Harte & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1986

278 N.L.R.B. 947 (N.L.R.B. 1986)

HARTE & CO.
Harte & Company, Inc. and Christopher Bates
Local 106, International Leather Goods , Plastics &
Novelty Workers Union, AFL-CIO and Christo-
pher Bates . Cases 22-CA-10889 and 22-CB-
4557
13 March 1986
DECISION AND ORDER
BY CHARIMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 30 June 1982 Administrative Law Judge
Raymond P . Green issued the attached decision.
Respondent Union and Respondent Company filed
exceptions and supporting briefs , and the General
Counsel filed a cross-exception and a brief answer-
ing the Respondents exceptions and in support of
the cross-exception.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The complaint alleges," and the judge - found,
that the Company violated Section 8(a)(1), (2), and
(3) of the Act and the Union violated Section
8(b)(1)(A) and (2) when they agreed to extend their
collective-bargaining agreement (including its
union-security article)-which covered employees
at the Company's Brooklyn operation-to the
Company 's new Bound Brook, New Jersey facility
before the Union represented an uncoerced majori-
ty of the Bound Brook employees . Because we find
that the Company's Bound Brook facility was es-
sentially a relocation of its Brooklyn operation, we
disagree with the judge and hold that the extension
of the Brooklyn collective -bargaining agreement to
the Bound Brook employees was lawful.
The material facts in this case are as follows.
Harte & Company, Inc. manufactures and sells pol-
yvinyl chloride film and sheeting . Prior to Febru-
ary 1981 , the Company's manufacturing facilities
consisted of a plant in Mountaintop, Pennsylvania, 2
and a complex housed under two roofs within a
block of each other in Brooklyn , New York. This
latter complex had apparently become outmoded
and inefficient and, sometime in 1980, Harte began
1 The complaint also alleges that the discharges of Christopher Bates,
Joseph Markey Jr ., and Adam Pyka violated the Act. At the opening of
the hearing before the judge, the parties reached a settlement as to these
allegations . The judge approved the settlement, and the General Counsel
withdrew the discriminatory discharge allegations from the complaint.
' The Mountaintop plant is not involved in this litigation.
947
investigating the purchase of a new facility to re-
place it . To that end, Harte entered into negotia-
tions with a competitor, Tenneco, to buy a modern
Tenneco plant in Bound Brook , New Jersey, 32
miles from Harte 's Brooklyn operation. Harte's
parent company, Dynamite Nobel, Inc. of Amer-
ica, authorized the purchase of the Bound Brook
facility. This authorization was contingent on
Harte's disposing of the Brooklyn plant and using
any proceeds from the sale of Brooklyn real estate
and equipment to pay part of the purchase cost of
Bound Brook. On 12 February 1981 Harte entered
into an agreeent with Tenneco to buy the physical
plant and equipment at Bound Brook , as well as
Tenneco's existing customer list.
The Union3 has been the exclusive representative
of Harte's Brooklyn employees since 1947. At the
same time as Harte was negotiating the purchase of
Bound Brook , it was also negotiating a new collec-
tive-bargaining agreement with the Union.4 In the
course of these contract negotiations, Harte's direc-
tor of personnel Michael Beirne responded to
union inquiries about the Company's relocation in-
tentions by telling the union negotiators that the
Company was trying to work out a deal with Ten-
neco.
On 12 February, the day that Harte entered into
the agreement to purchase Bound Brook , Beirne
told the union negotiators about it. He and the
Union immediately incorporated discussions on the
impact of the Bound Brook purchase into their on-
going negotiations . Beirne informed the Union that
Harte intended to take 30 to 60 days to clean out
and rehabilitate the new facility and that , as soon
as possible after this cleanup period, the Company
would begin transferring equipment and employees
from Brooklyn. Beirne testified that the union com-
mittee indicated that between 30 and 40 percent of
the approximately 260 Brooklyn employees wanted
to transfer to Bound Brook . (Harte anticipated a
total hourly work force of 215 employees at Bound
Brook.) Beirne also told the Union that the Compa-
ny anticipated that the whole process-the com-
plete transfer of equipment and personnel and the
closing of the Brooklyn plant-would be finished
by the end of 1981 . In fact, Irving Starobin, Harte's
vice president of operations, testified that Harte
planned to have the relocation completed by 1
July.
On 2 March the parties executed a new collec-
tive-bargaining agreement . Article 26 of the agree-
ment, entitled "Union Security," required, as a con-
3 Local 106, International Leather Goods, Plastics & Novelty Workers
Union, AFL-CIO.
4 The agreement then in effect was scheduled to expire on 6 February
1981.
278 NLRB No. 128
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dition of continued employment , membership in the
Union either 30 days after the effective date of the
contract or 30 days after the date of hire , whichev-
er was later .6 The new agreement included an ad-
dendum giving Brooklyn employees the option to
transfer, with their seniority intact , to Bound
Brook or to take severance pay. The parties also
agreed to extend the agreement's coverage to the
Bound Brook facility when it began operations.
. On 13 March Tenneco terminated its 67 hourly
employees . From February 1977 until the time of
their discharge, these employees had been repre-
sented by the United Steel Workers of America
(USWA). The parties stipulated that at no time did
the USWA assert that it was, or demand recogni-
tion as, the representative of Harte's Bound Brook
employees.
On 20 April Harte started up the Bound Brook
facility using some of the equipment it purchased
from Tenneco . On this date, Harte employed 69 of
its contemplated 215 Bound Brook employees. Of
these 69, 9 were temporary transfers from Brook-
lyn who returned within a week and the other 60
were new hires.
Also on 20 April two union representatives vis-
ited the Bound Brook facility . They informed em-
ployees that Local 106 was the Bound Brook col-
lective-bargaining representative and they solicited
employee signatures on union membership applica-
tion cards . When several employees asked what
would happen if they did not sign the cards or join
the Union, the union representatives said that non-
joining employees would lose their jobs . There ap-
parently was no mention of the collective -bargain-
ing agreement's 30-day grace period.
Shortly after the Bound Brook startup , Harte ex-
perienced an unexpected upsurge in orders for its
products . This upsurge was not to begin to subside
until November . Irving Starobin testified that the
increase was 50 percent over anticipated orders
and that this additional business was more than the
Mountaintop plant and the new Bound Brook facil-
ity could handle . Consequently, Harte continued to
produce at the Brooklyn facility and the comple-
tion of the transfer of operations from Brooklyn to
Bound Brook was delayed somewhat.
Although Harte dismantled and transferred some
equipment from Mountaintop to Bound Brook
during the April-June period , the dismantling and
transfer of equipment from Brooklyn to Bound
Brook did not begin until July. 6 The first major
5 The judge erroneously found that the contract required membership
in the Union after 42 days . The 42-day period was the time specified in
the parties' previous agreement. However,-in the agreement executed on
2 March the parties substituted 30 days for 42.
s At no time did any Mountaintop employees permanently transfer to
Bound Brook.
movement of Brooklyn employees, involving some
42 workers , did not occur until 21 August. By 1
October Harte had closed one (the Commercial
Street building) of the two buildings which togeth-
er constituted the Brooklyn facility. On 12 October
14 additional Brooklyn employees moved. On 30
November 38 more relocated and, as of that date,
of the 205 hourly employees at Bound Brook 82
were transferees from Brooklyn.
On 1 December the Brooklyn plant manager
moved to Bound Brook to take charge of the facili-
ty. Prior to his arrival, there had been no plant
manager at Bound Brook. Some time during De-
cember the other 'part (Dupont Street) of the
Brooklyn facility. was closed . On 28 December
1981 and 4 January 1982 the last major movement
of employees took place as 36 Brooklyn workers
moved to Bound Brook . After this last transfer, of
197 total hourly employees at Bound Brook, 98
had transferred from Brooklyn . On 18 March 1982,
about a week and a half before the hearing in this
case, Bound Brook employed 219 hourly employ-
ees, of whom 91 had formerly worked at Brooklyn.
Finally, as of 18 March 1982 the Commercial
Street Building had been sold and the Dupont
Street building was in the hands of a broker, await-
ing sale.7.
In relocation cases such as this one , our task is to
distinguish situations where the new facility is basi-
cally the same operation , simply removed to a new
site, from those where the new facility is somehow
a different operation from the original. In the
former case, a collective-bargaining agreement in
effect at the old location is logically applied at the
new one . In the latter, the old agreement has no
place at the new facility. Given the complexity of
modern business transactions , the determination of
exactly what relationship the new plant bears to
the old is not always easy to make . Nonetheless,
we have developed standards in our contract-bar
and failure-to-bargain cases to determine when
there is a sufficient continuity of operations to justi-
fy applying an existing agreement to a new loca-
tion . These cases hold that an existing contract will
remain in effect after a relocation if the operations
at the new facility are substantially the same as
those at the old and if transferees from the old
plant constitute a substantial percentage-approxi-
mately 40 percent or more-of the new plant em-
ployee complement . Westwood Import Co., 251
NLRB 1213, 1214 ( 1980), enfd. 681 F.2d 664 (9th
Cir. 1982); General Extrusion Co., 121 NLRB 1165,
1167-1168 ( 1958). See also Marine Optical, 255.
r On this date, there were approximately 14 employees at the Dupont
Street facility, acting as caretakers.
HARTE & CO.
NLRB 1241, 1245 (1981), enfd. 671 F.2d 11 (1st
Cir. 1982).
Under the principles outlined in these cases, the
Brooklyn collective-bargaining agreement should
have remained in effect when Harte moved to
Bound Brook. There is no question that Harte's op-
eration in Bound Brook was substantially the same
as its operation in Brooklyn . The Bound Brook
plant produced the same products as the Brooklyn
plant,8 it used the same type of machinery (and, in
some cases, the same machines) to produce these
products, and its employees performed substantially
the same functions . Additionally, there is no ques-
tion that former Brooklyn employees ultimately
constituted more than 40 percent of the Bound
Brook employee complement . On 30 November 82
transferees out of 205 total hourly employees con-
stituted exactly 40 percent ; on 4 January 1982 the
number was 98 out of 197-49 .7 percent; and on 18
March 1982 it was 91 out of 219-41.5 percent.
However, the judge reached a different conclu-
sion . He focused on the timing of the employee
transfers . He decided that Harte 's move from
Brooklyn to Bound Brook was not a "mere reloca-
tion" because it took too long for a substantial per-
centage of transferees to arrive at Bound Brook.
According to the judge, the date on which the
Bound Brook plant became "fully operational" was
the.relevant date for examining the Bound Brook
employee complement to determine whether it
contained enough transferees to meet the substan-
tial percentage requirement . Although he did not
specify the exact date on which he considered
Bound Brook to be fully operational , he did find
that the plant reached this stage at some point after
20 April (the day that Bound Brook started up) but
well before 30 November (the day that transferees
constituted 40 percent of the Bound Brook work
force). Relying on his conclusion that Bound
Brook was fully operational before transferees con-
stituted 40 percent of its employee complement, he
held that the substantial -percentage-of-transferees
requirement had not been fulfilled . He found that,
by extending recognition to the Union as the bar-
gaining representative of the Bound Brook employ-
ees when the plant was fully operational and before
transferees constituted 40 percent of the work
force, Harte violated Section 8(a)(2) and (1) of the
Act. He additionally found that, by accepting rec-
ognition under these circumstances , the Union vio-
lated Section 8(b)(1)(A). Since the collective-bar-
a Michael Beirne testified that the Bound Brook plant does not do any
"quilting"--a process by which high frequency radio waves are used to
produce an imitation of a hand-sewn quilt. However, this is not because it
lacks the capacity to do so, but.rather because Harte has not been receiv-
ing enough orders for quilted products.
949
gaining agreement contained a union-security
clause, he also found that Harte violated Section
8(a)(3) and (1) and the Union violated Section
8(b)(1)(A) and (2).
We disagree with the judge and reverse his find-
ings as to these violations . While none of our previ-
ous relocation decisions have explicitly addressed
the appropriate point in time for measuring wheth-
er a substantial percentage of the new work force
is composed of transferees from the old location, in
each case where we have found that the contract
remained in effect at the new location, transferees
constituted a substantial percentage of the new
work force on the date that the transfer process was
substantially completed. For example , in Westwood
Import, although we noted that a number of em-
ployees sufficiently large enough to constitute a
substantial percentage had transferred by the time
the new facility was "fully operational," the em-
ployee transfers had been completed almost a
month before this "fully operational" date. In
Marine Optical, the company gradually moved its
operation over a period of 2 months. When the em-
ployee transfer process was completed, transferees
made up approximately 40 percent of the relocated
operation's work force. In Fairlawn Care Center,
233 NLRB 1025, 1026 (1977), although we stated
that the respondent 's obligation to bargain was de-
termined as of the date it began its new operations,
we did so in -a case where the employee transfers
preceded the commencement of operations at the
new location . In W. T Grant Co., 197 NLRB 955,
956 (1972), the 34 transferees constituted the "ini-
tial nuclear core of workers at the new store, and
more than 40 percent of the "eventual employee
complement" of 75 employees. We agree with Re-
spondent Harte that these decisions indicate that
the relevant inquiry in this case is not whether
transferees made up a substantial percentage of the
relocated operation 's work force on the date that
Bound Brook became "fully operational," but
rather this test was met on the date that Harte's re-
location process had been substantially concluded.
Harte had substantially completed its move from
Brooklyn to Bound Brook on 4 January 1982, the
date the final employee transfer took place. As of
this date , both parts of the Brooklyn operation had
been closed , and the Brooklyn plant manager had
come to Bound Brook to take over direction of the
new facility. Examining the Bound Brook work
force on this date yields 98 transferees out of 197
total hourly employees . Clearly, a substantial per-
centage of Bound Brook's employee complement
consisted of transferees at the time Harte had sub-
stantially completed its relocation . Therefore, the
extension of the Brooklyn collective-bargaining
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement (including its union-security clause) to
cover the Bound Brook employees was lawful.
We recognize that in any relocation situation an-
swering the question whether the union represent-
ing the employees at the former location should
continue to represent the workers at the new loca-
tion involves balancing the newly hired employees'
interest in choosing whether or not to have union
representation against the transferees' interest in re-
taining the fruits of their collective activity. The
tension between these two interests is particularly
great here because Harte operated its Bound Brook
facility for 4 months before Brooklyn employees
began to transfer permanently and for an additional
4 months before this transfer process was complete.
Therefore, we wish to emphasize additional factors
which contribute to our willingness to tip the
scales in favor of the transferees and to allow the
application of the Brooklyn contract to Bound
Brook.9
Initially, it is clear that the parties in this case
acted in good faith. There is no contention that the
delay in completing the transfer of Harte's oper-
ation was purposefully designed to frustrate the
representational interests of the newly hired Bound
Brook employees. Second, the 8-month period it
took to complete the transfer of operations was not
unreasonable, given the size and complexity of
Harte's operation and the unexpected upsurge in
orders for its products.10 Third, Harte's acquisition
of Bound Brook was dependent on its closing of
Brooklyn. Harte's parent company imposed this
condition, and there can be no contention that
Harte set out to operate two independent facilities
at Brooklyn and Bound Brook. That the two hap-
pened to be in production at the same time was an
accident occasioned by the difficulty of moving a
complex operation and the unexpected order bo-
nanza mentioned above. Fourth, no union other
than Local 106, International Leather Goods, Plas-
tics & Novelty Workers Union, AFL-CIO has ad-
vanced any claim to represent Harte's Bound
Brook employees. Thus, Harte was not presented
with rival claims from competing unions, and its
recognition of Local 106 at Bound -Brook did' not
implicate the types of considerations we have ad-
dressed in RCA Del 'Caribe, Inc., 262 NLRB 963
(1982), and Bruckner Nursing Home, 262 NLRB
955 (1982).11
9 Member Dennis finds it unnecessary to rely on the first, second,
third , and fifth "additional factors" discussed below.
10 On this point, compare the time it took for Harte to move its sophis-
ticated polyvinyl chloride film processing machinery and 260 Brooklyn
employees to the 2 months it took a company apparently experiencing
none of Harte's unforeseen business conditions to move an eyeglass man-
ufacturing operation and 65 employees in Marine Optical, supra
11 Our decision in Hudson Berlind Corp., 203 NLRB 421 ( 1973), is also
inapplicable on the facts of this case . In Hudson Berlind, a company ac-
Finally, the national labor policy favors industri-
al stability achieved through the collective-bargain-
ing process. Steelworkers v. Warrior & Gulf Co., 363
U.S. 574, 578 (1960). The parties' actions in this
case demonstrate the wisdom of such a policy.
Faced with a potentially traumatic situation-the
movement of a plant and the loss of 260 jobs-they
worked out an agreement which satisfied, the Em-
ployer's requirements for skilled labor at its new fa-
cility and the Union's and the employees' concern
for protecting jobs and benefits. All parties re-
sponded admirably to a difficult situation with rec-
ognition of the economic realities involved. To say
they acted illegally because the implementation of
their mutually agreed-upon solution arguably took
a few months more than intended would work a
manifest injustice. Taken together, the good faith
of the parties, the reasonableness of their actions,
and the dictates of both our past decisions and the
national labor policy lead us to reverse the judge's
findings of the above-outlined violations.12
The judge also found that the union representa-
tives' statements to newly hired Bound Brook em-
ployees that employees who did not join the Union
would lose their jobs violated' Section 8(b)(1)(A).
He additionally found a derivative violation of Sec-
tion 8(a)(1) by the Company, since union represent-
atives spoke to the employees on company prem-
ises, obviously with company permission, and after
a company official had told the Bound Brook em-
ployees that the Brooklyn collective-bargaining
agreement would be applied to them. As we find
that the extension of the collective-bargaining
agreement to Bound Brook was lawful, and there-
fore the Company's statement to the Bound Brook
employees was legal (see fn. 10) and the union rep-
resentatives' presence on company premises was
quired two wholesale distribution firms, the employees of each of which
were represented by separate unions The company merged the two oper-
ations into a new third facility and , before opening the new facility or
transferring any, employees, recognized the union which represented the
employees at the larger of the two purchased firms as the exclusive rep-
resentative of the employees at the new facility. The Board held that this
recognition, prior to the transfer of any employees and in the face of
competing union claims , was premature and violated Sec. 8(a)(2) The
present case is distinguishable because it involves the mere relocation of a
single facility rather than the merger of facilities with separate collective-
bargaining histories and because here there is no other union with a claim
to represent the Bound Brook employees, McKesson Drug Co, 257
NLRB 468 (1981), cited by the General Counsel to support the conten-
tion that Harte's recognition of the Union at'Bound Brook was prema-
ture, is similarly inapposite because the management action involved
there was also not a mere relocation of one facility but rather a merger
and consolidation of three distinct facilities , two of which had separate
histories of collective bargaining, into one facility at a new site.
12 The General Counsel excepts to the judge's failure to find that
Harte violated Sec. 8(a)(2) by informing employees that it had executed a
contract with the'Union and that the Union's representatives would come
to the plant. As we find, contrary to the judge, that the parties legally
entered into the contract mentioned , we do not find any merit in this ex-
ception
HARTE & CO.
authorized, we reverse the Judge's finding of the
8(a)(1) violation. However, we adopt his finding
that the union representatives' statements violated
Section 8(b)(1)(A).
The first proviso to Section 8(a)(3) of the Act
provides in pertinent part as follows:
... nothing in this Act . . . shall preclude an
employer from making an agreement with a
labor organization . . . to require as a condi-
tion of employment membership therein on or
after the thirtieth day following the beginning
of such employment or the effective date of
such agreement, whichever is the later ... .
Article 26 of the collective -bargaining agreement
contained the type of provision sanctioned by the
8(a)(3) proviso. However, before a union may seek
an employee's discharge for failure to comply with
an 8(a)(3)-proviso-sanctioned provision, it must
afford the employee a reasonable opportunity to
comply with such provision and also inform the
delinquent employee of the amount owed, the
method used to compute such amount, and the
manner in which the obligation may be satisfied.
Versatile Services, 258 NLRB 810, 815 (1981). Here,
the Local 106 representatives threatened the new
Bound Brook employees with discharge notwith-
standing that these employees had been working
for less than the 30-day grace period to which they
were entitled before they could be discharged for
noncompliance with article 26, and notwithstand-
ing that none of the employees was afforded a rea-
sonable opportunity to comply with article 26 or
informed of the amounts they owed, the method
used to compute the amounts, or the manner in
which they could satisfy their obligation. Under
these circumstances, these threats were violative of
Section 8(b)(1)(A).13 Id. We will order the Union
to cease and - desist from making such unlawful
threats and to reimburse the 60 new employees
who began work for Harte at Bound Brook on 20
April for all dues collected for their initial 30 days
of employment. See Plumbers Local 81 (Morrison
Construction}, 237 NLRB 207, 211 (1978). The
amount of reimbursement shall carry interest in ac-
cordance with the principles of Florida Steel Corp.,
231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent, Local 106, International Leather
13 Member Johansen would dismiss the complaint entirely. There is no
showing the Union sought the discharge of any employee or did other
than advise employees that they were required to join the Union ; in par-
ticular, there is no indication that the Union required that employees
become members before 30 days' employment
951
Goods, Plastics & Novelty Workers Union, AFL-
CIO, New York, New York, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Unlawfully threatening employees with dis-
charge for their refusal to join the Union.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Reimburse with interest the 60 new employ-
ees who began work for Harte at Bound Brook on
20 April 1981, for all dues collected for their initial
30 days of employment.
(b) Post at its offices and meeting places copies
of the attached notice marked "Appendix."14
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
Union to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Forward signed copies of the notice to the
Regional Director for Region 22 for posting by
Harte & Company, Inc., if willing, in conspicuous
places, including all places where notices to em-
ployees are customarily posted.
(d) ' Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegations of
unlawful conduct not specifically found to be vio-
lative of the Act are dismissed.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully threaten employees of
Harte & Company, Inc. with discharge for refusal
to join the Union.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL reimburse , with interest, the 60 new
employees who began work for Harte & Company,
Inc. at Bound Brook , New Jersey, on 20 April
1981, for all dues collected for their initial 30 days
of employment.
LOCAL 106, INTERNATIONAL LEATH-
ER GOODS, PLASTICS & NOVELTY
WORKERS UNION, AFL-CIO
Marguerita R. Greenfield, Esq., for the General Counsel.
James Q Harty, Esq. (Reed, Smith, Shaw & McClay), and
William Bevin III, Esq., of Pittsburgh, Pennsylvania,
for Respondent Company.
Thomas M. Kennedy, Esq. (Lewis, Greenwald & Kennedy),
of New York, New York, for Respondent Union.
DECISION
RAYMOND P. GREEN, Administrative Law Judge.
These consolidated cases were tried before me on March
29, 30, 31, 1982, in Newark, New Jersey. The charges
were filed by Christopher Bates on June 1, 1981, and a
consolidated complaint was issued by the Regional Di-
rector for Region 22 of the National Labor Relations
Board on July 16, 1981.
At the opening of the hearing a partial settlement was
reached which related to the alleged discriminatory dis-
charges of Christopher Bates, Joseph Markey Jr., and
Adam Pyka. The settlement was approved by me and
therefore the General Counsel withdrew from the com-
plaint those allegations against the Company set forth in
paragraphs 18 and 19.
The remaining issues for resolution essentially involve
the question of whether the Company and the Union re-
spectively violated Section 8(a)(1), (2), and (3) and Sec-
tion 8(b)(1)(A) and (2) of the National Labor Relations
Act by entering into a collective-bargaining agreement
containing , inter alia , a union-security clause covering
the production and maintenance employees located at its
facility in Bound Brook, New Jersey. It is the General
Counsel's contention that the Company recognized and
entered into a contract with the Union at this new loca-
tion at a time when the Union did not represent an un-
coerced majority of the employees employed at that fa-
cility. It is the Respondents' view that the execution of
collective-bargaining agreement covering the Bound
Brook employees was legal as that facility, in their opin-
ion, and may be considered merely as a relocation of the
Company's plant located in Brooklyn, New York, where
the employees were represented by the Union.
Based on the record as a whole, including my observa-
tion of the demeanor of the witnesses, and after consider-
ation of the briefs filed, I make the following
FINDINGS OF FACT
1. JURISDICTION
Harte & Company, Inc. is a New York corporation
with places of business in the States of New York and
New Jersey and the Commonwealth of Pennsylvania.' It
is engaged in the manufacture and sale of polyvinyl
chlorides in the form of plastic film or sheets, which are
then made into a variety of products by its customers.
The parties agree that annually the Company sells and
delivers products valued in excess of $50,000 to firms lo-
cated in States other than the States of New York and
New Jersey. It also was agreed and I find that the Com-
pany is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It was stipulated and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The joint board of the State of New York of the Inter-
national Leather Goods, Plastics and Novelty Workers
Union, AFL-CIO was recognized by the Company as
the collective-bargaining representative of its production
and maintenance employees in 1947. Local 106 thereafter
was assigned to administer the succeeding collective-bar-
gaining agreements and to represent, on a day-to-day
basis, the employees of the Company. At the time of rec-
ognition, the Company operated a single plant located at
49 Dupont Street, in Brooklyn, New York. Thereafter, in
the late 1950s the Company purchased an additional fa-
cility two blocks away, located at 77 Commercial Street.
Although its operations were then under two roofs, the
two facilities were, in fact, operated as a single-intergrat-
ed production operation and the hourly employees at
both plants were represented by the Union as a single
bargaining unit. Later, the Company opened another
plant in Mountaintop, Pennsylvania, and the production
and maintenance employees at this facility have both
been represented by another labor organization.2
The penultimate contract between the Company and
the Union, which covered the Brooklyn employees, ran
for a term to expire on February 6, 1981. Among its pro-
visions was a clause which prohibited the Company from
moving its operations from Brooklyn.
It appears that the Company operates within a highly
competitive market and that it bacame apparent to man-
agement that its Brooklyn facilities were dated and ineffi-
cient. In the latter part of 1980, the Company received
permission from its parent to seek newer facilities and to
that end it began negotiations with a company called
Tenneco (a competitor) to purchase the latter's plant lo-
cated in Bound Brook, New Jersey. As a condition of
acquiring a new facility, the parent corporation required
the Company to terminate and sell its Brooklyn proper-
ties in order to defray the expenses of such a purchase.
1 Harte & Company, Inc. is a wholly owned subsidiary of Dynamit
Nobel of America, which is a German-based company.
2 The Company's corporate headquarters and administrative offices are
located on East 34th Street, New York City.
HARTE & CO. 953
On February 12, 1981 , the Company executed a pur-
chase agreement with Tenneco , pursuant to which it ac-
quired the physical plant at Bound Brook , New Jersey,
plus some of its production equipment and the latter's
customer list . This purchase agreement was executed
during the course of collective -bargaining negotiations
with the Union , which had commenced on January 8,
1981 . The production facilities acquired at Bound Brook
consisted of a printing press and two fully operational
calendar lines which are , in essence, analogous to assem-
bly lines on which the plastic film and sheet is manufac-
tured.'
After executing the purchase agreement , the Company
notified the Union , during the collective-bargaining ne-
gotiations, that it had made the purchase and that it in-
tended to phase out the Brooklyn operations within the
year . As a result, the parties then negotiated as to how to
deal with this event and an agreement was made to meet
its exigencies. In relevant part, the Company and the
Union agreed that the Brooklyn employees would all be
given an opportunity to transfer , with their seniority, to
Bound Brook which is 32 miles away or to take sever-
ance pay.4 The parties also agreed to a new contract to
run from February 16, 1981 , to February 17, 1984.5 It
was agreed that this new contract would be applied to
the production and maintenance employees at Bound
Brook when it commenced operations , as well as to the
Brooklyn employees.
In March 1981 , Tenneco terminated the employment
of the people it had employed at the Bound Brook
plant . 6 Harte, in turn , hired some of those employees,
along with others, on a temporary basis to renovate and
clean up the plant, a process which took from March 19
to April 19 , 1981 . The newly hired employees were told
that their jobs were temporary during the cleanup
period , although they were notified that they would be
considered for permanent employment when the plant
became operational . They also were told that if they
became permanent employees , they would be covered by
the collective-bargaining agreement which had just been
negotiated with the Union . As many of these employees
had received higher wage rates when employed by Ten-
neco, the Company asked the Union to reopen the wage
provisions of the contract so as to raise the contract
wage schedule , this being done so as to enable the Com-
pany to attract and retain employees at the Bound Brook
facility . Not surprisingly , the Union agreed . It was fur-
ther agreed that the higher wage rates applicable to the
Bound Brook plant would also be applied , in October
1981 , to any of the Brooklyn employees who might
$ Basically , after the raw materials are mixed and heated, they go
through a calender line where heated rollers produce plastic in a variety
of thicknesses . From that point , the sheet or film is either shipped to a
customer as is, or it is given a finishing process (such as printing, laminat-
ing, or quilting), before shipment. Approximately 60 percent of the Com-
pany's product is shipped in an unfinished state, whereas the remainder
will be finished in one fashion or another.
4 During the negotiations , the Union advised the Company that it be-
lieved that approximately 30 to 40• percent of the Brooklyn employees
might elect to transfer to Bound Brook , New Jersey.
5 The agreement was executed on March 2, 1981.
6 The employees of Tenneco had been represented by the Steelworkers
of America.
remain in Brooklyn in the event that those facilities were
not yet closed.
On April 20, 1981 , the Bound Brook plant commenced
manufacturing operations . At that point , the two calen-
der lines were put into operation and a part of the print-
ing operation was also functional . A third calender line,
which was also at the facility, had not as yet been rebuilt
and there was no quilting or laminating work being
done , as the machinery for those operations was not yet
available in Bound Brook . In the latter regard, since
these two finishing processes had not yet come on line,
that type of finishing was either done by subcontractors,
or the unfinished plastic was sent to the Brooklyn plant
for finishing and shipment .' However, as noted above,
the majority of the Company's shipments to its custom-
ers consisted of unfinished plastic . Thus, when the
Bound Brook plant became operational , it essentially
went on line as a fully functional facility with most of its
ultimate operations and job classifications in place as of
April 20, 1981.
When the Bound Brook plant started operations, there
were 69 production and maintenance employees . At that
time, it was anticipated that ultimately , when the Brook-
lyn operations ' were phased out, there would be about
215 bargaining unit employees at Bound Brook. This an-
ticipated number compared to about 265 employees at
Brooklyn , the difference being that the Bound Brook fa-
cility (particularly the calender lines) was newer and
more efficient . At the commencement of operations on
April 20, 34, of the employees had previously worked for
Tenneco,8 25 were from "off the street," and 9 were
temporary transferees from Brooklyn . However, the
latter group of Brooklyn employees, except one, re-
mained at Bound Brook for only 1 week. As to the su-
pervisory complement , eight were formerly supervisors
at Tenneco , one was previously a supervisor at Brook-
lyn, and three were hired off the street . Although no
plant manager had been hired for Bound Brook, the
Company's vice president of operations performed that
function until December 1, 1981 , when the Brooklyn
plant manager transferred to the new facility and took
over that job.
In addition to the above, representatives of the Union
visited the Bound Brook facility on April 20, 1981,
where they told employees that Local 106 was the bar-
gaining representative and where they solicited union au-
thorization cards . When some employees asked what
would happen if they did not sign such cards, or join the
Union, they were told that membership was a condition
of keeping their jobs. In this respect , the collective-bar-
gaining agreement which was applied to the Bound
Brook employees on April 20 contains a union-security
clause, requiring as a condition of continued employment
membership in the Union 42 days after the effective date
r It appears that in this industry much of the finishing work is done by
contractors . The present Company is somewhat different from its com-
petitors in that it tries to do most of the finishing operations itself,
a Notwithstanding that the Tenneco employees were previously repre-
sented by the Steelworkers of America, that labor organization did not,
at any time , make any claim to represent the Company 's Bound Brook
plant employees.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contract or 42 days after the date of hire , which-
ever is later . It does not appear that employees were told
that they had a 42-day grace period to join the Union
and most signed union cards shortly after these solicita-
tions, obviously on the assumption that they had no
choice.
While the number of employees increased at Bound
Brook during the following months, the decision to
transfer machinery and employees from Brooklyn was
delayed because of a large influx of orders. Thus, the
Company kept the Brooklyn facility operating longer
than it had originally planned . The first piece of manu-
facturing equipment (an electronic quilter) was transfered
from Brooklyn to Bound Brook in July and August, after
which the first group of employees was permanently
transfered on August 31 1981 . This first permanent trans-
fer of a group of Brooklyn employees therefore took
place some 4 months after the Bound Brook plant
became operational . Thereafter, additional equipment
was transfered to the new facility (a-four-color rotogra-
vure printing press and a laminator) and additional
Brooklyn employees and supervisors were transfered to
Bound Brook . After January 1981 the Company's facility
located at Commercial Street was sold, and the other
plant located at Dupont Street is on the market for sale.
Currently, there are approximately 14 employees left in
Brooklyn , mainly performing a caretaker role.
As to the employees and supervisory complement at
Bound Brook , the parties stipulated to the following. On
April 20, 1981 , there was a total of 69 hourly employees
of whom 34 had worked at Tenneco , 26 were hired off
the street, and 9 were temporary transferees from Brook-
lyn, 1 of whom, however, remained at Bound Brook.
There also were 12 supervisors, of whom 8 were former-
ly employed by Tenneco , 3 were hired off the street, and
1 was a Brooklyn transferee . As of May 31, 1981, there
was a total of 86 hourly employees of whom 1 was a
transferee from Brooklyn . On August 31, 1981, 42
Brooklyn employees transfered to Bound Brook, and at
that point, of a total of 152 hourly employees, 43 came
from Brooklyn , and the remainder were either new hires
or former Tenneco employees . On October 12, 1981, an-
other group of 14 employees transfered from Brooklyn
and of a total of 162 hourly employees, 48 now consisted
of Brooklyn transferees . On November 30, 1981 , a third
group of Brooklyn employees transfered to Bound
Brook, and at that time of a total of 205 hourly employ-
ees, 82 came from the Brooklyn facility. During the
period from December 28, 1981 , to January 4, 1982, a
fourth transfer was accomplished , and as of that period,
there was a total of 197 hourly employees , of which the
Brooklyn contingent consisted of 98 employees. As of
March 18 , 1982, the last date referred to in the stipula-
tion , the total complement of hourly employees at Bound
Brook was 219, of whom 91 were Brooklyn transferees,
25 were former Tenneco employees, and 103 were new
hires . Also, as of that date, there were 29 supervisory
employees, of whom 13 had come from Brooklyn, 6
from Tenneco , and 10 from off the street.
III. ANAYLSIS
The facts in this case indicate that when the Company
purchased a new plant facility from Tenneco in Bound
Brook, New Jersey, it intended to transfer the work
done at its Brooklyn facilities and to terminate those op-
erations . It is evident that with this prospect in mind,
when the Company during the course of collective bar-
gaining with the Union announced this plan, the parties
sought to deal with the effects of the purchase and pro-
spective transfer . In so doing , the Company and the
Union agreed to permit the Brooklyn employees either
to take severence pay or to transfer to the new facility
which is located about 32 miles away . It also was shown
that at the time this agreement was made , the parties an-
ticipated that between 30 to 40 percent of the Brooklyn
employees would opt to transfer.
It is clear to me that the Union and the Company bar-
gained in good faith regarding the anticipated transfer,
an event which was bound to have a traumatic effect on
the Brooklyn employees . Thus, they made an effort to
save, to the extent possible, the jobs of those employees.
Nevertheless, good or bad faith is not the legal issue in
this case, and the question is whether both the Company
and the Union transgressed the provisions of the Act by
also agreeing to a new collective -bargaining agreement
which not only was to be applied to the Brooklyn facili-
ties, but which was to automatically apply to the Bound
Brook employees when that plant commenced oper-
ations. °
In essence , the transaction involved herein can be de-
scribed as a relocation from one place to another, which
therefore brings into play a set of legal considerations
under the Act. In this respect, the Board has held on nu-
merous occasions that "an existing and effective collec-
tive bargaining agreement will remain in effect following
a relocation , provided operations and equipment remain
substantially the same at the new location, and a substan-
tial percentage of the employees at the old plant transfer
to the new location ." Westwood Import Co., 251 NLRB
1213, 1214 (1980). This concept is recognized both in
unfair labor practice cases, such as Westwood, 10 and, also
in representation cases under the Act. Thus, for example,
the doctrine was expressed in General Extrusion Co., 121
NLRB 1165, 1167 (1958), where the Board , in discussing
its contract-bar rules, l t stated:
0 There would be no legal question if the Company and the Union
merely agreed to permit the Brooklyn employees to transfer to Bound
Brook without a concommitant agreement that the Company would rec-
ognize the Union at that location irrespective of the circumstances there.
10 In Westwood Import Co., the issue was whether, after a relocation of
operations, the Company was obligated , pursuant to Sec . 8(a)(5) of the
Act, to continue to recognize the Union which represented the employ-
ees at the old location and whether it also was obligated to honor and
maintain in effect the terms of the existing collective -bargaining agree-
ment.
11 Without setting forth all of the rules regarding the contract-bar
principle, suffice it to say that as a general matter a collective-bargaining
agreement having a fixed term , not exceeding 3 years, will bar the filing
of a petition for an election by a rival union, or by employees seeking to
decertify the Union, or by an employer who questions the Union's con-
tinued majority status, unless filed 90 to 60 days prior to the contract's
expiration date , or after the expiration date if no new contract has been
executed during the- insulated period , assuming no premature extension.
Appalachian Shale Products Co., 121 NLRB 1160 (1958).
HARTE & CO. 955
Thus, we shall adhere to the rule that a contract
does not bar an election if changes have occurred-in
the nature as distinguished from the size of the op-
erations between the execution of the contract and
the filing of the petition, involving (1) a merger of
two or more operations resulting in creation of an
entirely new operation with major personnel
changes; or (2) resumption of operations at either
the same or a new location, after an indefinite
period of closing, with new employees . However, a
mere relocation , of operations accompanied by a
transfer of a considerable proportion of the employ-
ees to another plant , without an accompanying
change in the character of the jobs and the func-
tions of the employees in the contract unit , does not
remove a contract as a bar.
Notwithstanding the general statement of principle
quoted above, questions arise in relocation cases as to
what will constitute a substantial percentage of employee
transfers and at what point in time do we measure
whether a substantial percentage of the new work force
is composed of transferees from the old location.
In Westwood Import Co., supra at footnote 8, the Board
made it plain that after a relocation a company would
continue to be obligated to honor the existing contract,
even where the trensferees did not comprise a majority
of the work force at the new location when it became
fully operational. In that case, the Board concluded that,
where approximately 40 percent or the new work force
was composed of transferees, that would constitute a
substantial percentage.12
In Westwood, the Board indicated that the determina-
tion of whether a substantial percentage of the work
force at the new location is composed of transferees,
should be made when the new facility becomes fully
operational . Obviously, this leaves some degree of
leeway and it does not appear that the point of measure-
ment must necessarily be either at the commencement of
operations , or when the new location has reached its
maximum level of employment .19 Quite clearly, in a re-
location of the size involved herein, it can be expected
that the transfer of equipment and employees will not be
instantaneous , but rather will be accomplished in a more
gradual manner . In Arrow Co., 147 NLRB 829 (1964), the
12 See also W. T. Grant Co., 197 NLRB 955 (1972), where - the Board
found that 34 transferees out of a complement of 75 employees was a
substantial percentage . See also NLRB v. Marine Optical, 671 F.2d at 11
(1st Cit. 1982).
1s See Lammert Industries v NLRB, 578 F.2d 1223 (7th Cit. 1978). In
that case the company was held to have violated Sec . 8(ax5) of the Act
when it withdrew recognition after a relocation , where a majority of the
new work force consisted of transferees at the commencement of oper-
ations . The company's argument that the employee complement should
have been measured several months after the opening was rejected and
the court stated:
Although we need not decide whether the Company would have
properly been ordered to bargain with the Union if at the opening of
the new plant, less than a majority of the employees came from the
Union represented facility, we have no question but that the appro-
priate point of analysis is ordinarily the date the new facility opened
and began full operations . Replacements after that date do not, in
most situations, affect the pesumption of the Union's continuing ma-
jority status. Those replacements are presumed to support the Union
in the same ratio as those they replace.
Board concluded that the company 's contract with an in-
cumbent union constituted a bar to a representation peti-
tion filed by a rival union, when the contract was ap-
plied to a new facility in- circumstances where the reloca-
tion took more than 2 months to complete. It is noted,
however, that in Arrow, and unlike the present case,
many of the employees who were present at the new fa-
cility when' it commenced operations were transferees,
and ultimately a majority of the new warehouse's em-
ployees either were originally hired at or were trained at
the old facility.
In NLRB v. Marine Optical, supra, 671 F.2d at 163, the
court enforced the Board's holding that a company
which relocated its operations was obligated to continue
to honor the existing collective-bargaining agreement at
the new location. As in Arrow, the facts in Marine Optical
show a somewhat gradual shift from one location to an-
other, commencing in early October 1979 until its com-
pletion at the end of November 1979. In that case, al-
though some new employees were first hired at the new
location, transfers from the old location commenced
about 2 weeks thereafter , and within about 2 months a
substantial portion of the new location's work force con-
sisted of transferees . The court stated:
Here, there is no dispute that the operations of
the Company remained substantially the same fol-
lowing the relocation to Brockton. In addition, the
twenty-six Roslindale employees who transfered to
the Brockton facility constituted forty percent of
the former bargaining unit, the same percentage
found by the Board in Westwood Import to be sub-
stantial . Accordingly, the Board applied the con-
tract-bar doctrine here as it did in Westwood Import,
and concluded that the Company, precluded from
questioning the Union's majority status during the
term of an existing collective bargaining agreement,
had violated the Act by changing the terms of em-
ployment and refusing to recognize and bargain
with the Union upon relocation.
While it may be said that in certain circumstances the
Board and the courts will conclude that an existing con-
tract will survive a "mere relocation," it should be rec-
ognized that this principle involves a balance between
the rights of certain employees to retain their bargaining
representative and contract rights after a relocation, as
against the rights of other employees (even a majority)
to select whether or not they wish to have union repre-
sentation. For example, in Hudson Berlind Corp., 203
NLRB 421 (1973), the Company purchased two ware-
houses from different employers, the employees of which
were represented by two different unions . When the
Company merged both warehouses and the employees
into a new facility, it recognized the Union which repre-
sented the larger group of employees. In that circum-
stance, the Board held that the Company violated Sec-
tion 8(a)(2) of the Act by unilaterally selecting among
rival union claims , and thereby depriving the'employees
of their right to select which union, if any, they wished
to be represented by. It nevertheless is noted that the
facts of the instant cases are distinguishable from those in
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hudson Berlind, as the latter case involved a merger and
consolidation of two facilities into a third, and because
rival unions were each making legitimate representational
claims.. In the present case, although many of the em-
ployees at the Bound Brook plant were formerly em-
ployed by Tenneco where they were represented by a
Steelworkers union, that labor organization did not make
any claim to represent the Respondent 's employees and
the General Counsel does not assert a Midwest Piping14
theory to support her argument that recognition herein
violated Section 8(a)(2) of the Act. For this reason, the
General Counsel's reliance on American Can Co., 218
NLRB 102 (1975), is somewhat diluted as that case was
decided, at least in part, on a Midwest Piping theory.
In view of the above, it seems to me that the crucial
question herein is whether the relocation from Brooklyn
to Bound Brook meets the legal tests enunciated in Gen-
eral Extrusion. If it does, then it must be concluded that
the agreement by the Company and the Union to apply
the Brooklyn collective-bargaining agreement to the new
facility was not violative of the Act, even though that
agreement was made prior to the start of operations and
the hiring of employees at Bound Brook Fairlawn Care
Center, 233 NLRB 1025 (1977). On the other hand, if it
does not meet the legal criteria of a "mere location," a
finding that the Company and the Union violated the
Act must necessarily follow, irrespective of whether
those parties acted in good faith. General Cinema Corp.,
214 NLRB 1074, 1075 (1974).
In view of all the circumstances in this case , and after
considering the excellent briefs filed by the parties, I find
that I am ultimately in agreement with the General
Counsel. In reaching this conclusion , it seems to me that
the numbers inexorably compel this result . As noted
above, after the initial cleanup period, the Company
commenced manufacturing operations on April 20, 1981,
at the Bound Brook Plant. When opened, two of the
three calender lines were operational and the basic prod-
ucts (polyvinyl film and sheets) were being produced and
shipped to customers.15 Moreover, when the plant
became operational there were 69 production and main-
tenance employees, a significant number , even when
compared to the planned total complement of 215 (about
31 percent). Of these, only a single employee was a per-
manent transferee from Brooklyn and the remainder
were either former employees of Tenneco or new 'hires.
Given these facts, a good argument could be made that
the plant became fully operational as of April 20, 1981.
Moreover, the operations at this plant continued to
14 Midwest Piping Co., 63 NLRB 1060 (1945). In that case , the Board
held that a company may not initially recognize one union (even when it
represents a majority of the employees), where a second union has made
a colorable claim of representation for the same group of employees. It is
noted that the Midwest Piping doctrine has received a good deal of criti-
cism and nonacceptance by reviewing courts . See, e.g., Playskool. Inc. Y,
NLRB, 477 F.2d 66 (7th Cir . 1973); NLRB v. Peter Paul Inc., 467 F.2d
700 (9th Cir. 1972); Modine Mfg. Co. v. NLRB, 453 F .2d 292 (8th Cir.
1971); American Bread Co. v NLRB, 411 F.2d 147 (6th Cir. 1969); NLRB
v. Air Master Corp., 339 F.2d 553 (3d Cir. 1964).
15 To a limited extent , some finishing work on plastic produced at
Bound Brook was being done at the Brooklyn facility . However, at least
60 percent of the product is shipped to customers in an unfinished state
and much of the finishing work for Bound Brook's product was being
done by outside contractors.
expand as more and more employees were hired . Never-
theless, it was not until August 31, more than 4 months
after the plant began producing its products that any ad-
ditional employees were transferred from Brooklyn to
Bound Brook. At that time, of 152 unit employees, only
43 came from Brooklyn , the rest being either former
Tenneco employees or new hires . Clearly by this time,
operations were well underway , and at that point only
about 28 percent of the total complement consisted of
Brooklyn transferees . As of October 12 (more than 6
months after the opening), and after a second group of
Brooklyn transferees arrived , those transferees comprised
about 29 .6 percent of the total unit of 162 employees. A
month later, and as of November 30, a third group of
transferees arrived and they comprised , at this point in
time, about 40 percent of the 205 unit employees . There-
after, from December 28, 1981 to January 4 , 1982, the
final group of Brooklyn employees transfered to the
Bound Brook plant , but still constituted less than a ma-
jority of the work force . In fact, at no time did the trans-
ferees ever constitute such an majority.
In relation to the foregoing, it is clear that it was not
until November 30, 1981 , more than 7 months after the
Bound Brook plant began operating and long after it had
become "fully operational" that the Brooklyn transferees
comprised a substantial percentage of the work force. On
the other hand, during the intervening months, an over-
whelming majority of the employees at Bound Brook
were being represented by a union which they had no
role in selecting . Given these circumstances , it seems to
me that as the Brooklyn transferees did not comprise a
substantial percentage of the work force at a time when
the Bound Brook facility became fully operational, the
extension of the collective-bargaining agreement to this
plant must be viewed as violating the Act . As such, it is
concluded that by extending recognition to the Union as
the bargaining representative of the Bound Brook em-
ployees the Company violated Section 8(a)(1) and (2) of
the Act. Similarly, it is concluded that by accepting such
recognition, the Union has violated'Section 8(b)(1)(A) of
the Act. Additionally, as the contract which was execut-
ed and applied to the employees of this facility contains
a union-security clause, it also is concluded that the
Company has violated Section 8(a)(1) and (3) of the Act
and that the Union has violated Section 8(b)(1)(A) and
(2) of the Act. McKesson Drug Co., 257 NLRB 468
(1981); Crusher Food Warehouse, 249 NLRB 433 (1980).
Finally, it is concluded that when the Union 's repre-
sentatives told newly hired employees at Bound Brook
that they were required to join the Union or lose their
jobs, this too constituted an additional violation of Sec-
tion 8(b)(1XA) of the part on the Union and a violation
of Section 8(a)(1) on the part of the Company . As to the
Company , this last conclusion is based on the fact that
the Union's representatives spoke to employees on com-
pany premises, obviously with permission , and after the
Company 's representatives had told the employees that
the contract would be applied to them. McKesson Drug
Co., supra; Crusher Food Warehouse , supra at 438.
HARTE & CO. 957
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Company has violated the Act
by recognizing and bargaining with the Union as the rep-
resentative of the production and maintenance employees
at its Bound Brook plant, and that the Union has violat-
ed the Act by accepting such recognition and bargaining,
I shall recommend that the Company withdraw and
withhold recognition from the Union as the representa-
tive of the Bound Brook employees unless and until the
Board shall certify it as such representative. I also shall
recommend that Respondent cease giving effect to the
collective-bargaining agreement insofar as it applies to
the Bound Brook employees, or to any modification, ex-
tension, renewal, or supplement thereof. However, this
Order shall not be construed to require the Company to
vary any of the substantive terms, conditions, and bene-
fits for employees currently in effect.
Additionally, having found that the Company unlaw-
fully assisted the Union by entering into a collective-bar-
gaining agreement covering the employees at its Bound
Brook facility and as that contract contains a union-secu-
rity clause which therefore .was unlawful, I shall recom-
mend that the Respondents, jointly and severally, be or-
dered to reimburse all past and present employees of the
Bound Brook facility for all initiation fees, dues, or other
moneys paid or checked off pursuant to the union-securi-
ty agreement or any extensions, renewals, modifications,
or supplements thereof, of any superseding agreement.
The amount of reimbursement shall carry interest in ac-
cordance with the principles of Florida Steel Corp., 231
NLRB 651 (1977). However, reimbursement will not
extend to any such employees who may have voluntarily
joined and been members of the Union prior to April 20,
1981.
CONCLUSIONS OF LAW
1. The Respondent, Harte & Company, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local 106 , International Leather Goods, Plastic &
Novelty Workers Union, AFL-CIO and Joint Board of
the State of New York of the International Leather
Goods, Plastics and Novelty Workers Union, AFL-CIO
are labor organizations within the meaning of Section
2(5) of the Act.
3. By entering into a collective -bargaining agreement
covering the production and maintenance employees at
the Company's Bound Brook plant at a time when the
Union did not represent an uncoerced majority of those
employees , Respondents have respectively violated Sec-
tion 8(a)(1) and (2) and Section 8(b)(1)(A) of the Act.
4. By maintaining, in force and effect , the above-de-
scribed collective-bargaining agreement containing a
union-security clause, the Respondents have respectively
violated Section 8(a)(1) and (3) and Section 8(b)(1)(A)
and (2) of the Act.
5. By telling employees that their continued employ-
ment by the Company was conditioned on their , member-
ship in the Union , the Respondent Union has violated
Section 8(b)(1)(A) of the Act.
6. By permitting union agents on its premises , after un-
lawfully recognizing ' the Union as the bargaining repre-
sentative of the Bound Brook employees, and by permit-
ting the Union to make the threats described above in
paragraph 5, the Company has violated Section 8(a)(1) of
the-Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
[Recommended Order omitted from publication.]