Eagle Material Handling of New Jersey

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1529 (N.L.R.B. 1976)

EAGLE MATERIAL HANDLING OF NEW JERSEY 1529
Eagle Material Handling of New Jersey and Local
Union 825 and Branches A, B, C, D, International
Union of Operating Engineers , AFL-CIO. Cases
22-CA-6311, 22-CA-6522, and 22-RC-6336
June 21, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On October 31, 1975, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs,
and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.2
The Administrative Law Judge found, and we
agree, that a bargaining order is warranted to remedy
the Respondent's extensive and pervasive unfair la-
bor practices in violation of Section 8(a)(1) of the
Act. We find, as did the Administrative Law Judge,
that the Union obtained signed authorization cards
from a majority of Respondent's employees on Janu-
ary 11, 1975,' and that subsequently the Union's ma-
jority status was dissipated by Respondent's unfair
labor practices which began on January 20 and con-
tinued through the election on February 6 and there-
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products , Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The General Counsel excepted to the Administrative Law Judge's fail-
ure to order the restoration of the status quo ante with respect to
Respondent 's unilateral changes in its policy permitting employees to use
company trucks for transportation to and from work , and with respect to
the replacement of its "three percent commission plan" with a "40 percent
plan " The record is not clear whether the change in commission plans
resulted in a detriment to employees Accordingly , we shall order Respon-
dent to restore the status quo ante with respect to its employees' use of
company trucks and, to the extent that the change in commission plans has
resulted in a detriment to employees , with respect to that change as well In
any event we shall order Respondent to bargain about such changes and
their effects We shall also order Respondent to make whole its employees
for any losses they may have sustained as a result of such changes
7 All dates are in 1975
after. Thus, the Administrative Law Judge found,
and we agree for the reasons stated by him, that Re-
spondent committed separate violations of Section
8(a)(1) of the Act when, in the period of time prior to
the election, it solicited employee grievances and
complaints, discharged an unpopular supervisor in
response to employee complaints, threatened to
move unit equipment and work if the Union won the
election, and promised employees additional benefits
and a written guarantee of continued employment all
in order to discourage their support for the Union. In
addition, we agree with the Administrative Law
Judge's finding that Respondent violated Section
8(a)(l) of the Act by implementing changes in em-
ployee benefits and working conditions after the
election in fulfillment of its unlawful preelection
promises. Accordingly, since the record establishes
that, on January 20, Respondent embarked on a
course of unlawful conduct which dissipated the
Union's majority status, we find, in further agree-
ment with the Administrative Law Judge, that
Respondent's bargaining obligation commenced as
of that date.4
The Administrative Law Judge also found that Re-
spondent violated Section 8(a)(5) of the Act by fail-
ing and refusing to recognize and bargain with the
Union as of January 20. In so doing, he construed
the Union's petition, which was filed on Janury 13,
as a demand for recognition upon Respondent. Con-
trary to the Administrative Law Judge, we do not so
construe the petition. The Board has long held that
the mere filing of a representation petition does not
constitute a request for recognition or bargaining
such as to make an employer's failure to bargain,
without more, a violation of Section 8(a)(5) of the
Act.' In the instant case, the Union made no demand
upon Respondent for recognition or bargaining and,
accordingly, we find that the evidence fails to estab-
lish that Respondent violated Section 8(a)(5) of the
Act.
However, the absence of an 8(a)(5) finding does
not affect the propriety of the bargaining order here-
in since that order is not predicated on any such
finding, but rather is required to remedy Re-
spondent's extensive unfair labor practices, which
precluded a fair election from being held on Febru-
ary 6 and have made unlikely the holding of a fair
election in the near future, even after application of
the Board's traditional remedies therefor.'
4Trading Port, Inc, 219 NLRB 298 (1975)
5 L.. B Foster Company, 168 NLRB 83, 87, fn. 28 (1967), enfd 418 F 2d I
(C A 9, 1969)
6Id, Ann Lee Sportswear, Inc, 220 NLRB 982 (1975 ) In view of our
finding that Respondent 's bargaining obligation derives from its violations
of Sec 8(a)(I) of the Act, the issue raised with respect to the application of
Sec 10(b) of the Act to the Administrative Law Judge 's 8(a)(5 ) findings
need not be passed upon herein.
224 NLRB No. 202
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the same reasons, we do not agree with the
Administrative Law Judge that Respondent violated
Section 8(a)(5) of the Act by implementing postelec-
tion changes in benefits and working conditions
These changes, which are found above to be viola-
tions of Section 8(a)(1), are adequately remedied by
our order requiring the restoration of the status quo
ante with respect to those changes which were detri-
mental to employees and, further, by the bargaining
obligation which we have imposed on Respondent as
a remedy for its unfair labor practices
AMENDED CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are hereby modified by substituting the follow-
ing paragraph 5 for the Aministrative Law Judge's
Conclusions of Law 5 and 6, by renumbering the re-
maining paragraphs accordingly, and by adding a
new paragraph 8
"5 By soliciting employees' grievances and com-
plaints, by expressly and impliedly promising bene-
fits to employees to remedy or adjust their griev-
ances, by discharging supervisor Frank Veronsky in
order to remove an unpopular condition of employ-
ment voiced by employees, by promising employees
a written guarantee of 1 year's employment to take
effect after the scheduled election, by impliedly
threatening to transfer its trucks and the operations
or functions performed by the unit employees if they
selected the Union as their representative, and by
granting employees benefits following the election in
fulfillment of preelection promises, Respondent has
interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed them by Section
7 of the Act, and thereby engaged in and is engaging
in unfair labor practices proscribed by Section
8(a)(1) of the Act "
"8 In all other respects, the complaint shall be,
and it hereby is, dismissed "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Eagle
Material Handling of New Jersey, Bound Brook,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order as so modi-
fied
1 Delete paragraphs 1(a) and (b) and reletter
paragraphs 1(c) through (g) accordingly
2 Add the following as paragraphs 2(b), (c), and
(d) and reletter former paragraphs 2(b) and (c) ac-
cordingly
"(b) Reinstate the status quo ante as it existed prior
to January 20, 1975, with respect to the use of com-
pany vehicles by employees in the unit set forth
above, and make said employees whole for any losses
occasioned by Respondent's unilateral changes in
benefits and working conditions
"(c) Upon request, bargain about and cancel any
change of benefits or working conditions of its em-
ployees in said unit made on and after January 20,
1975, or the effects thereof, and reimburse them for
any financial losses they may have suffered thereby
"(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records and reports necessary to analyze and give
effect to the status quo ante order herein "
3 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 solicit grievances from our em-
ployees, and adjust such grievances, to discour-
age their interests in or designation of Local
Union 825 and Branches A, B, C, D, Interna-
tional Union of Operating Engineers, AFL-
CIO, or any other labor organization, as bar-
gaining representative
WE WILL NOT promise benefits to our employ-
ees to undermine their support for the above-
named Union, or any other labor organization
WE WILL NOT grant vacations, sick leave, holi-
days, hospitalization premiums, or improved
commissions or bonuses, or discharge any super-
visor to remove an unpopular condition of em-
ployment complained of by our employees, or
grant any other benefits to undermine the sup-
port of our employees for the above-named
Union, or any labor organization
WE WILL NOT threaten the transfer or cessation
of operations or functions performed by our em-
ployees, or other reprisal, to undermine their
support for the above-named Union, or any la-
bor organization
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
EAGLE MATERIAL HANDLING OF NEW JERSEY 1531
in the exercise of their rights to engage in organi-
zational activity or collective bargaining, or to
refrain from such activities.
WE WILL, upon request, recognize and bargain
with Local Union 825 and Branches A, B, C, D,
International Union of Operating Engineers,
AFL-CIO, as the exclusive collective-bargaining
representative of our employees in the appropri-
ate unit, composed of all inside and outside ser-
vice mechanics, service mechanic's helpers and
service mechanic trainees at our Bound Brook,
New Jersey, facility, excluding all office clerical
employees, professional employees, guards, and
supervisors as defined in the Act, and all other
employees, regarding their rates of pay, wages,
hours of employment, and other terms and con-
ditions of employment; and, if an understanding
is reached, embody the same in a signed con-
tract.
WE WILL reinstate the status quo ante as it ex-
isted prior to January 20, 1975, with respect to
the use of company vehicles by employees in the
above unit, and WE WILL, upon request, bargain
about and cancel any change of benefits or
working conditions of said employees made on
and after January 20, 1975, or the effects there-
of, and WE WILL make said employees whole for
any financial losses they suffered by our unila-
teral changes.
EAGLE MATERIAL HANDLING OF NEW JERSEY
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge- The
consolidated complaint cases issued by the General Coun-
sel I allege that Respondent engaged in certain indepen-
dent violations of Section 8(a)(1); that it refused to bargain
with the Union and unilaterally changed conditions of em-
ployment in violation of Section 8(a)(5); and that a Glssel2
bargaining order, based on union authorization cards,
should be issued. In Case 22-RC-6336, pursuant to an
Agreement for Consent Election, an election was conduct-
ed on February 6 in a unit consisting of Respondent's in-
side and outside service mechanics. The results of the elec-
tion showed two votes for the Union, four votes against the
Union, and one challenge. The Union filed timely objec-
tions. On June 6, following investigation, the Regional Di-
rector issued a Report on Objections and an order consoli-
1 All dates are in 1975 unless otherwise specified In Case 22-CA-6311,
the charge was filed and served on April 4, and the complaint issued on
June 4 In Case 22-CA-6522, the charge was filed and served on August 6,
and the complaint issued on August 20
2 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969)
dating the complaint and representation cases for the pur-
pose of hearing. The surviving objections are broadly coex-
tensive with the complaint allegations of Section 8(a)(1).
Respondent generally denies the alleged violations. On Au-
gust 27, a hearing in the consolidated proceeding was held
before me in Newark, New Jersey. Posthearing briefs for
the General Counsel and Respondent have been duly con-
sidered.
On the entire record in the cases, and from my observa-
tion of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent, at its principal place of business in Bound
Brook, New Jersey, is engaged in the purchase, sale, distri-
bution, and servicing of forklift trucks and related prod-
ucts. This is the only facility of Respondent involved in the
present proceeding. During the year preceding issuance of
the consolidated complaint, Respondent had a direct out-
flow in interstate commerce of products and services val-
ued in excess of $50,000. It is admitted, and I find, that
Respondent is engaged in commerce, and that the Union
(as named in the case caption) is a labor organization,
within the meaning of the Act.
11 THE UNFAIR LABOR PRACTICES
A. Facts
1. Advent of Union; card majority
On January 11, certain of the unit employees attended a
prearranged organizational meeting with agents of the
Union at a motel. At this meeting, valid authorization
cards for the Union were signed by five such employees.
The admitted appropriate unit, at all material times, con-
sisted of six employees. It is therefore found that the Union
had a clear majority in authorization cards as of January
11. On January 13, the Union filed a certification petition
with the Board, a copy of which was duly served on Re-
spondent.
2 Respondent's reaction to the union movement
Thereafter, until the election on February 6, several
meetings with the unit employees 4 were arranged and con-
ducted by Respondent's president, John Apgar, also at-
tended by other management representatives.5 The first
J Robert Bylsma, Dennis Loughlin, Gilbert St Marie, Joseph Parise, and
Vincent Salvatore-all witnesses for the General Counsel
4 All the unit employees were not present at all these meetings, in some
instances particular mechanics were "out on the road "
5 Described in the testimony as Paul Desnoyers, Bill Eckert, and John
Kelly, principals of "STS," the parent company of Respondent Reference
was also made to Somerset Tire, apparently the same parent Some or all of
these officials attended the later meetings with the employees
In essence , the only testimony for Respondent was briefly elicited from
Apgar The substantial bulk of General Counsel's specific evidence is un-
Continued
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such meeting was held on January 20 6 Apgar questioned
the employees as to why they wanted union representation,
and solicited their problems which prompted such a de-
sire 7 They responded that a main problem involved their
dissatisfaction with Service Manager Frank Veronsky, and
related in detail their various complaints 8 They also ex-
pressed their discontent with the insufficiency of the wages
and benefits accorded by Respondent At a meeting 1 or 2
days later, Apgar informed the employees that Veronsky
was no longer with the Company 9 He said, with that
` squared away,"-he would see what was bothering the
men as far as benefits and wages At the same or a subse-
quent meeting, in response to Apgar's queries, the employ-
ees explained the basic benefit package offered by the
Union and discussed the comparable benefits paid by
other forklift companies in the area As testified by Gener-
al Counsel's witnesses, Apgar told them none of these ben-
efits was "out of reach", not to "underestimate Somerset
Tire", whatever other companies had he would match or
exceed, and he was working on it and would in time give
the employees a benefit package that would be "the Cadil-
lac of the industry " 10
One evening meeting was held by Respondent within 3
days of the election, attended by all the unit employees
"Again it was a discussion of union benefits, wages, as to
why we wanted the union, what could and would be recti
feed " Shortly before the election a further meeting
was held after work, with two unit employees and three
company officials present Serious concern was expressed
by the employee s that, if they did not vote for the Union,
Respondent could fire them after the election and not have
to give them anything Apgar said he would solve that He
then drafted a letter stating that "for no reason would any-
one be fired for 1 year's time, which would enable us to
have another election if things weren't right ," and
that if any employee was let go during this time, Respon-
dent would pay a "financial penalty " During this discus-
sion, Supervisor Desnoyers came in and told Apgar that he
had been talking to a lawyer and was advised that such a
letter would be illegal Thereupon, Apgar tore up the letter,
wrote out another letter that the employees would not be
controverted Apgar s highly generalized testimony is not accepted to the
extent it materially conflicts with the facts described herein
6 On Saturday night January 18 employee Loughlin was visited by one
of the office personnel and was asked to call Apgar at his house Loughlin
declined On January 20 at the plant Loughlin told Apgar that he under
stood Apgar wanted to talk to him The first meeting with the employees
then ensued Employees Bylsma and St Marie placed the first meeting
shortly after the notice of election was posted in the plant (The Consent
Election Agreement was executed on January 24) Loughlin appeared more
certain of his timing In any event the difference in these dates does not
materially affect the ultimate results herein
7 Apgar admitted asking them what their problems were and stating that
our company has a1Lways settled problems without a third party
8 E g Veronsky constantly threatened them with dismissal he told them
he would completely ignore their relative seniority standing
9 Apgar testified regarding Veronsky only on cross examination In gener
al terms he stated that the complaints of the mechanics were not the reason
for Veronsky s relea e-but didn t help it I find that these complaints
precipitated the discharge of Veronsky and that the decision was motivated
to glacate the employees
Apgar denied that he used the quoted expression I credit General
Counsels witnesses and find in any event that he used equivalent Ian
guage
discharged for union activities, and promised that "he
would write the original letter immediately after the elec-
tion " ' 1
About 1 week prior to the February 6 election, Desnoy-
ers and James Schactele, both admitted supervisors, had a
conversation in the shop about 5 feet from the working
place of Bylsma and overheard by him Desnoyers told
Schactele to hold up on having the truck lettered, because
they might be used elsewhere in the Company if the Union
won the election 12 Shortly thereafter, Bylsma inquired of
Schactele, who confirmed that Bylsma had heard the con-
versation correctly, Schactele said he had thought about it
and was going to have the trucks lettered anyway
3 Post election changes in benefits
After the election, Respondent put into effect the follow-
ing changes in the employment conditions of the unit em-
ployees
1 Paid vacation was increased from 1 week to 2 weeks
per year
2 Three sick days per year were specifically accorded,
whereas previously sick pay was entirely in the discretion
of the manager
3 Three additional paid holidays were granted
4 As of April 1, Respondent completely paid for hospi-
talization premiums, therefore it paid only one-half
5 As of August 1, the unit employees were no longer
permitted to keep the company trucks at home for use as
their transportation to and from the plant or an outside
job This convenience had been assured the employees as a
specific condition of their hire 13
6 As of about March 1, Respondent eliminated an ex-
isting plan whereby the unit employees shared 3-percent
commission on sales of all parts and labor bills each
month In lieu of a wage raise, effective on January 1, the
plan had been agreed upon by the employees and Respon-
dent for a trial period of at least 6 months, which could be
cancelled only by consent of both sides In March the 3-
percent commission plan was replaced by another pro-
gram-vaguely described by employee witnesses as a 40-
percent plan, which they did not fully understand except
that Apgar told them it was a superior benefit 14
B Conclusions
This case presents a more flagrant situation wherein, fol-
lowing the Union's advent and filing of a Board petition,
the Respondent
11 This paragraph essentially reflects testimony of Bylsma
12 Schactele was then in the process of lettering the trucks presumably
with the designation of Respondent Eagle The reference to elsewhere in
the company I construe to mean elsewhere within the parent company
STS It is a reasonable inference particularly in the absence of testimony
from Desnoyers and Schactele that they were aware Bylsma was within
earshot during their conversation
13 When ordered to leave his truck at the plant Bylsma was told by Gen
era] Manager Milt Mosko that it was in lieu of cutting his salary or laying
someone off because there was no insurance on the employees equipment
kept in the truck Bylsma s testimony is not contradicted but is not further
clarified in the record
14 Respondent did not undertake to refute this testimony or attempt to
explain the 40 percent plan
EAGLE MATERIAL HANDLING OF NEW JERSEY 1533
deliberately embarked upon a course of action de-
signed to convince the employees that their demands
will be met through direct dealing with Respondent
and that union representation could in no way be ad-
vantageous to them. Obviously such conduct must, of
necessity, have a strong coercive effect on the employ-
ees' freedom of choice, serving as it does to eliminate,
by unlawful means and tactics, the very reason for a
union's existence. We can conceive of no more perni-
cious conduct than that which is calculated to under-
mine the Union and dissipate its majority while refus-
ing to bargain? Neither is there any conduct which
would constitute a greater impairment of employees'
basic Section 7 rights under our Act, especially since
such conduct by its very nature has a long-lasting, if
not permanent, effect on the employees' freedom of
choice in selecting or rejecting a bargaining represen-
tative.15
Texaco, inc, 178 NLRB 434 (1969 ) [ Enfd 436 F 2d 520 (C A
7-1971)]
Respondent independently violated Section 8(a)(1) of
the Act, as to the course of conduct, described above, de-
signed to undermine the Union, and specifically-(a) by
soliciting the employees' grievances and complaints under-
lying their union activity; (b) by expressly and impliedly
promising benefits to the employees to remedy or adjust
their gnevances; (c) by discharging Supervisor Frank Ver-
onsky in order to remove an unpopular condition of em-
ployment voiced by the employees;16 (d) by promising the
employees a written guarantee of one year's employment
to take effect after the scheduled election; (e) by impliedly
threatening to transfer its trucks and the operations or
functions performed by the unit employees, if they selected
the Union as representative; and (f) following the election
and in fulfillment of preelection promises-by granting the
employees further benefits in additional sick pay, vaca-
tions, holidays, paid hospitalization insurance, and replac-
ing the 3-percent commission plan with a program more
beneficial to the employees.17
The quotation above from the Teledyne case is fully ap-
plicable here relating to the seriousness of Respondent's
unfair labor practices. As a result of Respondent's perni-
cious interference, the Union's card majority of five out of
six unit employees as of January 11 was dissipated and
reduced to two out of six employees in the election of Feb-
ruary 6. Respondent's practices are sufficiently egregious
within the Supreme Court's standards in the Gissel case I8
to conclude that a fair rerun or new election has been ren-
dered highly improbable; that in the circumstances, the
Union's majority reflected in signed authorization cards
15 Teledyne Dental Products Corp, 210 NLRB 435 (1974) See also, a g,
Reliance Electric Company, 191 NLRB 44, enfd 457 F 2d 503 (C A 6).
Emery Air Freight Corporation, 207 NLRB 572, 575
16 E g, Watkins Furniture Company, ei al, 160 N LRB 188, 193 (1960)
i7 See N L R B v Exchange Paris Co, 375 U S 405, 409, as to the danger
of improper employer influence "inherent in well-timed increases in bene-
fits "
18 N L R B v Gissel Packing Co, Inc, 395 U S 575, 613-615
reliably demonstrate the employees' representation desires;
and that a remedial bargaining order is warranted.19
In Trading Port, Inc.,2 the Board more recently decided
that the employer's obligation under a Gissel bargaining
order, accompanied by the specific finding of a Section
8(a)(5) violation, should commence as of the date of the
employer's embarkation on a course of unlawful conduct.
And it held that unilateral changes made by the employer
after such date are separate violations of Section 8(a)(5)
subject to appropriate remedies. As I find that Respondent
embarked on a clear course of unlawful conduct as of Jan-
uary 20, the recommended remedy will provide that
Respondent's bargaining obligation be deemed to have
commenced as of such date.21
Accordingly, it is further found that Respondent inde-
pendently violated Section 8(a)(5) by unilaterally institut-
ing, without consultation or bargaining with the Union, the
changes in the employment conditions of the unit employ-
ees as enumerated in section 11, A, 3, supra.
The consolidated proceeding herein is prosecuted with
the principal objective of having the February 6 election
set aside and obtaining a Gissel bargaining order. As
shown, the evidence amply warrants such a result . There-
fore, I will recommend to the Regional Director that the
election be set aside and the petition dismissed.
III. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3 All inside and outside service mechanics, service
mechanic's helpers and service mechanic trainees at
Respondent's Bound Brook, New Jersey, facility, excluding
19 Nothing in Gisrel conditions the bargaining order remedy upon a de-
mand for bargaining Ludwig Fish & Produce, Inc, 220 NLRB 1086 (1975)
Moreover, the pendency of the Union's petition is tantamount to a continu-
ing claim for recognition as majority representative
'219 NLRB 298 (1974)
21 General Counsel contends that February 6 is the earliest date that a
bargaining order remedy may be made effective, by reason of Sec 10(b)
The amended complaint alleging violation of Sec 8(a)(5) is based on a
charge (in Case 22-CA-6522) filed and served on August 6 Thus, General
Counsel apparently reasons that the 6-month limitation period under Sec.
10(b) precludes reliance upon 8(a)(5) conduct of Respondent which pre-
dates February 6 However, where, as here, the issues giving rise to the
bargaining order have been fully litigated (e g. violations of Sec 8(a)(1) ),
even the omission of an 8 (a)(5) allegation does not bar the issuance of a
bargaining order found necessary under the Gissel doctrine Ann Lee Sport-
swear. Inc, 220 NLRB 982 (1975) Here, the unlawful unilateral changes
which are found, infra, all postdated February 6 Therefore, the independent
8(a)(5) violations are in any case within the 10(b) period There is no barrier
under Sec 10(b) to the propriety and dating of the bargaining order itself, as
controlled by Trading Port, supra
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all office clerical employees, professional employees,
guards, and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act
4 Since January 11, 1975, the Union has been, and is
now, the exclusive representative of all employees in the
appropriate unit within the meaning of Section 9(a) of the
Act
5 By failing and refusing, at all times since January 20,
1975, to recognize and bargain collectively with the Union
as the exclusive representative of the employees in the ap-
propriate unit, and thereafter by unilaterally changing cer-
tain conditions of employment of the unit employees with-
out first bargaining thereon with the Union, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act
6 By the foregoing, and by other specific acts and con-
duct, interfering with, restraining, and coercing employees
in the exercise of their rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
8 Respondent's unlawful conduct interfered with the
election held on February 6, 1975
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby recommend the following
ORDER22
Respondent , Eagle Material Handling of New Jersey,
Bound Brook , New Jersey , its officers , agents successors,
and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with Local Union
825 and Branches A, B, C D, International Union of Op-
erating Engineers , AFL-CIO, as the exclusive collective-
bargaining representative of all employees in the appropri-
ate unit described above
(b) Unilaterally changing conditions of employment of
the unit employees without first bargaining thereon with
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
the above-named Union, including withdrawal of the use
of their trucks for transportation to and from their homes
(c) Soliciting grievances from its employees, and adjust
mg such grievances, to discourage their interests in or de-
signation of the above-named Union, or any other labor
organization, as bargaining representative
(d) Promising benefits to its employees to undermine
their support for the above-named Union, or any other
labor organization
(e) Granting additional paid vacations, sick leave, holi-
days, or hospitalization premiums, or granting improved
commissions or bonuses, or discharging any supervisor to
remove an unpopular condition of employment com-
plained of by its employees, or according any other bene-
fits to undermine the support of its employees for the
above-named Union, or any labor organization
(f) Threatening the transfer or cessation of operations or
functions performed by its employees, or other reprisal, to
undermine their support for the above-named Union, or
any other labor organization
(g) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights of employees guaranteed by Section 7 of the Act
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Upon request, recognize and bargain collectively
with Local Union 825 and Branches A, B, C, D, Interna-
tional Union of Operating Engineers, AFL-CIO, as the
exclusive bargaining representative of its employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment, and embody in a signed agreement any under-
standing reached
(b) Post at its Bound Brook, New Jersey, facility, copies
of the attached notice marked "Appendix " 23 Copies of
said notice, on forms provided by the Regional Director
for Region 22, after being signed by Respondent, shall be
posted immediately upon receipt thereof in conspicuous
places, and be maintained for a period of 60 consecutive
days Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material
(c) Notify the Regional Director for Region 22, in writ
mg, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
IT IS FURTHER ORDERED that Case 22-RC-6336 be severed
and remanded to the Regional Director for appropriate
disposition under the Agreement for Consent Election in
conformance with the findings herein
23 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board