Prince Pontiac, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1969

174 N.L.R.B. 919 (N.L.R.B. 1969)

PRINCE PONTIAC, INC. 919
Prince Pontiac , Inc. and Steven A. Gibson
Local 259 , United Automobile , Aerospace and
Agricultural Implement Workers of America,
UAW and Local 815, affiliated with the
International Production , Service and Sales
Employees Union , Party to the Contract. Cases
29-CA-1187 and 29-CA-1274
March 20, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 18, 1968, Trial Examiner A.
Norman Somers issued his Decision in the
above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor
practices as alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel and the Charging Party, Local 259, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
respectively by Steven A. Gibson in Case 29-CA-1187 and
by Local 259 UAW, AFL-CIO (hereafter Local 259) in
Case 29-CA-1274 ' The complaint alleges that the
Respondent, in violation of Section 8(a)(2) and (1) of the
Act, assisted Local 815, the Party to the Contract, by
executing with it "on or about August 29, 1967" and
maintaining a collective-bargaining agreement despite the
fact, as alleged, that when the contract was made Local
815 lacked a majority, or at least an uncoerced majority,
of employees in the covered unit, and further, the
Respondent then lacked a representative complement of
employees in the unit (The contract included
union-security provisions, and for that reason is
derivatively alleged to have violated Section 8(a)(3) as
well.)
The General Counsel, the Respondent, and Local 815
presented oral argument, and the General Counsel and
Respondent have filed briefs, all of which have been duly
considered. Upon the entire record' and my observation of
the witnesses, I hereby make the following.
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Respondent, Prince Pontiac, Inc., is a New York
corporation engaged at a place of business in Wantaugh,
New York, in the sale and service of automobiles and
related products. Respondent (based on a projection since
September 21, 1967) has a gross annual revenue of at
least $500,000, and it purchases and receives annually at
least $50,000 of automobiles and accessories from out of
the State. It is not disputed and I find that Respondent is
engaged in commerce within the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Local 259, UAW, AFL-CIO, the Charging Party in
Case 29-CA- 1274, and Local 815, the Party to Contract,
are labor organizations within the meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICE
A. The Allegations of the Complaint and the Issue of
the Sufficiency of the Charges as a Predicate for
Them
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
'While we agree with the Trial Examiner 's finding that the Respondent
had a representative complement of employees when it executed the
contract with Local 815 on September 16, 1967, we do so on the basis of
all the circumstances present herein, including the required percentages set
forth in General Extrusion Company. Inc, 121 NLRB 1165, 1168
TRIAL EXAMINER'S DECISION
A. NORMAN SOMERS, Trial Examiner : This case, with
all parties represented by counsel , was heard before me in
Brooklyn, New York, on May 12 and 13, 1968, on the
consolidated complaint of the General Counsel (hereafter
the complaint ) issued March 29 , 1968, on the charges filed
As mentioned, the complaint alleges that Respondent
violated Section 8(a)(1) and (2) by assistance given to
Local 815 in entering into a contract with it under
circumstances rendering the contract invalid (and violated
Section 8(a)(3) because of union security clauses in the
contract). The complaint alleges that Respondent and
Local 815 entered into this contract, on or about August
29, 1967,' despite the fact that when the contract was
made, Local 815 did not have a majority or at least an
uncoerced majority of membership or authorization cards,
and in any event did not have a representative
complement of employees in the unit.' On August 29,
Respondent had three employees in the unit - two
porters and a mechanic. On Monday, September ll,
Respondent put on two more mechanics (Charging Party
'The charge of Gibson was filed and served December 26, 1967 The
charge of Local 259 was filed March 14, and served by registered mail
March 15, 1968
'As corrected by an order of the undersigned included in the record as
TX Exh. 2
'The year is 1967 in all instances except where otherwise indicated
'The unit, in essence, consists of Respondent ' s service employees The
174 NLRB No. 191
920 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Gibson and another) bringing the composition to five On
Saturday, September 16, when Respondent had these five
employees, Respondent and Local 815 executed a 2-year
contract (G. C Exh 3) which these two contracting
parties assert was the only contract they made and is the
one now in effect between them
The General Counsel claims, however, that these
contracting parties made an earlier contract on August 29
This consists of a document, in evidence as General
Counsel's Exhibit 5, which is identical with the September
16 document except for the date and the further fact that
the August 29 document does not contain the signatures
of the contracting parties as does the one of September
16 On the other hand, there are elements which
apparently link the document of August 29 with the one
of September 16. As stated, in contents and in the
typewriting they are completely alike. However, there is
one sentence at the end of the "wage schedule," which
appears in the August 29 document in handwriting and in
the corresponding place in the September 16 document in
typewriting. At the right of the handwritten line in the
August 29 document are the initials in handwriting "SP"
and "PJC " Saul Postman, president of Local 815, denied
he wrote these initials and claimed they were "a bad
imitation," and Philip J Carlton, president of
Respondent, claimed "I didn't bring my reading glasses "
At the hearing, each president wrote his initials five times
on a separate paper (G. C Exhs 6 and 7) No
handwriting expert testified in the case but it would seem
apparent that the initials on the August 29 document were
written by the persons who wrote their initials at the
hearing before us. Further, while the handwritten sentence
reads "Mechanics can do Lube and Oil changes," the
capital "L" in lube as written resembles a "T " The
September 16 document reproduces in typewriting that
sentence in a manner reflecting the peculiarities of the
handwriting in the August 29 document. It appears in
typewriting as "Mechanics can do tube [sic] and oil
changes " Also, Company President Carlton admitted that
that sentence was specifically discussed by him and
Postman before its incorporation into the contract.
Because of this and other circumstances, the General
Counsel asserts that these contracting parties made their
agreement on August 29 when Respondent had three
employees and that they duplicated that document, except
for the date, on September 16, when Respondent had five
employees The General Counsel claims that even a
complement of five would be unrepresentative a matter
to be later discussed but if the number is three it is
clearly unrepresentative in the light of the ultimate
composition of the unit as achieved - an average
complement of 16
This brings us to the adequacy of the charges as a valid
foundation for the complaint. Insofar as the General
Counsel relies upon events occurring when Respondent
had three employees, he must derive his support from the
charge of Gibson. Gibson's charge was filed and served
December 26 (supra, fn 1). Though this was within six
months after the events alleged in the complaint, the
question is whether its contents are a valid foundation for
the allegations of the complaint Gibson's charge does not
accuse Respondent of an 8(a)(2) violation, or of assisting
contract describes the classifications as "maintenance , mechanics, parts,
body and fender repairs " The functional divisions in the payroll are
porters and mechanics
Local 815 or any other labor organization The charge
alleges that Respondent discharged Gibson on December
15 in violation of Section 8(a)(1) and (3) "solely and only
because of my activities on behalf of Local 259." Gibson's
charge also has the standard "other acts" paragraph
followed by the words "and has otherwise violated the
Act."' The 8(a)(1) and (3) specification based on the
allegedly discriminatory reason for his discharge on
December 15 because of his activities on behalf of Local
259 was not included in the complaint, and was indeed
withdrawn. The Regional Director, on March 29, 1968,
the same day the complaint issued, wrote Gibson with
copies to the parties stating
This is to inform you that I have approved the
withdrawal of those portions of the charge in the
above-entitled matter alleging that Carlton Ford, Inc.
[sic] engaged in unfair labor practices and the
discriminatory discharge of Steven A Gibson The
other portions of the charge are being processed further
Thus, the only predicate in Gibson's charge for the
allegation of the complaint is the residual "other acts"
sentence followed by the words "and has otherwise
violated the Act "
On the other hand, the charge filed by Local 259, does
furnish a substantive predicate for the allegations of the
complaint. That charge contains the matter in Gibson's
charge (supra, fn 5) and also the accusation that
Respondent, in violation of Section 8(a)(2), dominated
and assisted Local 815.6 Though that charge makes no
reference to any invalidly entered contract, its assertion of
8(a)(2) assistance to Local 815 is sufficiently related to the
matter in the complaint to constitute a valid predicate to
these allegations. The rub there, however, is in the
six-months limitation of Section 10(b). Local 259's charge
was filed and served, respectively, on March 14 and 15,
1968, and so under the Bryan Manufacturing doctrine,'
the General Counsel cannot under that charge rely on
events preceding September 15 Accordingly, unless
Gibson's charge validly supports the complaint, the
General Counsel must fall back on Local 259's charge and
in that instance, he is confined to events beginning
September 15, when Respondent had five employees.'
'Gibson ' s charge reads
On or about December 15, 1967, the Employer discharged me solely and
only because of my activities on behalf of Local 259, United Automobile
Workers, AFL-CIO, in violation of Section 8 (a) (1) and (3) of the Act
By the above and other acts, the above-named employer has interfered
with, restrained and coerced employees in the exercise of their rights
guaranteed under Section 7 of the Act , and has otherwise violated the
Act
'The portion of the charge of Local 259 other than that contained in
Gibson ' s charge, states
Since September 15, 1967, and theretofore [ sic] the Employer, in
violation of Section 8(axl) of the Act, interfered with, restrained or
coerced its employees in the exercise of their rights guaranteed in
Section 7, and continues to so interfere with, restrain or coerce said
employees , and in violation of Section 8(aX2), dominated or interfered
with the formation or administration of a labor organization , to wit,
Local 815 , International Production Service & Sales Employees Union,
or contributed financial or otherwise to it
Local Lodge No 1424 (Bryan Mfg Co ) v NLRB B. 362 U S 411
The discussion above has concerned only one ground of the claimed
invalidity of the contract - the absence of a representative complement
This is because the other ground , that when the contract was signed, Local
815 did not have a majority or at least an uncoerced majority of employees
in the unit is not supported The General Counsel depends on testimony of
Gibson that on September 15, which is a few days after he was hired,
Carlton, Respondent 's president , introduced Serge Diaz, organizer of Local
815, to him and three of the five employees then working, and recruited
PRINCE PONTIAC, INC. 921
B. Whether Gibson's Charge Though Timely Filed
and Served, Was a Valid Predicate for the
Allegations of the Complaint
1. Governing principle- though a charge is not a
pleading, neither may it be a total blank concerning
what the accused party is being accused of
The General Counsel relies on the principle that "a
charge is not a pleading but merely serves to initiate an
investigation to determine whether a complaint shall
issue ."9 That is not disputed or disputable , and neither is
the proposition in the sentence he quotes from the Second
Circuit opinion in the Pecheur Lozenge case , '" as follows
This Court and other courts have rejected attempts .
to restrict the Board ' s complaint to the precise
violations specified in the charge [Emphasis supplied.]
On the other hand , he omits the immediately ensuing
sentence , which is crucial to the issue The court stated
In N L R B v Dinion Coil Co., supra [201 F.2d 484,
491 (C A. 2)], this Court held that "the complaint
may allege violations not alleged in the charge if (a)
they are closely related to the violations named in the
charge, and (b) occurred within six months before the
filing of the charge ." [Emphasis supplied ]
The General Counsel cites a still later case of that court,
N L R.B v Pallette Stone Corp , 283 F. 2d 641 (C.A. 2).
But he does so in support only of the truism that the
charge initiates the investigation to determine the
allegations in the complaint Yet the court there too
repeated the pronouncements in Dinion Coil and Pecheur
Lozenge that the allegations of the complaint must be
"closely related " to those in the charge
The General Counsel ' s brief, as stated , does not
mention that standard , neither does he undertake to show
how the violations in the complaint are related to Gibson's
charge, whether on the face of that charge or from
evidence in the record Gibson testified that before he was
employed on September 11, he was interviewed the latter
part of August by Respondent ' s general manager,
Anderson , that he asked Anderson what the benefits
would be, and that Anderson replied they would be the
benefits that come with union membership, and that
Anderson thereupon brought him to the service area,
where in two places he saw something posted which
looked like a labor contract and which contained the
number , as best he remembered ( though he was not sure),
of Local 815 The General Counsel links that with the
August 29 document , which on its face is the prototype of
the executed September 16 document , and which the
General Counsel contends was the contract but was
duplicated from the August 29 document during the time
when the composition expanded from three to five by the
hiring of two new mechanics who included Gibson himself.
There was no reference on Gibson's direct examination to
Local 259 or to his withdrawn claim that he was
discharged for activities on its behalf However, on
disputed and for reasons later stated has not been credited Infra, fn 12
We proceed here to whether Gibson ' s charge in its contents supports the
complaint
'Citing, among many other cases , Triboro Carting Corp , 177 NLRB
1775, 777 (enfd 251 F 2d 959 (C A 2), per curiam in open court)
"N L R B v Pecheur Lozenge Co , 209 F 2d 393, 401 (C A 2), enfg as
modified 98 NLRB 496, cert denied 347 U S 953
cross-examination, counsel for Local 815, in impeaching
Gibson's credibility and particularly to demonstrate his
bias, elicited from Gibson that before his discharge on
December 15, he, Gibson, had been supplied with
membership cards by Local 259 (to which he had once
belonged) and had solicited his fellow employees to sign
up with Local 259, and further that after his discharge on
December 15, he was again in touch with Local 259 and
as a result thought that his charge would or could lead to
his being reinstated and to his becoming steward of Local
259 at Respondent's place Yet in spite of this, Gibson's
charge contained no suggestion that his discharge had any
connection with Local 815, which he did not even mention
in the charge, and so far as appears in the pretrial
affidavit (which is not in evidence but whose contents
appear interstitially to the extent that cross-examining
counsel for Local 815 used it in impeachment of Gibson)
there is no indication that he claimed his discharge had
any connection with Local 815 And in his own testimony
on cross-examination, he specifically disclaimed that his
discharge had any connection with Local 815 Why he was
in fact discharged does not appear, except that (as also
elicited on cross) he had been frustrated in his aspirations
to be made a foreman
Thus, his charge indicates no connection between his
discharge and Respondent's relations with Local 815,
either on the bases of what is stated in the charge or was
developed at the hearing. So the allegation that
Respondent violated Section F ,a)(2) hinges solely on the
residual "other acts" clause with the added words, "and
has otherwise violated the Act " Supra, fn 5. To be sure,
the "other acts" sentence has been held to be valid
support for a complaint alleging specific acts in violation
of Section 8(a)(1), even if the charge alleges a violation of
8(a)(3), which does not appear in the complaint, and the
complaint alleges specific 8(a)(1) violations not stated in
the charge This is because a charge is a sufficient
foundation for the allegations of the complaint, if it
"informs the alleged violator of the general nature of the
violations charged against him and enables him to
preserve the evidence relating to the matter "" Where,
however, the complaint alleges a different category of
violation from one in the charge, then if the charge does
not by its content show the relationship, it must at least
appear on the basis of the evidence. Illustrative is the case
of Pecheur Lozenge, supra, fn. 10 The charge there
alleged violations of 8(a)(1) and (3), while the complaint
alleged and the Board found violations of 8(a)(1), (3), and
(5). The Court was at pains to show that the 8(a)(5)
violation alleged in the complaint was "interrelated" with
the 8(a)(1) and (3) violations stated in the charge The
Court explained that the 8(a)(1) and (3) violation in the
charge consisted of the employer's refusal to reinstate
striking employees, and that this refusal involved the
dealings between the employer and the union (the
employees' bargaining representative), which in their very
content consisted of refusals by the employer to bargain
collectively with the union. A comparable situation is
presented in Red Ball Freight, Inc , 157 NLRB 1237,
which the General Counsel cites under the general and
undisputed proposition that a charge initiates the
investigation to determine whether a complaint should
issue The General Counsel in his brief in the instant case
states that Red Ball "concerns a complaint alleging
8(a)(2) assistance based upon a charge alleging
discrimination " However, in that case, as the Board
"N L R B v Raymond Pearson , Inc, 243 F 2d 456 (C A 5) Accord
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arises are the same as the facts on which the allegation of
Section 8(a)(l) and ( 3) are based" and were specifically
found . The General Counsel makes no such claim here,
and so the only nexus between the 8 (a)(2) violation in the
complaint and Gibson ' s charge is a derivative one. This,
as the Board held in Champion Pneumatic Machinery
Co , 152 NLRB 300, is hardly enough As the Board,
approving the Trial Examiner ' s rationale , stated (id. at
303)'
But I cannot read the "other acts" language of the
original charge as embracing any and all violations of
Section 8(a)(2), (3 ), (4), and (5) which might have
occurred within the 6 months prior to the filing of that
charge Any such construction would all but write the
limitations provision out of the Act , as the General
Counsel would have carte blanche, once an allegation of
"other acts" was included in a charge , to range far and
wide over the entire field of employer unfair labor
practices . The purpose of the limitations provision - to
give an employer timely notice of the conduct alleged to
have violated the Act - would be defeated by such a
construction To be sure , the charge is not a pleading,
and the General Counsel is not limited to the precise
matters alleged therein . But the courts in sustaining the
General Counsel ' s power to extend his complaint
beyond the allegations of the charge have insisted that
the new violations be "closely related to the violations
named in the charge " N L R.B v Dinion Coil
Company, Inc. 201 F. 2d 484 , 491 (C A 2), see also
N L R.B v Pecheur Lozenge Co., Inc, 209 F 2d 393,
401 (C A 2), cert . denied 347 U S 953
In Champion Pneumatic , the charge alleged the
employer raised wages and transferred employees to
discourage membership in the charging union in violation
of Section 8(a)(3) and (1). The General Counsel amended
the complaint to include an 8(a)(2) violation based on the
employer's having formed and assisted an Employee
Grievance Committee . Though the General Counsel at
least claimed there was a factual relationship between the
alleged 8 (a)(3) conduct and the newly alleged 8(a)(2)
conduct , the Trial Examiner nevertheless , with Board
approval, found the 8 (a)(2) violation was not "closely
related" to the 8 (a)(3) and ( 1) violations stated in the
charge within the principle of Dinion Coil and Pecheur
Lozenge Here, not only does no relationship appear but
no such relationship between what was stated in the
charge and what was alleged in the complaint was sought
to be developed or even claimed.
The conclusion is that Gibson ' s charge is not a valid
foundation for the complaint This leaves only the charge
of Local 259
C The Alleged Violations Predicated on the Charge
of Local 259
As mentioned , the 6-month period preceding Local
259's charge carries one to no earlier than September 15.
As also mentioned, the General Counsel contends that
even if one were to accept September 16 as the day
Respondent and Local 815 executed the only contract
between them , the five employees Respondent then had
were still not a representative complement . This, in fact, is
the sole substantive issue before us.' 2
N L R B v Reliance Steel Products , 322 F 2d 49 (C A 5), North America
Rockwell Corp v NLR B , 389 F 2d 866 (C A 10)
'rrhe General Counsel claims further that on September 15, Respondent
Though the General Counsel contends that five
employees too are not a representative complement, he
nevertheless relies on the 30 percent ratio articulated in
General Extrusion Co., 121 NLRB 1165. The Board there
decided that a contract "does not bar an election if
executed prior to a substantial increase in personnel."
Concerning this, the decision in the General Extrusion
case states that "a contract will bar an election only if at
least 30 percent of the complement employed at the time
of the hearing had been employed at the time the contract
was executed and (italics in text) 50 percent of the job
classifications in existence at the time of the hearing were
in existence at the time of the contract was executed "
The numbers of the job classifications are not specified,
nor does the General Counsel rely upon them. The
General Counsel indicates that the 30 percent ratio applies
in an unfair labor practice case on the question of validity
of the contract, citing Kaynard v. Cowles
Communications Co , 66 LRRM 2052, 2063, fn. 12, of
that case."
engaged in a separate violation of 8(aX2) in a specific act of assistance to
Local 815' s organizing activity This is not sustained by a preponderance
of the evidence
Concerning this, the General Counsel relies on the testimony of Gibson
that on September 15, Serge Diaz, organizer of Local 815, entered the
working premises in the presence of Company President Carlton, and upon
being introduced by Carlton (who immediately left), Diaz discussed union
benefits to four of the five employees, and this consumed about 15 to 20
minutes of working time Gibson testified that Diaz discussed this with him
and McCormack ( whose employment began September 11) and Steele and
D'Angelo (whose employment, along with one more employee began in
August) He further testified that Diaz passed out union membership and
checkoff authorization cards which Gibson and McCormack signed, and
that Diaz appointed McCormack as temporary steward Carlton and Diaz
categorically denied the incident These two denied that Carlton introduced
Diaz to the employees or had accompanied Diaz Diaz further denied that
his solicitation of any employees occurred other than outside Respondent's
premises
Whatever reservations one might have about the reliability of the
testimony of Carlton and Diaz on other matters (which concern events
preceding the 6-month period ) on this specific item before us, the quality
of Gibson' s testimony , uncorroborated , does not outweigh the denials of
Carlton and Diaz
It is further noted that the September 15 incident does not concern
Local 815's majority at time of execution of the contract The other three
employees were signed up before August 29, when they were Respondent's
only employees These three were a unanimous designation assuming the
contracting parties had made a prior contract on August 29 as the General
Counsel claims, and in any event constituted a majority on September 16,
when the contract in evidence in this case was signed
"This was a proceeding in the District Court under Sec 10(I) to restrain
giving effect (pending Board decision ) to contracts alleged in the complaint
to have been made in violation of Sec 8( aX2) and (1) on the part of the
employer and 8(bXIXA) on the part of the contracting unions One basis
for such alleged invalidity was that the contract stemmed from recognition
given by the employer to the respective unions at a time when the
employer did not have representative complement of employees in the units
involved In sustaining the General Counsel' s petition that a prima facie
case was made , the Court in Cowles (ibid ) deemed the 30-percent rule in
General Extrusion to be relevant also to the issue of the validity of a
contract in an unfair labor practice proceeding The Board , in its decision
later issued in that case , Cowles Communications , Inc. 170 NLRB No
177, sustained the complaint and held the contracts invalid See id TXD
Though the crucial date there was when the employer recognized the
contracting unions, the issue is the same whether the unrepresentative
complement existed when the contract was executed or when the employer
granted the recognition which underlay the contracts ' execution Though
the complaint in the case before us alleges the complement was
unrepresentative at the time the contract was made, and does not
specifically allege that the complement was unrepresentative at the time of
recognition, nevertheless, if the charge of Local 259 were not limited to a
period earlier than September 15, it could well have been appropriate to
consider whether the contract , though executed September 16, overlay a
PRINCE PONTIAC, INC.
The composition of the employees on September 16,
when the contract was executed, is appraised against the
ultimate composition. The General Counsel indicates this
ultimate composition to have been between 14 and 18
employees with an average of 16 The stipulated figure as
of the last day of each week from August 18, 1967, to
May 3, 1968 (G. C Exh 8) shows that as of May 3 (the
week prior to the one preceding the hearing in this case)
the employees were 16 in number, and on the last day of
the hearing, it was 12 (due to the fact that 4 employees
had just quit). Applying that 30 percent ratio, the
complement at the time of execution met that ratio
though by a hair's breadth.10
CONCLUSION
Since the five persons employed at the time of the
execution of the contract on September 16 exceeded 30
percent of the average complement either ultimately
achieved or as existing on the date of the hearing,
Respondent had a representative complement of
employees at the time of the execution of the contract. It
follows that Respondent's execution of the contract with
Local 815 did not constitute assistance in violation of
Section 8(a)(2) and (1) or a violation of Section 8 (a)(3)
because of the union security provisions in them.
923
RECOMMENDED ORDER
On the basis of the findings and conclusions here stated
and on the whole record, it is hereby recommended that
the case be dismissed.
prior recognition granted to Local 815 Cohen Respondent had only three
employees This, however, would carry us to a period earlier than the
limitations period of Local 259' s charge
"See West Penn Hat & Cap Corp, 165 NLRB No 77, fn I
In the cases where the contract was invalidated by reason of an
unrepresentative complement (whether as of the time of execution of
contract or granting of recognition out of which the contract flowed) the
original number was well below 30 percent of the ultimate composition as
realized It was also such compared to the ultimate composition as
anticipated (a factor not developed or discussed in this record) By way
example A 0 Smith 122 NLRB 321, 327 (4 out of an anticipated 15 and
25 as actually achieved ), The Englander Co (first case) 114 NLRB 1034,
1041 (10 out of an anticipated "substantially greater" force , achieving 75
about seven months after recognition ), The Englander Co (second case)
118 NLRB 707, 731 constituting " a small fraction of the anticipated
force", Young & Greenwalt Co, 157 NLRB 408, 411 (where among
numerous other factors, the complement at the time of recognition was
only about 25 percent of the average number of employees working during
the following three months , and where even then the complement was not
large enough to operate the plant efficiently once production began) And
in the previously mentioned case of Cowles Communication 170 NLRB
No 177, there were 14 at time of recognition as against 55 to 60 as
actually achieved when production began and as originally anticipated