Coinmeco, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1972

200 N.L.R.B. 294 (N.L.R.B. 1972)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coinmeco, Inc. and Sheet Metal Workers Internation-
al Association
Local 210, Production, Merchandising and Distribu-
tion Employees Union, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Coinme-
co, Inc .) and Sheet Metal Workers International
Association . Cases 3-CA-4627, 3-CA-4682, and
3-CB-1777
November 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 5, 1972, Administrative Law Judge'
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
herein modified.
Although we agree with the Administrative Law
Judge that Respondent Coinmeco violated Section
8(a)(1) and (2) when it granted recognition to Local
210 on September 24, 1971, the latter not represent-
ing a majority of the employees in the unit, we
believe it necessary to make clear the fact that the
Sheet Metal Workers did not represent the employ-
ees on that date either. It thereafter gained its
majority status.
The General Counsel excepts to the Administrative
Law Judge's failure to find that Respondent Coinme-
co also violated Section 8(a)(5) by unilaterally
promulgating, instituting, and maintaining written
shop rules affecting the employees conditions of
employment at a time when it knew the Sheet Metal
Workers represented a majority of Respondent's
employees. We find merit in this exception.
The record shows that sometime in November
1971, subsequent to the Sheet Metal Workers
attaining majority status and demanding recognition,
Respondent Coinmeco put into effect a list of 30
rules, the violation of which subjected the offender to
discipline which could even result in discharge. It is
also clear in the record that the Sheet Metal Workers
was not notified of the institution of these rules. In
view of the fact that the Sheet Metal Workers was the
majority representative of Coinmeco's employees at
that time, this unilateral activity on the part of
Coinmeco was in violation of Section 8(a)(5) and (1)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders
that Respondent Coinmeco, Inc., Little Falls, New
York, its officers, agents, successors, and assigns, and
Respondent Local 210, Production, Merchandising
and Distribution Employees Union, affiliated with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, New
York, New York, its officers, agents, and representa-
tives, shall take the action set forth in said recom-
mended Order.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 In the absence of exceptions to the Administrative Law Judge's
dismissal of the allegation that Coinmeco also violated Sec. 8(a)(3) of the
Act, we will adopt his finding pro forma.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
tried before me at Little Falls, New York, on April 4, 1972,
with all parties present and duly represented, involves a
consolidated complaint 1 pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein the
Act), which alleges that Coinmeco, Inc. (herein Respon-
dent Company), interfered with, restrained, and coerced its
employees in the exercise of their rights under Section 7 of
the Act; assisted and supported Local 210, Production,
Merchandising and Distribution Employees Union, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein Respondent Union, Local 210, or Teamsters); and
refused to bargain with Sheet Metal Workers, the collec-
tive-bargaining representative of Coinmeco's employees in
an appropriate unit; extended the contract between
Coinmeco's parent company and Respondent Union,
covering employees at the Plainview, New York, plant, to
employees at the Little Falls, New York, plant, at a time
when Respondent Union did not represent a majority of
the employees in the latter plant, thereby violating Section
8(a)(1), (2), (3), and (5) of the Act; and that by accepting
representation of the Little Falls employees at a time when
1 Issued January 5, 1972, on charges filed by Sheet Metal Workers
International Association (herein Sheet Metal Workers). The charge in Case
3-CA-4627 was filed on October 8, 1971. The charge in Case 3-CA-4682
was filed November 23, 1971, and amended January 3, 1972. The charge in
Case 3-CB-1777 was filed November 23, 1971, and amended January 3,
1972.
200 NLRB No. 45
COINMECO, INC.
it did not represent a majority of said employees and
otherwise coercing and restraining said employees Respon-
dent Union violated Section 8(b) (1)(A) of the Act. The
critical, and virtually the sole issue to be decided, is whether
the Little Falls plant was an accretion to the Plainview
plant. Indeed, at the trial the General Counsel conceded
that, if the Little Falls plant was an accretion to the
Plainview unit, the complaint herein should be dismissed.
Respondent, however, refused to concede the converse of
the proposition. For reasons hereafter more fully stated, I
find and conclude that the Little Falls plant was not an
accretion to the Plainview unit; that the evidence sustains
the material allegations of the complaint and warrants
issuance of a remedial order, including a provision that
requires Coinmeco to recognize and bargain with Sheet
Metal Workers as the exclusive collective-bargaining
representative of the employees at the Little Falls plant.
At the trial all parties were permitted to introduce
relevant and material evidence, to examine and cross-
examine witnesses , to argue orally on the record, and to
submit briefs. Oral argument by counsel for the General
Counsel and Respondent Union, respectively, is included
in the transcript. Additionally, a brief submitted by counsel
for Respondent Union has been duly considered. The
General Counsel, although requested to file a brief, has not
done so. Upon the pleadings, stipulations of the parties, the
evidence, including my observation of the demeanor of the
witnesses while testifying, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Although the answers filed by the separate Respondents
deny the allegations of the complaint with respect to the
nature and extent of the Company's business, the evidence
with respect to that issue shows the following:
United Stollar Manufacturing Company (herein Stollar),
with its principal office and plant at Plainview, New York,
has been engaged for some years in the manufacture, sale,
and distribution of metal fabrications. In the late summer
or early fall of 1970, Stollar opened another plant at Little
Falls, New York, which is about 250 miles distant from
Plainview. Early in 1971, the Little Falls plant was
separately incorporated under the name of Coinmeco, Inc.,
the Respondent Company herein, under which name it has
since operated. Bernard Discount, the chief executive
officer of both corporations, testified that he is the sole
owner of the entire operation, and in overall charge of all
aspects of the business conducted by both companies, and
makes the ultimate decisions on all matters involving labor
relations and labor policies. Although Discount gave me
the impression that he was most reluctant to disclose the
facts, and wanted to leave the impression that his operation
was wholly intrastate over which the Board would not
assert jurisdiction, he did admit that in the operation of his
business he purchased for the use of both plants steel
valued at in excess of $1 million. He testified that he
purchased such steel from firms in Syracuse and Utica,
New York, and initially claimed to be unaware as to where
295
said steel was produced, but finally admitted that to the
best of his knowledge no steel is produced in the State of
New York, and that the steel he purchased was most
probably produced in the Commonwealth of Pennsylvania.
Also, in his affidavit given the Board on October 28, 1971,
Discount stated, "During the past 12 months we have
received goods and materials from outside the State of
New York in excess of $50,000." Discount also admitted
that for 1971 sales of his enterprise would be in excess of $1
million, about 10 percent of which was shipped directly to
points outside the State of New York , and that virtually all
sales were to large industrial concerns such as Fairchild
Camera and Univac.
On the basis of Discount 's testimony, I find that Stollar
and Coinmeco constitute a single-integrated employer that
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that under the Board 's standards it
would effectuate the policies of the Act to assert jurisdic-
tion over its operations.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the separate answers admit, and
on the basis thereof I find that Local 210 and Sheet Metal
Workers are both labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Chronology of Events
As heretofore stated the Little Falls plant began
operation in the late fall of 1970, hiring most of its
employees from the general area of Little Falls. There is no
evidence of any union activity among the employees until
late August,2 when William Laughlin, an organizer for
Sheet Metal Workers first contacted some of the Little
Falls employees regarding organization , but nothing
definite appears to have been done at that time.
On September 24, John Rushton , plant manager at Little
Falls, and an admitted supervisor , observed two men about
the plant whose presence was unauthorized . When these
men identified themselves to Rushton as representatives of
Teamsters, the latter told them they were without authority
to be in the plant, and would have to leave, which they did.
Before being requested to leave , the men had passed out
some authorization cards for Teamsters but there is no
evidence that any were signed at that time . There is no
evidence of activity by Teamsters among the Little Falls
employees prior to this occasion. Indeed, 7 of the 10
employees who testified stated that, when they were
interviewed for hire by Coinmeco supervisors , either a
union was not mentioned or, if it was, they were told that
there was no union in the plant , and that management did
not want one. Nor is there any evidence that prior to
September 24 Teamsters made any demands upon Respon-
dent Company with respect to the Little Falls employees.
As heretofore indicated, Stollar has been under contract
with Local 210 for about 15 years with respect to the
maintenance and production employees of the Plainview
2 This and all dates hereafter mentioned are 1971 , unless otherwise
indicated.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant. The last such contract is effective from January 1,
1971, to December 31, 1973, and thereafter from year-to-
year absent prescribed notice. In addition to providing for
a union shop and the checkoff of union dues, the
aforementioned contract, as did at least some of the
predecessor contracts, contains the following provision:
ARTICLE I-Recognition
C. This Agreement shall cover all future plants
which the Employer may operate during the term of
this Agreement or any extension thereof, including all
plants operated as the result of expansion or change.
This Agreement shall apply to the Employer's plant
should there be any shift of geographical location.
According to Discount, he has over the years opened
some five or six plants in various locations, each of which
he offered to Local 210 pursuant to the above-quoted
provision, but that Local 210 rejected the offer with respect
to plants he opened in Miami, Florida, and Joplin,
Missouri, because of the distance from New York. There is
no evidence, however, that there was any discussion
between Discount and Local 210 relative to the Little Falls
plant from the time said plant opened in the late summer
or early fall of 1970, until the events of September 24, as
hereinafter set forth in greater detail, although Delange,
Local 210's director of organization, admitted that he
became aware in the fall of 1970 that Stollar was building a
plant in Little Falls.
Also on September 24, apparently pursuant to the
aforementioned contract between Stollar and Local 210,
Coinmeco entered into a contract with Local 210, effective
from that date until December 31, 1973, recognizing the
latter as the representative of the production and mainte-
nance employees at the Little Falls plant. The contract
contains provisions for a union shop and the checkoff of
dues. There is no evidence that Local 210 presented any
proof of majority to Coinmeco in connection with the
execution of said contract. Indeed, according to Delange,
director of organization for Local 210, he simply presented
the contract to Discount and told the latter, "He'd better
damned well sign it " The evidence is undisputed, however,
that Local 210 has notified Coinmeco that the union shop
and checkoff provisions of the contract are not to be
enforced pending the disposition of the issues in this case
by the Board, or that any employee was discharged for
refusing to comply with those provisions.
On September 28, representatives of Teamsters returned
to the Little Falls plant. On this occasion, Rushton, after
telephoning Discount and obtaining his approval, permit-
ted them access to the plant in order that they might, in his
3 The unit is described in the exhibit as "production, maintenance,
shipping and receiving employees in the employ of Commeco, Inc, at its
Little Falls, plant, on October 1, 1971, exclusive of all office clerical
employees, professional employees, guards, and supervisors as defined in
the Act" I find this to be an'appropnate unit for the purpose of the alleged
8(a)(5) violation.
4 Actually the handwritten list of those attending the October 1 meeting
with Laughlin contains 20 names , including , as best I can read it, that of
"Thomas Malley " I do not find this name on the stipulated list of
words, "exercise their visitation rights to explain the
contract that they had with Coinmeco to the employees."
Toward the end of September, Laughlin received a
message from some Coinmeco employees that Teamsters
were in the plant trying to organize, and that the men
wanted him to come to Little Falls and complete his
organizing for Sheet Metal Workers. Laughlin did so, and
met with the employees during the evening of October 1.
As shown by General Counsel's Exhibit 2 and the
stipulation of counsel, there were at that time 25 employees
in the Unit .3 Of these, 19 attended the October 1 meeting
with Laughlin and each signed a card authorizing Sheet
Metal Workers International Association, or any affiliated
local union thereof, to represent him for purposes of
collective bargaining. There is an additional card stipulat-
ed into evidence signed by Rick B. McNeely, whose name
is not on the list of those who attended the October 1
meeting, thus giving Sheet Metal Workers a total of 20
cards. The authenticity of these cards was stipulated, and
no issue is raised concerning their validity as authoriza-
tions to Sheet Metal Workers.4 Also at this meeting,, the
employees selected a committee to accompany Laughlin to
the Coinmeco plant for the purpose of demanding
recognition from that employer.
On October 4, Laughlin and his committee called on
Plant Manager Rushton and demanded recognition for
Sheet Metal Workers, presenting the authorization cards in
his possession for Rushton to check. Rushton looked
through the cards casually and added, " I'm sure they're all
right." Rushton then showed Laughlin a piece of paper he
said he was going to post on the plant bulletin board,
which read, "The people in this shop are represented by
Teamster Local 210." Rushton then telephoned Discount
and informed the latter of Laughlin's recognition demand
and the authorization cards he had presented. Discount
asked to speak to Laughlin and told the latter that he was
the owner of the operation, that he had a contract with
Respondent Local 210 with whom Laughlin should speak.
Laughlin refused to communicate with Local 210 as
Discount asked and suggested that Discount authorize
Rushton to sign the recognition agreement which Laughlin
had present. Discount refused to do so and asked Laughlin
what alternatives he (Discount) had. Laughlin replied that
unless the recognition agreement was signed he had no
alternative but to picket the plant until recognition was
granted. Discount replied that if this occurred he would
close the Little Falls plant. Upon the conclusion of this
telephone conversation, Laughlin informed the men of his
conversation with Discount and picketing of the Little
Falls plant commenced and continued until early Novem-
ber, at which time the strikers abandoned their strike and
requested that they be reassigned to their jobs.5
employees in the unit, nor does his name, address , or telephone number
coincide with any of the signed cards . While it has no particular effect on
the majority status of Sheet Metal Workers, in order to conform to the
evidence, I find that only 19 employees attended the meeting on October 1,
and then signed cards.
5 There is no contention by the General Counsel nor is there any
evidence to indicate that any striker was denied his lob when the strike was
abandoned
COINMECO, INC. 297
B. The Events of November 3 up. When Wiegand approached Randazzo the following
On November 3, representatives of Local 210 again came
to the Little Falls plant to seek support for that Union
among the employees, at which time the following
occurred.
1. Richard Bruce, an admitted supervisor, told employ-
ees Walo, Kohl, and Baum that they were wanted in the
office. Reaching the office with Bruce, the employees
found two men who stated that they were representatives
of Teamsters, that Teamsters had a contract with Discount,
and that any plant the latter opened was covered by that
contract and the employees thereof were represented by
Teamsters. According to Kohl, the two men were later
joined by a third whom he identified as Delange, a
representative of Local 210. After listening to an explana-
tion of the contract provisions, Walo commented that the
Little Falls plant had been open for more than 7 months
and asked why it had taken Teamsters so long to get there.
The men replied they had not known the plant existed.
Walo, Kohl, and Baum were asked to sign cards for
Teamsters. They refused and asked if this meant that they
would have to look for other jobs after 30 days. One of the
men replied, "yes."6
2. Art Fernald, an admitted supervisor, told employees
Allen Wiegand and Larry Liess that they were wanted in
the office. Reaching the office Wiegand and Liess found
two men whom they did not then know, but according to
Wiegand he later ascertained one of them to be James
Gilcrest, shop steward for Local 210 at the Plainview plant.
The .employees were told about Local 210's contract with
Coinmeco and were asked to sign Teamsters cards.
Wiegand responded by saying, "I couldn't fight City Hall,"
and signed a card as requested. About a week later when
Gilcrest and Union Agent Delange were again at the plant
they held an impromptu meeting with a number of
employees and Wiegand was designated as shop steward
for Local 210 at the Little Falls plant .T Thereafter,
Wiegand testified ''that he solicited employees while at work
to sign cards for Local 210 and that his supervisors saw
him doing so and voiced no objections. He additionally
testified that Supervisor Fernald and Plant Manager
Rushton told him to solicit employees to sign cards for
Local 210 and referred to one incident in particular when
he solicited Randazzo, a new employee, to sign such a
card. When Randazzo indicated reluctance to do so, he
reporled that fact, to Rushton. The latter directed Wiegand
to give Randazzo a copy of the Local 210 contract to study
over the weekend, and to talk to him again the following
Monday, and that if he did not sign by Monday he would
be terminated, because his 30-day waiting period would be
6 Based on the uncontradicted and credited testimony of Walo and
Kohl. Neither Baum , nor Bruce testified. Although Delange testified as a
witness called by Respondent Local 210, he only stated his conclusion that
no employee was told that he'had to join Teamsters, or that he would be
discharged if he failed to do so. I do not regard this as a denial of the
testimony of Walo or Kohl, but if it be so regarded, I credit the latter-
Delange did not deny that he was present in the office on November 3 with
the other men who identified themselves as representatives of Teamsters.
7 The General Counsel contends that this meeting was held within
hearing distance of Supervisor' Fernald and that under the circumstances it
constituted surveillance by Respondent Company and was violative of Sec.
8(a)(1). I do not think the evidence is sufficient to establish that Fernald
Monday, he told the latter that if he did not sign the card
that day he (Wiegand) could no longer protect him in the
event of a grievance. Randazzo agreed to and did sign a
card for Local 210, stating that he was doing so only
because he did not have another job to go to. Wiegand
additionally testified that Supervisor Fernald directed him
to solicit specific employees, including Eddie LaCalle, to
sign cards for Local 210, and that when he talked with
LaCalle he told the latter that those employees who signed
a card for Local 210 would be treated differently than
those employees who did not, and that Supervisor Fernald
would try to get LaCalle a 25-cent-an-hour increase in
pay.8
3. Supervisor Bruce informed employee Eddie LaCalle
that the latter was wanted in the office. Apparently
employee Dave Masle received the same message because
LaCalle and Masle went to the office together. In the office
they found two men who introduced themselves as
representatives of Teamsters, explained the contract
between Local 210 and Respondent Company, and asked
LaCalle and Masle to sign cards for Local 210. Both
refused. As the conversation was concluding, one of the
Local 210 representatives stated that the two employees
either had to join that Union or look for another job.
Subsequently, Supervisor Fernald told LaCalle that Rush-
ton had stated that any employee who did not sign a card
for Local 210 "would be done."9
4. Supervisor Fernald told employee Dickenson that
the latter was wanted in the office. Dickenson asked
employee Sadekowski to accompany him. In the office
they found the two men who had solicited card signers for
Teamsters on September 24, as above stated. When the
subject of union was raised by the two men, Dickenson
stated that he could not discuss unions on company time.
Dickenson and Sadekowski were asked their names, and
when they refused to give that information they were taken
to Rushton's office where one of the men stated to
Rushton, "These two guy's will be fired." Rushton replied,
"Okay." The evidence is clear, however, that neither
Dickenson nor Sadekowski was discharged or in any way
disciplined by Respondent Company.10
5. At the request of Supervisor Bruce, employee Rook,
accompanied by employees Chrisman and Hoage, went to
the office where two men were present who identified
themselves as representatives of Teamsters. The two men
told the employees that Respondent Company had a
closed shop agreement with 't'eamsters, and that they
heard this conversation , if he did hear it, under the circumstances of this
case, his conduct constituted surveillance. See Atlanta Gas Light Company,
162 NLRB 436, 438.
8 Based on the credited and for the most part uncontradicted testimony
of Wiegand. Neither Bruce, Fernald, nor any representative of Local 210,
other than Delange, testified. Although Plant Manager Rushton and
Delange both testified , neither gave any testimony contradicting that of
Wiegand in the aspects above set forth
9 Based on the uncontradicted and credited testimony of Edward
LaCalle and Masle.
10 Based on the uncontradicted and credited testimony of Dickenson
and Sadekowski.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have to join that union or "get out." Rook replied
that he was not interested."
C. The Specific Facts Bearing on the Accretion
Issue
As heretofore indicated, Plainview is approximately 250
miles distant from Little Falls. The two seem to be
different labor markets, and all employees at Little Falls,
except for some supervision, were hired from that area.
Although from four to five employees have been sent from
Little Falls to Plainview for training, the extent of the
training period is not disclosed by the record. Discount
testified that there has been some interchange of employees
but admitted that such was only for periods of short
duration, and that this had not occurred for about 5
months. Approximately 90 percent of the equipment in
Little Falls was sent from Plainview. It is admitted that the
employees at Little Falls are paid at a wage rate which is
less than the wage rate paid for the same job at Plainview,
allegedly because the employees at Little Falls have not yet
acquired the level of experience and know how that
prevails at Plainview. All permanent personnel records
with respect to the Little Falls employees are maintained at
Plainview. Records with respect to current hours of work
are kept, as they necessarily must be, at Little Falls, but at
the end of each pay period these are forwarded to
Plainview, where checks drawn on a Little Falls bank are
prepared and sent to Little Falls for distribution to the
men. The payroll records then remain permanently at
Plainview.
The purchasing of raw materials is done in the main
from Plainview, but such materials may be shipped in
designated quantities directly from the supplier to Little
Falls, or the entire order may be shipped to Plainview with
the portion required at Little Falls shipped to the latter
plant from Plainview. In addition, the plant manager at
Little Falls has the authority to and does order materials he
may need not only locally, but from distant points.
Although the record is not entirely clear, apparently the
materials purchased by the Little Falls manager is billed to
and paid for by the central office at Plainview.
The job classifications, work tasks performed, and the
product produced in the two plants are essentially the
same. Although some parts necessary to complete an order
are produced in their entirety at Little Falls, according to
Discount, such production is dependent upon Plainview, at
least to the extent of the required tooling. In other
instances the work necessary to perform a particular order
may be done in part at one plant with the remainder at the
oth er. In some instances a part of the operations necessary
to complete a particular product may be performed in one
plant and then sent to the other plant for another
operation. Although Discount testified that the Little Falls
plant is dependent upon and could not exist without the
il Based on the uncontradicted and credited testimony of Rook.
12 The findings in this section are based on the uncontradicted testimony
of Discount and Plant Manager Rushton.
13 The General Counsel contended at the trial that this conduct of
Respondent Company also violated Sec 8(a)(3). At the trial no authority
was cited and no theory advanced in support of this contention Although
requested to file a brief, the General Counsel has not done so. I find and
conclude that the evidence fails to establish an 8(a)(3) violation. Assuming
Plainview plant to support and sustain it, it is significant
that he did not claim, and the record would not support an
assertion, that the Plainview plant is so dependent upon the
Little Falls plant as to be unable to exist without it. The
record leaves no room for doubt, and I find that the Little
Falls plant is simply an expansion of Discount's total
business operations to enable him to increase his total
volume of business, a result he seeks and hopes to attain.12
IV. CONTENTIONS AND CONCLUSIONS
If, as the General Counsel contends, the Little Falls
plant was not an accretion to the unit covered by the
contract between Stollar and Local 210, then, under the
facts of this case, the action of Respondent Company in (1)
contractually granting recognition to Local 210 at a time
when Sheet Metal Workers, and not Local 210, was the
majority representative of the employees at Little Falls,
and (2) urging at least some of said employees to become
members of and support Local 210 were clear violations of
Section 8(a)(1) and (2)13 of the Act; and the conduct of
Local 210 in entering into the contract with Respondent
Company, at a time when it was not the majority
representative of the Little Falls employees, and in
threatening to cause the termination of at least some
employees for their failure to comply with the union-
security provisions of the contract, was clearly the restraint
and coercion of said employees in the exercise of rights
guaranteed to them by Section 7 of the Act which Section
8(b)(1)(A) of the Act proscribes. International Ladies'
Garment Workers' Union v. N.L.R.B. 366 U.S. 731. The
totality of the foregoing conduct by Respondent Company
and Respondent Union makes the Company's refusal to
bargain with Sheet Metal Workers, notwithstanding the
abundant proof made available to Respondent Company
that Sheet Metal Workers was the duly designated
representative of the employees at the Little Falls plant, a
violation of Section 8(a)(5) of the Act. The conduct
involved is of a character that the effect thereof is not
likely to be eradicated by the usual cease-and-desist order
and the posting of a notice, so as to ensure a fair election.
In these circumstances the card designations may on
balance be regarded as a more reliable indicator of
employee's desires, and a bargaining order may issue as an
appropriate remedy. N. L. R. B. v. Gissell Packing Company,
395 U.S. 575, 610-614.
If, on the other hand, as Respondents contend, the Little
Falls plant was an accretion to the unit for which Local
210 was the lawfully recognized collective-bargaining
representative, then none of the conduct referred to above
would constitute a violation of the Act. In this posture
Local 210's contract covering the Coinmeco plant would
be in all respects lawful; it would be entitled to enforce the
union-security and checkoff provisions thereof; and with
respect to Respondent Company the execution of the
that the execution of the September 24 contract had the effect of
encouraging membership in Local 210, and discouraging membership in
Sheet Metal Workers, I am unable to find the discrimination necessary to
complete the 8(a)(3) violation . Moreover, as no one was discharged or
suffered any loss by reason of the enforcement of the contract, no
reinstatement or backpay is involved, and the 8(a)(3) violation , assuming its
existence, was purely technical , requiring no remedy.
COINMECO, INC. 299
contract as to said employees and the refusal to bargain
with Sheet Metal Workers would likewise be lawful. The
other assistance it gave Local 210 would be no more than
the cooperation properly expected between an employer
and the lawfully recognized representative of its employ-
ees.14 Accordingly, disposition of the case as the General
Counsel conceded at the trial, turns on whether or not the
Little Falls plant was an accretion to the unit of the
Plainview employees covered by the contract between
Stollar and Local 210. It is to that issue that I now turn.
In determining whether a new plant is an accretion to an
existing unit certain fundamental principles are well
established and must be borne in mind. First, it is settled
that:
The rights ... to self-organization and to bargain
collectively through representatives of their own choos-
ing granted by Section 7 of the Act are the rights of
employees, not of any labor union or the employer, and
no labor organization [nor employer] has authority to
arrogate unto itself the representation of any unrepre-
sented group of employees without their consent 15
Secondly, the rights thus reserved to employees to select
their own bargaining representative cannot be abrogated
by any contract between the parties. Local 620, Allied
Industrial Workers v. N.L.R.B., 375 F.2d 707,711 (C.A. 6),
enfg . Dura Corporation, 153 NLRB 592. And finally, in
Melbet Jewelry Co., 180 NLRB 107, 110, the Board
announced its policy that:
We will not . . . under the guise of accretion, compel a
group of employees, who may constitute a separate
appropriate unit, to be included in an overall unit
without allowing those employees the opportunity of
expressing their preference in a secret election or by
some other evidence that they wish to authorize the
union to represent them.16
With the foregoing principles in mind, and upon
consideration of all the relevant factors, I find and
conclude that the Little Falls plant is not an accretion to
the unit covered by Local 210's contract at the Plainview
plant. I reach this conclusion upon the totality of the
following factors which I regard as of controlling signifi-
cance:
1. The distance of approximately 250 miles between the
two plants, and the fact that although the jobs are virtually
interchangeable, the extent of such interchange was very
limited; some four or five employees and none in the 5
months prior to the trial. See Brewton Fashions, Inc., 145
NLRB 99, 102, 127; Dura Corporation, 153 NLRB 592, 594.
2. The Little Falls area, from which virtually all of the
employees were hired, is a different labor market than
Plainview, and the two groups of employees were paid at
different rates, which serves to point up a lack of a
community of interest between them. Dura Corporation,
supra.
3. The Little Falls plant has its own supervision, which,
while subject to overall supervision from top management
14 See Brewton Fashions, Inc., 145 NLRB 99, 120, fn. 88.
15 Retail Clerks Union, Local 770 v. N.L.R.B. 370 F.2d 205,208 (C.A. 9).
15 In the instant case, of course, the Little Falls employees which
unquestionably constitute an appropriate unit have unequivocally demon-
strated that they do not desire representation by Local 210, but instead have
made known their desire to be represented by Sheet Metal Workers. In
at Plainview, hires employees and fix their rate of pay and
working conditions.
4. The limited nature of the functional integration of
the two plants. Local 620, Allied Industrial Workers v.
N.L.R.B., supra.
Having reached the conclusion that the Little Falls plant
was not an accretion to the Plainview unit, it follows, for
the reasons, and in the particulars set forth above,
Respondent Company violated Section 8(a)(1), (2), and (5),
and Respondent Union violated Section 8(b)(1)(A) of the
Act. I so find and conclude.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondents Local 210 and Sheet Metal Workers
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By entering the contract on September 24 with Local
210, recognizing the latter as the sole collective-bargaining
representative of its employees at its Little Falls plant,
when Local 210 was not the majority representative of said
employees, and by soliciting some of said employees to
sign cards for and otherwise support Local 210, Respon-
dent Company interfered with, restrained, and coerced its
employees in the exercise of rights protected by Section 7
of the Act, and contributed support to Local 210, and
thereby engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(1) and (2) of the Act.
4. By refusing, on October 4, to recognize and bargain
with Sheet Metal Workers as the duly designated collec-
tive-bargaining representative of the Little Falls employees,
in the unit herein found appropriate, Respondent Compa-
ny engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(5) and (1) of the Act.
5. By entering into the aforementioned contract of
September 24, with Respondent Company, at a time when
Local 210 did not represent a majority of the employees at
the Little Falls plant, and by threatening to cause the
discharge of employees at said plant if they did designate
Local 210 as their bargaining representative, Respondent
Union restrained and coerced employees in the exercise of
rights guaranteed by Section 7 of the Act, and thereby
engaged in and is engaging in unfair labor practices
proscribed by Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The evidence fails to sustain the allegations of the
complaint that Respondent Company violated Section
8(a)(3) of the Act, and that allegation should be dismissed.
those circumstances , to force the Little Falls employees to accept
representation by Local 210, solely because Local 210 and Respondent
Company have so agreed , is to foist upon them a bargaining representative
they do not want, contrary to the teachings of Retail Clerks Union, Local
770 v. N.L R.B., supra, and Melbet Jewelry Co., supra
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent Company and Respon-
dent Union, respectively , have engaged in unfair labor
practices , it will be recommended that they be required to
cease and desist therefrom, and that they , respectively, take
certain affirmative action designed and found necessary to
effectuate the policies of the Act. One of the more basic
rights conferred upon employees by Section 7 of the Act is
the right freely, and without restraint or coercion from an
employer or labor organization , to choose their collective-
bargaining representative , if one they desire . The unlawful
activity of Respondents go to the very heart of the Act and
demonstrate the intent on the part of both Respondents to
interfere with and defeat the lawfully expressed organiza-
tional rights of the Coinmeco employees . Accordingly, to
make effective the interdependent guarantees of Section 7,
an order requiring each Respondent to cease and desist
from in any manner infringing upon the Section 7 rights of
the employees is warranted . N.L.R.B. v. Entwistle Mfg. Co.,
120 F.2d 532 (CA. 4); California Lingerie, Inc., 129 NLRB
912, 915.
Having found that Respondent Company assisted and
supported Local 210 by entering into a contract with the
latter for the employees of the Little Falls plant , it will be
recommended that Respondent withdraw and withhold all
recognition from Local 210 with respect to said employees,
unless and until Local 210, is certified by the Board as the
exclusive majority representative of such employees.
Having found that Local 210 engaged in and is engaging
in conduct violative of Section 8(b)(1)(A) of the Act, it will
be recommended that it be required to cease and desist
from in any manner enforcing or giving effect to, or
demanding compliance with , its contract with Coinmeco,
executed on September 24, or any renewal or extension
thereof , or from acting or attempting to act as the
collective-bargaining representative of any of the employ-
ees at the Little Falls plant, unless and until it has been
certified by the Board as the majority representative of
such employees . In view of the statement in the record by
Counsel for Local 210 (tr. 18), that if the Little Falls plant
is held not to be an accretion to the Plainview unit , it will
not permit the shipment of work from that plant to the
Little Falls plant, it will be required that Local 210 advise
Coinmeco and Stollar that it will not, directly or indirectly,
engage in any conduct to enforce compliance with its
contract of September 24 or to promote a claim that it is
the representative of the Little Falls employees.
Having further found that Respondent Company unlaw-
fully refused to bargain with Sheet Metal Workers as the
duly designated representative of its employees in an
appropriate unit , it will be recommended that Respondent
Company be required, upon request, to bargain collectively
with Sheet Metal Workers as such representative and, if an
understanding is reached, embody the same into a signed
written agreement.
Upon the foregoing finding of fact and conclusions of
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:17
ORDER
A. Respondent Coinmeco, Inc., its officers , agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Contributing financial or other support to Local 210,
Production, Merchandising and Distribution Employees
Union, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (hereinafter Local 210), or to any other labor
organization of its employees at its Little Falls, New York,
plant.
(b) Threatening employees with discharge or other
discipline if they do not become members of or otherwise
assist Local 210, or any other labor organization of its
employees, except to the extent permitted by Section
8(a)(3) of the Act.
(c) Recognizing or in any manner dealing with Local
210, as the representative of its employees at its Little Falls,
New York, plant, with respect to wages, rates of pay, hours
of employment, or any other term or condition of
employment, unless and until Local 210 shall have
demonstrated its exclusive majority representative status
pursuant to an election conducted by the National Labor
Relations Board among its employees at its Little Falls,
New York, plant.
(d) Giving effect to the contract with Local 210, dated
September 24, 1971, or any renewal, extension, or
modification thereof: provided, however, that nothing in
this Order shall be construed as requiring Coinmeco to
alter, vary, or modify the wages, hours, or other terms or
conditions of employment now enjoyed by any of the
aforesaid employees.
(e) Failing or refusing, upon request, to bargain
collectively with Sheet Metal Workers International
Association, as the exclusive collective-bargaining repre-
sentative of its employees in an appropriate unit. The
appropriate unit is:
All production, maintenance, shipping and receiving
employees in the employ of Coinmeco, Inc., at its Little
Falls, New York, plant, exclusive of office clerical
employees, professional employees, guards and super-
visors as defined in the National Labor Relations Act,
as amended:
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized by Section
8(a)(3) of the National Labor Relations Act, as amended.
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.
COINMECO, INC.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of said Act:
(a) Forthwith withdraw and withhold all recognition
from Local 210, as the exclusive bargaining representative
of its employees at its Little Falls, New York, plant, and
cease dealing with it regarding the wages, hours, or other
terms and conditions of employment of said employees,
unless and until Local 210 shall have demonstrated its
majority representative status pursuant to an election
conducted by the National Labor Relations Board among
the employees at said plant, in an appropriate unit.
(b) Upon request, bargain collectively with Sheet Metal
Workers International Association as the exclusive repre-
sentative of its employees in the aforesaid appropriate unit,
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment and, if an
understanding is reached, embody the same into a written
signed agreement.
(c) Post at its Little Falls, New York, plant, copies of the
attached notices marked "Appendix A" and "Appendix
B." 18 Copies of the notice marked "Appendix A," on
forms to be furnished by the Regional Director for Region
3 (Buffalo, New York), after being signed by an authorized
representative, and copies of the notice marked "Appendix
B," after receipt of same from the aforesaid Regional
Director, shall be posted at the aforesaid plant promptly
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply herewith.19
B. Respondent Local 210, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Acting or attempting to act as the exclusive collective-
bargaining representative of any of the employees of
Coinmeco, Inc., at the latter's Little Falls, New York,
plant, for the purpose of dealing with said employer
concerning wages, hours, or other terms and conditions of
employment of said employees, unless and until it shall
have demonstrated its exclusive majority representative
status in an' election conducted by the National Labor
Relations Board among the aforesaid employees in the unit
hereinabove found appropriate.
(b) Giving any effect to, or in any other manner, directly
or indirectly, demanding or insisting upon compliance with
its contract dated September 24, 1971, with Coinmeco,
Inc., covering employees of the latter's Little Falls, New
York, plant, or any renewal, extension, or modification
thereof, or calculated to promote or support a claim that it
is the majority 'representative of the aforesaid employees,
unless and until it has been certified by the Board as such
representative.
(c) Threatening to cause the discharge of, or the
infliction of other discipline upon any employee employed
by Coinmeco, Inc., at its Little Falls, New York, plant,
because such employee has refused to designate Local 210
301
as its bargaining representative, or to give it other
assistance or support.
(d) In any other manner restraining or coercing the
employees of Coinmeco, Inc., at its Little Falls, New York,
plant, in the exercise of rights guaranteed by Section 7 of
the Act, except to the extent that such rights may be
affected by a lawful agreement requiring membership in a
labor organization as a condition of employment, entered
into pursuant to Section 8(a)(3) of the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the National
Labor Relations Act.
(a) Notify Coinmeco, Inc., and Stollar Manufacturing
Co., in writing, that the contract of September 24, 1971, is
no longer in effect, and that it will not, directly or
indirectly, demand, insist upon, or engage in any conduct
calculated to enforce compliance with said contract, or to
promote a claim of majority representative status of the
employees involved, unless or until it is certified by the
National Labor Relations Board as such representative.
(b) Post at all its offices and meeting halls copies of the
attached notice marked "Appendix B.1120 Copies of said
notice, upon forms to be furnished by the Regional
Director of Region 3 (Buffalo, New York), shall after being
signed by an authorized representative of Local 210, be
posted by it as above provided, immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by it to ensure that said notice is
not altered, defaced, or covered by any other material.
(c) Mail to the aforesaid Regional Director, in such
quantity as he may request, copies of Appendix B, on
forms provided by said Regional Director, signed by its
duly authorized representative, for posting by Coinmeco,
Inc., at the latter's Little Falls, New York, plant, as herein
above provided.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Decision, what steps it
has taken to comply herewith.21
IT IS FURTHER RECOMMENDED that the complaint herein,
to the extent that it alleges a violation of Section 8(a)(3) of
the Act, be dismissed.
18 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notices reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of a United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified by deleting
the words "this Decision," and substituting the words "this Order "
20 See fn 18, supra
21 See In. 19, supra
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial at which all sides had full opportunity to
present their evidence, the National Labor Relations Board
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has found that we, Coinmeco, Inc., violated the National
Labor Relations Act, and ordered us to post this notice.
We will fully carry out the Order of the Board, the
Judgment of any court, and we will abide by the following:
The aforementioned Act gives all employees these
rights
To organize themselves
To form, join, or help unions of their choice
To act together for collective bargaining or
other mutual aid or protection.
To refuse to do any or all of these things.
WE WILL NOT do anything to interfere with you in
the exercise of these rights.
WE WILL NOT threaten you with discharge or other
discipline because you refused to designate Local 210
as your bargaining representative, or to give it other
assistance and support, unless a lawful agreement
requiring such discharge, executed pursuant to Section
8(a)(3) of the Act, is in effect.
As the Board found that we violated the law when
we entered into a contract with Local 210 with respect
to employees of our Little Falls, New York, plant, WE
WILL withdraw all recognition from Local 210, and will
henceforth refuse to deal with Local 210 as the
collective-bargaining representative of our employees
at the aforesaid plant, unless and until Local 210 is
certified by the Board as the representative of the
aforesaid employees.
WE WILL NOT give any assistance or support to Local
210, or in any respect comply with our contract with
said Union except that nothing in the Board's Order
requires us to alter, vary, or in any respect modify the
wages, hours, or other terms and conditions of
employment that you now enjoy.
As the Board found that we violated the law when
we refused to bargain with Sheet Metal Workers
International Association as the duly designated
representatives of our employees in an appropriate
unit, WE WILL, upon request, recognize and bargain
collectively with said Association, as the duly designat-
ed collective-bargaining representative of our employ-
ees in an appropriate unit, with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody the same into a written signed
agreement.
The appropriate unit is
All production, maintenance, shipping and re-
ceiving employees in the employ of Coinmeco,
Inc., at our Little Falls, New York, plant,
exclusive of office clerical employees, profession-
al employees, guards and supervisors as defined
in the National Labor Relations Act, as amended.
Dated By
COINMECO, INC.
Employer
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Building, Ninth
Floor, 111 West Huron Street, Buffalo, New York 14202,
Telephone 716-842-3100.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial at which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Teamsters Local 210, violated the
National Labor Relations Act, and ordered us to post this
notice. We will carry out the Order of the Board, the
Judgment of any Court, and we will abide by the
following:
The aforesaid Act gives all employees these rights
To organize themselves
To form, join, or help unions of their choice
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything to coerce or restrain
employees of Coinmeco, Inc., Little Falls, New York,
in the exercise of these rights.
WE WILL NOT threaten to cause your discharge, or
the infliction of other discipline upon you, because you
refuse to designate us as your bargaining representa-
tive, or to otherwise assist or support us, unless there is
in effect a lawful agreement requiring such discharge,
executed pursuant to Section 8(a)(3) of the Act.
WE WILL NOT act or attempt to act as the collective-
bargaining representative of the employees of Coinme-
co, Inc., at its Little Falls, New York, plant, for the
purpose of dealing with said Company concerning the
wages, hours, and other terms and conditions of
employment of the aforesaid employees, unless and
until we have been certified by the Board as the
collective-bargaining representative of said employees.
WE WILL NOT give effect to, or in any other manner,
directly or indirectly, demand or insist that Coinmeco,
Inc., comply with the contract we entered into with it
on September 24, 1971, with respect to its employees at
Little Falls, New York, or any renewal, extension, or
modification of said contract; nor will we engage in
any conduct calculated to enforce compliance with the
aforesaid contract, or to promote a claim of majority
representative of the employees involved, unless and
until we are certified by the Board as such majority
representative.
COINMECO, INC.
LOCAL 210, PRODUCTION,
MERCHANDISING AND
DISTRIBUTION EMPLOYEES
UNION, AFFILIATED WITH
THE INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
303
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, Federal Building, Ninth
Floor, 111 West Huron Street , Buffalo, New York 14202,
Telephone 716-842-3100.