Arco Electronics, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1979

241 N.L.R.B. 256 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arco Electronics, Inc. and Precision Film Capacitors,
Inc. and United Brotherhood of Industrial Workers
Local 424 and District Lodge No. 15, International
Association of Machinists and Aerospace Workers,
AFL-CIO, Party to the Contract. Case 29-CA-
5519
March 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On October 27, 1978, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the General Counsel
filed limited exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Stating in his Conclusions of Law 6 that Respon-
dent Arco violated Section 8(a)(3) and () by discon-
tinuing its profit-sharing plan, the Administrative
Law Judge states in his recommended remedy that
Respondents shall "reimburse all present and former
employees for... any moneys which could have been
due present and former employees under the Arco
profit sharing plan which was terminated in March of
1977 in the same manner as if that plan had contin-
ued to exist" and "that the profit plan shall be re-
instituted as it existed prior to March of 1977." In
their exceptions, both the General Counsel and Re-
spondents maintain the profit-sharing plan's discon-
tinuance was never raised an an issue during this pro-
ceeding. We find merit in these exceptions.
Neither the charge nor the complaint allege that
the Respondent, Arco Electronics, Inc., Violated Sec-
tion 8(a)(3) and () by discontinuing its profit-sharing
plan. Nor was the issue litigated at the hearing. The
General Counsel has never contended that Respon-
dent Arco's discontinuance of the plan was unlawful.
We therefore do not adopt the Administrative Law
Judge's Conclusion of Law 6 and his recommended
remedy regarding the profit-sharing plan and shall
modify his recommended Order accordingly.
I Absent exceptions, we adopt pro forma the Administrative Law Judge's
finding that Supervisor Pepper's inquiry to employee Maggie Burton as to
other employees who may have received subpenas was not unlawful.
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, as modified
below, and hereby orders that the Respondents, Arco
Electronics, Inc., Commack, New York, and Preci-
sion Film Capacitors, Inc., Great Neck, New York,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraph 2(c) and reletter the following
paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute to District
Lodge No. 15, International Association of Ma-
chinists and Aerospace Workers.
WE WILL NOT recognize and negotiate with
District Lodge No. 15 as the exclusive bargain-
ing representative of our employees unless and
until such labor organization is certified by the
National Labor Relations Board as the exclusive
representative of such employees.
WE WILL NOT enforce or give effect to our col-
lective-bargaining agreement with District Lodge
No. 15 or any extension, renewal, or modifica-
tion thereof or any superseding agreement; pro-
vided that WE WILL NOT alter any wage increases
or other benefits put into effect as the result of
these agreements.
WE WILL NOT encourage membership in Dis-
trict Lodge No. 15 by requiring employees to
join the organization as a condition to obtaining
employment.
WE WILL NOT threaten employees with loss of
their employment if they do not become mem-
bers of District Lodge No. 15.
WE WILL NOT restrain or coerce employees in
the exercise of their rights to use the processes of
the National Labor Relations Board by telling
them they do not have to honor subpenas issued
by the Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them in Section 7
of the Act.
241 NLRB No. 30
256
ARCO ELECTRONICS, INC.
WE WILL withdraw and withhold all recogni-
tion from District Lodge No. 15 as the exclusive
bargaining representative of our employees un-
less and until such labor organization is certified
by the National Labor Relations Board as the
exclusive representative of such employees.
WE WILL reimburse all employees, former and
present, for any dues and other moneys unlaw-
fully exacted from them under our contracts with
District Lodge No. 15 together with interest
thereon.
ARCO ELECTRONICS, INC.
PRECISION FILM CAPACITORS, INC.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge: This
matter was heard in Brooklyn, New York, on April 24, 25,
26, 27, and May 23, 1978. The complaint issued on October
6, 1977, and is based on charges filed on March 22, 1977, by
United Brotherhood of Industrial Workers Local 424, here-
inafter referred to as Local 424 or the Charging Party. The
complaint alleges that Arco Electronics, Inc. and Precision
Film Capacitors, Inc.,, hereinafter referred to as Arco or
PFC, or Respondents or the Company, violated Section
8(a)(l), (2) and (3) of the National Labor Relations Act, as
amended, herein referred to as the Act, by rendering unlaw-
ful assistance to District Lodge No. 15, International Asso-
ciation of Machinists and Aerospace Workers, AFL-CIO,
hereinafter referred to as Machinists; by threatening and
coercing employees; and by deducting dues for Machinists
from the wages of employees. Respondent, by its answer,
denied the commission of any unfair labor practices and,
further, by amendments to its answer allowed during the
hearing, stated that its employees, through changes in cor-
porate operations, constituted an accretion to a bargaining
unit represented by Machinists.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. A brief was filed
by Respondent and a memorandum of law by the General
Counsel. These have been carefully considered.
Upon the entire record I make the following:
FINDINGS OF FACT
I. URISDICTION
The complaint alleges, the answer admits, and I find that
Respondents are New York corporations with facilities at
Great Neck and Commack, on Long Island in the State of
New York. During the past year Respondents have shipped
finished products valued in excess of $50,000 directly to
customers outside the State of New York and have received
goods valued in excess of $50,000 directly from points out-
i Precision Film Capacitors, Inc., known as PFC, was added as a Respon-
dent by amendment to the complaint at the hearing.
side the State of New York. I find that Respondents are
employers engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
Local 424 and Machinists are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Corporate Background
Arco Electronics, Inc., has been in existence for about 40
years, first in Brooklyn, then in Manhattan. About 1960 the
company moved to facilities at 100 Community Drive,
Great Neck, New York.' At the Great Neck location the
Company was engaged in the manufacture, distribution,
and sale of electronic components called capacitors. Two
different types of capacitors were manufactured. One type,
made of film or film-foil, was made by a department of
Arco Electronics known as the "PFC" department (or divi-
sion). The other type of capacitor, made of paper, was
manufactured by the Arcolytics3 department. A third de-
partment of Arco at Great Neck is referred to only as the
"Warehouse," but its exact function was not defined in the
record.
On February 15, 1975, Respondent purchased a com-
pany called Automatic Connector, Inc., herein referred to
as Automatic, located at 400 Moreland Drive, Commack,
New York, a distance of about 20 miles from Great Neck
on Long Island. Automatic was engaged in the manufac-
ture, distribution, and sale of electronic components known
as connectors.
Early in 1976, the date is not certain, Arco, together with
Automatic, was taken over by a Swiss-based enterprise4
known as ASUAG (or ASU a.g.).
B. The Move to Commack
Following its absorbtion of Arco and Automatic,
ASUAG made a decision to consolidate the operations of
these two companies in their entirety. The plan called for
the transfer of all of the Arco employees from Great Neck
to Commack in at least three stages, first the warehouse was
to move in November of 1976, then the Arcolitics depart-
ment in early December to be followed at an unspecified
later date by the PFC department.
The decision to make the moves described above had
been made in August 1976. ASUAG's purposes were to
improve business operations, to provide a central location
2 The findings throughout are drawn primarily on the undenied and credi-
ble testimony of Respondent's director of personnel, Barbara DePaul. Her
testimony on the record of the instant case is supplemented by about 500
pages of her testimony in Case 29-RC-3740 which was received without
objection as an exhibit in this case.
3 Also referred to as "Arcolitics" in the record.
There is no indication in the record as to whether ASUAG is a corpora-
tion, a sole proprietorship, a partnership, or some other form of busineas
association. Resolution of this issue is not, however, essential to this Deci-
sion.
257
)I(CISIONS OF NATIONAL LABOR RELATIONS BOARD
for all of the parent's electronics operations. and fbr bud-
getary convenience.
The task of coordinating all of the manifold aspects of
this move was assigned to Mr. Robert B. Stitt. Vice Pres-
ident and General Manager of Automatic. Stitt was to co-
ordinate his work with Ray King, who was president of
Arco in the late summer of' 1976. However, all changes in
policies and procedures worked out between Stitt and King
had to be approved by the Swiss parent company. During
the late summer and fall of 1976 discussions took place
between Stitt, King (who was removed as president of Arco
on October 30, and who was replaced by an acting pres-
ident, Carl Meyer on November 9. 1976), Jean Walchli. the
chief finance officer of ASUAG. a Mr. Rosenbaum (or Ro-
senbloom), vice president in charge of sales and marketing
for Arco, and Barbara DePaul, who had been personnel
manager for Automatic since the fall of 1975. and who, on
October 1, 1976, was also assigned as personnel director of
Arco.
The intention of these management people during the
course of their discussions, insofar as those discussions con-
cerned the employees of Arco and are relevant here, was to
standardize the employment policies and practices of' Auto-
matic and Arco.
A number of items affecting employees were discussed,
including length of the workday, timing of' coffeebreaks and
lunch periods, cleanup time and the processing and distri-
bution of paychecks. The method of handling employee
grievances was also discussed, but no final determination
was made at that time for resolution of this issue. The rea-
son for this was the fact that while the employees of Arco
were not, and had never been, represented by any labor
organization, the production and maintenance employees
of Automatic (and its predecessor, Plessey Connector Divi-
sion, Inc.) were and had been for at least ten years repre-
sented by District Lodge No. 15 of the International Asso-
ciation of Machinists. Automatic's predecessor, Plessey,
had entered into a collective-bargaining agreement effective
on February 25, 1974, for a period of 3 years. The contract.
as is customary, contained grievance procedures culminat-
ing in final and binding arbitration. Thus there was a differ-
ence in the methods available for the resolution of em-
ployee grievances between the two companies. There were
other differences in wages, vacations, insurance, and other
benefits. All of these differences were left by Stitt, King. and
the others to take care of themselves.
The actual move began in the week befobre Thanksgiving
1976 with the transfer of the Warehouse Division of Arco
to a location on the second floor, referred to as the mezza-
nine, of Automatic's plant at Commack. The warehouse
manager, Michael Gatta continued in charge but only three
of an undetermined number of rank-and-file employees
chose to accept the Company's offer of continuing employ-
ment at Commack.'
The Arcolytics Division moved in the week following
Thanksgiving to a location on the main floor of Automat-
ic's plant at Commack. Only one rank-and-file employee
elected to move to Commack but the supervisory team
I There are suggestions in he record of some dispute of the Company's
position on these employees, as well as employees of the Arcolytic Division,
but in the absence of contrary evidence the version of events described by
Barbara DePaul is accepted.
headed by Al Bennett moved and, as in the case of the
Warehouse, continued the day-to-day supervision of the di-
vision.
At this point, of approximately 50 production and main-
tenance employees employed by Arco in mid-November,
four, as noted above, had followed the move to Commack.
Fourteen to sixteen remained at Great Neck in the PFC
Division, and the remainder were permanently laid off. To
replace the laid-off employees, the Company hired about 20
new employees. None of the new employees had worked for
Automatic and the record shows that there was no inter-
change of employees between any of the Arco divisions and
Automatic at or around the time of the move.6
The final phase of the move was never completed, and it
was decided in December or January to leave the PFC Di-
vision at Great Neck. Indeed, in March 1977, amid other
corporate changes, a new corporation, Precision Film Ca-
pacitors, Inc., was created, and the personnel, machinery,
and other assets of the former PFC Division were trans-
ferred to the new corporation.' Also, in March 1977, Local
424 sent a demand for recognition in a unit of all produc-
tion and maintenance employees of Arco. Local 424 then
filed the petition in Case 29-RC-3740.
The creation of Precision Film Capacitors, Inc., was only
part of a general corporate reorganization which took place
at the same time. A new parent corporation, ASU Indus-
tries. Inc., was formed to direct all of ASUAG's electronics
companies in the United States. A common board of direc-
tors serves each company, ASU Industries, Inc., Arco, Au-
tomatic, and Precision Film Capacitors, Inc. Some of the
officers. such as the fiscal officer, serve all of the companies,
and in other offices different people occupy the positions.
Glenn Omholt, for example, is president of ASU and Auto-
matic while Reinhard O. Schlaefli is president of Arco. Bar-
bara DePaul is director of personnel for all the companies.
C. The Alleged Unfair Labor Practices
During the course of the discussions by management offi-
cers in the fall of 1976 concerning the details of the move
from Great Neck to Commack, there is evidence in this
record of at least one meeting, in November, between Bar-
bara DePaul and Carl Meyer concerning the people who
would be involved in the move. DePaul and Meyer dis-
cussed wages, timing, accommodations, and the integration
to be accomplished by the move. In the course of the meet-
ing it was decided that the wage rates for Arco employees
would remain as currently paid. Integration of the two
groups of employees at Arco and Automatic would only be
effected "in a general way," and no target date was set for
any interchange of employees. While the evidence does not
reveal that a decision was made to hire all new employees
to fill the ranks of the Arco divisions which were to move to
Commack. the above discussion between DePaul and Mey-
er implies, and the subsequent hiring of almost an entire
I The only interchange occurred some time later and will be discussed
below.
I Apparently the employees were not notified of this change since they
continued to be paid with checks bearing the name of Arco until early in
1978. Marty Pepper, production manager for PFC, testified that he did not
know whether the new corporation was formed in 1977 or 1978.
258
ARCO ELECTRONICS. IN(C.
complement at Commack once the move was accomplished
demonstrates, that such a decision was in fact made.
There were other meetings or discussions at meetings
during November and December dealing with employees
and involving Meyer, DePaul, and Stitt, but despite the size
of this record8 there is no evidence showing what decisions
were made by management affecting employees, including
the vital question of who was going to represent the Arco
employees after the move to Commack, or how those deci-
sions were to be implemented. We are left, then, with the
facts as to what actually did happen after the move to draw
the inference that decisions had to be made, and these deci-
sions were of the kind and nature reflected in the actions
taken.9
Therefore, although the record is silent on a decision by
Arco to recognize Machinists as the collective-bargaining
representative of Arco employees, we have undenied testi-
mony by Arco (PFC) employees Burton and Ijames that a
meeting was held in the conference room at Great Neck
some time in November. ' ° About 21 to 25 employees at-
tended the meeting which was also attended by Meyer.
Stitt, DePaul, and Marty Pepper. It is not clear who actu-
ally presided at this meeting, nor does the record reveal
who spoke to the assembled employees, telling them that
they would have to join the Machinists Union or they
would lose their jobs." This is the first indication which
shows that a decision had previously been made by the
management of Arco to recognize the Machinists as the
representative of Arco employees. Further undenied and
credible testimony shows that Pepper called employees into
his office in December and January and told them they
would have to sign checkoff authorizations for the Machin-
ists.
Thereafter Arco entered into a memorandum of agree-
ment dated December 3. 1976. incorporating the terms of
the existing agreement between Automatic's predecessor
and the Machinists (with a separate classification and wage
scale section for Arco) to be effective to the expiration date
of the Automatic contract. There is no indication that there
were any negotiations leading up to the execution of this
memorandum or that any Arco employees were involved or
even consulted.
Subsequently. Arco and Machinists entered into an
agreement effective on February 25, 1977 (although it was
actually signed by the Company in May) and to last for a
'Together with Barbara DePaul's testimony in Case 29 RC- 3740 which
extends for approximately 500 pages with some detours and diversions.
I DePaul's testimony that she did not recall what specific directions she
received from Meyer is not to say that such directions were not given and
acted upon. It is more probable that management decisions were made with-
out reference to or consultation with DePaul. Thus, she would be unaware of
those decisions and, since no other employer witnesses were called. the rec-
ord is silent as to those decisions.
i0 Burton's testimony that the meeting took place in October is not consid-
ered so significant as to affect my finding that she is a credible witness. All of
the substantive details of the meeting as related by Burton are corroborated
by Ijames. and I find that the meeting was in November.
II The fact that the author of the statement is not identified is not control-
Iing since both Pepper and DePaul testified, and neither denied, at the No-
vember meeting or in their record testimony. that the employees would have
to join the Union. They could not. of course, deny that Arco did execute a
memorandum of agreement with Machinists in December incorporating the
terms of an agreement, including a union shop provision. previously entered
into with Automatic
period of 3 v-ear. his contract is identical with a new con-
tract contemporaneously entered into between Automatic
and Machinists with the only differences, aside from the
names of the employers. being the wage scales and classifi-
cation provisions.' The Arco contract was negotiated with-
out any participation by Arco employees, by unknown per-
sons, under unknown circumstances, at least as far as this
record goes.
The new employees hired b Arco at Commack were
required. at the time of employment, to fill out applications
for membership in Machinists, and to execute checkoff
forms for union dues. Money for the payment of such dues
and initiation fees was deducted from the wages of the
Commack employees of Arco but, as stipulated by the par-
ties, are being held by Respondent in escrow pending reso-
lution of the issues in this proceeding. No dues were de-
ducted from the wages of the employees who remained at
(ireat Neck. As far as can be determined from this record,
no Arco employees voluntarily became members of Ma-
chinists."
Prior to the move and the recognition of Machinists,
Arco employees were covered by a company paid Blue
C(ross Blue Shield Major Medical policy. Also provided
were a $5,000 life insurance policy on each employee and a
prescription drug plan. The Blue Cross-Blue Shield plan
together with the prescription drug plan was discontinued
by Arco as of February 28. 1977, and, at that time, the
Company began making contributions on behalf of its em-
ployees to the Machinists Health and Welfare Fund. The
Machinists' plan also provides Blue Cross-Blue Shield cov-
erage. but the scope of coverage is not reflected in the rec-
ord, nor is there an wayV available to me to compare the
new coverage with the old. The life insurance was contin-
ued. even though Automatic employees received only
$2,000 in life coverage under their old contract. There is no
indication in the record as to whether Machinists' Blue
Cross plan includes provisions for prescription drugs.
The complaint was amended at the hearing to include
further allegations of violations of Section 8(a)(1) of the
Act. The undenied and credible testimony of employee
Maggie Burton resveals that, prior to the opening of the
hearing, on April 19, Marty Pepper asked her if she knew
what other employees beside herself had been summoned
by subpena to this proceeding. Then, on April 21, Pepper
told Burton and Lena Ijames in the presence of another
supervisor. Frances Storey, that employees did not have to
"go to the NLRB" to testify. He pointed out that the em-
ployees would only receive $20 as witness fees, rather than
the day's pay they would earn it' they came to work. Other
employees, upset at hearing about this, went to see Pepper
and were told the same thing. '4
I2 It is noted that emplosees of Arco. even those who had signed applica-
tions for membership in Machinists and who had had dues deducted from
their wages, were noi allowed to otre at a union meeting called tor the
purpose of raiitsing these agreemenls
' The parties stipulated that of 25 persons employed by Arco on Decem-
her 3. 1976. I I had signed authorization cards for the Machinists. There is no
evidence that ans of those II ever actually became a member of that Union.
As a result of this Machinists sent a letter to Respondent on November 24,
1976. claiming to refresent a. inajorit. ,f the C(ompany's employees.
" Pepper was called a. a w.itness b5 the General Counsel but he was not
asked about these incidents lie was not called hby Respondent on its defense
to the charges.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The A ccretion Issue
The position of Respondent is that since December 3,
1976, "the operations of Arco and Automatic have become
so integrated that the employees of Arco, employed in the
production and maintenance departments, have become a
valid accretion to the recognized unit of Automatic produc-
tion and maintenance employees at the Commack facility"
represented by Machinists. This quotation taken from Re-
spondent's brief' would indicate that what Respondent is
claiming is that the entire complement of Arco employees,
those who remained at Great Neck as well as those who
moved to Commack constitute the claimed accretion. This
would be consistent with the stated position of the Com-
pany during the hearing in Case 20-RC-3740 which took
place in the spring of 1977.
There are indications, however, that Respondent actually
is taking the position that only those employees who
worked at Commack constitute an accretion to the Auto-
matic unit. This thought derives from the amendment to the
answer which I allowed at the hearing and from citation in
the body of Respondent's brief of a series of factors affect-
ing only those Arco employees who worked at Commack.
In view of my findings and conclusions on the issue of ac-
cretion, I find it unnecessary to resolve this seeming contra-
diction.
Respondent has pointed to a number of factors which
point toward an accretion of Arco employees to the Auto-
matic unit and has cited numerous authorities in support of
its position. The General Counsel has likewise supplied me
with citations to cases which support his position that there
is no accretion in this case.
The principal factors which appear in this record point-
ing to the accomplishment of an accretion are:
1. The physical closeness of the Arco and Automatic em-
ployees at Commack.
2. Centralized control of a number of corporate func-
tions between ASU, Automatic, Arco, and PFC. Barbara
DePaul is the director of personnel for all the companies.
The hiring function is centralized, although the divisional
managers for Arco also participate in the hiring process.
Employee facilities at Commack, including the parking lot,
reception areas, lockers, toilets, and the employee lunch-
room are used by all employees. Support functions such as
accounting, mail and messenger service, purchasing, time-
keeping, credit, tool crib, testing area, shipping area, secre-
tarial staff, computers and telephone lines, all are shared by
Arco, Automatic, and, presumably ASU Industries, Inc.
3. Integration of working conditions such as health and
welfare contributions, vacation benefits, holidays, and wage
increases, although these benefits did not coincide until
some time after the move to Commack.
4. The relative size of the units, approximately 195 em-
ployees in the Automatic unit in October 1976, about 50 in
the 3 Arco operating divisions at the same time. Of these
latter 50 employees, only about 20 were left at the end of
November 1976.
On the other hand there are significant factors which
militate against a finding of an accretion in this case. These
are:
I. The lack of interchange between production and
maintenance employees of Arco and Automatic. This was
precluded by the insistence of Respondent on the mainte-
nance of separate seniority lists for Arco and Automatic.
Whether this insistence was self-generated, or was the result
of an accommodation with Machinists to preserve the in-
tegrity of the existing seniority list at Automatic is not im-
portant. What this did, however, was to prevent any real
integration of the work forces of Arco and Automatic
whether one considers the Arco employees at Great Neck
or at Commack.
Aside from some examples cited in Barbara DePaul's tes-
timony of technical or maintenance employees doing work
fobr Arco at Commack and Great Neck, mostly at Com-
mack in connection with the physical aspects of the move,
the only examples of interchange consisted of one instance
involving two employees of Automatic who were laid off
and permitted to work temporarily for Arco at Commack.
These two employees retained their seniority at Automatic,
together with leave entitlement and other benefits, but were
paid at the lowest applicable rate and were not placed on
the Arco seniority list.
2. The continuance of separate supervision after the
move. While overall policy and direction of labor relations
were centralized from October on, the day-to-day supervi-
sion remained unchanged down to the time of this hear-
ing.'5 The division managers together with line supervisors
remained the same, continuing to run the divisions and,
where required, taking part in the hiring process and in the
handling of grievances.
3. The execution of the memorandum of agreement on
December 3, 1976, by Arco and Machinists specifically rec-
ognized the continuing separate existence of a unit consist-
ing only of Arco employees. Bearing in mind the fact that,
at that time, the Company still intended to move the PFC
Division to Commack, the only proper inference which I
can draw is that despite its later protestations Respondent
intended in December to maintain the Arco unit, all of it, as
a separate and independent unit.
4. The work performed by Automatic and Arco employ-
ees was different.'6 The companies manufactured different
products using different techniques and skills."
In this, as in so many other areas of the law, the Board
has propounded general guidelines applicable to the almost
infinite variety of factual variations which can occur in la-
bor-management relations. In The Great Atlantic and Pa-
cific Tea Company, 140 NLRB 1011, 1021 (1963), the Board
stated:
15 There was testimony that the Arcolytics Division was dissolved in Feb-
ruary 1978 and that a supervisor from that division was transferred to the
Brazing Department of Automatic. There is no evidence as to the fate of
other Arcolytics employees and no testimony that they were transferred to
the payroll of Automatic.
16 At one point Barbara DePaul testified that the work done by production
and maintenance employees of Arco and Automatic was "similar." This was
not developed further except that she later testified that an "order picker" at
Arco performed functions similar to those performed by a "materials han-
dler-stock room" at Automatic. No further comparisons were adduced so I
am left to view the classifications in the separate collective-bargaining agree-
ments, which are quite different.
17 Marty Pepper, the production manager for PFC, was called by General
Counsel and questioned extensively about the functions of PFC employees,
the machinery and equipment used, and the skills required of employees.
There was no similar testimony concerning Automatic, nor, for that matter,
concerning the Arco Warehouse or Arcolytics Division.
260
ARCO ELECTRONICS, INC.
Whether or not a particular operation constitutes an
accretion or a separate unit turns, of course, on the
entire congeries of facts in each case. In determining
that a newly established facility or operation is an ac-
cretion to an existing unit, the Board has given weight
to a variety of factors, such as integration of the opera-
tions; centralization of managerial and administrative
control; geographic proximity; similarity of working
conditions, skills, and functions; common control over
labor relations; collective-bargaining history; and in-
terchangeability of employees. Obviously, cases in
which all of these, or only these, positive accretion fac-
tors are present are rare. For, the normal situation
presents a variety of elements, some militating toward
and some against accretion, so that a balancing of fac-
tors is necessary.
In balancing the factors appearing in the record of this
case I conclude that there is no accretion here either of the
whole complement of Arco employees or of the two divi-
sions which moved to Commack.
It obviously was Respondent's intent to integrate the op-
erations totally. It accomplished integration and centraliza-
tion at the managerial level, but left the administration and
the preexisting divisional table of organization unchanged.
The supervisory staffs in the several divisions of Arco re-
mained the same.
It is true that the employees who worked at Commack
were in the closest geographic proximity to employees of
Automatic; it is also true that Respondent treated all of the
Arco employees the same, under the December 3 memoran-
dum of agreement or the February 24 contract.
With respect to the similarity of working conditions, it is
true that Respondent made efforts to accomplish that, but
those efforts were made only after the move to Commack
and after the alleged accretion took place. Even after the
move, it was some months before the health and welfare
plan was changed and other working conditions integrated.
The salary schedules were never coordinated.
There is no substantial evidence of similarity of work
product, machinery, equipment, skills, or job functions. The
respective agreements between Machinists, Automatic, and
Arco, in fact show that the job titles of production employ-
ees are quite different and describe jobs which are function-
ally dissimilar. On these grounds I cannot find any similar-
ity in the skills possessed by, and the functions performed
by, employees of Arco and Automatic.
Besides the geographic propinquity of Automatic and
Arco employees at Commack, the fact of common control
over labor relations along with the admitted coordination
of almost all support functions is the only factor tending to
show an accretion here. These two factors are outweighed
in my opinion by the other, not only more numerous but
more significant, factors pointing in the other direction.
The most significant of these other factors is that there is
no substantial interchange of employees between the Auto-
matic unit and employees of Arco. To be sure there was a
messenger and a printer who performed functions for both
companies. There were a number of maintenance and tech-
nical employees, some bargaining unit employees and some
not, who performed dual functions in the logistics of the
move. And there were two employees temporarily assigned
to Arco while on layoff from Automatic. But none of these
isolated and sporadic instances can counterbalance the fact
that it was clearly Respondent's intent to keep these two
groups of employees contractually separate.
Accordingly, I find that, on balance. none of the Arco
employees, those who moved to Commack or were hired
there after the move, or those who remained at Great Neck,
constituted an accretion to the existing production and
maintenance unit of Automatic at Commack. The Great
Atlantic and Pacific Tea Company, supra; Masters-Lake
Success, Inc., 124 NLRB 580 (1959), enfd. as modified 287
F.2d 35 (2d Cir. 1961); Spartans Industries, Inc., 169 NLRB
309 (1968): Worcester Stamped Metal Company, 146 NLRB
1683 (1964): Aerojet-General Corporation, 185 NLRB 794
(1970); American Cyanamid Company, 146 NLRB 1415
(1964): Buhrke Industries, Inc., 209 NLRB 812 (1974).
E. Conclusions
Having made this determination concerning the alleged
accretion, I am constrained to find that Respondent acted
unlawfully by extending recognition to Machinists when
that Union did not represent a majority of the employees of
Arco," there not being at that time a valid accretion of
Arco employees into the unit represented by Machinists.
International Ladies' Garment Workers' Union, AFL-CIO
[Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731
(1961).
Further, by entering into successive agreements with Ma-
chinists on December 3, 1976, and February 24, 1977 (the
effective date of an agreement actually executed in May of
1977) which agreements included union shop provisions,
Respondent has acted in violation of the law. Canteen Cor-
poration, 202 NLRB 767 (1973).
Pursuant to these agreements, which I find were unlawful
from their inception, Respondent proceeded to deduct peri-
odic dues and initiation fees from those of its employees
who worked at Commack. It is undenied that, although the
union security clauses in the collective-bargaining agree-
ments are lawful, Barbara DePaul required applicants for
employment at Arco in Commack to sign union member-
ship application forms and check off applications as a rou-
tine portion of the hiring process. This also constitutes a
violation of the law. Western Building Maintenance Co., 162
NLRB 778 (1967).
The statements by Marty Pepper to employees at Great
Neck that they would have to join the Union or lose their
jobs and the statement made at the November assembly of
employees at Great Neck that employees would be required
to join the Union or lose their jobs are undenied by Re-
spondent and constitute further violations of the rights of
employees under the Act.'9
it On May 5, 1976, the Regional Director for Region 29 issued a Decision
and Direction of Election among Arco's production and maintenance em-
ployees at Great Neck in Case 29-RC-3281. In that decision the appropnate
unit found was as follows: "Winders, capwinders. agers, lead operators, lead
attachers, production stock workers, production stock clerks, order stock
clerks, order clerks, bulk pickers, senior shippers, inventory clerks, printers,
printers and receiving clerks, technicians, porters, model makers, electrical
equipment engineers and production control clerks" with the customary ex-
clusions. It is not necessary for me to confirm this as the appropriate unit of
Arco employees, but nothing in the record before me would render this unit
determination invalid.
19 The rights of employees were violated by the statements, irrespective of
the fact that the union-shop provisions were never enforced at Great Neck.
261
I)DE(ISIONS OF NATIONAL LABOR RELATIONS BOARD
Pepper's statements to employees on April 21, 1977, that
employees did not have to honor subpenas requiring them
to attend the hearing in this proceeding interfered with the
rights of employees. Winn-Dixie Stores, Inc., 128 NLRB
574, 579 (1960).
I do not find that Pepper's inquiry to employee Maggie
Burton on April 19, 1978, as to other employees who may
have received subpenas violates the law. This questioning
would appear to me to comply with the standards estab-
lished in Bourne Co. v. N. L. R.B., 332 F.2d 47 (2d Cir. 1964).
Precision Film Capacitors. Inc., did not come into exis-
tence until after all but the April 21. 1978, unfair labor
practices found here had occurred. owever, there is evi-
dence that some provisions of the February 24, 1977, con-
tract with Machinists are being enforced at the Company's
Great Neck location. Further, Precision Film Capacitors,
Inc., and Arco Electronics are in fact a single employer.
They are constituent parts of the ASU., Inc.. operations,
having common directors, some common officers, common
interrelation of operations, administrative and manage-
ment, together with centralized control of labor relations.
Thus both corporations constitute parts of a single inte-
grated enterprise for purposes of law. Radio & Broadcast
Technicians Local Union 1264, International Brotherhood of
Electrical Workers. AFL CIO v. Broadcast Service of Mo-
hile, Inc., 380 U.S. 255 (1965).2 ° In these circumstances the
remedial portions of this Decision and the Order recom-
mended herein will apply, insofar as applicable in each in-
stance, to each Respondent.
IV. IIE REMNI)Y
Hlaving found that Respondents have engaged in certain
unfair labor practices I shall recommend an Order directing
them to cease and desist therefrom and to take certain affir-
mative action designed to effectuate the policies of the Act.
More particularly, having found that Respondents have
interfered with, restrained, and coerced employees in the
exercise of their right freely to select their own bargaining
representative in that Respondents unlawfully supported,
assisted, and recognized District Lodge No. 15, Interna-
tional Association of Machinists and Aerospace Workers,
the Order I shall recommend will require Respondents to
cease providing such unlawful support and assistance, and
to withdraw and withhold all recognition from District
Lodge No. 15 unless and until said District Lodge No. 15
shall have been certified by the National Labor Relations
Board as the exclusive bargaining representatives of Re-
spondents' employees. The Order shall further direct Re-
spondents to cease giving effect to the collective-bargaining
agreement with District Lodge No. 15. or to any renewal,
modification, or extension of such agreement. However,
nothing in this Order shall authorize or require the with-
drawal or elimination of any wage increases or other bene-
fits, terms and conditions of employment which may have
been established pursuant to such agreement.
The Order shall also require Respondents to reimburse
all present and former employees for all initiation fees,
20 his finding is not, of course, determinative of the scope of an appropri-
ate unit, and does not require that an employerwide unit be found as a
corollary. Central New Mexrio Chapter. National Electrical C('onrators' ,4s-
sociation. Inc., 152 NLRB 1604 (1965).
dues, and other moneys which may have been exacted from
them by, or on behalf of District Lodge No. 15 pursuant to
the aforesaid collective-bargaining agreements, together
with any moneys which would have been due present and
former employees under the Arco profit-sharing plan which
was terminated in March 1977 in the same manner as if
that plan had continued to exist. I shall further recommend
that the profit-sharing plan shall be reinstituted as it existed
prior to March 1977. Interest on these sums of money is to
be computed in the manner prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977). See, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).2'
CONct.USIoNS oF Lw
1. Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. District Lodge No. 15 and United Brotherhood of In-
dustrial Workers, Local 424 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By recognizing District Lodge No. 15 as the exclusive
bargaining representative of its employees at a time when
said District Lodge did not represent an uncoerced majority
of such employees, Respondent Arco has violated Section
8(a)(l) and (2) of the Act.
4. By entering into and enforcing successive collective-
bargaining agreements with District Lodge No. 15, Respon-
dents have violated Section 8(a)(1) and (2) of the Act.
5. By entering into said agreements which contained
union security clauses and by exacting the payment of initi-
ation fees and dues payable to District Lodge No. 15 pursu-
ant to such union security clauses Respondent Arco has
violated Section 8(a)(1) and (3) of the Act.
6. By discontinuing its profit-sharing plan Respondent
Arco has violated Section 8(a)(l) and (3) of the Act.
7. By threatening its employees with loss of employment
if they did not become members of District Lodge No. 15,
and by requiring new employees as a condition of employ-
ment to sign membership applications and checkoff autho-
rizations, Respondent Arco has violated Section 8(a)(1) and
(3) of the Act.
8. By restraining and coercing its employees in their
right to participate in proceedings before the National La-
bor Relations Board, Respondent Precision Film Capaci-
tors, Inc., has violated Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
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 22
Respondents Arco Electronics, Inc., and Precision Film
Capacitors, Inc., their officers, agents, successors, and as-
signs, shall:
21 In view of my finding that Arco and PFC constitute a single employer I
conclude that, despite the fact that not all the unfair labor practices are
found herein to have been committed by each, it will better effectuate the
policies of the Act to prepare a single order and notice fr both Companies.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
262
ARCO ELECTRONICS, INC.
I. Cease and desist from:
(a) Assisting or contributing support to District Lodge
No. 15.
(b) Recognizing and negotiating with District Lodge No.
15 as the exclusive representative of their employees for the
purpose of collective bargaining unless and until such labor
organization is certified by the Board as the exclusive repre-
sentative of said employees pursuant to Section 9(c) of the
Act.
(c) Enforcing or giving effect to any collective-bargain-
ing agreement with District Lodge No. 15, or any extension,
renewal, or modification thereof, or any superseding agree-
ment; provided, however, nothing in this Order shall autho-
rize or require the withdrawal or elimination of any wage
increase or other benefits or terms and conditions of em-
ployment which may have been established pursuant to
such agreement.
(d) Encouraging membership in District Lodge No. 15
by conditioning employment membership in such organiza-
tion except to the extent permitted by Section 8(a)(3) of the
Act.
(e) Coercing and restraining their employees by threat-
ening such employees that they would lose their jobs if they
did not become members of District Lodge No. 15.
(f) Coercing and restraining employees by telling them
they were not required to honor subpenas issued by the
National Labor Relations Board.
(g) In any other manner interfering with, restraining, or
coercing their employees in the exercise of rights guaran-
teed employees under Section 7 of the Act.
2. Take the following affirmative action, which I find will
effectuate the policies of the Act:
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.
(a) Withdraw and withhold all recognition from District
Lodge No. 15 as the exclusive representative of their em-
ployees, unless and until said labor organization has been
duly certified by the National Labor Relations Board as the
exclusive representative of such employees.
(b) Reimburse all present and former employees for all
initiation fees, dues, assessments, or any other moneys
which may have been paid in favor of District Lodge No.
15.
(c) Reinstate the Arco profit-sharing plan and reimburse
all present and former employees for all moneys which
would have been paid by such plan from its dissolution in
March 1977 until its reinstatement under the terms of this
Order.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, any and
all records necessary to analyze the amount of dues and any
other moneys to be repaid under the terms of this Order.
(e) Post at their respective locations in Commack and
Great Neck, New York, copies of the attached notice
marked "Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 29 of the Na-
tional Labor Relations Board, after being duly signed by a
representative of each Respondent, shall be posted by Re-
spondents immediately upon receipt thereof and shall be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall
be taken by Respondents to ensure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
23 In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
263