Centac Corp.

National Labor Relations Board - Board Decisions

Oct 24, 1969

179 N.L.R.B. 313 (N.L.R.B. 1969)

CENTAC CORP 313
Centac Corp . and Production , Distribution and
Maintenance Employees Union , Local 719 and
Local 806, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America , Party to the Contract
Local 806 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America and Production , Distribution and
Maintenance Employees Union , Local 719 and
Centac Corp ., Party to the Contract. Cases
29-CA-1479 and 29-CB-578
October 24, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On April 30, 1969, Trial Examiner George Turitz,
issued his Decision in the above-entitled proceeding,
finding that Respondents 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 attached Trial Examiner's Decision. He also
found that Respondent Centac Corp. had not
engaged in other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed Thereafter Respondent, Local 806,
and the General Counsel filed exceptions to the
Trial Examiner's Decision and the General Counsel
filed a brief in support of his exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein
1. The Trial Examiner found, and we agree for
the reasons fully set forth and discussed in his
decision, that the newly built Centac plant at
Bohemia, New York, was not an accretion to the
Century plant' and that Respondents' application to
Centac's employees of the 3-year contract which
Respondent, Local 806, had entered into in August
1966 with Century, and the discharge by
Respondent Centac of Douglas Flynn, Albert
Hattem, and Martin Shatz, under the union-shop
provisions of that contract, upon the demand of
Local 806, were violative (in the case of Centac) of
Section 8(a)(1), (2), and (3), and (in the case of
Local 806) of 8(b)( 1)(A) and (2) of the Act. The
Trial Examiner also found, and we agree, that
Respondent, Local 806 further violated Section
8(b)(1)(A) of the Act by threatening Centac's
employees ^ti ith physical violence and loss of
employment for not joining Local 806, and that
Respondent Centac violated Section 8(a)(1) and (2)
by assisting Local 806 in soliciting employees to join
that union and by threatening its employees with
discharge if they did not do so
2. The Trial Examiner found that Respondent
Centac did not, as alleged in the complaint, violate
Section 8(a)(5) by failing to honor the bargaining
request made upon it by Local 719, the charging
union For the reasons stated below, we find merit
in the General Counsel's exceptions to the Trial
Examiner's dismissal of the allegation.
The complaint alleges, the Trial Examiner found,
and we agree, that the unit described in the
complaint' constitutes a unit appropriate for
collective bargaining within the meaning of Section
9(a) of the Act. On September 24, 1968, five of
Centac's seven employees in that unit signed cards
designating Local 719 as their collective-bargaining
representative. On September 25, Local 719 sent a
telegram to Centac, stating that it represented a
majority of Centac's employees and asking for
recognition. On the same day it filed a petition for
certification with the Board's Regional Office
Centac did not respond to Local 719's telegram.
Instead, William Enzensperger, Jr., Centac's
Secretary-Treasurer, advised James Isola, business
agent for Local 806, of these events , and, on
October 3, a conference relating to Local 719's
request for recognition took place at the Century
plant between Enzensperger, Isola, and Rutigliano,
Local 806's shop steward Following this conference
the three men went to the Centac plant. This was
the first time a representative of Local 806 had
visited that plant. There Isola told Centac's
employees that they were covered under Century's
contract with Local 806, and advised two of them,
Kaye and Flynn, that since they had already been
employed more than 30 days they would have to
join Local 806 immediately or quit their jobs At the
same time he informed the other employees that
they would have to join after they had worked 30
days or they too would be subject to discharge.
Prior to the October 3 visit, no intimation had been
given Centac's employees by either Respondent that
the Century contract was applicable to them, and,
as found by the Trial Examiner, the provision of
that contract had never in fact been applied to
Centac's employees.
'Centac is a corporation whose stock is owned by William Enzensperger,
Sr Century Fabrics Inc is wholly owned by his two sons William
Enzensperger , Jr, and Helmuth Enzensperger The plants are 40 miles
apart At the time of the events in question Century had about 39
employees and Centac 7 Centac was incorporated in March 1968
'All production and maintenance employees and truckdrivers employed
by Respondent Centac at its Bohemia plant , exclusive of office and clerical
employees , guards, watchmen , professional employees , and all supervisors
as defined in Sec 2(11) of the Act
179 NLRB No. 46
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite Isola's warning, only one employee signed
up The subsequent discharge of three employees,
Flynn and Hattem on October 7, and Shatz on
October 9, at the demand of Local 806, because of
their failure to join Local 806,' is fully discussed by
the Trial Examiner, who held that the discharges, as
well as certain related conduct by Respondents
aimed at forcing Centac's employees into Local 806
membership, were violative of the Act.' We agree
with the Trial Examiner's findings that the Centac
plant was not an accretion to the Century plant, but
a separate bargaining unit to which Local 806's
contract with Century could not apply.
Centac never challenged Local 719's claim that it
was the designated representative of a majority of
Centac's employees. And it is not in controversy
that Local 806 never claimed to represent Centac's
employees by virtue of employee designation cards.
The Trial Examiner found, and we agree, that
Respondent Centac refused to bargain with Local
719, by ignoring Local 719's September 25, 1968,
telegraphic request for recognition and proceeding
instead to apply the Century contract to the Centac
plant, thereby recognizing Local 806 as the
representative of its employees Notwithstanding
that finding, and his further findings that Centac
unlawfully assisted Local 806, discouraged
membership in Local 709, and restrained and
coerced its employees in their freedom of choice, by
applying to its employees the Century contract on
October 3 and engaging in other conduct adverted
to above, including threats of reprisal and
discriminatory discharges, the Trial Examiner
concluded that Centac's refusal to recognize Local
719 was not violative of Section 8(a)(5). The Trial
Examiner reached the above conclusion essentially
by relying on the Board's majority holding in
Weather Seal, Incorporated, 161 NLRB 1226, 1228,
that a colorable and substantial competing claim of
representation, untainted by any conduct of the
employer when first made, is sufficient to raise a
real question concerning representation, justifying a
'One of the discharged employees, Hattem , had not worked 30 days He
was told he was being discharged because "it seemed like he gave them
[Local 806] too much lip "
'Contrary to his colleagues , Member Jenkins does not agree that the
Respondents ' letters to Shatz and Hattem on October 15 , 1968, asking
them to " report for work as soon as possible ," constituted valid
good - faith offers of reinstatement In view of the fact that Shatz and
Hattem were discharged because of their refusal to join Respondent Local
806 and because of their membership in and activities on behalf of Local
719 and inasmuch as Respondent Centac discharged employees Shatz and
Hattem pursuant to Respondent , Local 806 ' s request , he would find that
the offers in question were not unequivocal and that the employees
rejection of offers was not an unequivocal rejection of employment In the
circumstances Member Jenkins would require that the Respondents' offer
of reinstatement specifically indicate that the discriminatee in question
would return to the positions or substantially similar positions which they
held at the time of their discharges , and further assure the employees that
they would not have to join Respondent Local 806 upon returning to work
Accordingly , Member Jenkins would not find that such offer tolled the
running of backpay and the remedial order would be revised thereto See
Laminating Services, inc, 167 NLRB No 31, California Lingerie, Inc,
129 NLRB 912, 914
refusal to recognize another union with a majority
card designation - and this even though the
competing claim is based solely on an assertion of
accretion found unsupported In dismissing the
8(a)(5) allegation in Weather Seal, however, the
Board's majority stressed, inter alia, that the
competing claim of accretion there involved had
preceded the bargaining demand of the charging
union and had been asserted and pressed from the
time the new plant began operations. We distinguish
the instant case from Weather Seal in that critical
respect
The Trial Examiner, it is true, did find that prior
to Local 719's bargaining demand, "Centac had
been presented with a claim by Local 806 of
representation of Centac's employees and had
accepted the claim as valid." But this finding has
been challenged by the General Counsel as
unsupported by a preponderance of reliable
evidence. We are satisfied on the strength of our
own review of the record that the General Counsel's
exception in this regard is well taken
The Trial Examiner predicated the challenged
finding upon the testimony of William
Enzensperger, Jr.,' whom he credited, concerning a
conversation which Enzensperger states he had with
Local 806's recording secretary, Isola, in late
August or September 1968 Enzensperger testified
that on that occasion, Isola, referring to the new
plant at Bohemia , said he would go there and "take
care of matters" and sign up the employees.
Enzensperger further testified, however, as the Trial
Examiner found, that Isola did not ask him to apply
the Century contract to Centac, although he
(Enzensperger) "thought that Isola had made the
assertion that it [the Century agreement] did apply
and that he acquiesced in that assertion." (Emphasis
supplied ) In the same connection Enzensperger on
cross-examination testified:
Q Prior to October 1968, did you ever orally
agree with Mr. Isola to apply the Local 806
Century contract to the Centac Corporation on
these terms'?
A I believe I may have.
Q Do you recall the fact that you did say that"
A. These conversations are a long time ago
Q You don't recall, is that your testimony?
A Not exactly. We had discussions and he was
going to go out to the plant and sign it up. That's
as far as I am involved in it.
Q And that was your full understanding of his
conversation, that he was going to go out and
attempt to sign up the employees, is that right?
A Not attempt. He was going to go out and
sign up the employees.
The Trial Examiner's finding that Local 806's
claim was a prior one rests solely upon the
testimony of Enzensperger as quoted above.6 The
indefiniteness and equivocation inherent in
'William Enzensperger , Jr , is an officer of both Century and Centac
'The Trial Examiner specifically refused to credit Isola concerning
CENTAC CORP 315
Enzensperger's testimony, that he thought Isola
asserted the applicability of the Century contract to
Centac and that he might have orally agreed with
that assertion, must be measured both against the
certainty of Enzensperger's other testimony that
Centac was first asked to apply the Century
contract on October 3' and against the crucial fact,
not disputed by either Respondent, that no attempt
was made to apply any of the conditions of the
Local 806 Century contract to Centac until after
Local 719 had presented its bargaining demand. It
appears to us incredible that Local 806 would have
asserted the applicability of the contract without at
the same time requesting that its terms and
conditions be applied to the employees who had
already been hired. Nor do we think it likely, if, as
the Trial Examiner found, Centac had earlier agreed
with Local 806 that the latter's contract with
Century was applicable to its employees, that
Centac would have refrained from advising its
employees until after Local 719 had made its
appearance that they were subject to the
union-security provisions of that contract. Though
we accept Enzensperger's testimony, credited by the
Trial Examiner, that Isola informed him in August
or September that he intended to go out to the
Centac plant to sign up employees, we, unlike the
Trial Examiner, are unable to infer from this that
Local 806 and Centac must then have been in
agreement that the union-security provisions of the
Century contract extended to the Centac plant.
Standing alone, Isola's statement implies no more
than a declaration of Local 806's intent to organize
Centac employees.
On all the record, and after giving due weight to
the Trial Examiner's credibility appraisals, we are of
the view that the evidence relied upon by the Trial
Examiner is of insufficient probative force to
support his finding that Centac was confronted with
a previously asserted competing claim of
representation when Local 719 made its bargaining
demand. Accordingly, we reject his finding in that
respect, as well as his accompanying finding of
Centac's acquiescence therein
Elsewhere in his Decision, the Trial Examiner
found that when Centac received Local 719's
bargaining demand, "Enzensperger called Isola and
informed him that another union was organizing the
plant, and that since he assumed the Century
contract applied, he thought Isola would like to
know." Bearing in mind that Respondent had not
theretofore seen fit to apply the Local 806 Century
several other conversations which Isola testified he had with Enzensperger
on the telephone and in which , according to Isola, he claimed and
Enzensperger agreed , that the Century contract applied to Centac Isola in
his testimony did not specifically advert to the conversation which
Enzensperger testified he had with Isola in August or September
"'Q Just so the record is perfectly clear at any time prior to
October 3 , had Mr Isola or any other official of Local 806 asked you to
apply the terms and provisions of its Local 806 contract with Century9"
"A No"
contract to Centac's employees, and considering also
Centac's unlawful assistance and support of Local
806 which shortly followed, we think it reasonable
to infer, and we find, that Centac upon receipt of
Local 7 19's bargaining demand solicited an
accretion and contract-bar claim from Local 806 in
order to ward off organization of its employees by
Local 719 to which it was opposed. For this reason,
and also because, unlike the Trial Examiner, we
regard Respondent's unit accretion contention as so
patently without merit as not to support a colorable
and substantial claim of representation, we further
find that the belatedly asserted accretion claim did
not give rise to a genuine question concerning
representation which justified Centac on that basis
alone to refuse to honor Local 719's bargaining
demand.
Thus the record is clear that Centac did not assert
any valid basis for its refusal to bargain with Local
719, never challenged Local 719's supported claim
of majority designation, and, following Local 719's
bargaining demand, engaged in unfair labor
practices which we find were of a kind tending to
undermine Local 719's majority status and of such a
serious and substantial character as to preclude the
holding of a fair election and to make Local 719's
majority card showing a more reliable indicator of
employees desires We conclude therefore, that
Respondent's refusal to bargain with Local 719 was
violative of Section 8(a)(5), and that a bargaining
order is required not only to remedy Respondent
Centac's refusal to bargain, but also to remedy
adequately the other unfair labor practices found
and to restore Local 719 to the representative status
it would have enjoyed but for such unfair labor
practices. N L.R B v. Gissel Packing Company, 395
U.S. 575.8
THE REMEDY
In accordance with the above finding we shall
order that Respondent Centac, on request, bargain
collectively with Local 719 as the exclusive
'Chairman McCulloch, while joining in the findings and conclusions
herein , notes that, consistently with his dissenting position in Weather Seal
Inc , supra, he would reach the same result in this case even if it had been
found that Local 806' s accretion claim antedated Local 713' s bargaining
demand or was a colorable one Since the facts in this case are such as
otherwise to support an 8(a )(5) finding and bargaining order (N L R B v
Girsel Packing Company supra ), it is sufficient for him that the accretion
claim has been found to be erroneous At the time of the refusal to bargain
Local 806 was not the designated representative of any of Centac's
employees, nor was it engaged among such employees in an organizational
campaign The sole basis for Local 806' s asserted competing
representational claim is that the unit herein found appropriate was part of
a larger appropriate unit allegedly already represented by and under
contract with Local 806 In this factual posture, as the Chairman sees it,
the issue presented is in effect no more than a contention of unit
inappropriateness urged as a defense to a refusal to bargain And , like an
erroneous contention of unit inappropriateness , it provides , even if urged in
good faith , no defense to an otherwise supported refusal to bargain charge
Cf Owego Street Supermarkets . 159 NLRB 1735, 1742 United Aircraft
Corporation v N L R B, 333 F 2d 819 (C A 2), cert denied 380 U S 10,
N L R B v Pembeck Oil Corp, 404 F 2d 105 (C A 2)
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all production and maintenance
employees and truckdrivers employed by
Respondent Centac at its Bohemia plant, exclusive
of office clerical employees, guards, watchmen,
professional employees, and all supervisors as
defined in Section 2(1 1) of the Act, and if an
understanding is reached, embody such
understanding in a signed agreement
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent Centac
Corporation, Bohemia, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified
1. Change paragraph I(f) by inserting after the
words "other conditions of employment" the phrase
"until after it has first complied with the provisions
of this Order requiring it to bargain with
Production, Distribution and Maintenance
Employees Union, Local 719, and thereafter
2 Change paragraph 1(g) by deleting the phrase
"unless and until said organization shall have been
certified by the Board as representative of the
employees"
3. Change paragraph 1(i) to subparagraph 0) and
insert as subparagraph (i) the following language:
"failing or refusing to bargain collectively, upon
request, with Local 719 as the collective-bargaining
representative of its employees at its plant in
Bohemia, New York, in the unit found to be
appropriate "
4. Change subparagraph (c), (d), and (e) of
paragraph 2 of the Trial Examiner's Recommended
Order, to subparagraphs (d), (e), and (f),
respectively, and insert as subparagraph (c) the
following language-
"(c) Bargain collectively with Local 719 as the
exclusive representative of all production and
maintenance employees and truckdrivers employed
by Respondent Centac at its Bohemia plant,
exclusive of office clerical employees, guards,
watchmen, professional employees, and all
supervisors as defined in Section 2(11) of the Act
and, if an understanding is reached, embody the
understanding in a signed agreement."
5. Insert as the final indented paragraph in the
Appendix attached to the Trial Examiner's
Recommended Order, the following-
WE WILL bargain collectively with Production,
Distribution and Maintenance Employees Union,
Local 719 as the collective-bargaining
representative for all our production and
maintenance employees and truckdrivers at our
Bohemia plant, exclusive of office clerical
employees, guards, watchmen, professional
employees, and all supervisors. If an
understanding is reached we will embody the
understanding in a signed agreement
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner On October 4 and
22, 1968, Production, Distribution and Maintenance
Employees Union, Local 719 ("Local 719"), filed a charge
and an amended charge, respectively, in Case 29-CA-1479
which were served on said dates upon Centac Corp
("Centac"), and on December 4, 1968, Local 719 filed a
charge in Case 29-CB-578 which was served on December
5, 1968, upon Local 806, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America ("Local 806") Centac and Local 806 are jointly
referred to at times in this Decision as Respondents On
December 26, 1968, the General Counsel of the National
Labor Relations Board ("the Board"), through the
Regional Director for Region 29, issued an order
consolidating cases, consolidated amended complaint, and
notice of hearing in said cases against Respondents.
Respondents filed their respective answers in which they
denied all allegations against themselves of unfair labor
practices A hearing was held on January 21, 22, 23, 24,
and 30, 1969, before the Trial Examiner named above
The General Counsel and Local 806 were represented at
the hearing by their respective counsel, Centac was
represented by its secretary-treasurer, and the Charging
Party by its secretary-treasurer The General Counsel and
Local 719 have filed briefs with the Trial Examiner.'
Upon the entire record, and from his observation of the
witnesses the Trial Examiner makes the following
FINDINGS OF FACT
1. THE BUSINESS OF CENTAC
Centac is a New York corporation having its principal
office and plant in the town of Bohemia, Suffolk County,
Long Island, State of New York It is engaged in
performing the service of bonding and joining fabrics used
in the manufacture of dresses, coats and other outer
garments During the 5-month period from the inception
of its operation to the opening of the hearing Centac
purchased and caused to be delivered to its plant in
Bohemia supplies and materials valued at in excess of
$40,000 which were transported and delivered to said
plant directly from States of the United States other than
the State of New York During the same period Centac
performed services valued at in excess of $25,000 for
customers located outside the State of New York On the
basis of its past and anticipated sales and purchases
Centac's purchases of materials from outside the State of
New York during the first year of its operations will
exceed $100,000 and it will perform services for customers
On March 24 , 1969, in the United States District Court for the Eastern
District of New York, Judge George Rosling issued an order, pending final
disposition of this case , enjoining and restraining both Respondents from
engaging in the various acts alleged in the Complaint and requiring Centac
to reinstate Hattem and Shatz and to bargain with Local 719 The Court
had before it the present transcript
'After the close of the hearing the parties entered into a stipulation
which has been submitted to the Trial Examiner setting forth further facts
with respect to Centac ' s business The stipulation has been made part of
the record herein as G C Exh 8
CENTAC CORP. 317
located outside the State of New York valued at in excess
of $125,000 It is found that Centac is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the National Labor Relations Act ("the
Act")
11 THE LABOR ORGANIZATIONS INVOLVED
Production, Distribution and Maintenance Employees
Union, Local 719, and Local 806, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are each a labor organization
within the meaning of Section 2(5) of the Act
111. THE UNFAIR LABOR PRACTICES
The principal issues litigated were (a) whether the
Centac plant was an accretion of the Century plant, (b)
whether application of the Century contract to the Centac
plant was violative of the Act, (c) whether Local 806
illegally caused Centac to discharge three employees, (d)
whether Local 806 threatened employees with physical
violence and loss of employment for not joining, and (e)
whether Centac's refusal to bargain with Local 719 was
violative of the Act
A The Accretion Issue
Centac was wholly owned by Williams Enzensperger,
Sr ,' Century was wholly owned by his two sons, Williams
Enzensperger, Jr , and Helmuth Enzensperger. The two
corporations had common directors and officers and both
leased their premises from the same realty corporation,
which was owned by Enzensperger, Sr. The two plants
were 40 miles apart. Day-to-day management of the
operations of Century was by the two sons, that of Centac
was by the William Enzenspergers, Sr and Jr Both
corporations had accounts with the same bank, but at
different branches. They also had separate payrolls, kept
at their respective offices, maintained separate seniority
lists, and they did their billing and purchasing
independently.
Century started its business in 1946, operating a plant
at Whitestone, Borough of Queens, City and State of New
York, where it was engaged in the coating of fabrics and
the laminating of fabrics The coating consisted of
applying plastic chemicals directly to the fabric to make it
waterproof, or so that it could be used, when cut up, as
iron-on patches The laminating was of two types The
first consisted of bonding a fiber filler to a face fabric by
use of adhesives together with heat and pressure, the
product was used in the manufacture of brassieres The
second, also known as transfer coating, consisted of
placing a film on a specially treated "release paper,"
applying this film-coated paper to an adhesive-coated
fabric, laminating the film to the fabric by heat and
pressure, and then removing the special paper ° The
products were used, depending upon the film employed,
for the manufacture of such things as luminous tapes,
baby pants, garden gloves and childrens' clothing of
urethane leather At the time of the events here in
question Century had 39 employees.
In this Decision when the name Enzensperger without Sr or Jr
appears, it will refer to William Enzensperger, Jr The transcript
erroneously refers to William Enzensperger, Jr , on p 39, I 17, and p 40,
I 14, the witness said William Enzensperger, Sr
'Enzensperger explained that while both types were at times referred to
In about December 1967 Enzensperger, Sr , who was
not actively engaged in the operation of the Century
business, contracted for the erection of a
57,000-square-foot building on a tract of land he had
acquired in Bohemia, Long Island The Century plant had
only 20,000 square feet While his original idea had been
to lease the Bohemia building, in early 1968 he decided to
use the building for a bonding or laminating business, and
he took steps to acquire the appropriate machinery
Centac was incorporated in March 1968 and in about
April the installation and erection of machinery was
begun Operations started in about August or September
1968 As Centac had no credit standing at its inception,
its purchases of materials were at first made through
Century, which then billed Centac.s Subsequently,
however, Centac did its buying through its own personnel
Centac's business consisted entirely of bonding face
fabrics to a backing material for use in the manufacture
of outerwear garments, such as dresses and coats The
basic process was the same as that used at Century for the
manufacture of brassiere material, i e bonding two fabrics
together by means of an adhesive applied under pressure
However, the equipment and procedures used were more
complex than were used by Century The reason was that
face materials for outerwear are patterned, and it was
therefore necessary to use machinery which, unlike the
machinery used by Century, could regulate the speed at
which the materials passed through and keep them in
perfect alignment. At the time of the hearing Centac was
installing a new machine designed for the manufacture of
"expanded vinyl," a simulated leather with porosity, used
for jackets, upholstery, and handbags. Enzensperger
testified that the machine could be used for the production
of baby-pants material, but that Centac had no intention
of doing so.
Centac hired its first employee on April I, 1968, two
others were hired the following week They assisted in the
setting up of the machinery and to some extent in
answering the telephone. In August Centac hired a
shipping foreman, however, as production had not started
he agreed to work temporarily at the Century plant, which
he did for about 3 weeks, after which he came to Centac
In about December 1968 two men, Hickson and Milazzo,
who had worked for Century since July 1968, requested
that they be given work at the Centac plant, which was
more convenient to their homes Their request was
granted While most jobs at the two plants were basically
similar, the equipment and product requirements were so
different that experience at one was of little use at the
other, and a transferred employee would have required
substantially as much training and experience as a
completely new employee None of the jobs were skilled
Centac used the same salesman as Century, but he
handled only part of the Century work He also had one
other client, a firm unconnected with the Enzenspergers,
Century or Centac With the exception of one
manufacturer of childrens' clothing, Century and Centac
had different customers
Centac stored material for Century, and on one
occasion, before it was in production, washed lint off a
indiscriminately as bonding or laminating , the industry also used the word
bonding to refer only to joining two related materials, such as two fabrics,
and used the word laminating to refer only to joining two unrelated
materials, such as a fabric and a vinyl film
The major materials, the face fabrics, were furnished by, and belonged
to, the customers Except for the manufacture and sale of urethane leather
by Century on its own account both corporations were engaged in what
was primarily a service to their customers
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
large quantity of urethane leather belonging to Century
Century paid for the washing by applying a credit against
materials purchased for Centac's account, the storage had
not yet been paid at the time of the hearing but
Enzensperger testified that a similar credit would be
applied eventually From time to time, but not as a
regular course, materials were transported from one plant
to the other; this was done for the most part by Century
trucks and drivers, but Centac trucks and drivers were
also employed At times, also, when trucks were
temporarily inoperative, they lent trucks to each other.
Concluding findings as to accretion
The Centac operation was organized to be a completely
self-sustaining, autonomous operation, with its own bank
account and office, its own payroll, and purchasing, billing
and shipping facilities. It was fully equipped to render its
own particular kind of service for its own particular
customers The credit lent by Century to Centac at the
beginning, the occasional lending of a truck, and the
washing of urethane leather by Centac for Century, do not
detract from this conclusion, nor do the few instances of
transfer of employees from one plant to the other None
of these things were part of normal operations and they
do not reflect a functional integration of operations The
storage of Century material at the Centac plant, and the
occasional transfer of merchandise or material from one
plant to the other were independent of regular operational
activity The use of a common salesman was not
significant, since sales activities, in the usual case, also
function quite independently of production In any event
there is no evidence that the salesman was an employee
rather than an independent contractor, and the fact that
he also represented another company, not connected with
the Enzenspergers, tends to negate an employment
relationship The only factor tending to establish a unity
between the two plants was William Enzensperger, Jr's
participation in the day-to-day management of each, but
that is not sufficient to establish that the two plants
constituted a single appropriate unit or that the Centac
plant was an accretion to the Century plant Compare The
Black and Decker Manufacturing Company, 147 NLRB
825, 827-828 Nor does the contract bring about that
result. See Pullman Industries, inc , 159 NLRB 580. On
the other hand, the marked difference of products, the
much more complex processing at Centac, and the 40-mile
distance between the two plants, along with their complete
self-containment and organizational independence from
one another, establish that Centac was not an accretion to
the Century unit. See Pullman Industries, Inc , supra,
Beacon Photo Service, Inc, 163 NLRB No 98, Dura
Corporation, 153 NLRB 592, 593, enfd 375 F 2d 707
(C A. 6)
B Sequence of Events
On or about August 1, 1966, Century and Local 806
entered into a collective-bargaining agreement which was
to expire by its terms, in the absence of countervailing
notice, on August 1, 1969 The agreement required
membership in Local 806 as a condition of employment
after the 30-day statutory grace period It also required
Century to contribute on behalf of each employee covered
by the agreement stated monthly sums to the Local 806
health and welfare fund and to a pension fund
In about December 1967 or January 1968 Enzensperger
met with Isola, Local 806's recording secretary who, as a
business agent, handled the collective-bargaining
relationship at Century, to discuss problems relating to
the Century plant In the course of the meeting
Enzensperger informed Isola that his father was building a
new plant in Bohemia In May 1968 Isola called
Enzensperger to make arrangements to visit the new plant
sometime when he would be in the area Enzensperger
told him that the new plant was not yet in production,
that they were merely erecting equipment, and that only
two employees were there at the time. Isola dropped the
matter In August Enzensperger informed Isola that
employees were making sample runs and some production
runs at the Bohemia plant. They made an appointment for
Isola to visit the plant but he became ill and did not keep
the appointment On one occasion during that month at
the Century plant Isola told Rutigliano, the shop steward,
in Enzensperger's presence, about the Centac plant and he
told Rutigliano "that everything was taken care of." In
late August or in September 1968 Enzensperger had a
conversation with Isola in which Isola said that he would
go out to Bohemia and "take care of the matters" and
sign up the employees, telling Enzensperger that the
Century contract applied to Centac Enzensperger
acquiesced 6 Enzensperger testified that the wages paid at
Centac were "substantially" or "approximately" the same
as those called for by the contract, but he did not claim
that he followed its exact terms Peterson testified to a
wage rate and an increase not in conformity with the
contract Kaye testified that 3 or 4 months after he was
hired, i e in about August, he received a 25-cents-per-hour
increase This was not in conformity with the contract,
which provided only for 5-cent, 10-cent, and 12 1/2-cent
increases, and also provided "A) No increase other than
those specified in the collective bargaining agreement and
the attached schedule 'A' shall be discussed with or paid
to any employee unless it is first discussed with the
Union " In view of this clause and of Kaye's and
Peterson's testimony, it is inferred that if Centac did pay
wages "substantially" those provided for in the contract,
that was a reflection of the wage market and, thus, a
coincidence, rather than the result of application of the
terms of the contract There is affirmative evidence that
the contract was not applied to Centac. Prior to October 3
no representative of Local 806 or of Centac ever informed
any employee that the contract was applicable Until that
date, moreover, Local 806 never made demand for
pension-fund or health-and-welfare payments or for union
dues, no such payments were made, and no Local 806
representative even visited the plant In view of the
foregoing it is found that Respondents did not apply the
Century contract to the Centac plant prior to the advent
of Local 719 hereinafter described
On September 24, 1968, five of the seven production
and maintenance employees at Centac signed cards
applying for membership in Local 719 and authorizing it
to represent them in collective bargaining ' The cards were
solicited by Martin Shatz, a Centac employee since
September 9 On September 25, Local 719 sent Centac
the following telegram.
'Enzensperger testified that Isola did not ask him to apply the contract
or its provisions to Centac , but he also stated that he thought that Isola
had made the assertion that it did apply and that he had acquiesced in that
assertion Isola testified to other conversations with Enzensperger about
the Centac plant, and said that Enzensperger and he agreed that the
Century contract applied, but the Trial Examiner has not credited Isola
Enzensperger, while indefinite as to detail, impressed the Trial Examiner as
a truthful witness
'The employees signing cards on September 24 were Buonacore,
CENTAC CORP 319
THIS UNION REPRESENTS A MAJORITY OF
YOUR EMPLOYE[E] S
WE DEMAND IMMEDIATE RECOGNITION AS
THE SOLE COLLECTIVE BARGAINING AGENT.
Enzensperger called Isola and informed him that another
union was organizing the plant, and that since he assumed
that the Century contract applied, he thought Isola would
like to know Isola advised Enzensperger not to do
anything, promising to go out and see Enzensperger
Enzensperger did not reply to the telegram.
On September 25 Local 719 also filed a petition for
certification in Case 29-RC-1112. The Regional Office
notified Centac of the petition and scheduled an informal
conference for October 3 Enzensperger informed Isola
and both men appeared at the conference, where they met
with a Board agent and with Sullivan, the Local 719
representative Local 806 presented the Century contract
and claimed that by virtue of Section XXX and the fact'
that the Centac plant was an accretion to the Century
plant, the contract was a bar to an election Enzensperger
took no position.
After the conference Enzensperger and Isola met at the
Century plant, where they picked up Rutigliano and the
three proceeded together to the Centac plant There Isola
asked Enzensperger which employees had been working
more than 30 days and were told of Flynn and Kaye,
employed, respectively, since May 13 and April 28 At
Isola's request the two employees were summoned to an
office to speak with Isola and Rutigliano. Isola told them
who he was, said that they were covered by the Century
contract, and, when asked, he explained his failure to
appear previously by saying that he had been ill and that
he had been told that no production was going on. He
explained to the two men the benefits under the contract
and called Enzensperger in and told him that Centac
would have to pay retroactively for them to Local 806's
health and welfare and pension funds, as well as all other
contractual benefits He obtained from Enzensperger an
admission that he had been aware that the Century
contract covered the Centac employees but nevertheless
had not advised the employees to that effect. Isola
explained to Kaye and Flynn that since they had been
employed more than 30 days, they would have to join
Local 806 or leave. They signed cards Isola said that one
of them would have to be shop steward and Kaye, with
Flynn's acquiescence, accepted the office.
The supervisors then summoned the other employees
and Isola informed them that Local 806's contract with
Century covered them and their own wishes did not
matter, since the contract was "iron clad." Isola was met
with hostility and shouting, and the men demanded to
know if Century employees would have seniority over
them Isola replied that they would, since the Centac
employees were new Hattem said that he would not be
forced to join a union he did not want to join. Isola
warned that heads had been broken to get Local 806 into
Century and that if need be the same would happen at
Centac before Local 806 would allow people at Centac to
take away Century employees' jobs. He also said that
membership in Local 806 was a condition of employment
after 30 days Shatz demanded to hear that from
Enzensperger, who, upon being summoned, was asked by
Shatz, "Bill, are we going to be let go if we don't join
806." Enzensperger confirmed Isola's warning. Isola also
Schortemeyer, Shatz , Peterson, and Hattem See G C Exh 5 A through
E The two remaining employees in the unit were Flynn and Kaye
told the employees of the holidays, health and welfare,
pension and other benefits they would have under the
Century contract. After the meeting ended Flynn
requested his card and, when Isola returned it, tore it up.
Isola warned him that that meant that under the
provisions of the contract his employment would have to
be terminated. Hattem asked how it had happened that
the employees had not been informed earlier about Local
806 and Isola explained that he had been ill After the
meeting Isola spoke to some of the employees. Shatz told
him that he had been responsible for bringing Local 719
into the plant
The entire meeting on October 3, took place during
working hours It is inferred that the employees were not
docked for the time.
Sullivan, the organizer for Local 719, was immediately
apprised of what was happening at the plant He warned
Enzensperger that he would file charges and the next day,
Friday, October 4, he did so Hattem and Shatz did not
appear for work that day, going to the Regional Office,
where they gave statements in support of the Charge.
On October 4 Isola telephoned Enzensperger and
ascertained that Flynn, Shatz, and Hattem had refused to
sign Local 806 cards He told Enzensperger that they
would not be allowed to work and requested their
discharge. Enzensperger objected that Shatz and Hattem,
both employed since September 9, had not yet been
employed 30 days. Isola replied that he did not care and
that he wanted them discharged, and he said that since
they had not been employed for 30 days they could be
discharged under the contract without any showing of
cause He told Enzensperger that Hattem had given him
"a lot of lip" at the October 3 meeting. Enzensperger
agreed to discharge Hattem and Flynn. However, in that
conversation or in another one between October 3 and 7
he asked Isola if he could retain Shatz, since he was
needed to keep the plant running Isola consented that
Shatz be allowed the full 30 days, after which he would be
discharged if he still persisted in not joining Local 806.
On October 7 Shatz and Hattem found that their
timecards were not in the rack. They were instructed by
the office manager to wait for Enzensperger. When
Enzensperger arrived, he called a meeting of all the
employees. He told Flynn that he had to discharge him
because he had been employed more than 30 days and
refused to join Local 806 He told Hattem that he had to
let him go too, explaining, when asked, that "it seemed
like he gave them too much lip," and he added, "I'm over
a barrel " Shatz asked how he stood, and Enzensperger
replied that his discharge had also been requested, but
that he had persuaded Isola to permit him to remain since
he was needed 8
On October 9 Enzensperger again called the employees
together. He informed them that Shatz had not joined
Local 806 even though employed 30 days and that he
therefore had to discharge him 9
' Isola admitted requesting Flynn ' s discharge, but categorically denied
requesting the discharge of Hattem or Shatz He testified that on October
4 Enzensperger complained to him that certain employees , who he later
learned were Hattem and Shatz, were absent without authority, but that
when he had ascertained that they were still serving their 30-day trial
period, he had told Enzensperger that he could do as he pleased with them
Enzensperger denied complaining of the two employees ' absence on
October 4 He testified specifically that Hattem had given no trouble and
was a good employee and that a single day's absence without leave was a
common occurrence and no reason for discharge He also stated that he
needed Shatz and did not want to let him go Isola 's testimony has not
been credited
'Shatz and Hattem testified that on October 7 or 9 Enzensperger told
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 15 Centac wrote identical letters to Flynn,
Hattem and Shatz reading as follows
Dear Mr [employee's name]
Please report for work as soon as possible.
Centac Corp
E J Desmond
Flynn returned to work and counsel for the General
Counsel has withdrawn any request for his reinstatement
in this proceeding Shatz and Hattem, who did not return,
testified that they had not been offered reinstatement, but
they did not deny receiving the letters.
C Concluding Findings as to the Unfair Labor
Practices
1 Application of the contract and recognition of
Local 806
It has been found that in late August or September
1968 Isola claimed that the Century contract applied to
Centac and that Enzensperger acquiesced, thereby
agreeing with Isola. Prior to that time they had agreed, in
effect, that, with no production going on, there were no
bargaining-unit employees and, therefore, no reason to be
concerned about Local 806's relationship to the Centac
plant; and it has been found that the contract was not
applied to the Centac plant before the advent of Local
719. It is unnecessary to meet the question of whether
Enzensperger's agreement in August or September 1968
with Isola's claim that the Century contract was
applicable to Centac constituted illegal recognition of
Local 806; no party makes such a contention in this
proceeding The issue litigated was whether there were
illegal recognition and application of the contract on
October 3.1 1
Local 806 makes no claim to have represented the
Centac employees except as an accretion to the Century
unit, and it is plain that the Centac employees had not
designated Local 806 as their bargaining representative
As it has been found that the plant was not such an
accretion, Local 806 did not, and had no authority to,
represent the employees Moreover, Enzensperger and,
especially, Isola, were fully aware, as a result of the filing
of the petition and the vehement opposition to Local 806
expressed by the employees at the October 3 meeting in
the plant, that the employees did not desire representation
by Local 806 In those circumstances their mere belief
the employees that the Century contract did not cover Centac This
testimony is at variance with other employees' testimony about the
meetings and with the undisputed testimony that on October 3
Enzensperger specifically conceded at least to Flynn and Kaye that the
contract did cover the Centac employees The Trial Examiner found Shatz'
and Hattem's testimony as to this incident unconvincing and it has not
been credited
1'Citing Local Lodge No 1424. International Association of Machinists
v N L R B (Bryan Manufacturing Co ). 362 U S 411, Local 806 does
contend that Section 10(b) of the Act prevents a finding of unfair labor
practice based upon application of the contract to Centac since Section
XXX B of the contract caused it to be automatically so applied on March
8, 1968, the date of Centac's incorporation, which was more than 6 months
prior to the filing and service of the charge However, the contract was not
applied to Centac at that time and, especially in view of the generality of
Section XXX B, its mere maintenance was not an unfair labor practice
The earliest that recognition might arguably have been requested or
granted according to the credited testimony was August 1968, and the
earliest possible conversation of any sort about the applicability of the
contract to the Centac plant, was in May or June 1968, both dates were
within the period of limitation prescribed in Section 10(b) of the Act
,that the Century contract was applicable could not serve
as a defense to their interference with the employees'
rights as to representation even if such belief was held in
good faith They made no effort to ensure that their belief
was legally sound On the contrary, after attending the
conference in the representation case, which could have
resolved the issue in the orderly fashion provided by
Congress, they proceeded to the plant to set in motion a
series of events which made the representation case a
futility Centac's recognition of Local 806 as the
employees' exclusive bargaining representative and the
application to them of the Century contract constituted an
unlawful denial of their right under the Act to choose
their own bargaining representative free from interference,
restraint and coercion and was violative of Section 8(a)(1)
of the Act Centac, moreover, thereby rendered unlawful
assistance to Local 806 in violation of Section 8(a)(2) and,
in view of the application of the union-security clause,
discriminatorily encouraged membership in Local 806 in
violation of Section 8(a)(3) of the Act See Local 210,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America v N L R B,
(Dancker and Sallew, Inc ), 330 F 2d 46 (C A 2), enfg
140 NLRB 824 Further, by demanding and insisting upon
recognition as the exclusive bargaining representative of
the employees and upon application to them of the
Century contract, including the union-security clause,
Local 806 violated Sections 8(b)(1)(A) and (2) of the Act
See Dancker and Sallew, Inc , supra; International Ladies
Garment Workers Union, AFL-CIO v. N.L R B, and
Bernhardt-Altmann Texas Corp , 366 U S. 731,
Consolidated Edison Company of New York, Inc, 132
NLRB 1502, Welch Scientific Company v N L R B, 340
F 2d 199 (C A. 2), enfg in relevant part 146 NLRB 1551
2 The discriminatory discharges
The record plainly establishes that the discharges of
Flynn and Hattem on October 7, and of Shatz on October
9, were caused by Local 806, which insisted upon such
discharges, in the cases of Shatz and Hattem over
Enzensperger's opposition The record also establishes that
the reason was that they refused to join Local 806. In the
case of Shatz an additional reason, and the reason his
discharge was requested before 30 days of employment,
was that Isola knew he had organized the employees for
Local 719 and that at the October 3 meeting he had
challenged Isola's authority and insisted upon hearing
from Enzensperger himself that membership in Local 806
was required as a condition of employment. In the case of
Hattem an additional reason, and the reason his discharge
was requested and insisted on before 30 days of
employment, was that he had openly defied Local 806,
saying that he would not join a union he did not want,
thereby encouraging other employees to emulate his
defiance. Enzensperger was aware that Isola demanded
the discharge of the three men because of their
membership in and opposition to Local 806, and he was
also aware that an additional reason in the case of
Hattem and Shatz was their loyalty to Local 719.
It is found that Local 806 caused Centac to discharge
Flynn, Hattem and Shatz because they refused to join or
assist Local 806, and that it caused Centac to discharge
Hattem and Shatz for the further reason that they joined
and assisted Local 719 It is further found that Local 806
thereby violated Section 8(b)(1)(A) and (2) of the Act and
that Centac, by discharging the three employees, violated
Section 8(a)(1), (2) and (3) of the Act.
CENTAC CORP. 321
3 Other restraint and coercion by Centac and Local
806
By giving Local 806 the use of its office to meet with
the employees during working hours for the purpose of
soliciting members, by having its supervisors summon the
employees to such meeting for such purpose, and by
paying the employees for the time so spent, Centac further
violated Section 8(a)(1) and (2) of the Act
By warning the employees that the Century contract
and its union-security clause were in effect at the Centac
plant and that employees who did not join Local 806
within 30 days of the commencement of their employment
would be discharged, Centac further violated Section
8(a)(I) and (2) and Local 806 violated Section 8(b)(1)(A)
of the Act; and Local 806 also violated Section 8(b)(l)(A)
by threatening to inflict bodily injury upon employees in
order to induce them to join Local 806 and to abandon
their membership in, and support and assistance to, Local
719.
4. The refusal to bargain
Request and refusal It is plain that by ignoring Local
719's telegram of September 25 requesting recognition,
and proceeding instead to apply the Century contract,
thereby recognizing Local 806 as representative of the
Centac employees, and by its other actions on October 3
and thereafter, Centac refused to bargain with Local 719.
Unit While Local 806 has denied the appropriateness
of the unit alleged in the Complaint, it raises no issue as
to its composition, which, the Trial Examiner notes, is
substantially the same as that of the unit covered by the
Century contract. As such a unit is appropriate and as the
only issue raised, i.e as to the limitation of the scope to
the Centac plant, has already been disposed of by the
finding that it was not an accretion, it is found that the
unit alleged in the Complaint is appropriate
Majority, Local 719's status The record establishes
that on September 24, 1968, a majority of the employees
in the unit, namely five of the seven men employed, by
signing appropriate cards designated Local 719 as their
representative for collective bargaining The question
remains, however, of whether, on September 25 or
thereafter, Local 719 was entitled to recognition. By early
September 1968 Centac had been presented with a claim
by Local 806 of representation of the Centac employees
and had accepted the claim as valid Isola's statement to
Enzensperger that he would go out to the plant to sign up
the employees did not mean, as contended by the General
Counsel, that he was going to organize them in order to
establish a majority. It meant, rather, that as the parties
were in agreement that the Century contract was
applicable, Isola was going to obtain compliance with the
union-security clause These events occurred prior to any
organizational activity among the Centac employees by
Local 719, and Local 806's claim was up to that time
untainted by any conduct of Centac towards the
employees The General Counsel has not established that
Enzensperger's acquiescence in Local 806's claim as to the
effect of the Century contract was in bad faith. Centac
was thus confronted with two conflicting claims of
representation
Centac's refusal to recognize Local 719, resting as it
did upon an alleged accretion, was in a sense a refusal
based on inappropriateness of unit. See N L R B v Food
Employers Council, Inc, 399 F 2d 501 (C A. 9), enfg 163
NLRB No. 58. It is established Board law that when an
employer refuses to bargain because he thinks a unit is
not appropriate, he does so at his peril, even if acting in
good faith. However, Local 719's demand involved more
than a unit question Centac had two conflicting claims of
representation to dispose of, so that recognition of either
union constituted a refusal to recognize the other The
Board has stated that it has imposed upon employers the
burden of refusing to bargain on unit grounds at their
peril because of the burdens placed upon unions in
refusal-to-bargain situations, saying, "It seems both
equitable and in conformity with the statute to impose the
same risks upon the employer who denies his obligation "
See Tom Thumb Stores, Inc, 123 NLRB 833, 835 The
weight of the equities is different, however, when the
employer's recognition of one union means a refusal to
recognize another The Board has, therefore, held that a
colorable and substantial competing claim of
representation, untainted by any conduct of the employer
when first made, is sufficient to raise a real question
concerning representation which, standing alone, would
justify a refusal to recognize the other union, even though
such competing claim was based upon a claim of accretion
found by the Board to be invalid See White Front
Sacramento, Inc, 166 NLRB No 29, see also Weather
Seal Incorporated, 161 NLRB 1226, 1228 " The General
Counsel attempts to distinguish Weather Seal, averring
that Local 719 demanded recognition before Local 806
had made any claim of representation It is unnecessary to
pass upon the legal validity of this argument because
Local 806's claim was made and acquiesced in by Centac
before the employees joined Local 719. The Boys Market,
Inc , 156 NLRB 105, cited by the General Counsel, is not
apposite In that case the Board, dismissing an allegation
of violation of Section 8(a)(2) of the Act, relied on the
fact that prior to the allegedly illegal recognition the
Board had held that the same multi-employer contract on
which the competing claim was based did not apply to the
employees as to whom recognition had been granted. The
Board explained, 156 NLRB at page 107, that an
employer could, without violating the Act, extend
recognition to a union "where the rival union's claim is
clearly unsupportable or specious, or otherwise not a
colorable claim " As Century's and Centac's operations
did have a degree of underlying similarity, as the two
corporations had common officers and directors and one
common operator, as the ownership of both was among a
father and his two sons and both plants were rented from
the father's real estate corporation, as there was a degree
of cooperation between the two plants in some of their
activities, and as they were sufficiently close to one
another to make transfer or interchange of employees
reasonably conceivable, Local 806's claim cannot, in the
absence of a Board holding against it, be said to have
been "clearly unsupportable or specious, or otherwise not
a colorable claim."
It is found that Centac's refusal to recognize Local 719
was not unlawful and it will be recommended that the
allegation that Centac unlawfully refused to bargain with
Local 719 be dismissed.' 2
"Chairman McCullough and Board Member Zagoria dissented in
Weather Seal
''The question of whether an employer would be in violation of the Act
under Midwest Piping and Supply Co , Inc, 63 NLRB 1060, if he
recognized a majority union in the face of an unresolved claim based on
accretion which, unlike the claim in The Boys Market , Inc , is colorable,
albeit invalid , is not passed on in this Decision
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Centac and of Local
806 set forth above in section III, occurring in connection
with the operations of Centac described above in section 1,
have a close, intimate, and substantial relationship 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
As it has been found that Respondents have engaged in
certain unfair labor practices, it is recommended that the
Board issue the Recommended Order set forth below
requiring Respondents to cease and desist from said unfair
labor practices and to take certain affirmative action
which will effectuate the policies of the Act.
It is recommended that Centac withdraw all recognition
from Local 806 as representative of any of its employees
for the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment
or other conditions of employment, unless and until said
labor organization is certified by the Board It is also
recommended that Centac cease and desist from giving
any force or effect to the collective-bargaining agreement
entered into between Century and Local 806 However,
this shall not be construed as requiring Centac to vary any
wage, hour, seniority or other substantive feature of its
relations with its employees which it has established
pursuant to said contract.
The General Counsel contends that Centac's letters to
Shatz and Hattem asking them to " report for work
as soon as possible" were inadequate as offers of
reinstatement because they failed to specify that the work
offered was the same as their previous employment or that
they would not have to join Local 806. Enzensperger had
indicated that he discharged Shatz and Hattem unwillingly
and only because of Local 806's insistence In view of
these facts, and as neither the letters nor the
circumstances stated or implied any conditions or
qualifications," the most reasonable interpretation of the
letters was that Enzensperger was simply reversing his
past position, so that (a) membership in Local 806 would
not be required of Shatz or Hattem, and (b) they were to
go back to work at their old jobs. If the men had doubt,
they could have inquired. For these reasons it is not
recommended that Centac be required to make any
further offer of reinstatement to Shatz or Hattem. It is
however recommended that Local 806 be required to
notify Centac that it will not in any manner oppose the
employment of Flynn, Shatz or Hattem" It is also
recommended that both Respondents forthwith jointly and
severally make whole Hattem, Shatz and Flynn for any
loss of pay they may have suffered by reason of Centac's
discrimination against them. The amount paid to each as
backpay shall be a sum of money equal to what he would
have earned from the date of his discharge to the date of
Centac's offer of reinstatement, less his net earnings
during said period, computed in accordance with the
formula set forth in F W Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6 percent
per annum, to be computed in the manner described in
Isis Plumbing & Heating Co , 138 NLRB 716. It is also
recommended that Centac preserve and, upon request,
make available to the Board and its agents payroll and
other records to facilitate the computation of backpay
Local 806's threats to use physical force to establish
itself as the employees' bargaining representative, and its
agent's boast of having used such tactics at Century
indicate a disposition to disregard the policies going to the
fundamental purpose of the Act, namely, the protection of
employees' right to bargain through representatives of
their own choosing. For this reason it is recommended
that Local 806 be required to cease and desist from
infringing in any manner on the rights of the employees
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and of
the entire record in this case the Trial Examiner makes
the following.
CONCLUSIONS OF LAW
I Respondent Centac Corp is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Centac is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. Local 806, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and
Production, Distribution and Maintenance Employees
Union, Local 719, are each a labor organization within
the meaning of Section 2(5) of the Act.
4. By discriminatorily discharging Douglas Flynn,
Albert Hattem, and Martin Shatz, and by applying the
union-security clause of the Century contract to its
employees, Centac has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act
5. By recognizing Local 806 as the exclusive bargaining
representative of its employees at a time when said labor
organization did not enjoy majority status, and by
applying to its employees the agreement between Century
Facilities, Inc. and Local 806, and by contributing other
support to Local 806, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(2) of the Act
6. By interfering with, restraining and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent Centac has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
7 By accepting authority as exclusive bargaining
representative of the Centac employees at a time when in
fact it did not have the support of a majority of said
employees, Respondent Local 806 has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act
8. By demanding application to the Centac employees
of its contract with Century Facilities, Inc and by
insisting upon application to the Centac employees of the
union-security clause of said contract, Respondent Local
806 has engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act
9 By causing Centac to discharge Douglas Flynn,
Albert Hattem and Martin Shatz in violation of Section
8(a)(3) of the Act, Respondent Local 806 has engaged in
unfair labor practices within the meaning of Section
8(b)(2) of the Act
"Distinguish California Lingerie, Inc , 129 NLRB 912, where the
purported offer of reinstatement had been preceded by several recalls for
work which turned out to be temporary and without the employee's
previously recognized right to be transferred to other jobs when work was
not available on his primary job
"At the hearing counsel for Local 806 stated that it did not intend to
enforce the union-security provision pending disposition of this case
CENTAC CORP 323
10 By restraining and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act,
Respondent Local 806 has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act
11 The unfair labor practices described above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended,
A Respondent Centac Corp., its officers, agents,
successors, and assigns, shall
I Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of membership in or activities on
behalf of Production, Distribution and Maintenance
Employees Union, Local 719, or any other labor
organization, or because of nonmembership in or
opposition to Local 806, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America
(b) Encouraging membership in Local 806 or any other
labor organization by entering into, maintaining or
enforcing an agreement requiring membership therein as a
condition of employment, except as authorized in Section
8(a)(3) of the National Labor Relations Act, as amended.
(c) In any other manner discriminating against
employees in order to encourage membership in Local 806
or any other labor organization, except as authorized in
Section 8(a)(3) of the Act, as amended, or in order to
discourage membership in Local 719 or any other labor
organization
(d) Threatening employees with discharge or other
reprisals if they do not become or remain members of
Local 806, or if they oppose or fail to give assistance or
support to said labor organization
(e) Permitting Local 806 or any of its agents to hold
meetings with employees, to solicit employees to sign
designation cards, to recruit members, or to conduct other
union business in its plant during working hours.
(f) Recognizing Local 806 as the representative of any
of its employees for the purpose of dealing with Centac
concerning grievances, labor disputes, wages, rates of pay,
hours of employment or other conditions of employment,
unless and until said labor organization shall have been
certified by the National Labor Relations Board as the
representative of such employees
(g) Applying the agreement between Local 806 and
Century Facilities, Inc., to the employees of Centac unless
and until said labor organization shall have been certified
by the Board as representative of the employees provided,
however, that nothing herein shall require Centac to vary
or abandon any wage, hour, seniority or other substantive
feature of its relations with its employees which it has
established in performance of said agreement.
(h) In any other manner contributing support to Local
806 or to any other labor organization.
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act
2 Take the following affirmative action which, it is
found, will effectuate the policies of the Act
(a) Withdraw and withhold all recognition from Local
806, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representative of any of its employees for the purpose of
dealing with Centac concerning grievances, labor disputes,
wages, rates of pay, hours of employment or other
conditions of employment, unless and until said labor
organization shall have been certified by the Board as the
exclusive bargaining representative of such employees
(b) Jointly and severally with Local 806, make whole
Douglas Flynn, Albert Hattem, and Martin Shatz for any
loss of earnings they may have suffered as a result of the
discrimination against them in the manner described
above the section V of this Decision, entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll and personnel records and all other data necessary
to analyze and compute the backpay required by this
order
(d) Post at its office and plant in Bohemia, Long
Island, copies of the notice attached hereto marked
"Appendix A."' 5 Copies of said notice, to be furnished by
the Regional Director for Region 29, shall, after being
duly signed by its representative, be posted immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced or
covered by any other material
(e) Notify the Regional Director for Region 29 in
writing, within 20 days from the receipt of this
Recommended Order, what steps the Respondent has
taken to comply herewith 11
B Respondent, Local 806, 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 representative of any of the
employees of Centac Corp. for the purpose of dealing with
said employer concerning grievances, labor disputes,
wages, rates of pay, hours of employment or other
conditions of employment, unless and until said Local 806
shall have been certified by the Board as the exclusive
bargaining representative of such employees.
(b) Attempting to enforce or apply with respect to
Centac employees its agreement dated August 1, 1966,
with Century Facilities, Inc
(c) Causing or attempting to cause Centac to discharge
or refuse to employ Douglas Flynn, Robert Hattem,
Martin Shatz or any other employee because they refuse
to join or assist Local 806 or because they join or assist
Production, Distribution and Maintenance Employees
Union, Local 719, or engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 29 , in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Threatening to cause Centac to discharge employees
or threatening employees with bodily injury or other
reprisals to induce them to join, support or assist Local
806 or to discontinue membership in or support of or
assistance to Local 719
(e) In any other manner restraining or coercing
employees of Centac in the exercise of rights guaranteed
in Section 7 of the Act
2 Take the following affirmative action which, it is
found, will effectuate the policies of the Act
(a) Notify Centac and Douglas Flynn, Albert Hattem
and Martin Shatz that it does not object to their
employment by Centac
(b) Jointly and severally with Centac make whole
Douglas Flynn, Albert Hattem and Martin Shatz for any
loss of earnings suffered by them as a result of the
discrimination against them in the manner described
above in section V of this Decision entitled "The
Remedy "
(c) Post at its business offices and meeting places copies
of the attached notice marked "Appendix B "" Copies of
said notice, to be furnished by the Regional Director for
Region 29 shall, after being duly signed by an official
representative of Local 806, be posted by said Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter in conspicuous places,
including all places where notices to members of Local
806 are customarily posted. Reasonable steps shall be
taken by Local 806 to ensure that said notices are not
altered, defaced or covered by any other material.
(d) Furnish to the Regional Director for Region 29
signed copies of said notice for posting by Centac, if
willing, in places where notices to its employees are
customarily posted Copies of said notice, to be furnished
by the Regional Director, shall, after being signed by an
official representative of Local 806, be forthwith returned
to the Regional Director for disposition by him
(e) Notify the Regional Director for Region 29 in
writing, within 20 days from the date of receipt of this
Decision and Recommended Order, what steps
8Respondent has taken to comply herewith."
IT IS ALSO RECOMMENDED that the Board dismiss the
allegation in the Complaint that Respondent Centac
illegally refused to bargain with Local 7 19.
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 29, in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
WE WILL withdraw and withhold recognition from
Local 806, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
unless and until it is certified by the National Labor
Relations Board
WE WILL NOT permit IBT Local 806 to hold
meetings with employees or recruit members in our
plant during working hours
WE WILL NOT apply to our employees Local 806's
agreement with Century Facilities, Inc.
WE WILL NOT discharge or discriminate against you
in any other way because you are not members of
Local 806 or because you join or assist Production,
Distribution and Maintenance Employees Union, Local
719, or any other labor organization
WE WILL NOT threaten to discharge you because you
do not join Local 806
WE WILL NOT contribute support to IBT Local 806
in any other manner.
WE WILL NOT in any similar manner restrain or
coerce you in the exercise of your right to
self-organization, to bargain collectively through
representatives of your own choosing, and to engage in
other 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 might be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act
LOCAL 806,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
212-596-3535
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 806, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
APPENDIX A
Pursuant to the Recommended Order of a Trial
NOTICE TO ALL EMPLOYEES Examiner of the National Labor Relations Board and in
olicies of the National Labororder to effectuate the
Pursuant to the Recommended Order of a Trial Re
Examiner of the National Labor Relations Board and in
p
lations Act, as amended, we hereby notify you that-
WE WILL make whole Douglas Flynn, Albert
order to effectuate the policies of the National Labor Hattem, and Martin Shatz for any loss of earnings they
Relations Act, as amended, we hereby notify our suffered as a result of their discharge by Centac Corp.
employees that- on October 7 and 9, 1968
WE WILL make whole Douglas Flynn, Albert WE WILL notify Centac, Flynn, Hattem and Shatz
Hattem, and Martin Shatz for any loss of earnings they that we do not object to Centac's employing these
may have suffered as a result of their discharge. employees
CENTAC CORP. 325
WE WILL NOT act as exclusive bargaining
representative of any employees of Centac unless and
until we are certified by the National Labor Relations
Board.
WE WILL NOT attempt to enforce or apply with
respect to Centac employees our contract with Century
Facilities, Inc.
WE WILL NOT attempt to cause Centac to discharge
or refuse to employ any employees because they refuse
to join our union or because they join, remain members
of, or assist Production, Distribution and Maintenance
Employees Union, Local 719.
WE WILL NOT threaten to cause Centac to discharge
employees or threaten employees of Centac with bodily
injury or other reprisals to compel them to join Local
806 or to refuse to assist, join or remain members of
Local 719
WE WILL NOT in any other manner restrain or coerce
employees of Centac in the exercise of their right to
self-organization, to bargain collectively through
representatives of their own choosing, and to engage in
any other 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 might be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act
Dated By
CENTAC CORP.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
212-596-3535.