Suburban Transit Corp.

National Labor Relations Board - Board Decisions

May 4, 1973

203 N.L.R.B. 465 (N.L.R.B. 1973)

SUBURBAN TRANSIT CORP. 465
Suburban Transit Corp . and Highway and Local Motor
Freight Drivers, Local No. 701 , affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and United
Transportation Union , Lodge No. 1589, Party to the
Contract
H.A.M.L. Corporation and Highway and Local Motor
Freight Drivers, Local No. 701 , affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and United
Transportation Union , Lodge No . 1589, Party to the
Contract . Cases 22-CA-4656, 22-CA-4665, and
22-CA-4670.
We hereby correct the Administrative Law Judge's inadvertent error in
finding that Respondent H.A.M.L. violated Sec. 8(a)(3) of the Act by unlaw-
fully recognizing , and signing a contract with, the United Transportation
Union. Such conduct violates Sec. 8(a)(2) of the Act, and we so find.
Also, Respondent H.A.M.I. Corporation is to post Appendix B attached
to the Administrative Law Judge 's Decision, rather than Appendix A as the
Administrative Law Judge inadvertently states in his recommended Order.
2 Inasmuch as we adopt the Administrative Law Judge's findings that
Respondents Suburban and H .A.M.L. constitute a single employer within
the meaning of Sec 2(2) of the Act, and since Suburban's operations clearly
meet the Board 's jurisdictional standards, we find it unnecessary to, and do
not, pass upon the question whether the Board would assert jurisdiction over
H A.M.L's school bus operations, were those operations before us on an
independent basis.
May 4, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS,AND PENELLO
On November 27, 1972, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding . Thereafter , Respondents jointly filed ex-
ceptions and a supporting brief , and United Trans-
portation Union , Lodge No. 1589, filed
cross-exceptions and a supporting 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 , cross-ex-
ceptions , and briefs , and has decided to affirm the
rulings, findings ,' and conclusions 2 of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondents, Suburban Transit Corp. and
H.A.M.L. Corporation, New Brunswick, New Jersey,
their officers , agents , successors , and assigns, shall
take the action set forth in the said recommended
Order except that the attached notice is substituted
for the Administrative Law Judge's Appendix A.
i The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd. 188 F.2d 362 (C A. 3). We have carefully examined the
record and find no basis for reversing his findings.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give effect to the collective-bar-
gaining agreement entered into October 14, 1971,
with UTU, or to any extension, renewal, or modi-
fication thereof, unless and until the said labor
organization shall have demonstrated its exclu-
sive majority representative status pursuant to a
Board-conducted election among our employees.
WE WILL NOT recognize UTU as the exclusive
representative of our employees for the purposes
of collective bargaining unless and until it has
been selected by them in the manner prescribed
above.
WE WILL NOT discriminate against any employ-
ee by discharging or refusing to reinstate him
because he has engaged in a strike or any other
concerted activity.
WE WILL reinstate with backpay all employees
discriminatorily discharged or refused reinstate-
ment for striking.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of rights guaranteed them by the Nation-
al Labor Relations Act.
SUBURBAN TRANSIT CORP.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
203 NLRB No. 69
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, 16th Floor, 970
Broad Street, Newark, New Jersey 07102, Telephone
201-645-2100.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge : This case
was heard at Newark, New Jersey , on various dates in Feb-
ruary, April, and May 1972, on a consolidated complaint
issued December 29, 1971, based on charges filed October
29, November 8, and November 11, 1971, and amended
December 7, 1971. The complaint alleges that Respondent
Suburban violated Section 8(a)(1) and (2) by executing a
new collective -bargaining agreement with the UTU while a
question concerning representation , raised by a petition
filed by the Teamsters , the Charging Party herein, was
pending ; violated Section 8 (a)(l) and (3) by virtue of the
fact that said contract contained a union-security provision;
violated Section 8(aXl) by threats to strikers ; and violated
Section 8(aX3) and ( 1) by discharging strikers . The com-
plaint alleges that Respondent H.A.M.L. violated Section
8(a)(2) and (1) by executing a contract with UTU at a time
UTU did not represent an uncoerced majority of H.A.M.
L.'s employees , and by assisting UTU in its organizing
drive ; violated Section 8(a)(3) and (1) by the existence of a
union-security provision in said contract ; and violated Sec-
tion 8(a)(l) by acts of surveillance and assistance.
Respondents deny that any unfair labor practices have
been committed . UTU, party to each of the contracts, de-
nies all allegations of the complaint that impinge upon its
contractual relationship with Suburban and H .A.M.L., spe-
cifically denying that UTU has been illegally assisted by the
execution of either contract , that a question concerning rep-
resentation existed at Suburban , and that H .A.M.L. unlaw-
fully assisted UTU in organizing H.A.M.L.'s employees.'
The General Counsel's affirmative case of a violation of
Section 8(a)(2) by Suburban is essentially based on the Mid-
west Piping doctrine? As in this case , the Teamsters filed a
i As the party to the contract in each case , UTU is of course a necessary
party to the case. During the hearing , however, I limited its participation to
those issues and allegations bearing upon its contractual relationship I did
not, for example , permit participation by UTU, by way of examination or
cross-examination , on matters pertaining to the alleged discriminatory disc-
harges by Suburban.
2 Midwest Piping Supply Co, Inc., 63 NLRB 1060. This doctrine in general
requires an employer to remain neutral when rival unions are claiming repre-
sentation rights for his employees As explained in subsequent cases , see, e.g.,
Shea Chemical Corporation, 121 NLRB 1027, upon presentation of a claim
raising a real question of representation an employer may not bargain with
even an incumbent union until the question concerning representation has
been settled by the Board
petition with the Board seeking to represent Suburban's
employees on September 29, 1971, and on the same date
employee Joseph Manga filed a decertification petition with
the Board seeking to unseat the UTU. The execution of a
new contract with UTU by Suburban on October 14, 1971,
at a time when Suburban was fully aware of both the Team-
sters' petition and the decertification petition , was in viola-
tion of Section 8(a)(2) and (1) of the Act.
Respondent Suburban , relying principally on the third
Circuit's decision in N.L.R.B. v. Swift & Company, 294 F.2d
285 (C.A. 3, 1961), contends that UTU's convincing show-
ing of majority support following the filing of the petitions,
by the signature of a large majority of employees on a
petition to ratify the contract which had been negotiated,
removed any doubts as to which Union represented the
employees , meant that there was no longer a real question
concerning representation , and permitted the execution of
the contract.
UTU argues that the Board should dismiss the 8(a)(2)
allegation against Suburban and permit the contract be-
tween it and Suburban to stand , both on Swift grounds and
because of the allegedly duplicitous conduct by UTU's
chief negotiator, Daniel Rava , who was in effect a Teamster
agent , and whose actions following negotiation of the con-
tract were designed to and did prevent it from being ratified,
so that the Teamsters could file the petition they were not
able to file during the insulated period.
The General Counsel counters this latter argument by
contending that Rava's conduct was not shown to have
prevented ratification , that even if it did, UTU can hardly
be heard to complain about the conduct of its own represen-
tative, particularly when other UTU representatives, pre-
sent at ratification meetings , not only did nothing about it,
but did not indicate in any way that Rava was misrepresent-
ing to the assembled employees . As to the Swift argument,
the General Counsel relies principally, of course, on Board
law as controlling, rather than a particular court's contrary
view (even though this case arises at the same circuit), and
contends in essence that Swift would not apply in any event
because the signatures of employees on the petition to ratify
were tainted or coerced.
As to the 8(a)(1) and (3) violations with respect to Subur-
ban, they are all, for practical purposes , dependent on the
violation of Section 8(a)(2). Thus , if the October 14 contract
was legally executed, then the striking employees were in
violation of the "no-strike" clause therein and could be
discharged . And, if the contract were lawful , then the
threats to the strikers were similarly lawful. Finally, of
course, if the execution of the contract were lawful, so was
its union-security provision.
With respect to H.A.M.L., the General Counsel urges
that it negotiated and signed the contract with UTU to keep
the Teamsters out, expecting that the Teamsters , which it
knew was organizing its employees , would file a representa-
tion petition with the board, and that the UTU did not have
an uncoerced majority because of company assistance to it
in obtaining signatures . H.A.M.L. and UTU defend by de-
nying that any of H.A.M.L.'s conduct constituted unlawful
assistance , so that UTU did represent an uncoerced majori-
ty, by questioning the General Counsel's version of events,
specifically claiming that General Counsel's witness, Bien,
SUBURBAN TRANSIT CORP. 467
should not be credited and by contending that Flanagan
was not supervisor , so that any conduct on his part is not
attributable to H.A.M.L. H.A. M.L. also contends that the
recognition of UTU was lawful for the above reasons, and
because the Teamsters never notified H.A.M.L. of its inter-
est until after the UTU contract was signed.
Counsel for the General Counsel and for the Respon-
dents have filed briefs with me.
Upon the entire record , including my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Suburban, a New Jersey corporation, with its
principal office and place of business at 750 Somerset Street,
New Brunswick, New Jersey, is engaged in the transporta-
tion of passengers by bus. During the calendar year 1971,
Suburban had gross revenues of more than $500,000, of
which more than $50,000 was derived from interstate pas-
senger service. I find, as Respondent Suburban admits, that
it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
Respondent H.A.M.L., herein called HAML, also a New
Jersey corporation, has its principal office and place of
business at 333 Handy Street, New Brunswick, New Jersey,
where it is engaged in providing school bus and charter
service transportation. During the calendar year 1971,
HAML had gross revenues in excess of $400,000. I find,
accordingly, in accord with Charleston Transit Company,
123 NLRB 1296, that Respondent HAML is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.'
II THE LABOR ORGANIZATIONS INVOLVED
Highway and Local Motor Freight Drivers , Local No.
701, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, the
Charging Party herein , and United Transportation Union,
Lodge No. 1589 , AFL-CIO, the Party to the Contracts,
herein called UTU, are admittedly labor organizations
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Suburban-The Facts
gaining for a new contract in July 1971. Following some
preliminary meetings, real negotiations began about the end
of August 1971. At about that time Daniel Rava, a Subur-
ban employee, became chairman of the UTU grievance
committee, which served, in effect, as the bargaining agent
for that union. A number of negotiating sessions were held
between then and the expiration date of the contract. On
September 14, a "package," membership rejected the pack-
age by a 49-to-3 secret ballot vote. (There were 66 employ-
ees in the bargaining unit at that time.)5 Another negotiating
session was held on September 24, at which Suburban in-
creased its wage-offer.6 This new package was presented to
a membership meeting that same day. No vote was taken at
that meeting, where "people were very boisterous and we
almost had a couple of fist fights in there." 7 General
Counsel's witness, Manga, credibly testified that the meet-
ing was "chaotic," that it "didn't seem like anybody liked
it [the package being presented] at all." Gerard McPhillips,
a UTU official,8 also testified to the "chaos" at that meet-
ing. He testified that there were about 20 to 25 people at the
meeting (other estimates varied, but were generally about
30), and that about 10 to 15 members seemed determined
not to accept any contract with a 3-year term.
Shortly after that ratification meeting, on September 27
and 28, employee Joseph Manga circulated a petition to
decertify the UTU, obtaining the signatures of more than
30 percent of the employees thereon, and also solicited em-
ployee signatures on Teamsters authorization cards. The
petition and the cards had been given to Manga by Rava.
Manga filed the decertification petition on September 29,
and the Teamsters filed a representation petition the same
day.
On September 28, a meeting was held between Suburban
officials and the UTU, with a Federal mediator present. All
present apparently agreed that it would be useless to hold
another membership meeting for ratification, but instead
they discussed whether to poll the employees by mail or
circulate a petition. Although that meeting ended with a
decision to use a mail ballot, a position Rava had espoused
at the meeting, that evening, as a result of some discussion
between UTU International Representative Moore and Lo-
cal President Zechman, Peterson and Zechman decided to
circulate a petition, believing, according to their testimony,
that Rava was collaborating with the Teamsters and had
advocated the mail ballot in order further to delay matters.
Such a petition was prepared, and circulated by Peterson
and another UTU official, Alexander. Morris Lipschitz, the
principal owner of Suburban, told Rava that he should work
with Peterson and Zechman to get the petition signed, that
if 80 or 90 percent of the employees signed it, "this would
UTU has represented the employees of Suburban for
approximately 30 years .4 Its most recent contract prior to
the one at issue in this case was executed September 15,
1968, to run until September 14, 1971. UTU requested bar-
6 The role played by Rava in presenting the package to the membership
at this and a subsequent meeting is at issue here and is discussed below.
6 The September 14 package included a wage offer of an 80-cent increase
the first year, 40 cents the second, and 20 cents the third The September 24
offer was 80 cents the first year, 40 cents the second, 30 cents the first 6
months of the third year, and 30 cents the second 6 months of the third year.
7 Testimony of Richard L. Peterson, Jr., at UTU witness, and vice presi-
3 Respondent HAML denied the Board 's jurisdiction in its answer to the dent of the UTU's committee on adjustment (apparently the same as the
complaint, but has apparently abandoned that position , as its brief does not committee on grievances , of which Rava was chairman.)
refer to it
s He was on part-time assignment as an international representative and
UTU was formerly the Brotherhood of Railroad Trainmen , Lodge No. assisted the local in handling negotiations . McPhillips was present at the
993. It became UTU sometime between 1968 and 1970. ratification sessions
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knock the Teamster petition right out of the box," and that
if Rava did help he "would be in with the company one
thousand per cent "9
On October 1, the petition was circulated, and 51 of the
66 employees signed it. Peterson testified that he told a
number of the employees to whom he circulated the petition
that they might lose their benefits if the Union did not sign
the contract . Peterson also testified that he explained to a
number of the employees that if the Teamsters became their
bargaining agent negotiations would have to start over com-
pletely, and that he was against the Teamsters coming in on
the property. The petition was presented to the Company;
Company Official Sidney Kuchin checked the signatures on
it against the payroll , and President Lipschitz agreed to sign
the contract when he returned from a trip to California. On
October 14, the contract was executed.
On October 26, at a meeting at the Teamsters hall, the
employees of Suburban voted to strike.
The next day a number of Suburban employees went out
on strike and began picketing the Company 's premises, with
signs reading "Employees of Suburban Transit on Strike
Unfair Labor Practices Local Teamsters Union No. 701."
The number of employees who picketed is disputed, esti-
mates ranging from 25-30 to 40-46. It is clear that only eight
employees reported to work during the strike , but it is not
clear that the remaining employees all supported the strike;
some may have refrained from working because of harass-
ment by pickets. On October 29, Suburban wrote to each
striking employee that he would be suspended if he did not
report back to work on November 2. On November 1, Sub-
urban obtained a temporary restraining order from the Su-
perior Court of New Jersey. Nineteen of the strikers did not
report for work on November 2. On November 5, 18 of these
19 unconditionally applied for reinstatement . Following
hearings conducted by Suburban , all but 2 of these 18 were
discharged.
B. Suburban-Discussion
1. The 8(a)(I) Violation
The General Counsel is correct that the bare-boned facts
fall squarely within the Board's Midwest Piping doctrine, for
Suburban entered into the new contract with UTU after,
and with knowledge of, the representation petition filed by
the Teamsters and the decertification petition filed by Jo-
seph Manga . Furthermore , both these petitions raised real
questions concerning representation in that they were sup-
ported by cards (the Teamster petition) and a petition (the
decertification petition) containing the signatures of at least
30 percent of the employees of Suburban, they were clearly
for an "appropriate unit" (the very unit for which UTU was
the incumbent representative ), and there was no extant con-
tract at the time of their filing to bar an election . These facts
alone clearly establish a prima facie case of a violation of
Section 8(aX2) and (1) by Suburban.
I cannot, of course , accept Suburban 's and UTU's argu-
ment that no violation be found because of the Swift case,
9 Lipschitz did not testify.
supra, even though this case arises within the Third Circuit,
for (saving for the moment the other defenses urged by
Suburban and UTU) I am constrained to follow Board law,
even where a court of appeals has disagreed. Although there
are distinctions between this case and Swift, e.g., in Swift the
particular unit for which a petition had been filed by an
outside union was "covered" by a master contract, embrac-
ing many units, which specifically provided that its terms
would become inapplicable to that particular plant if the
outside union prevailed in the election, the basic reasoning
of the court would apply here. With all due respect, I believe
that reasoning is fallacious, completely missing the point of
the Board's doctrine. The court rejected the Board's finding
of a violation essentially on the ground that the mere filing
of a petition does not establish that a real question concern-
ing representation exists. As only a hearing had been held
on the petition, with no election directed, and because the
administrative showing of a 30-percent interest by the peti-
tioner, although sufficient for representation cases, was not
a sufficient evidentiary basis for an unfair labor practice
finding, nor could it support the Board's finding that the
employer had a reasonable basis for believing that the in-
cumbent no longer represented a majority, the court denied
enforcement of the Board's Order.
Implicit in the court's holding was that it would have
sustained the Board had an election already been directed.
Under the court's view, therefore, a company preferring to
deal with one union could with impugnity contract with that
union , even though a petition by a rival had been filed, if
it hastened to do so before the Board issued its direction.
Adoption of the view that the direction of election is the
turning point beyond which the employer is required to be
neutral would thus nullify, for practical purposes, the entire
Midwest Piping doctrine.
To the extent that the court held that there was no evi-
dence to show that the employer had a reasonable basis for
doubting the incumbent's majority, the court, in my opin-
ion, again misconstrued the Board's doctrines. Whether a
"real question of representation" exists does not in any way
turn on whether the company has a "reasonable doubt."
Once a petition has been filed seeking to unseat an incum-
bent union , provided that the petition is for an appropriate
unit, there is no contract bar, and there is a 30-percent
administrative showing of interest, the Board will direct an
election without regard for the fact that the employer may
have no doubt that the incumbent represents a majority.
Indeed, once it is recognized, as the court apparently has,
that an election can be conducted without permitting litiga-
tion of whether the petitioning union had an adequate
showing of interest, it follows that no such litigation should
be permitted in a complaint proceeding, for the latter turns
on whether there was a question of representation, a repre-
sentation case concept. When, of course, the Board has not
yet directed an election, the complaint proceeding does pro-
vide a forum for litigating whether there was a question of
representation, but only in the same manner as that ques-
tion would have been "litigated" in a representation pro-
ceeding. William Penn Broadcasting Company, 93 NLRB
1104.
Apparently the court would not have reversed the Board
had an election been directed, for it cites with approval St.
SUBURBAN TRANSIT CORP. 469
Louis Independent Packing Company v. N.L.R.B., 291 F.2d
700 (C.A. 7, 1961). But the actual direction of election no
more suggests the incumbent union 's lack of a majority than
does the filing of the petition. And, if no "reasonable doubt"
is essential to finding a violation after a direction of election,
it is difficult to see any logic in requiring such a reasonable
doubt before finding a violation based on the filing of the
petition.
As noted, it is incumbent upon me to decide, in this
complaint proceeding, whether a real question concerning
representation existed, a question I reach in connection with
Respondent's and UTU's other defenses, before a Midwest
Piping issue can be resolved. The point, of course, is that
once such a petition had been filed, it is for the Board to
determine whether there is a question concerning represen-
tation, and to resolve such a question by a Board-conducted
election; it is not for the employer to do so. Granted, as
employer may recognize one of two competing unions and
yet not be guilty of a violation if it eventuates that no
question concerning representation existed, but he does so
at his peril.
Both Suburban and UTU contend that the ratification
petition demonstrated UTU's majority, so that Suburban
could legally execute the contract, there no longer being any
doubt, or question, who represented the employees. A ques-
tion of representation is not, as shown above, resolved by
one of the two competing Unions attaining a majority other
than in a Board election. Furthermore, in this instance, even
a desire on the part of the employees to have the contract
executed does not signify that a majority of the employees
wanted UTU to continue to represent them. These same
employees had refused to ratify the agreement earlier; many
of them had signed Teamsters cards, or the decertification
petition; and many subsequently went out on a Teamster-
sponsored strike. Thus, the ratification petition was not only
not a substitute for the secret ballot of a Board-conducted
election, the entire circumstances here indicate the wisdom
of the Board's Midwest Piping principle, of not permitting
an employer to resolve the question based on the presumed
employee sentiment at a given moment of time. In short,
even assuming that a majority of the employees uncoerced-
ly 10 indicated a desire for UTU representation by signing
the ratification petition, that would not legitimatize
Suburban's recognition of UTU.
The final defense of Suburban and UTU raises novel and
interesting questions. Stemming from the admitted fact that
Daniel Rava, chief negotiator for the UTU, was at the same
time organizing Suburban's employees for the Teamsters,
and the contention that he was an agent of the Teamsters
10 The General Counsel contends that the signatures were "coerced" be-
cause Peterson told a number of employees they would lose benefits unless
they signed the petition , and because Morris Lipschitz told Rava that he
would be in with the Company 1000 percent if he assisted in obtaining the
signatures on the petition. I accept Peterson's explanation that he "meant"
that delay in executing the contract might result in a loss of benefits because
of a governmental freeze, and do not regard his statements as coercive,
particularly since it was true that the benefits of the new contract would be
lost, at least temporarily , if it were not executed . As to the statement to Rava,
since Rava obviously did not go along with Lipschitz, it could not have
affected the signing of the petition . Lipschitz' statement does show the strong
desire of Suburban to conclude the contract with UTU and keep the Team-
sters out.
11 Rava obtained cards from the Teamsters, and then gave them to Manga,
for the purpose of seeing to it that Suburban and UTU did
not execute a contract before the Teamsters could file a
petition,12 Suburban and UTU make three contentions.
First, they argue that, but for Rava's conduct designed to
prevent, and preventing, the execution of the contract dur-
ing the insulated period, the contract would have been exe-
cuted. Accordingly, the Board should deem the contract to
have been executed, a bar to the Teamsters petition, and
therefore no question concerning representation existed.
Second, they argue that the Teamsters petition should be
dismissed because the Teamsters did not have "clean
hands," having used Rava's services when Rava was UTU's
chief negotiator., Finally, they urge that Rava's duplicity, in
the context of UTU being the incumbent Union and the
employees' choice of UTU being reaffirmed by the signa-
tures on the ratification petition, make application of Mid-
west Piping here particularly inappropriate and that the
Board should as matter of policy refrain from applying it to
the instant situation.
The facts relied upon by Respondent and UTU to sup-
port the aforesaid contentions mainly concern the activities
and conduct of Daniel Rava. Rava first contacted the
Teamsters some time in July. In early September, he called
Teamster Representative Martin McDermott to see if the
Teamsters was interested in representing Suburban's em-
ployees. Rava, along with Suburban employee, Joseph
Manga, met with McDermott shortly thereafter. McDer-
mott told Rava that the Team§ters could not help at that
point because there could not be an election until the con-
tract expired, and also that he would check with the Interna-
tional to see if there was some sort of no-raid agreement. On
September 15, the day after the membership meeting of
UTU rejected the "package" by a 49-to-3 vote, Rava went
to the Teamsters hall with Peterson and obtained from Mc-
Dermott both Teamsters authorization cards, and a decerti-
fication petition. Peterson at that time told Rava that he was
making a mistake, that it was not a wise thing to do. Pe-
terson shortly thereafter told UTU Representative McPhil-
lips about this incident, and McPhillips in turn informed
UTU International Official Kenneth Moore about it. After
the September 24 meeting, which broke up in "chaos," Rava
gave the cards and the decertification petition to Manga,
who solicited employees' signatures on them. The testimony
and exhibits show that Rava was reimbursed by the Team-
sters for telephone calls and gasoline to the extent of about
$150. Some other employees of Suburban had telephone
bills and gasoline expenses paid, and Bien received a loan
of $400, which he later repaid. (The loan was arranged after
Bien's termination from Suburban on November 16.) Rava
was elected chairman of UTU's negotiating committee late
in August, so much of the conduct described above oc-
curred while he was in that office, and he took that office
after he had first become interested in obtaining Teamster
representation for Suburban's employees.
These activities by Rava form part of the basis for
who did the actual organizational work of obtaining signatures.
12 Under Board law, the 60-day penod prior to the expiration date of a
contract is an "insulated" period, meaning that the Board will not entertain
a petition for an election by an outside union seeking to unseat an incumbent
union during that period . Thus, only if no contract is executed during the 60
days can a rival union file a petition for an election thereafter.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's and UTU's defense . In addition, they con-
tend that Rava's presentation of the "packages" at the meet-
ings was designed to prevent ratification . The testimony
shows that at the September 14 meeting Rava did not read
the entire contract , which contained more than 20 double-
spaced pages, as finally executed (and apparently at that
time also), but only the "highlights ," and made no recom-
mendations. The vote , as noted above , was 49 to 3 against
ratification. McPhillips testified that he took no position
with respect to Rava's presentation because he could sense
the men did not want the package.
On September 24, at the second ratification meeting,13
Rava again read the highlights of the package . Although he
testified that he recommended the package , I believe that he
was mistaken, as both Manga and Kunz testified to the
contrary . The meeting broke up in chaos, as noted above.
At a discussion subsequent to the meeting among McPhil-
lips, Peterson , and Rava , it was mutually agreed that there
had not been a fair opportunity to present the package.
McPhillips testified that he "tried to encourage him (Rava]
not to be, you know, upset by these things...." At a
subsequent meeting with Suburban officials , it was decided
that another membership meeting would be pointless. A
state mediator suggested that a petition be circulated among
the men . Rava suggested a mail ballot , opposing a petition,
and it was decided to take a mail ballot . Subsequently,
McPhillips and Zechman decided to circulate a petition.
On the above facts , I do not consider that Rava was
charged by the Teamsters with ensuring that a contract
between UTU and Suburban not be executed so that the
Teamsters could file a valid petition. The testimony of both
Rava and McDermott shows that Rava sought and received
information from McDermott , not a mandate from him to
prevent a contract from being concluded and executed. It
may well be that Rava , himself, obviously desirous of
changing the employees' representative from UTU to
Teamsters, and knowing that could be possible only if no
contract was executed by September 14, was not unhappy
with the results of the September 14 and 24 meetings. But
the testimony of Rava as to what he told the employees at
the ratification meetings on those days was substantially
confirmed by General Counsel witnesses and was not seri-
ously contradicted by Suburban or UTU witnesses.
Although Rava did not affirmatively recommend the
"packages" reached in bargaining between Suburban and
UTU, his presentation does not appear to have been unfair.
The very fact that the Company upped its "ante" after the
first two rejections , indeed , demonstrates that the failures to
ratify were eminently wise and successful from the employ-
ees' standpoint . Further confirmation of the fact that Rava's
presentation was not unfair lies in the failure of other UTU
officials and representatives present either to supplement
Rava's presentation , object to it, or in any other way to
indicate dissatisfaction . 14 In short, whatever Rava's subjec-
13 McPhillips estimated there were about 20 to 25 present, Rava and em-
plooee Castiglione about 30, and Manga about 50.i Indeed , Zechman and McPhillips knew about Rava 's liaison with the
Teamsters shortly after the September 14 meeting, and of course before the
September 24 meeting, but said nothing to the members even at the latter
meeting about Rava 's presentation.
rive desire may have been, the performance of his official
duties as chief negotiator was carried out with no overt
reflection of any sinister purpose.
By the same token, I reject UTU's contention that no
question concerning representation existed because the con-
tract should and would have been executed prior to the
filing of the petition. As the evidence does not support the
contention that Rava misconducted himself in the negotia-
tions or in presenting the results of the negotiations to the
employees, there is no warrant for concluding that the con-
tract would have been executed. Whether this claimed de-
fense would be legally tenable if the facts showed that Rava
deliberately prevented ratification of the contract is an in-
teresting question. From Suburban's standpoint, it would
seem to make no difference, for Suburban's execution of the
contract on October 14 was with knowledge of the Team-
sters petition, and without any claimed knowledge, or even
suspicion, of any misconduct on Rava's part in his presenta-
tion to the employees. From UTU's standpoint, this de-
fense , were it factually supported, would have somewhat
more to commend it on equitable grounds, although it might
be argued that the UTU should control its own officials,
and cannot rely on misconduct by one of them to save it
from attack by an outside union. From the employees'
standpoint, however, if the contract would have been execu-
ted, no Teamster petition could have been filed, and the
equities would appear to favor regarding as done what
should have been done. I suggest these possibilities for fur-
ther consideration by the Board in the event the Board
should disagree with my conclusion that Rava's conduct at
the ratification meetings was not designed to prevent the
execution of the contract so that the Temasters could file its
petition.
With regard to Rava's "duplicity" in seeking to have the
Teamsters supplant UTU while at the same time continuing
to function as UTU's chief negotiator, I do not regard this
as having any legal significance. Had Rava, in playing a
dual role, demonstrably permitted his Teamsters activities
to affect his UTU functions, a different question, as dis-
cussed above, would be presented. But as matters stand, the
lack of such showing means that the "duplicity" 15 did not
cause the failure of Suburban and UTU to execute a con-
tract prior to the filing of the Teamsters petition.
A final contention concerns the Teamsters' use of Rava,
knowing him to be a UTU official, and, therefore, allegedly
lacking "clean hands." Had the Teamsters come to Rava,
I would look at the situation with a much more jaundiced
eye, but I do not regard their acceptance of his proffered
services as so reprehensible as to disqualify the Teamsters
from filing their petition, or of such a nature as to cause the
Board to reject it.
In all the circumstances, and for the reasons stated, I
conclude that Suburban violated Section 8(a)(2) and (1) of
the Act by executing the contract with UTU while a real
question concerning representation was pending before the
Board.
15 I express no opinion on the ethics of Rava's seeking Teamster represen-
tation while remaining the UTU's chief negotiator.
SUBURBAN TRANSIT CORP. 471
2. The 8(a)(1) and (3) violations-Suburban
Having found that the contract between UTU and Subur-
ban of October 14, 1971, was unlawfully executed, it follows
that the strikers were at the very least engaged in a protected
concerted activity and could not be discharged for striking
or refused reinstatement upon request. This would be equal-
ly true whether the strikers were protesting the discharges
of two Suburban drivers, Comrie and Hink, or were protest-
ing the contract's execution, in which latter case they would
be unfair labor strikers, rather than economic strikers. 16
Respondent Suburban also argues that the strike "was
unlawful, as shown by the Temporary Restraining Order
entered November 1, 1971 in the State Court." I am not sure
whether Respondent is saying that this injunction made the
strike unlawful even if the contract was invalid, or that the
injunction demonstrates the legality of the contract, and
hence the "unlawful" or "unprotected" nature of the strike.
In any event, neither contention is meritorious. Clearly, a
decision on a temporary restraining order does not preempt
the Board from deciding the unfair labor practice issue now
presented to it. Nor does disobedience of the court's order,
whatever effect it might have in terms of possible contempt
of court to those who continued to strike, make unlawful-
vis-a-vis Board law-otherwise lawful or protected conduct.
I have assumed, as the parties all appeared to do at the
hearing, that if the October 14 contract was lawfully execu-
ted, the 8(a)(3) allegations of the complaint would fail. Al-
though I do not reach the question, and perhaps could not
in view of the way the matter was litigated, I am not certain
that the "no-strike" clause in that contract was applicable
to the instant situation. For the clause, found in article 13
of the contract, entitled "Discipline and Investigation," pro-
viding generally for grievance and arbitration, provides
"Recourse to outside tribunals will not be made by either
party until the [Union] has been advised and given a reason-
able opportunity to intervene and dispose of or adjust the
situation as the case may be. This, with the understanding
that there shall be no authorized strike during such period
the dispute is pending under the discussion with either the
local lodge or the Grand Lodge." As the strike was to pro-
test, at least in part, the execution of the contract with the
UTU, it may well not represent the kind of "grievance" that
could be resolved by the grievance and arbitration provi-
sions of the contract, for UTU could hardly be expected to
represent the employees who struck against it. See Kansas
Meat Packers, A Divison of Aristo Foods, Inc., 198 NLRB
No. 2. Arguably, therefore, the limited kind of no-strike
provision would not apply here. As I said, however, I need
not resolve this problem.
16 Although some of the employees who attended the meeting of the Team-
sters at which it was decided to strike testified that the discharges were not
discussed there to their recollection , both Rava and McDermott testified that
there were discussions about the discharges , but that the bulk of the discus-
sion concerned the signing of the contract of October 14. McDermott sent
a telegram to Suburban on October 27 advising the Company that the Team-
sters considered the discharges an unfair labor practice , and also that they
considered the action taken against the strikers an unfair labor practice On
all the testimony , I conclude that the strike was caused both by the discharges
of Conine and Hink and by the execution of the contract. It was, accordingly,
an unfair labor practice strike , as one of its causative factors has been found
to be an unfair labor practice.
C. H.A.M.L.-The Alleged 8(a)(2) and (1) Violations
Starting at the end of the story in this case is more illumi-
nating than starting at the more usual beginning. I refer to
the rather remarkable events on the night of November 3,
1971.
The scenario of that night, almost without more, indicates
that HAML was exerting every effort to keep Teamsters
from becoming the employees' bargaining representative.
The night's events culminated a feverish day of activity-all
the events of the HAML case taking place on the day and
night of November 3 and the very early morning hours of
November 4. Austin Zechman, president of UTU, called
Sidney Kuchin, HAML vice president, late in the afternoon
of November 3, and requested recognition for the UTU.
About 6 p.m., Kuchin called Pat Kilcoyne, HAML opera-
tions manager, to be available. About 7:30 that evening,
Kuchin called Ronnie Kohn's home, where a birthday party
for Kohn (Suburban's operations manager) was in progress,
with Kilcoyne and his wife, among others , there as guests.
Mr. and Mrs. Kilcoyne and Kohn then left the party and
went to Suburban's office. Zechman, Kuchin, and Lee Ja-
cobs, president of HAML, were awaiting them there, as
were Bascocky, Lobmayer, and Fayda, the new UTU bar-
gaining committee which had been appointed by Zechman.
Bascocky was drafted for the new committee by Zechman,
even though he had, as Zechman knew, signed a Teamster
card earlier that day. The parties "negotiated" from about
8 p.m. to about 1:30 a.m. the next morning. Zechman had
told everyone present that "it was important to get the con-
tract signed, negotiated and signed so we could get it in
before the Teamsters, certainly."t7
The parties used the October 14 Suburban-UTU contract
as a model or guide. As each portion of the contract was
agreed upon, Mrs. Kilcoyne typed that part. Finally, at the
conclusion of the session at approximately 2 a.m., the con-
tract was signed by HAML officials, and then taken to a
motel, where Kenneth Moore, vice president of UTU was
staying, to be executed for the UTU.
About 7:30 a.m. on November 3, the day' s events began.
At that time, Kilcoyne, HAML's operations manager,
called Bien, Suburban's chief dispatcher, and told Bien that
Local 701 (the Teamsters) was organizing HAML's employ-
ees. Zechman was standing next to Bien at the time.is (The
Teamsters had in fact begun to organize at HAML that
morning , employee Wayne Langdon having obtained au-
thorization cards from McDermott the preceding day.) Bien
told Zechman what was being said, and Zechman re-
sponded that "we'll have to go down there and organize
them." At about 11:30 that morning, Bien called Flanagan,
HAML's dispatcher, to ask Flanagan what drivers he could
give Bien for New York runs that night. Flanagan replied,
"I am going to have to cut you a couple short. We are down
here getting people signing cards." Flanagan also men-
17 Zechman's testimony on cross-examination. He subsequently stated that
the Teamsters was not mentioned at all during that meeting . He was either
confused the second time or else was differentiating between "during" and
"at the beginning" of the meeting.
is I credit Bien's testimony in this respect and in other respects where
contradicted by Zechman. I also credit his testimony concerning Kilcoyne's
call. Kilcoyne did not deny the call ; he testified that he told Bien that he
heard "rumors...that the Teamsters had their eye on HAML."
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned that Alexander and Zechman were down there, and
that Lobmayer was going to help them.19
A number of employees, Bascocky , Schuster, Coudray,
Schorr, and Langdon, testified that when they came back to
the HAML garage following their runs in the afternoon,
they were solicited to sign UTU authorization cards 20 Each
of these employees had earlier that day signed a Teamsters
card . Doing the soliciting were Alexander, Lobmayer, and
Thomas . Lobmayer had himself signed a Teamsters card
that morning . Lobmayer also testified that "about a half a
dozen or so" of the employees he solicited for UTU authori-
zation cards told him they had already signed Teamsters
cards. According to Schorr, Flanagan told him to go see
someone in the drivers room . Schorr and Schuster both
testified that they were told by Lobmayer that the authori-
zation paper was "just" for an election."
When Lobmayer and the other UTU organizers de-
termined they had a majority of employees signed up for the
UTU, they notified Zechman , who in turn called Sidney
Kuchin . The events of that evening , related above, then
occurred . The next morning, Flanagan asked Kilcoyne how
everything went in regard to the contract , and Kilcoyne
replied , "All signed, sealed and delivered."
This is not a straight Midwest Piping case, for the contract
was executed before the Teamsters petition was filed, with-
out any claim to represent the employees having been made
by the Teamsters . But the law does not permit an employer,
in circumstances such as these , to recognize one of two
competing unions when the recognition is designed to keep
the other union from obtaining representation rights.
UTU's role in the affair was not, of course , illegal . As Zech-
man said, UTU wanted a contract signed as quickly as
possible for the express purpose of keeping the Teamsters
from filing a petition . If UTU had won a legitimate race to
achieve a majority among HAML 's employees , with the
Teamsters never getting off the ground , then the race would
really be to the swift. But the blatant haste by HAML in
cooperating with UTU's efforts to freeze out the Teamsters
is just the kind of assistance the law prohibits. HAML offi-
cials knew that the Teamsters had started organizing;
HAML officials suggested that UTU counter the Teamsters
efforts, and, although the evidence of direct assistance in
obtaining signatures on the mimeographed UTU "authori-
zations" is not particularly strong , gave at least tacit approv-
al to, and benevolent observation of, the UTU organizers at
HAML's garage.
Significantly , Louis Lobmayer, who was instrumental,
along with Alexander and Zechman , in obtaining the signa-
tures on the UTU's "cards," himself had earlier that same
day signed a Teamsters authorization card , and testified
that "about a half a dozen or so" of the card signers for
19 Flanagan contradicted himself a number of times on the stand and was
evasive in his responses . Although he first denied knowing what union was
involved, saying only that he heard rumors some union was signing up the
drivers, he later told Schuster, "Go see your chairman , Mr Lobmayer," and
when asked if he knew what union was involved replied , "Well, I have to say
yes because he had a paper in front of him and it said something about the
U.T.U." I do not credit his testimony where in conflict with Bien's
20 The "cards" were xeroxed authorizations , which had earlier been dictat-
ed and prepared by Zechman on Suburban equipment21 Lobmayer denied having said this. I credit Schorr and Schuster
UTU had told him they had signed Teamsters cards. Fur-
thermore, four other employees who signed UTU cards test-
ified to having signed Teamsters cards earlier.22 The next
day (the same "day" that the contract with UTU was execu-
ted) the Teamsters filed a petition with the Board.
As the Court of Appeals for the First Circuit pointed out
in N.L.R.B. v. Hunter Outdoor Products, Inc., 440 F.2d 876,
880 (C.A. 1, 1971): "Particularly where an employer is
aware of organizing efforts by a rival union, it acts at its
peril in according hasty recognition when one union claims
majority support. . . . The most prudent course . . . would
have been to petition the Board for a Board-conducted
election pursuant to [Section] 9(c) of the Act." The court
went on to say "The line between `close cooperation' and
`interference with the freedom of choice of the employees'
is a delicate one and often difficult to maintain, particularly
where rival unions are involved."
The instant case is a particularly appropriate one for
application of these principles. UTU, which did not appear
on the scene at HAML until after the Teamsters began
soliciting the employees signatures on their authorization
cards (viz, Lobmayer's having signed a Teamsters card, and
then assisting the UTU to obtain signatures on its hastily
xeroxed "authorizations" ). UTU Official Zechman, a Sub-
urban employee, was with chief dispatcher Bien at Subur-
ban when Kilcoyne, HAML operations manager called
Bien to tell him that the Teamsters were organizing. When
the drivers came in to the HAML facility, they were directed
by Chief Dispatcher Flanagan to the UTU representatives,
who used a seniority roster to check off those who signed
the UTU forms. Whether or not Flanagan was actually a
supervisor,23 there is no question, in my opinion, but that he
was acting as an agent for HAML in so directing the em-
ployees. Indeed, when Flanagan was asked by Bien to fur-
nish some drivers for Suburban, Flanagan said he could not
do so, that "I am going to have to cut you a couple short.
We are down here getting people signing cards."
The fact that UTU in these circumstances obtained a
majority of signatures, some of which the record shows were
of employees who had already signed Teamsters cards, is
insufficient to justify the quick recognition, and hasty sign-
ing of a bargaining agreement almost identical, except in
respects where the different nature of HAML's operation
required changes, to that signed October 14 at Suburban.
The transactions at HAML must also be viewed in the
context of Suburban's unlawful recognition of UTU there,
since the two companies constitute a single employer'24 and
22 It is possible , of course , that some of Lobmayer's unidentified six were
the same as some of the other four
23 1 find that he was, having authority responsibly to direct employees, such
as assigning overtime , being called by employees who are unable to work for
some reason, and determining whether to send drivers to Suburban from
HAML when requested by Suburban dispatchers or officials as noted below.
Furthermore , Kilcoyne specifically told Flanagan to keep out of any union
business , plainly regarding Flanagan as "management ." There would be only
one supervisor , Kilcoyne, for about 55 drivers , if Flanagan were not supervi-
sor
24 Suburban and HAML are both located in New Brunswick, New Jersey,
about a mile apart , and both are in the bus transportation business The
president of HAML, Lee Jacobs, is vice president of Suburban ; Sidney
Kuchin is vice president and secretary of HAML and secretary of Suburban
Virtually all the stock of Suburban is owned by Morris Lipschitz, who is
SUBURBAN TRANSIT CORP. 473
since many of the same officials who participated in the first
violation also participated in the second. The contract be-
tween UTU and HAML was indeed negotiated at Subur-
ban. As I have earlier found, it was evident where the
preference of both companies lay, they wanted to keep
UTU in, and by so doing to keep the Teamsters out. I
conclude, for all the foregoing reasons, that HAML violated
Section 8(a)(3) and (1) of the Act by recognizing, and sign-
ing a contract with UTU on November 3 and 4, 1971. As
this contract contained a union-security provision, Respon-
dent HAML also violated Section 8(a)(1) and (3) by its
execution.
The complaint alleges that HAML independently violat-
ed Section 8(a)(1) of the Act by Flanagan asking employee
William Coudray to spy at a Teamsters meeting on Novem-
ber 5, and to call Pat Kilcoyne and inform Kilcoyne what
had taken place at that meeting. Flanagan denied that he
told Coudray to attend the meeting or to call Kilcoyne and
tell him what had occurred. However, Kilcoyne testified
that Coudray did in fact call him and tell him about the
meeting, although he (Kilcoyne) told Coudray that the in-
formation was unsolicited, that he really wasn't interested,
and that he had given instructions to Flanagan not to get
involved with the union business, just, to stay out of it and
do his own job. I cannot conceive of Coudray at that time
attempting to build up a case against HAML by calling
Kilcoyne, as he did, and manufacturing a story about Flan-
agan having told him to call. I must conclude, accordingly,
that Flanagan did so tell him. Therefore, as I have found
that Flanagan was a supervisor, this conduct is attributable
to HAML even though Flanagan was instructed to stay out
of the union business, and HAML accordingly violated Sec-
tion 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondents Suburban and H.A.M.L. are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Suburban and H.A.M.L. constitute a
single employer within the meaning of Section 2(2) of the
Act.
2. UTU and Local 701, Teamsters, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By entering into a collective-bargaining contract with
UTU, containing a union-security provision, on October 14,
1971, Respondent Suburban has engaged in unfair labor
practices within the meaning of Section 8(a)(l), (2), and (3)
of the Act.
4. By discharging or refusing to reinstate on November
5, 1971, employees who struck on October 27, 1971, Re-
spondent Suburban has engaged in unfair labor practices
president of Suburban . The HAML stock is owned in equal parts by Morris
Lipschitz' son, Herman , and Lee Jacobs and Sidney Kuchin , both sons-in-
law of Morris Lipschitz. Kuchin is the manager of Suburban , but he and Lee
Jacobs negotiated the contract with HAM L. It is clear that the two compa-
nies are closely related , perform similar functions , interchange employees
and equipment on many occasions, and that the labor relations of both are
in large measure in the hands of Lee Jacobs and Sidney Kuchin . For these
reasons, I conclude that they constitute a single employer within the meaning
of Sec. 2(2) of the Act.
within the meaning of Section 8(a)(1) and (3) of the Act.
5. By entering into a collective-bargaining contract with
UTU, containing a union-security provision, on November
4, 1971, Respondent H.A.M.L. has engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3)
of the Act.
6. By requesting an employee to keep under surveillance
the union activities of other employees, Respondent H.A.M.
L. has engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
THE REMEDY
It having been found that Respondents unlawfully'assist-
ed UTU by entering into contracts with,that Union at Sub-
urban and H.A.M.L., respectively, I shall recommend that
they cease and desist from such conduct and from giving
effect to the contracts which have been executed or to any
extension , modification, or renewal thereof, with the under-
standing that nothing in my recommended Order shall be
construed as requiring or permitting the varying or aban-
doning of wages, hours, seniority, or other substantial provi-
sions contained in the contracts.
It'having been found that Respondent Suburban discri-
minatorily discharged or refused to reinstate the employees
listed in Appendix C attached hereto, I shall recommend
that it reinstate them with backpay computed under the
formulae of F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 719, and that it
cease and desist from violating the Act in this manner.
It having been found that Respondent H.A.M.L. unlaw-
fully requested an employee to engage in surveillance, I
shall recommend that it cease and desist from violating the
Act in this manner.
I shall also recommend that Respondents post appropri-
ate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 21
A. Respondent Suburban, New Brunswick, New Jersey,
its officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing or contracting with United Transporta-
tion Union, Lodge No. 1589, as the exclusive representative
of its employees for the purposes of collective bargaining,
unless and until said labor organization shall have demon-
strated its exclusive majority representative status pursuant
to a Board-conducted election among Respondent's em-
ployees.
(b) Giving effect to its contract dated October 14, 1971,
with UTU, or to any extension, renewal, or modification
thereof, until said labor organization shall have demonstrat-
25 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.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed its exclusive majority representative status pursuant to a
Board-conducted election among Respondent 's employees.
(c) Discriminating against its employees by discharging
them , or refusing to reinstate them , for engaging in a strike.
(d) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withold any recognition it has granted
to UTU, unless and until the said labor organization has
been certified in the manner aforesaid by the National La-
bor Relations Board.
(b) Offer immediate and full reinstatement to the em-
ployees listed in Appendix C of this Decision to their former
jobs, or, if such jobs no longer exist, to a substantially equiv-
alent job, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
suffered by reason of their discharges or refusals of rein-
statement, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards , person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its facility at New Brunswick , New Jersey,
copies of the attached notice marked "Appendix A."26 Co-
pies of said notice, on forms provided by the Regional Di-
rector for Region 22, after being duly signed by the
Respondent 's representative , shall be posted by the Respon-
dent 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 by Re-
spondent to insure that said notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
B. Respondent H.A.M.L., New Brunswick , New Jersey,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Recognizing or contracting with United Transporta-
tion Union, Lodge No. 1589, as the exclusive representative
of its employees for the purposes of collective bargaining,
unless and until the said labor organization shall have de-
monstrated its exclusive majority representative status pur-
suant to a Board-conducted election among Respondent's
employees.
(b) Giving effect to its contract executed November 4,
1971, with UTU, or to any extension, renewal , or modifica-
tion thereof, until said labor organization shall have de-
monstrated its exclusive majority representative status
pursuant to a Board-conducted election among
Respondent 's employees.
(c) Requesting any employee to keep under surveillance
the union activities of other employees.
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold any recognition it has grant-
ed to UTU , unless and until the said labor organization has
been certified in the manner aforesaid by the National La-
bor Relations Board.
(b) Post at its facility in New Brunswick, New Jersey, at
places where notices to employees are customarily posted,
copies of the notice attached hereto marked "Appendix
B." n Copies of said notice , on forms provided by the Re-
gional Director for Region 22, after being duly signed by
Respondent's representative , shall be posted by Respondent
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 custom-
arily posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , or cov-
ered by any other material.
(c) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
26 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
27 See fn 26.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give effect to the collective -bargaining
agreement entered into November 4, 1971, with UTU,
or to any extension , renewal , or modification thereof,
unless and until the said labor organization shall have
demonstrated its exclusive majority representative sta-
tus pursuant to a Board -conducted election among our
employees.
WE WILL NOT recognize UTU as the exclusive repre-
sentative of our employees for the purpose of collective
bargaining unless and until it has been selected by them
in the manner prescribed above.
WE WILL NOT request any employee to spy on the
union activities of other employees.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in the exercise of rights
guaranteed them by the National Labor Relations Act.
H.A.M.L. CORPORATION
(Employer)
(d) In any other manner interfering with, restraining , or Dated By
coercing employees in the exercise of their rights under (Representative) (Title)
SUBURBAN TRANSIT CORP.
This is an official notice and must not be defaced by
anyone.
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 . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building , 16th Floor, 970
Broad Street , Newark, New Jersey 07102, Telephone 201-
645-2100.
APPENDIX C
Joseph L. Alfonso George Millan
Joseph Peter CastiglionePeter Morelli
James Diorio
John Freitas
Rudy Hamblin
John Kunz
George Laverdiere
Carl Legere
Joseph Manga
Daniel Rava
Philip Reinhardt
Tim Roche
Pat Spano
John K. Williams
G. Woodward
475