A. Custen, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 3, 1959122 N.L.R.B. 1242 (N.L.R.B. 1959) Copy Citation 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Custen , Inc. and Felix Martinez Local 269, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Felix Martinez. Cases Nos. 2-CA-5308 and 2-CB-1940. February 3, 1959 DECISION AND ORDER On August 21, 1958, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that Respondent Custen, Respondent Local 269, Teamsters, and its suc- cessors, Local 269, Independent, 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 copy of the Intermediate Report attached hereto. Thereafter, Respondent Local 269, but not Respondent Company, filed excep- tions to the Intermediate Report.' The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the modifications noted below : 1. Like the Trial Examiner, we find that Local 269, Independent, is responsible for remedying the unfair labor practices of Local 649, UAW-AFL, and Local 269, Teamsters. It is clear that Curcio and Baker were the prime movers in organizing and operating all three unions and in dealing with the Company. The various contracts were signed by either Baker or Curcio. All contracts cover the same bargaining unit, and there is no evidence that any of the three unions represented, or admitted to membership, any other em- ployees. Each of the predecessor unions voluntarily transferred to its successor all its rights under its contract with the Company. The mere fact that each union had a different affiliation and desig- nation does not suffice to destroy the basic identity of the three Unions .3 Accordingly, we find that Local 269, Teamsters, was but a disguised continuance, or alter ego, of Local 649, UAW-AFL; that Local 269, Independent, was but a disguised continuance, or alter 1 The request of Respondent Local 269 for oral argument is denied on the ground that the record, including the answer and the exceptions, adequately presents its position. 2 The Respondent Local 269 excepts to the Trial Examiner 's refusal to compel the pro- duction of certain checkoff and authorization cards. Even were we to assume that a proper request for their production had been made , they are irrelevant to any issue in this case or to the credibility of the witnesses . Accordingly , we find that the Trial Examiner's action was not prejudicial. S Alto Plastics Manufacturing Corporation, 119 NLRB 1458 ; Dryden Rubber Division of Sheller Manufacturing Company, 118 NLRB 369. 122 NLRB No. 146. A. CUSTEN, INC. 1243 ego, of Local 269, Teamsters; and that Local 269, Independent, is therefore responsible for remedying the unfair labor practices of both the other unions.4 2. We find further, in agreement with the Trial Examiner, that Local 269, Independent, engaged in separate violations of the Act.-' 3. In order to effectuate the policies of the Act, our Order shall include an affirmative requirement that the Respondent Company, upon receipt from the Regional Director of signed copies of Ap- pendix B, shall post such notices in the same manner and under the same conditions as apply to Appendix A. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor. Relations Board hereby orders that: 1. A. Custen, Inc., its officers, agents, successors, and assigns, shall: (a) Cease and desist from: (1) Assisting or contributing support to Local 269, Warehouse and Processing Employees Union, Independent, or to any other labor organization. (2) Recognizing the above-named Union, or any successor thereto, as the representative of any of its employees for the puropses of collective bargaining, unless and until said labor organization shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted election among such employees. (3) Giving effect to the agreements with Local 269, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and with the above-named Union, entered into on April 25 and December 6, 1957, respectively, or to any extension, renewal, modification, supplement, or other contract with the said labor organizations, unless and until such labor organization shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted election among the Company's em- ployees. (4) Giving effect to any checkoff cards heretofore executed by the employees authorizing deductions from wages for remittance to the aforesaid Union. `Venetian Blind Workers Union Local No. 2565, 110 NLRB 780. In its exceptions, Local 269, Teamsters , contends that Local 269, Independent, may not be held responsible to remedy the unfair labor practices of its predecessors , or otherwise treated as a party to this proceeding , because it was not named in the complaint. However, an answer to the complaint was filed by an attorney on behalf of Local 269, Independent, the same attorney appeared at the hearing ; and all issues pertaining to the liability of Local 269, Inde- pendent, were fully litigated. Accordingly, we find no merit in this contention. See Venetian Blind Workers Union Local No. 2565, supra , at p. 785. 5 See Harou, Inc. and En Tour, 120 NLRB 659 , and preceding footnote. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) Encouraging membership in Local 269, Independent, or in any other labor organization of its employees, by conditioning the hire or tenure of employment or any term or condition of em- ployment upon membership in, affiliation with, or dues payments to such labor organization, except where such conditions shall have been lawfully established by an agreement authorized by the Act. (6) Interfering with, restraining, or coercing its employees in any other manner, in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized by Section 8(a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Withdraw and withhold recognition from Local 269, Inde- pendent, or any successor labor organization, as the collective-bar- gaining representative of any of its employees, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election; (2) Jointly and severally, with Local 269, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and its successor, Local 269, Independent, make whole its em- ployees for all amounts deducted from their wages and paid to the aforesaid Union and its predecessors.' (3) Post at its plant in New York, New York, copies of the notices attached hereto marked "Appendices A and B." 7 Copies of said notices, to be furnished by the Regional Director for the Sec- ond Region, after being duly signed by the Respondent Company and Respondent Union, respectively, shall be posted immediately upon receipt thereof, and 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 insure that said notices are not altered, defaced, or cov- ered by any other material. (4) Notify the Regional Director for the Second Region in writ- ing, within 10 days from the date of this Order, of the steps which have been taken to comply herewith. 2. Local 269, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its successor, Local 269, Warehouse & Processing Employees Union, Independent, their respective officers, agents, successors, and assigns, shall: E Such liability for reimbursement shall not extend to any amounts deducted more than 6 months prior to the date of service of the respective charges herein. 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." A. CUSTEN, INC. 1245 (a) Cease and desist from: (1) Giving effect to the agreements dated April 25 and Decem- ber 6, 1957, with A. Custen, Inc., or to any extension, renewal, modification, supplement, or other contract with said Company, un- less and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-con- ducted election among the Company's employees. (2) Restraining or coercing the employees of the Company in the right to engage in, or refrain from engaging in, any or all of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement executed as authorized by the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally, with the Company, make whole the employees of the latter for all amounts deducted from their wages and paid to Local 269 Independent and its predecessors 8 (2) Post at its business office in Flushing, New York, copies of the notice attached hereto marked "Appendix B." 9 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of Local 269, Independent, 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 members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto marked "Appendix B," for post- ing at the Company's plant. (4) Notify the Regional Director for the Second Region in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 8 Subject to the limitation set out in footnote 6, supra. 8 See footnote 7, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that: WE WILL NOT give effect to our agreement dated April 25, 1957, with Local 269, International Brotherhood of Teamsters, Chauffeurs, IlWarehousemen and Helpers of America, and our 1.246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supplemental agreement of December 6, 1957, with its successor Local 269, Warehouse & Processing Employees Union, Ind., or to any extension, renewal, modification, or supplement thereto, unless and until the labor organization shall have demonstrated its exclusive majority representative. status pursuant to a Board- conducted election among our employees. WE WILL withdraw and withhold recognition from Local 269, Ind., or any successor thereto, unless and until it shall have demonstrated its exclusive majority representative status pursu- ant to a Board-conducted election among our employees. WL WILL NOT contribute financial or other support to any labor organization, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their statutory rights. WE WILL NOT give effect to any checkoff cards, heretofore exe- cuted by our employees, authorizing deductions from their wages for remittance to the aforesaid unions. WE WILL refund to all our employees and former employees from whose wages we have deducted funds, for transmittal to the aforesaid unions or their predecessors, the amounts of such deductions, as provided in the Order, to the end that each em- ployee shall be reimbursed for such moneys so deducted. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by agreements in con- formity with Section 8(a) (3) of the National Labor Relations Act. A. CUSTEN, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 269, WAREHOUSE & PROCESSING EMPLOYEES UNION, IND., AND TO ALL EMPLOYEES OF A. CUSTEN, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby give notice that: 11Th WILL NOT give effect to our agreements dated April 25, and December 6, 1957, or to any other contract with A. Custen, Inc., unless and until we shall have demonstrated our majority A. CUSTEN, INC. 1247 representative status pursuant to a Board-conducted election among the employees of the aforesaid Company. AVE, WILL refund to the employees and former employees of A. Custen, Inc., such amounts deducted from their earnings which were paid to us and our predecessor, as provided by the aforesaid Order. AVE WILL NOT restrain or coerce the employees or A. Custen, Inc., in the right to engage in, or refrain from engaging in, any or all of the activities guaranteed by Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, executed in con- formity with Section 8(a) (3) of the Act. LOCAL 269, WAREHOUSE & PROCESSING EMPLOYEES UNION, IND., Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136 (herein called the Act), was heard in New York, New York, on April 2, 3, and 9, 1958, pursuant to an order of consolidation and due notice to all parties. The complaint in Case No. 2-CA-5308 alleged that the Company had violated Section 8(a)(1)(2) and (3) of the Act. The complaint in Case No. 2-CB-1940 alleged that the Respondent Local 269 had violated Section 8(b)(1)(A) and (2) of the Act. In its answer and amended answers, duly filed, the Company conceded certain facts in issue, denied the commission of any unfair labor practices, and alleged, as an affirmative defense, that the acts complained of were barred by the Statute of Limitations. In its answer, Local 269 denied the commission of any unfair labor practices and alleged, as an affirmative defense, that the acts complained of occurred more than 6 months prior to the filing of any charges herein, and that any allegedly unlawful conduct had been committed by another labor organization in existence at that time but not by the present Respondent Union. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions. A motion by Local 269 to dismiss, made at the close of the hearing, was taken under advisement. It is disposed of as appears hereinafter in this Report. Subsequent to the hearing Local 269 submitted a brief which has been fully considered. From my observation of the demeanor of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Respondent Employer, a New York corporation, has its principal office and plant in New York City where it is engaged in the manufacture, sale, and distri- bution of buttons, buckles, ornaments, and related products. In the year preceding the issuance of the complaint, the Company shipped directly from points within 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the State of New York to customers outside that State goods valued in excess of $50,000. On the foregoing facts,. I find that A. Custen, Inc., is engaged in com- merce within the meaning of the Act.' II. THE LABOR ORGANIZATIONS INVOLVED Amalgamated Union Local 102, U .A.W.-A.F.L., herein called Local 102; Local 649, U.A.W.-AFL-CIO, herein called Local 649; and Warehouse & Processing Employees Union, Local 269, AFL-CIO , International Brotherhood ' of Teamsters, Chauffeurs , Warehousemen & Helpers of America, herein called Local 269, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events The Employer operates a small factory in New ,York City which for the past 6 years has had from 10 to 20 employees. Prior to 1952 there had been no union at the plant . In about February of that year two representatives of Local 102 called on A. Custen and Abraham Singer, president and secretary-treasurer, respec- tively, of the Respondent Company, to announce that they desired to organize the employees. Singer stated that he told the union agents that the Company under- stood the industry was being organized and that it had no objection to such a development. According to Singer, he then-.suggested that the plant could be shut down while the union spokesmen addressed the employees. Such an arrangement was made within a few days thereafter when about 4 o'clock one afternoon, Singer told the employees, who customarily worked until 5 p.m., that they could quit for,, the day in order to hear the union representatives.. The latter, a group consisting' of George Baker, Joseph' Curcio, Saul, Ross, and one other, then spoke to the employees about the merits of their organization. The next morning a union rep- resentative telephoned the Company to ask that a negotiation meeting be held that afternoon in the union office. Singer attended this conference on behalf of the Employer; Local 102 was represented by Johnnie Dio,2 Baker and several others. Baker gave Singer a copy of their proposed agreement and the latter, in turn, re- quested an opportunity to confer with counsel on its terms. This request was granted and a few days thereafter, with Singer and Baker representing the respec- tive parties, the contract was signed .3 The agreement is dated March 4, 1952. It granted Local 102 a union shop with a checkoff provision for dues, initiation fees and assessments, a clause requiring weekly employer contributions to the union welfare fund, provisions on hours of work, vacations, holidays, and related mat- ters. It did not, however, provide a wage increase. Before the contract was signed some of the employees, one being Joseph Rando, had asked Singer what he thought of the Union. The latter told them he felt that it was a benefit to the employees, especially the union welfare fund. Felix Martinez, testified, and his testimony was undenied, that at about this same time Singer spoke to him and several other employees about the same subject and that Singer told them that "he knew that we didn't want any union shop there but for our good it was better for us to join the Union for our own benefits." After the agreement was signed Singer spoke to the employees with respect to their obligation under the contract to pay union dues of $3 per month. This an- 1 The foregoing findings are based upon the allegations in the complaint as to the Company's business operations which the latter did not deny in Its answer. In addition, prior to the hearing, counsel for Local 269 and the General Counsel entered into a stipula- tion that the business of the Company was substantially as set forth above. This stipulation was received in evidence at the bearing, although counsel for Local 269 sought to withdraw his assent, given earlier to the stipulation, on the sole ground that the General Counsel had opposed his request for a continuance after the hearing opened. This change in attitude on the part of counsel, however, is no cause for disregarding the stipulation, for Local 269 did not contend that the facts to which it had stipulated earlier were Incorrect "nor did it make any attempt to establish independently that the facts were other than as set forth in the stipulation." International Union, United Automobile, Aircraft and Implement Workers of America, CIO (Borg-Warner Corp.) v. N.L.R.B., 231 F. 2d 237, 241 (C.A. 7), cert. denied 352 U.S. 908. 2 Also referred to in the record as John Dioguardi. 3 At this time Baker. was known as "George Semelmacher," and the latter is the signature which he -used In executing the aforesaid agreement. - A. CUSTEN, INC. 1249 nouncement evoked much opposition from the employees and after a discussion with Mr. Custen, Singer told the employees that the Company would pay half of their dues , or $1.50 each' month. Thereafter the Employer did S0.4 Sometime during this period, Local 102 notified the employees to meet at the union office. A number of the employees attended this meeting which lasted about an hour . Local 102 was represented by Baker and Curcio, who went over the terms of the contract with the employees. One of the latter, Francisco Felix Oquendo,5 was designated the shop steward. Oquendo testified that he attended two additional meetings at the union office that year. For most of the other em- ployees, however, the union meeting in March 1952 was the first and last which they ever attended. It is significant that no cards were signed by the employees at this meeting nor was there any evidence that authorization cards or checkoff cards of any kind were signed by the employees before Local 102 and the Com- pany entered into their agreement. From 1952 to the time of the hearing in the instant proceeding the Respondent Company maintained contractual relations with Local 102 and its successors. There have been several of the latter. The first was United Automobile Workers Union, Local 649. On May 9, 1952, the Company signed a memorandum trans- ferring its contract with Local 102 to Local 649. The union officers apparently remained the same, for Dioguardi signed the memorandum on behalf of both Local 102 and Local 649. In February 1957, the Union again changed its affiliation, this time from the Auto Workers to the Teamsters.6 Thus, in an instrument dated February 25, 1957, in which United Automobile Workers Union Local 649 is termed the "predecessor," and Local 269, Teamsters,7 is termed the "successor," the Company agreed to a transfer of its agreement from the predecessor to the successor. This document was signed by Baker, on behalf of Local 649, and Curcio, on behalf of Local 269. Both Custen and Singer signed for the Company. In December 1957, Local 269 and the Teamsters severed relations and the former then became "Local 269, Ind." Custen accepted this change in a document cap- tioned "Supplemental Agreement," and dated December 6 of that year. The terms of this agreement are set forth in full below: SUPPLEMENTAL AGREEMENT entered into on the 6th day of DECEMBER 1957, by and between the WAREHOUSE & PROCESSING EMPLOYEES UNION LOCAL 269, IND., hereinafter designated as the "UNION" and A. Custen, Inc. located at 323 West 38th Street, NYC herein- after designated as the "COMPANY." WITNESSETH Whereas, the "COMPANY" has entered into a certain Collective Bargaining Agreement with the WAREHOUSE & PROCESSING EMPLOYEES UNION LOCAL 269, AFL-CIO., INTERNATIONAL BROTHERHOOD of TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS of AMERICA, hereinafter referred to as the "PREDECESSOR" which Collective Bargaining Agreement by its terms does not expire before the day March 1959, and Whereas, the "UNION" is the Successor to said "PREDECESSOR" and the membership of the "PREDECESSOR" has voted to affiliate itself and to merge and become a part of the Union herein above named. Now, Therefore, in consideration of the mutual promises herein contained, the parties hereto covenant and agree as follows: to wit: 1. That the Union is the Successor to the Predecessor as Collective Bargaining Agent for the Employees involved herein, and that the Contract heretofore entered into between the Predecessor and the Company shall be deemed the Contract existing by and between the Union and the Company, the respective parties hereto. 4 The foregoing findings, with the exception of the reference to the testimony of Felix Martinez , already noted, are based upon the credible , undenied , testimony of Mr. Singer. 5 Also referred to in the record as Francisco Felix. 6I.e., International Brotherhood of Teamsters , Chauffeurs , Warehousemen , and Helpers of America , AFL-CIO. 7 The full name for this union was Warehouse & Processing Employees Union , Local 269, AFL-CIO, International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America. 505395-60-vol. 122-80 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. That a majority of the Companies Employees had designated the Union as their sole and exclusive Collective Bargaining Agency through written authorizations. 3. That the Company does hereby recognize the Union as the sole Collective Bargaining Representative on behalf of all employees who are covered under the prior Contract with the Predecessor. 4. That the Contract heretofore in effect and as succeeded to by the Union herein, shall continue to be in full force and effect up to and including the expiration date thereof. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seal the day and year above first written. WAREHOUSE & PROCESSING EMPLOYEES UNION, LocAL 269, AFL-CIO, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS OF AMERICA, By (S) GEORGE D. BAKER, Business Representative. WAREHOUSE & PROCESSING EMPLOYEES UNION, LOCAL 269, IND., By (S) JOSEPH CURCIO, Secy-Treas. A. CUSTEN, INC., Employer. By (S) A . SINGER, (S) MAX LLORENS, Shop Steward or Committeeman. B. Company-Union relations in early 1957 There is no evidence in the record that prior to March 1957, the employees had ever signed cards authorizing Local 102 or Local 649 to represent them, nor is there evidence that they had ever signed checkoff cards authorizing the Company to deduct dues from their wages and remit the money to the Union. In any event, Mr. Singer testified that in February 1957 Baker brought him cards which Baker stated the employees would have to sign. Singer then gave the cards to Miss Hedwig Stone, the plant bookkeeper, and instructed her to have the employees fill out the cards. Shortly thereafter, Miss Stone reported back to Singer that the employees refused to sign the cards. Singer testified that when this occurred the employees were told that the cards were for the same union as they had had before but that it had a different local number, and that the employees then signed the cards. The foregoing findings are based on the credible, undenied testimony of Mr. Singer. The bookkeeper handed two cards to most, if not all, of the employees. One was an application and authorization card for Local 269, the other was a combined checkoff and authorization card, also for Local 269. Several of the employees testified as to the circumstances in which they were given the cards. According to Meliton Lopez, the bookkeeper told him that he had to sign and when he protested that he did not want to do so, she told him "you have to sign" Benito Diaz de Jesus testified that when he was given a card he was told that it was very important that he sign. According to Jesus Rivera Cruz, when Miss Stone handed him the cards she told him that he had to sign, whereupon he did so. It is significant that Cruz, like several of the other employees, was unable to read English. The General Counsel offered six checkoff cards in evidence, only five of which were signed. The Respondent offered 12 authorization cards which bore the signa- tures of Custen employees. All of the foregoing cards were dated March 4, 1957, with the exception of one which was dated March 1 and another March 3. March 1 was a Friday and March 3 was a Sunday. Since the testimony indicated that the bookkeeper distributed all of the cards the same day, it is my conclusion that they were all signed on or about March 4. At that time the Respondent Company had 16 employees in the unit which the Union claimed to represent.8 There was evi- 8In the original contract which Local 102 and Local 649 had with the Company, the Union was granted recognition as the bargaining agent for all of the employees except for nonworking supervisory help, nonworking foremen, plant guards, and office help. In the contract dated April 25, 1957, Local 269 was granted recognition for all production employees and shipping and receiving clerks, except for supervisors and other categories A. CUSTEN, INC. 1251 -dence that six of these employees had signed application cards .9 Local 269 offered six additional application cards and these were received in evidence.10 However, the employees who purportedly signed these cards did not testify and the Union offered no witness to testify that he had observed the employees in question actu- ally sign these cards.ll Even if these cards are counted, thus giving the Union 12 cards out of a possible 16, the testimony as to the circumstances in which they were secured must be considered. Thus, it is undenied that they were obtained ,only through the Employer and after Custen's bookkeeper, who distributed the cards to the employees, had instructed them when doing so that the cards must be .signed. This uncontradicted testimony makes it patent that all of the cards here involved were secured with the active and coercive assistance of the Employer. The Act does not recognize any validity in a majority so obtained. N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 598-600; Dixie Bedding Manufacturing Com- pany, 121 NLRB 189. Yet the foregoing were the only cards on which Local 269 sought to base its claim to represent the employees of the Company. In the light of the above findings, it is my conclusion that at no time during this period did Local 269 represent an uncoerced majority of the employees at the Company's plant. C. The meeting of union officials with the employees and events subsequent thereto Shortly before March 15, 1957, when the contract which Local 269 had with the Company 12 was about to expire, Baker asked Singer to renew the agreement. The latter testified that in answer to this request "I told Mr. Baker that I would not enter into any contract with the Union unless he takes another poll of our employees as to dissatisfaction amongst them due to all of the publicity pertaining to some of these leaders in the Teamsters Union." Singer testified that he then told the union officials that if they addressed the employees at the plant and the latter agreed to continue with the Union he would sign the contract proposed by Local 269. Sometime later, in accordance with this suggestion, an appointment was arranged with the union representatives so that on an afternoon late in April or early in May 1957, Baker and Curcio came to the plant.13 That morning Singer excluded by the Act. The figure 16, given above, includes the production workers Alfonso Martinez, Joseph Rando, Jesus Rivera Cruz, Meliton Lopez, Benito Diaz de Jesus, Max Llorens, Cecilio Velez, Severo Guzman, John Spellman, Vincent Valentino, Nocomedeo Colon, Marcelino Guzman, Joseph Newman, and Ulysses G. Dillahunt, and also Elisa Amador and Francisea Amador, the latter two having been described by Mr. Singer as packers and inspectors. 9 Martinez, Rando, Cruz, de Jesus, Lopez, and Llorens. All except Martinez had also signed checkoff cards. 1" These were for Velez, Severo Guzman , Spellman , Valentino, Colon, and Marcelino Guzman. 11 Both Baker and Llorens, the only witnesses whom Local 269 offered on this matter, conceded that they had not seen any of these cards being signed by the individuals whose names presently appear thereon. 12 That, of course, was the agreement which Local 649 had transferred to Local 269. 13 The finding as to the approximate date of this meeting is based on the credible testi- mony of Singer which was, in turn, corroborated by Cruz and Martinez. These witnesses testified that insofar as they could recall the meeting was held sometime in May. Singer also testified that the day after the meeting, he and the union representatives signed the contract. The latter is in evidence and bears the date of April 25, 1957. Singer further testified that although the agreement bears this date it was actually executed some 2 to 3 weeks later. The only witnesses for Local 269 on this issue were Llorens and Baker who testified that the meeting occurred in March. Llorens testimony at the hear- ing, however, was contradicted by an affidavit which he had given to a field examiner of the Board in November 1957, in which he had averred that the meeting took place in May 1957. When confronted with the affidavit while on the witness stand, Llorens acknowledged that he had signed it under oath, and that it fairly set forth the statement which he had given the field examiner. Because of this conflict between his testimony and the prior sworn statement, I do not credit Llorens testimony that the meeting occurred in March. N.L.R.B. v. Quest-Shon Mark Brassiere Co., Inc., 185 F. 2d 285, 289 (C.A. 2), cert. denied 342 U.S. 812. Baker conceded that he spoke to the Custen em- ployees on only one occasion in 1957 but insisted that this had been in March. His testimony as to the latter date, however, was not persuasive and I find it lacking in credence. 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had told the employees that they would only work until 4 or 4:30 in order that the union officials would have an opportunity to talk to them. He further told them that they would have to decide whether to continue with the Union and that if it was their preference to do so he would sign a new contract with Local 269. About an hour before the regular closing time Baker and Curcio arrived. The foreman told the employees to stop work and the two union agents then spoke to the men. However, most of the employees understood only Spanish, so Max Llorens, an employee who was fluent in both English and Spanish, was designated to act as the interpreter. Prior to this meeting there had been much dissatisfac- tion among the employees with having to pay dues, and many of them felt the Union had given them nothing in return. Consequently, much of the discussion at the meeting involved this issue. To quell the dissension, manifested by some of those in attendance, Baker and Curcio spoke about the hospitalization and welfare coverage which the Union accorded its members and mentioned certain of the employees who had received such benefits recently. Some reference was made to the grievance procedure which the contract provided. Curcio stated that they should have a steward and suggested that Llorens could be so designated. Accord- ing to the latter, Curcio then asked the employees present if that would be satis- factory and, no dissenting voices being heard, Llorens, in this manner, became the shop steward. The meeting lasted less than an hour. Immediately after its conclusion Singer, who had not been present, asked Llorens if the employees were willing to go along with the Union. The latter answered "Mr. Singer, the boys agreed to go along with the union." 14 With this assurance that the Union represented a majority, and no other evidence,15 Singer then told Baker and Curcio that he would have his lawyer review the contract which they had given him. Singer testified that the following day, after receiving the advice of counsel, he signed the agreement with Local 269. As noted earlier, the document gives April 25, 1957, as the day of its execution. Insofar as its duration was concerned, however, it was effective retroactively to March 4, 1957, and was to extend for a 2-year period after that date. Like the earlier contract it, too, had a union-security and checkoff provision. Shortly after signing the new agreement Singer met with his employees to tell them that he had been advised that the Company had no right to pay any part of their union dues and that for this reason they would have to pay the full amount of those obligations in the future. This was a new policy for from the time of its first union agreement in 1952, the Company had deducted only $1.50 per month from the wage of each employee, and paid the balance itself. For a time, when the monthly dues were $3, this required an additional $1.50 from Custen for each employee and later, when the dues were raised to $4, the Company contributed $2.50 per man.16 According to Singer, his proposal in May 1957, that in the future the employees pay the entire amount of the dues not only met with no acceptance on their part, their opposition was so vigorous that he concluded that if the Company insisted on making such deductions from their pay it would be faced with a walkout. Thereafter Singer notified Local 269 of the employees' reaction to his announcement and informed Baker that in the future the Company would neither make any deductions from the employees' wages nor forward any contributions of its own for the monthly dues. In fact, from this time in May 1957, no such deductions were made by Custen. At the Union's insistence, how- ever, it did make some further dues payments to Local 269 on behalf of its em- ployees. The last of these payments was made in January 1958, when it remitted to Local 269 the sum of $36 as the August 1957 dues for nine of its employees. D. Concluding findings As noted earlier, the original contract between Custen and Local 102 was signed in March 1952. This agreement was continued in effect between the Company and Local 102 and the successors of the latter, namely, Local 649 and Local 269, Teamsters, until it was superseded by the agreement dated April 25, 1957. Both of these contracts had a union-security clause which required the discharge of any employee who failed to maintain his membership in good standing. The repre- sentative status of the union involved is, of course, a prerequisite to the execution of a valid union-security provision. Here, it is apparent from the record, and I find, that Local 102, did not represent an tincoerced majority of the employees or 14 The quotation is from Singer's testimony ; Llorens testified to the same effect. 15 Singer testified at the hearing that no new authorization cards were obtained at this meeting. 16 The record does not indicate when the dues were raised from $3 to $4. A. CUSTEN, INC. 1253 have a representative status as required by the Act at the time it executed the agree- ment of March 4, 1952, with the Company. Throughout the terms of this agree- ment, which remained in effect until March 1957, neither Local 102, nor its suc- cessors Local 649 and Local 269, Teamsters, ever attained the requisite represen- tative status. Consequently, the union-security clause in this contract was invalid. N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772 (C.A. 2); Atlantic Freight Lines, Incorporated, 117 NLRB 464, 470-471. No unfair labor practice finding may be based upon the execution of this agreement since that occurred more than 6 months before service of the charges on the Respondent. However, Locals 649 and 269 continued to enforce the contract and to keep it in effect until it was superseded by the agreement dated April 25, 1957. Custen, likewise, con- tinued to deduct part of the employees' dues from their wages and remit them to the aforesaid Unions. The original contract being invalid, it was a "continuing offense" for the Respondents to do so. N.L.R.B. v. Gaynor News Company, Inc., 197 F. 2d 719, 722 (C.A. 2), affd., 347 U.S. 17; Bryan Manufacturing Company, 119 NLRB 50. The enforcement or continuance in effect of the illegal union- security clause was an unfair labor practice. Red Star Express Lines of Anburn, Inc. v. N.L.R.B., 196 F. 2d 78, 81 (C.A. 2); Local 229, United Textile Workers of America, AFL-CIO, [J. Radley Metzger Co., Inc.] 120 NLRB 1700; Triboro Carting Corporation, 117 NLRB 775, 780; County Electric Co., Inc., etc., 116 NLRB 1080, 1081-1082; Eichleay Corporation, 110 NLRB 1295, 1297. Accord- ingly, I find that by enforcing and maintaining in effect the illegal union-security clause of this contract from about September 5, 1956, the Company violated Sec- tion 8(a)(3) and (1) of the Act, and from about September 29, 1956, Local 649 and thereafter its successor, Local 269, Teamsters, violated Section 8(b) (2) and (1)(A) of the Act.17 It is similarly apparent, on the above findings, that the authorization and checkoff cards obtained in March 1957, through the active solici- tation of the Company's agents on its time and property could not serve as evidence that Local 269 represented a majority of its employees. Further, the subsequent report of Llorens to Mr. Singer, after the Company had sponsored a union meeting, again on its time and property, that the employees had "agreed to go along with the Union" could not serve as proof of an uncoerced majority. Plain evidence that Llorens was wrong was brought forcefully to Singer's attention when he informed the employees that henceforward they would have to pay the union dues themselves and they then made it clear that they would walk off their jobs rather than acqui- esce in any such requirement. It was unlawful and a violation of Section 8(a)(1) and (2) for the Company to solicit authorization and checkoff cards for Local 269 as it did here, and for it to provide the representatives of that organization an opportunity on company time and property to convince the employees that they should assent to representation by Local 269. Coast Aluminum Company, 120 NLRB 1326. It was a further violation of the aforesaid sections of the Act for the Company to pay the union dues of its employees,. either in whole or in part. Dixie Bedding Manufacturing Company, 121 NLRB 189. On this record, it is obvious, and I find, that at the time the Company and Local 269 entered into the agreement dated April 25, 1957, the latter completely lacked the support of an uncoerced majority of the em- ployees. Under these circumstances it was equally unlawful for the Company to enter into the aforementioned union -security agreement with its discriminatory penalties for all employees who failed to pay dues to Local 269. By this conduct the Respondent Company violated Section 8(a)(3) as well as Section 8(a)(1) and (2) of the Act. Similarly the execution of this agreement by Local 269 was unlawful and by so doing Local 269 violated Section 8(b)(2) and 8(b)(1)(A). The successorship issue Late in 1957 the Teamsters terminated their affiliation with Local 269 and there- after it was known as "Local 269, Ind." In a memorandum agreement signed on December 6, 1957, the latter took over the contract dated April 25, 1957, which Local 269, Teamsters, had with Custen. In this supplemental agreement Local 269, Ind., was referred to as the "Successor" and Local 269, Teamsters, as the "Prede- cessor." An opening paragraph in this document stated that "The `Union' [Local 269, Ind.] is the Successor to said `Predecessor' [Local 269, Teamsters] and the membership of the `Predecessor' has voted to affiliate itself and to merge and become a part of the Union [Local 269, Ind.].. . In subsequent paragraphs of this instrument, Custen recognized Local 269, Ind., as the majority representative 17 These last two dates mark the beginning of the 6-month period preceding the filing of the charges in Case No. 2-CA-5308 and ease No. 2-CB-1'940, respectively. 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its employees and the latter organization succeeded to the contract then ire effect between Custen and Local 269, Teamsters. The complaint in Case No. 2-CB-1940 was issued against Local 269, Teamsters. In the answer to this com- plaint, filed by Mr. Arnold Cohen, on February 4, 1958, the latter described Local 269, Ind., as "successor in interest to Local 269, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America." Mr. Cohen signed the answer as counsel for Local 269, Ind. On the basis of these facts, Local 269, Ind., is manifestly a successor to Local 269, Teamsters, and I so find. As found earlier herein, the latter organization, was, in turn, a successor to Local 649. Consequently, Local 269, Ind., is the successor to both Local 269, Teamsters, and to Local 649. The record is clear that Local 269, Ind., took over the illegal contract which its. predecessor Local 269, Teamsters, had negotiated, and that the latter organization, in turn, had enforced not only the agreement dated April 25, 1957, but also the earlier illegal contract which its predecessor Local 649 had maintained and en forced.18 Moreover, it is obvious that on December 6, 1957, when Local 269,. Ind., assumed the contract which its predecessor had had with Custen, it did so with knowledge of the outstanding unfair labor practice charges which had been filed against Local 269, Teamsters, on March 29, 1957. The answer filed in Case No. 2-CB-1940 by Local 269, Ind., set out as an affirmative defense that the alleged violations described in the complaint occurred more than 6 months prior to the filing of any charges and that it, therefore, was. not the party alleged to have committed any such violations of the Act. There is no merit to either of these defenses. It is true that the 1952 contract between Local 102 and Custen was executed at a time when Local 269, Ind., was not in existence and obviously much more than 6 months prior to March 29, 1957, when the charge in the instant case was filed. On the other hand, Local 269, Ind., is a successor to not only Local 269, Teamsters, but also to Local 649 and the record is clear that the latter organizations continued to enforce the original unlawful agreement well within the 6-month period. Insofar as the evidence with respect to the period prior to September 29, 1956, is concerned, no unfair labor practice finding has been made. It is equally plain, however, that subsequent to the above date Local 649 and Local 269, Teamsters, violated the Act, as found above. Fur- ther, after the execution of the contract dated April 25, 1957, Local 269, Teamsters, and its successor in interest, Local 269, Ind., continued to enforce the latter agree- ment, so that, as late as January 1958, Custen remitted dues for nine of its em- ployees to Local 269, Ind. It is thus apparent that by this conduct Local 269, Ind., as well as its predecessor, Local 269, Teamsters, violated Section 8(b)(2) and (I) (A) of the Act. I so find. Moreover, as the successor in interest to Local 269, Teamsters, and to Local 649, it must be held answerable for remedying the unfair labor practices of its predecessors to the extent that the dues which those organizations unlawfully collected from the Custen employees must be reimbursed. Venetian Blind Workers Union Local No. 2565, 110 NLRB 780, 785. See also J. W. Rex Company, 115 NLRB, 775, 776, enfd. 243 F. 2d 356 (C.A. 3). One further matter awaits disposition. At one point in his examination of the witness Llorens, counsel for Local 269 called upon the General Counsel's repre- sentative to produce a checkoff card which Llorens had signed. Counsel for the- General Counsel conceded that he had possession of the card but declined to pro- duce it, on the ground that the Board's Rules and Regulations prohibited him from acceding to such a request and that, in any event, he proposed to offer the afore- said card during his own cross-examination of the witness.19 Local 269 then re- quested a subpoena duces tecum from the Trial Examiner. This was issued forth- with and the Respondent Union then served it upon the Regional Director requesting that the latter produce all checkoff and application cards pertaining to the case which were in the Regional Office file. Counsel for the General Counsel, on behalf of the Regional Director, moved to quash this subpena, citing Sections 102:86(b) and 102.87 of the Rules and Regulations, Series 6, as amended. The Trial Ex- aminer denied the motion to quash on the ground that the documents sought were related to the matter under investigation and that the subpena described with suffi- 18 In addition to the facts set out above, it should be noted that each of the principal contracts which Locals 102, 649, and 269, Teamsters, had with Custen contained a sur- vival clause which provided that the agreement would be binding net only upon the parties signatory thereto, but on "their successors and assigns , and shall survive change of name, location , place of business or reorganization." '- The General Counsel's representative did, in fact , subsequently offer in evidence the disputed card. It appears in the record as General Counsel's Exhibit No. 18. A. CUSTEN, INC. 1255 cient particularity the aforesaid evidence. Later, Local 269 called Mr. Singer as a witness and asked him whether he had turned over to the Regional Office all checkoff and application cards in the Respondent Company's possession. When Mr. Singer answered in the affirmative, counsel for Local 269 then asked him whether he desired the return of those cards. Mr. Singer stated that he was un- able to answer that question at the time. The Respondent thereupon requested that the Trial Examiner direct counsel for the General Counsel to produce the cards in question. This request was denied. The Great Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280, 1281-1282; E. V. Prentice Machine Works, Inc., 120 NLRB 1691 final 1; Baltimore Steam Packet Company, 120 NLRB 1521. Local 269 has excepted to this ruling of the Trial Examiner. It is significant, however, that at no time, either at the hearing, or later, did the Respondent Union, in conformity with the Board's Rules and Regulations Section 102.87, Series 6, as amended, make an effort to obtain the necessary permission of the General Counsel for the production of the cards. Under these circum- stances, the Court of Appeals for the Second Circuit has stated: ". . . the failure to make a proper demand [pursuant to the aforesaid rule] for the production of the desired statement was fatal to the respondent's contention that the examiner's ruling was erroneous." N.L.R.B. v. Adhesive Products Corporation, 258 F. 2d 403 (C.A. 2). (Citing N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2).) See also N.L.R.B. v. General Armature & Mfg. Co., 192 F. 2d 316, 317-318 (C.A. 3), cert. denied 343 U.S. 957. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in and are engaging in unfair labor practices I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Moreover, since a Board order is customarily directed not only to the respondent found to have committed the unfair labor practices but also to its officers, agents, successors, and assigns (Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 13-15), and since in this case I have found that Local 269, Ind., is a successor in interest and no more than a "disguised continuance" of Local 269, Teamsters (Southport Petro- leum Company v. N.L.R.B., 315 U.S. 100, 106; Venetian Blind Workers' Union, Local 2565, 110 NLRB 780, 785), I shall recommend that the order be specifically directed to both Local 269, Teamsters,20 and Local 269, Ind., 's well as their suc- cessors and assigns. Since I have found that the Respondent Company, in violau_ Section 8(a) (2) of the Act, unlawfully assisted and contributed support to cne Respondent Local 269,21 the effects of this interference, as well as the Company's continued recognition of that union as the bargaining representative of its employees consti- tute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Further, having found that the Company violated Section 8(a)(3) and (1) and that Local 269 violated Section 8(b)(2) and (1)(A) of the Act by executing, maintaining, and enforcing an agreement containing unlawful union- security provisions, the terms of which have frustrated self-organization and de- feated genuine collective bargaining by the employees, I will recommend that the Company withdraw recognition from Local 269 as the representative of its em- ployees and that the Company cease giving effect to the agreement dated April 25, 1957, to the supplemental agreement of December 6, 1957, or to any modification, extension, supplement, or renewal thereof, or any substitutes therefor, unless and until Local 269 shall have demonstrated its exclusive majority representative status pursuant to a Board conducted election among the employees of Respondent Custen. Bowman Transportation, Inc., 120 NLRB 1147. Nothing in this recom- mendation should be taken, however, to require the Company to vary those wage, 20 See Atlanta Paper Company and Mead Atlantic Paper Company, 121 NLRB 125. e1 "Local 269" as used hereinafter includes both "Local 269, Teamsters" and "Local 269, Ind." 1256 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD hour, and other substantive features of its relations with the employees them- selves, if any, which the latter has established in the performance of this agree- ment. Furthermore, since I have found that the Respondents violated the Act by coercing the employees to become and remain members of Local 269 and to authorize deduction of membership dues from their wages , the parties to the illegal agreement should be held equally responsible for expunging the effect of their unfair labor practices . I, therefore , find that it will effectuate the policies of the Act to order the Respondent Company and the Respondent Local 269 , jointly and severally, to refund to the employees all of the amounts deducted from their wages for that purpose from and after a date 6 months prior to the filing of the charges herein.22 Dixie Bedding Manufacturing Company, supra; Coast Aluminum Com- pany , supra; United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry , etc., Local 231 (J. S. Brown-E. S. Olds, etc ., Corporation), 115 NLRB 594, 599-602; Hibbard Dowel Company, 113 NLRB 28, 30; The Englander Company, Inc., 114 NLRB 1034 , 1047; Broderick Wood Products Com- pany, 118 NLRB 38, 64. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent Company is engaged in commerce within the meaning of the Act, 2. The Unions here involved are labor organizations within the meaning of the Act. 3. By executing, maintaining, and enforcing contracts containing unlawful union- security provisions , thereby compelling employees to become and remain members of Local 269 and submit to the involuntary checkoff of union dues from their wages for payment to the aforesaid Union, the Respondent Company has violated Sec- tion 8(a)(3) of the Act and the Respondent Local 269 , by causing the Company to discriminate with respect to the hire and tenure of employees in violation of Section . 8(a)(3), has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(2) of the Act. 4. By assisting Local 269 and its predecessor Local 649 and contributing support to these organizations the Respondent Company has en gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 5. By interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company and the Respondent Local 269 have engaged in and are engaging in unfair labor prac- tices, the former within the meaning of Section 8(a)(1) and the latter within the meaning of Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] s9 As noted earlier, the financial responsibility of Local 269 for remedying the unfair labor practices found herein also includes the obligation to reimburse to the employees all dues received by Local 649, insofar as they were collected by Cueten for that par- ticular predecessor of Local 269 within the 6 months antedating the charges Is Case No. 2-CB-1940. J. Miller Printing Company Gem Offset Plate Company i and Local No. 1, Amalgamated Lithographers of America, Peti- tioner. Case No. 2-EC-9648. February 8, 1959 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held in this case before James J. 1 The record indicates that Gem Offset Plate Company is not now in operation and has no employees. 122 NLRB No. 143. Copy with citationCopy as parenthetical citation