discharge."
Discussion and Conclusions
D. The Demand for Recognition by Local 445
On February 15, 1974, Local 445 Business Representative
Robert Drexler gave employee Eugene Strollo membership
cards in behalf of Local 445. That evening about 15 em-
ployees in the 16-man unit met at Strollo's home. Of these,
12 employees credibly testified they signed membership ap-
plications for Local 445. These cards, authenticated at the
hearing by each witness, were turned over to Local 445 by
February 21. By letter to the Company dated February 26,
Local 445 requested recognition. The following day the Com-
pany refused to extend recognition to Local 445. I find that
at the time of the refusal of recognition, Local 445 repre-
sented a majority of the unit employees.
13 Brown-Forman Distillers Corporation, 118 NLRB 454 (1957),
NL.R B. v Joclin Manufacturing Company, 314 F 2d 627 (C A 2, 1963)
14 Cf Harvey Russell, 145 NLRB 1486 (1964)
15 Saldarriaga first began his employment sometime during that week but
there is no evidence whether he was already employed on January 23 Even
if he were to be excluded Local 531 clearly did not have a majority
1. The assistance to Local 531
It is well settled that an employer violates Section 8(a)(2)
and (1) of the Act and a labor organization violates Section
8(b)(1)(A) of the Act when the employer extends and the
union accepts recognition when the union does not represent
an uncoerced majority of the employees in the appropriate
unit." Similarly an employer renders illegal assistance to a
labor organization in violation of Section 8(a)(2) and (3) of
the Act and a union violates Section 8(b)(2) and (1)(A) of the
Act when the parties execute a collective-bargaining agree-
16 Although not clearly explained in the record and because no card was
offered as an exhibit, I can only assume the benefits to be provided were
pursuant to the Union's welfare fund referred to in the collective-bargaining
agreement executed by the parties on January 23
17 Eugene Strollo, John Procidano, Jorge Marquez, Jesus Reina, Victor
Contreras, Victor Galindo, Francisco Garcia, Dominick Infante, Jose
Otalora, Carlos Munoz, Jose Navarro, Juan Vasquez, Josephius Bennett,
and Alberto Saldarriaga
18 International Ladies Garment Workers Union, AFL-CIO (Bernhard-
Altman Texas Corp.) v NLR.B., 366 U.S. 731, 738 (1961).
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment containing a union-security provision requiring em-
ployees as a condition of continued employment to become
and remain members in the union, if, at the time of the
execution of the agreement, the labor organization has not
been properly designated or certified as the representative of
a majority of the unit employees.19
The burden of proof of establishing the lack of majority
status on the part of the allegedly assisted union remains at
all times throughout the proceeding with the General Coun-
sel. the record herein contains sufficient probative evidence to
establish that at all times relevant Local 531 did not possess
a majority. Recognition was extended sometime between Sep-
tember 13 and September 26, the exact date not being ascer-
tainable from the record. No authorization cards were pro-
duced at the hearing to support Local 531's claim of majority.
On the other hand, a majority of the employees in the unit
credibly testified they did not sign any authorization cards on
behalf of Local 531 Sometime in the second or third week in
November the Company wanted assurance of Local 531's
claim of majority status. As the company attorney testified,
he did not make a conventional card check. Since he was not
in possession of the names of the employees in the unit, one
can hardly consider his investigation of Local 531's majority
more than a form of blind faith in Kranitz's representation
that he had nine cards, three of which had disappeared under
weird circumstances. None of the cards were produced and
the General Counsel provided credited testimony that a
majority of the employees never did sign Local 531 authonza-
tion cards. Nor, as described earlier, did Local 531 represent
a majority of the bargaining unit employees on January 23,
when the parties executed a contract providing for manda-
tory union membership and also including a checkoff provi-
sion. No testimony was adduced at the hearing to show
whether or not the provisions of the contract were enforced
but in light of the admissions of both Respondents at the
hearing to the allegations in the complaint, I accordingly find
that the Company and Local 531 maintained in effect and
enforced the contract executed on January 23, 1974. In light
of the above, I find that the Company rendered unlawful
assistance and support to Local 531 in violation of Section
8(a)(2) and (1) of the Act by recognizing it as the representa-
tive of the Company's employees when Local 531 did not
represent a majority of the employees in the bargaining unit
and Local 531 violated Section 8(b)(1)(A) of the Act by ac-
cepting such recognition. I further find that the Company
violated Section 8(a)(1), (2), and (3) and Local 531 violated
Section 8(b)(1)(A) and (2) of the Act by entering into, main-
taining , and enforcing a collective-bargaining agreement con-
taining a union-shop clause requiring employees, as a condi-
tion of their continued employment to become and remain
members of Local 531, at a time when Local 531 did not
represent a majority of the employees in the bargaining
unit.20
19 Hi Temp, Inc., 203 NLRB 753 (1973), Kona-SurfHotel, 201 NLRB 139
(1973), Interpace Corporation, 189 NLRB 132 (1971)
20 Since neither Respondent filed a brief and the parties waived oral
argument, their defense to the General Counsel's contention of lack of
majority remains unknown or speculative Even if the argument were to be
advanced that the majority should be determined as of the date the request
for recognition was made, which I do not adopt, the record shows that at
no time during the period from August 1 through September 8, 1973, were
there more than 15 employees to be considered in the bargaining unit, the
2. The discharges
The undisputed and uncontroverted testimony disclosed
that on March 5, 1974, on being told the employees all sup-
ported Local 445 and did not want Local 531 as their bargain-
ing representative, the Company discharged all the em-
ployees one hour before their normal quitting time. That they
were reinstated the following morning under unexplained
circumstances does not make their discharges any less illegal.
Accordingly, I find the discharges of the employees named in
footnote 17, supra, to be violative of Section 8(a)(1) and (3)
of the Act.
3. The refusal to recognize Local 445
The General Counsel contends that an appropriate remedy
should include a bargaining order. I have found above that
when the Company refused to recognize Local 445 on Febru-
ary 27, 1974, Local 445 represented a majority of the em-
ployees in the stipulated appropriate bargaining unit. The
General Counsel contends that the unlawful assistance to
Local 531 and the unlawful discharge of the employees make
a fair election impossible and a bargaining order is appropri-
ate. Apart from the unlawful assistance rendered to Local
531, the only retaliatory action taken against the employees
by the Company once Local 445 appeared on the scene was
the ephemeral discharge-the loss of one hour near the close
of the working day on March 5 but then the immediate
reinstatement the following morning. Under these circum-
stances, I do not believe it would effectuate the purposes of
the Act to impose a bargaining order. Rather the employees
should have the opportunity to express their preference in a
Board-conducted election." Accordingly, I shall dismiss the
8(a)(5) allegation in the complaint.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Company set forth in
section III, above, occurring in connection with its operations
set forth in section I, above, have a close, intimate, and sub-
stantial 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.
CONCLUSIONS OF LAW
1. Vernon Devices, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)-of the Act.
2 Locals 445 and 531, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
are labor organizations within the meaning of Section 2(5) of
the Act.
3. By granting recognition to Respondent Local 531 as
exclusive bargaining representative when said labor organiza-
tion did not represent a majority of the employees in an
summer employees having been excluded During this period eight em-
ployees had never signed Local 531 cards Thus, it is apparent that were we
to consider a period prior to September 13 to determine the majority, Local
531 did not reach that goal
21 Mr Wicke, Ltd, 172 NLRB 1680 (1968)
VERNON DEVICES, INC. 481
appropriate unit , Respondent Company violated Section
8(a)(2) and (1) of the Act.
4. By accepting such recognition , Respondent Local 531
violated Section 8(b)(1)(A) of the Act.
5. By entering into and maintaining a collective -bargaining
agreement containing union -security and checkoff provi-
sions, at a time when Respondent Local 531 did not represent
a majority of the employees in an appropriate unit, and by
enforcing said provisions , Respondent Company violated
Section 8 (a)(1), (2), and (3) of the Act and Respondent Local
531 violated Section 8(b)(1)(A) and (2) of the Act.
6. By discharging the following named employees , the Re-
spondent Company has violated Section 8(a)(3) and (1) of the
Act.
Eugene Strollo Victor Galino
John Procidano Francisco Garcia
Jorge Marquez Dominick Infante
Jesus Reina Jose Otalora
Victor Contreras Carlos Munoz
Jose Navarro Josephius Bennett
Juan Vasquez Alberto Saldarriaga
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The Respondents have not engaged in any other unfair
labor practices as alleged in the complaint.
The Remedy
In order to effectuate the policies of the Act, the Respond-
ent Company will be ordered to withdraw and withhold
recognition from Local 531 as the bargaining representative
of the employees in the appropriate unit , and Respondent
Local 531 will be ordered to cease acting as the exclusive
bargaining representative of such employees , unless and until
Respondent Local 531 has been certified by the Board as the
exclusive bargaining representative of such employees, and
both Respondents will be ordered to cease and desist from
giving any force or effect to their collective-bargaining agree-
ment executed January 23, 1974, or any modification, exten-
sion, renewal, or supplement thereto.
In view of the admissions that the provisions of the con-
tract which included a mandatory union-security clause have
been maintained and enforced, the Respondents will be re-
quired jointly and severally to reimburse all present and for-
mer employees, except those excluded below, for all initiation
fees, dues, or other moneys paid or checked off pursuant to
the unlawful union-security agreement,22 or any modifica-
tions, extensions , renewals, supplements thereto, or any su-
perseding agreement. Reimbursement, however, will not be
ordered for those employees who may have voluntarily joined
Respondent Local 531 prior to January 23, 1974, the date on
which the collective-bargaining agreement was executed.
It having been found that the Respondent Company un-
lawfully discharged the above-named employees, I shall
recommend that it be ordered to make them whole for the
loss of earnings suffered by reason of the discrimination by
22 Interest at the rate of 6 percent per annum shall be added to such
initiation fees, dues, or other moneys so paid or checked off
payment to each of them the sum they would have earned but
for the discrimination.
I shall also recommend that the Respondents post appro-
priate notices
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:23
ORDER
A Respondent, Vernon Devices, Inc., its officers, agents,
successors , and assigns, shall
1. Cease and desist from.
(a) Recognizing or dealing-with Respondent Local 531 as
the bargaining representative of its employees unless and un
til Respondent Local 531 shall have been certified by the
Board as the exclusive bargaining representative of such em-
ployees.
(b) Assisting Respondent'Local 531 in any other manner
to become the collective-bargaining representative of its em-
ployees.
(c) Giving effect to, performing, or in any way enforcing
the collective-bargaining agreement executed with Respond-
ent Local 531 on January 23, 1974, covering its employees,
or to any modification, extension, renewal or supplement
thereto; provided however that nothing herein shall require
Respondent Company to vary or abandon any wage, hour,
seniority, or other substantive feature of its relations with said
employees which have been established in the performance of
any such agreement or to prejudice the assertion by such
employees of any rights they may have thereunder.
(d) Encouraging membership in, or activities on behalf of,
Respondent Local 531, or discouraging membership in, or
activities on behalf of, Local 445, by discriminating against
its employees in regard to their hire or tenure of employment
or any terms of conditions of employment.
(e) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is necessary
to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Respond-
ent Local 531 as the representative of its employees for the
purposes of collective bargaining, unless and until the said
labor organization shall have been duly certified by the Board
as the exclusive representative of such employees.
(b) Jointly and severally with Respondent Local 531 reim-
burse each of its present and former employees except those
who joined said labor organization prior to execution of the
contract on January 23, 1974, for any and all initiation fees,
dues, and other moneys, if any, paid by or withheld from
them pursuant to the terms of the aforesaid collective-bar-
gaining agreement , together with interest at the rate of 6
percent per annum.
23 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole the employees named above for loss of
earnings they may have suffered by reason of the discrimina-
tion against them in the manner set forth in the section of this
Decision entitled , "Remedy."
(d} Preserve and , upon request , make available to the
Board or its agents, for examination and copying , all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
relevant to determine the amount of backpay due under the
terms of this recommended Order.
(e) Post at its Mount Vernon, New York, plant, in both the
English and Spanish language, copies of the attached notice
marked "Appendix A."24 Copies of said notice, on forms
provided by the Regional Director for Region 2, after being
duly signed by Respondent Company's representative, shall
be posted by Respondent Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places where
notice to its employees are customarily posted. Reasonable
steps shall be taken by Respondent Company to insure that
said notices are not altered, defaced, or covered by any other
material.
(f) Post at the same places and under the same conditions
as set forth in (e), above, as they are forwarded by the Re-
gional Director, copies of Respondent 531's notice marked
"Appendix B."
(g) Mail signed copies of the attached notice marked "Ap-
pendix A" to the Regional Director for posting at Respond-
ent 531's offices and meeting halls.
(h) Notify the Regional Director, in writing, within 20 days
from the date of this Order, what steps the Respondent Com-
pany has taken to comply herewith.
B. Respondent, Local 531 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining representative of the
24 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
Respondent Company's employees for the purpose of collec-
tive bargaining , unless and until it shall have been certified
by the Board as the exclusive representative of said em-
ployees.
(b) Giving any force or effect to the collective- bargaining
agreement with Respondent Company executed on January
23, 1974, covering the Respondent Company's employees, or
to any modification, extension, renewal, or supplement
thereto.
2. Take the following affirmative action, which is necessary
to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Company reim-
burse each of the Respondent Company's present and former
employees, except those who joined Respondent Local 531
prior to execution of the contract on January 23, 1974, for
any and all initiation fees, dues, and other moneys, if any,
paid by or withheld from them pursuant to the terms of the
aforesaid collective-bargaining agreement, together with in-
terest at the rate of 6 percent per annum.
(b) Post at its offices and meeting halls in both the English
and Spanish language, copies of the attached notice marked
"Appendix B."25 Copies of said notice, on forms provided
by the Regional Director for Region 2, after being duly signed
by Respondent 531's representative, shall be posted by Re-
spondent 531 immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent 531 to insure that said notices are not altered,
defaced or covered by any other material.
(c) Post at the same places and under the same conditions
as set forth in (b), above, as they are forwarded by the Re-
gional Director, copies of Respondent Company's notice
marked "Appendix A."
(d) Mail signed copies of the attached notice marked "Ap-
pendix B" to the Regional Director for posting at the Re-
spondent Company's plant as heretofore directed
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of the Order, what steps Re-
spondent 531 has taken to comply herewith.
25 See fn 24, supra