Suburban Transit Corp.Download PDFNational Labor Relations Board - Board DecisionsMay 4, 1973203 N.L.R.B. 465 (N.L.R.B. 1973) Copy Citation SUBURBAN TRANSIT CORP. 465 Suburban Transit Corp . and Highway and Local Motor Freight Drivers, Local No. 701 , affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and United Transportation Union , Lodge No. 1589, Party to the Contract H.A.M.L. Corporation and Highway and Local Motor Freight Drivers, Local No. 701 , affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and United Transportation Union , Lodge No . 1589, Party to the Contract . Cases 22-CA-4656, 22-CA-4665, and 22-CA-4670. We hereby correct the Administrative Law Judge's inadvertent error in finding that Respondent H.A.M.L. violated Sec. 8(a)(3) of the Act by unlaw- fully recognizing , and signing a contract with, the United Transportation Union. Such conduct violates Sec. 8(a)(2) of the Act, and we so find. Also, Respondent H.A.M.I. Corporation is to post Appendix B attached to the Administrative Law Judge 's Decision, rather than Appendix A as the Administrative Law Judge inadvertently states in his recommended Order. 2 Inasmuch as we adopt the Administrative Law Judge's findings that Respondents Suburban and H .A.M.L. constitute a single employer within the meaning of Sec 2(2) of the Act, and since Suburban's operations clearly meet the Board 's jurisdictional standards, we find it unnecessary to, and do not, pass upon the question whether the Board would assert jurisdiction over H A.M.L's school bus operations, were those operations before us on an independent basis. May 4, 1973 DECISION AND ORDER BY MEMBERS FANNING, JENKINS,AND PENELLO On November 27, 1972, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding . Thereafter , Respondents jointly filed ex- ceptions and a supporting brief , and United Trans- portation Union , Lodge No. 1589, filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions , cross-ex- ceptions , and briefs , and has decided to affirm the rulings, findings ,' and conclusions 2 of the Adminis- trative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents, Suburban Transit Corp. and H.A.M.L. Corporation, New Brunswick, New Jersey, their officers , agents , successors , and assigns, shall take the action set forth in the said recommended Order except that the attached notice is substituted for the Administrative Law Judge's Appendix A. i The Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give effect to the collective-bar- gaining agreement entered into October 14, 1971, with UTU, or to any extension, renewal, or modi- fication thereof, unless and until the said labor organization shall have demonstrated its exclu- sive majority representative status pursuant to a Board-conducted election among our employees. WE WILL NOT recognize UTU as the exclusive representative of our employees for the purposes of collective bargaining unless and until it has been selected by them in the manner prescribed above. WE WILL NOT discriminate against any employ- ee by discharging or refusing to reinstate him because he has engaged in a strike or any other concerted activity. WE WILL reinstate with backpay all employees discriminatorily discharged or refused reinstate- ment for striking. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed them by the Nation- al Labor Relations Act. SUBURBAN TRANSIT CORP. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the 203 NLRB No. 69 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-2100. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge : This case was heard at Newark, New Jersey , on various dates in Feb- ruary, April, and May 1972, on a consolidated complaint issued December 29, 1971, based on charges filed October 29, November 8, and November 11, 1971, and amended December 7, 1971. The complaint alleges that Respondent Suburban violated Section 8(a)(1) and (2) by executing a new collective -bargaining agreement with the UTU while a question concerning representation , raised by a petition filed by the Teamsters , the Charging Party herein, was pending ; violated Section 8 (a)(l) and (3) by virtue of the fact that said contract contained a union-security provision; violated Section 8(aXl) by threats to strikers ; and violated Section 8(aX3) and ( 1) by discharging strikers . The com- plaint alleges that Respondent H.A.M.L. violated Section 8(a)(2) and (1) by executing a contract with UTU at a time UTU did not represent an uncoerced majority of H.A.M. L.'s employees , and by assisting UTU in its organizing drive ; violated Section 8(a)(3) and (1) by the existence of a union-security provision in said contract ; and violated Sec- tion 8(a)(l) by acts of surveillance and assistance. Respondents deny that any unfair labor practices have been committed . UTU, party to each of the contracts, de- nies all allegations of the complaint that impinge upon its contractual relationship with Suburban and H .A.M.L., spe- cifically denying that UTU has been illegally assisted by the execution of either contract , that a question concerning rep- resentation existed at Suburban , and that H .A.M.L. unlaw- fully assisted UTU in organizing H.A.M.L.'s employees.' The General Counsel's affirmative case of a violation of Section 8(a)(2) by Suburban is essentially based on the Mid- west Piping doctrine? As in this case , the Teamsters filed a i As the party to the contract in each case , UTU is of course a necessary party to the case. During the hearing , however, I limited its participation to those issues and allegations bearing upon its contractual relationship I did not, for example , permit participation by UTU, by way of examination or cross-examination , on matters pertaining to the alleged discriminatory disc- harges by Suburban. 2 Midwest Piping Supply Co, Inc., 63 NLRB 1060. This doctrine in general requires an employer to remain neutral when rival unions are claiming repre- sentation rights for his employees As explained in subsequent cases , see, e.g., Shea Chemical Corporation, 121 NLRB 1027, upon presentation of a claim raising a real question of representation an employer may not bargain with even an incumbent union until the question concerning representation has been settled by the Board petition with the Board seeking to represent Suburban's employees on September 29, 1971, and on the same date employee Joseph Manga filed a decertification petition with the Board seeking to unseat the UTU. The execution of a new contract with UTU by Suburban on October 14, 1971, at a time when Suburban was fully aware of both the Team- sters' petition and the decertification petition , was in viola- tion of Section 8(a)(2) and (1) of the Act. Respondent Suburban , relying principally on the third Circuit's decision in N.L.R.B. v. Swift & Company, 294 F.2d 285 (C.A. 3, 1961), contends that UTU's convincing show- ing of majority support following the filing of the petitions, by the signature of a large majority of employees on a petition to ratify the contract which had been negotiated, removed any doubts as to which Union represented the employees , meant that there was no longer a real question concerning representation , and permitted the execution of the contract. UTU argues that the Board should dismiss the 8(a)(2) allegation against Suburban and permit the contract be- tween it and Suburban to stand , both on Swift grounds and because of the allegedly duplicitous conduct by UTU's chief negotiator, Daniel Rava , who was in effect a Teamster agent , and whose actions following negotiation of the con- tract were designed to and did prevent it from being ratified, so that the Teamsters could file the petition they were not able to file during the insulated period. The General Counsel counters this latter argument by contending that Rava's conduct was not shown to have prevented ratification , that even if it did, UTU can hardly be heard to complain about the conduct of its own represen- tative, particularly when other UTU representatives, pre- sent at ratification meetings , not only did nothing about it, but did not indicate in any way that Rava was misrepresent- ing to the assembled employees . As to the Swift argument, the General Counsel relies principally, of course, on Board law as controlling, rather than a particular court's contrary view (even though this case arises at the same circuit), and contends in essence that Swift would not apply in any event because the signatures of employees on the petition to ratify were tainted or coerced. As to the 8(a)(1) and (3) violations with respect to Subur- ban, they are all, for practical purposes , dependent on the violation of Section 8(a)(2). Thus , if the October 14 contract was legally executed, then the striking employees were in violation of the "no-strike" clause therein and could be discharged . And, if the contract were lawful , then the threats to the strikers were similarly lawful. Finally, of course, if the execution of the contract were lawful, so was its union-security provision. With respect to H.A.M.L., the General Counsel urges that it negotiated and signed the contract with UTU to keep the Teamsters out, expecting that the Teamsters , which it knew was organizing its employees , would file a representa- tion petition with the board, and that the UTU did not have an uncoerced majority because of company assistance to it in obtaining signatures . H.A.M.L. and UTU defend by de- nying that any of H.A.M.L.'s conduct constituted unlawful assistance , so that UTU did represent an uncoerced majori- ty, by questioning the General Counsel's version of events, specifically claiming that General Counsel's witness, Bien, SUBURBAN TRANSIT CORP. 467 should not be credited and by contending that Flanagan was not supervisor , so that any conduct on his part is not attributable to H.A.M.L. H.A. M.L. also contends that the recognition of UTU was lawful for the above reasons, and because the Teamsters never notified H.A.M.L. of its inter- est until after the UTU contract was signed. Counsel for the General Counsel and for the Respon- dents have filed briefs with me. Upon the entire record , including my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Suburban, a New Jersey corporation, with its principal office and place of business at 750 Somerset Street, New Brunswick, New Jersey, is engaged in the transporta- tion of passengers by bus. During the calendar year 1971, Suburban had gross revenues of more than $500,000, of which more than $50,000 was derived from interstate pas- senger service. I find, as Respondent Suburban admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent H.A.M.L., herein called HAML, also a New Jersey corporation, has its principal office and place of business at 333 Handy Street, New Brunswick, New Jersey, where it is engaged in providing school bus and charter service transportation. During the calendar year 1971, HAML had gross revenues in excess of $400,000. I find, accordingly, in accord with Charleston Transit Company, 123 NLRB 1296, that Respondent HAML is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' II THE LABOR ORGANIZATIONS INVOLVED Highway and Local Motor Freight Drivers , Local No. 701, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, the Charging Party herein , and United Transportation Union, Lodge No. 1589 , AFL-CIO, the Party to the Contracts, herein called UTU, are admittedly labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Suburban-The Facts gaining for a new contract in July 1971. Following some preliminary meetings, real negotiations began about the end of August 1971. At about that time Daniel Rava, a Subur- ban employee, became chairman of the UTU grievance committee, which served, in effect, as the bargaining agent for that union. A number of negotiating sessions were held between then and the expiration date of the contract. On September 14, a "package," membership rejected the pack- age by a 49-to-3 secret ballot vote. (There were 66 employ- ees in the bargaining unit at that time.)5 Another negotiating session was held on September 24, at which Suburban in- creased its wage-offer.6 This new package was presented to a membership meeting that same day. No vote was taken at that meeting, where "people were very boisterous and we almost had a couple of fist fights in there." 7 General Counsel's witness, Manga, credibly testified that the meet- ing was "chaotic," that it "didn't seem like anybody liked it [the package being presented] at all." Gerard McPhillips, a UTU official,8 also testified to the "chaos" at that meet- ing. He testified that there were about 20 to 25 people at the meeting (other estimates varied, but were generally about 30), and that about 10 to 15 members seemed determined not to accept any contract with a 3-year term. Shortly after that ratification meeting, on September 27 and 28, employee Joseph Manga circulated a petition to decertify the UTU, obtaining the signatures of more than 30 percent of the employees thereon, and also solicited em- ployee signatures on Teamsters authorization cards. The petition and the cards had been given to Manga by Rava. Manga filed the decertification petition on September 29, and the Teamsters filed a representation petition the same day. On September 28, a meeting was held between Suburban officials and the UTU, with a Federal mediator present. All present apparently agreed that it would be useless to hold another membership meeting for ratification, but instead they discussed whether to poll the employees by mail or circulate a petition. Although that meeting ended with a decision to use a mail ballot, a position Rava had espoused at the meeting, that evening, as a result of some discussion between UTU International Representative Moore and Lo- cal President Zechman, Peterson and Zechman decided to circulate a petition, believing, according to their testimony, that Rava was collaborating with the Teamsters and had advocated the mail ballot in order further to delay matters. Such a petition was prepared, and circulated by Peterson and another UTU official, Alexander. Morris Lipschitz, the principal owner of Suburban, told Rava that he should work with Peterson and Zechman to get the petition signed, that if 80 or 90 percent of the employees signed it, "this would UTU has represented the employees of Suburban for approximately 30 years .4 Its most recent contract prior to the one at issue in this case was executed September 15, 1968, to run until September 14, 1971. UTU requested bar- 6 The role played by Rava in presenting the package to the membership at this and a subsequent meeting is at issue here and is discussed below. 6 The September 14 package included a wage offer of an 80-cent increase the first year, 40 cents the second, and 20 cents the third The September 24 offer was 80 cents the first year, 40 cents the second, 30 cents the first 6 months of the third year, and 30 cents the second 6 months of the third year. 7 Testimony of Richard L. Peterson, Jr., at UTU witness, and vice presi- 3 Respondent HAML denied the Board 's jurisdiction in its answer to the dent of the UTU's committee on adjustment (apparently the same as the complaint, but has apparently abandoned that position , as its brief does not committee on grievances , of which Rava was chairman.) refer to it s He was on part-time assignment as an international representative and UTU was formerly the Brotherhood of Railroad Trainmen , Lodge No. assisted the local in handling negotiations . McPhillips was present at the 993. It became UTU sometime between 1968 and 1970. ratification sessions 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knock the Teamster petition right out of the box," and that if Rava did help he "would be in with the company one thousand per cent "9 On October 1, the petition was circulated, and 51 of the 66 employees signed it. Peterson testified that he told a number of the employees to whom he circulated the petition that they might lose their benefits if the Union did not sign the contract . Peterson also testified that he explained to a number of the employees that if the Teamsters became their bargaining agent negotiations would have to start over com- pletely, and that he was against the Teamsters coming in on the property. The petition was presented to the Company; Company Official Sidney Kuchin checked the signatures on it against the payroll , and President Lipschitz agreed to sign the contract when he returned from a trip to California. On October 14, the contract was executed. On October 26, at a meeting at the Teamsters hall, the employees of Suburban voted to strike. The next day a number of Suburban employees went out on strike and began picketing the Company 's premises, with signs reading "Employees of Suburban Transit on Strike Unfair Labor Practices Local Teamsters Union No. 701." The number of employees who picketed is disputed, esti- mates ranging from 25-30 to 40-46. It is clear that only eight employees reported to work during the strike , but it is not clear that the remaining employees all supported the strike; some may have refrained from working because of harass- ment by pickets. On October 29, Suburban wrote to each striking employee that he would be suspended if he did not report back to work on November 2. On November 1, Sub- urban obtained a temporary restraining order from the Su- perior Court of New Jersey. Nineteen of the strikers did not report for work on November 2. On November 5, 18 of these 19 unconditionally applied for reinstatement . Following hearings conducted by Suburban , all but 2 of these 18 were discharged. B. Suburban-Discussion 1. The 8(a)(I) Violation The General Counsel is correct that the bare-boned facts fall squarely within the Board's Midwest Piping doctrine, for Suburban entered into the new contract with UTU after, and with knowledge of, the representation petition filed by the Teamsters and the decertification petition filed by Jo- seph Manga . Furthermore , both these petitions raised real questions concerning representation in that they were sup- ported by cards (the Teamster petition) and a petition (the decertification petition) containing the signatures of at least 30 percent of the employees of Suburban, they were clearly for an "appropriate unit" (the very unit for which UTU was the incumbent representative ), and there was no extant con- tract at the time of their filing to bar an election . These facts alone clearly establish a prima facie case of a violation of Section 8(aX2) and (1) by Suburban. I cannot, of course , accept Suburban 's and UTU's argu- ment that no violation be found because of the Swift case, 9 Lipschitz did not testify. supra, even though this case arises within the Third Circuit, for (saving for the moment the other defenses urged by Suburban and UTU) I am constrained to follow Board law, even where a court of appeals has disagreed. Although there are distinctions between this case and Swift, e.g., in Swift the particular unit for which a petition had been filed by an outside union was "covered" by a master contract, embrac- ing many units, which specifically provided that its terms would become inapplicable to that particular plant if the outside union prevailed in the election, the basic reasoning of the court would apply here. With all due respect, I believe that reasoning is fallacious, completely missing the point of the Board's doctrine. The court rejected the Board's finding of a violation essentially on the ground that the mere filing of a petition does not establish that a real question concern- ing representation exists. As only a hearing had been held on the petition, with no election directed, and because the administrative showing of a 30-percent interest by the peti- tioner, although sufficient for representation cases, was not a sufficient evidentiary basis for an unfair labor practice finding, nor could it support the Board's finding that the employer had a reasonable basis for believing that the in- cumbent no longer represented a majority, the court denied enforcement of the Board's Order. Implicit in the court's holding was that it would have sustained the Board had an election already been directed. Under the court's view, therefore, a company preferring to deal with one union could with impugnity contract with that union , even though a petition by a rival had been filed, if it hastened to do so before the Board issued its direction. Adoption of the view that the direction of election is the turning point beyond which the employer is required to be neutral would thus nullify, for practical purposes, the entire Midwest Piping doctrine. To the extent that the court held that there was no evi- dence to show that the employer had a reasonable basis for doubting the incumbent's majority, the court, in my opin- ion, again misconstrued the Board's doctrines. Whether a "real question of representation" exists does not in any way turn on whether the company has a "reasonable doubt." Once a petition has been filed seeking to unseat an incum- bent union , provided that the petition is for an appropriate unit, there is no contract bar, and there is a 30-percent administrative showing of interest, the Board will direct an election without regard for the fact that the employer may have no doubt that the incumbent represents a majority. Indeed, once it is recognized, as the court apparently has, that an election can be conducted without permitting litiga- tion of whether the petitioning union had an adequate showing of interest, it follows that no such litigation should be permitted in a complaint proceeding, for the latter turns on whether there was a question of representation, a repre- sentation case concept. When, of course, the Board has not yet directed an election, the complaint proceeding does pro- vide a forum for litigating whether there was a question of representation, but only in the same manner as that ques- tion would have been "litigated" in a representation pro- ceeding. William Penn Broadcasting Company, 93 NLRB 1104. Apparently the court would not have reversed the Board had an election been directed, for it cites with approval St. SUBURBAN TRANSIT CORP. 469 Louis Independent Packing Company v. N.L.R.B., 291 F.2d 700 (C.A. 7, 1961). But the actual direction of election no more suggests the incumbent union 's lack of a majority than does the filing of the petition. And, if no "reasonable doubt" is essential to finding a violation after a direction of election, it is difficult to see any logic in requiring such a reasonable doubt before finding a violation based on the filing of the petition. As noted, it is incumbent upon me to decide, in this complaint proceeding, whether a real question concerning representation existed, a question I reach in connection with Respondent's and UTU's other defenses, before a Midwest Piping issue can be resolved. The point, of course, is that once such a petition had been filed, it is for the Board to determine whether there is a question concerning represen- tation, and to resolve such a question by a Board-conducted election; it is not for the employer to do so. Granted, as employer may recognize one of two competing unions and yet not be guilty of a violation if it eventuates that no question concerning representation existed, but he does so at his peril. Both Suburban and UTU contend that the ratification petition demonstrated UTU's majority, so that Suburban could legally execute the contract, there no longer being any doubt, or question, who represented the employees. A ques- tion of representation is not, as shown above, resolved by one of the two competing Unions attaining a majority other than in a Board election. Furthermore, in this instance, even a desire on the part of the employees to have the contract executed does not signify that a majority of the employees wanted UTU to continue to represent them. These same employees had refused to ratify the agreement earlier; many of them had signed Teamsters cards, or the decertification petition; and many subsequently went out on a Teamster- sponsored strike. Thus, the ratification petition was not only not a substitute for the secret ballot of a Board-conducted election, the entire circumstances here indicate the wisdom of the Board's Midwest Piping principle, of not permitting an employer to resolve the question based on the presumed employee sentiment at a given moment of time. In short, even assuming that a majority of the employees uncoerced- ly 10 indicated a desire for UTU representation by signing the ratification petition, that would not legitimatize Suburban's recognition of UTU. The final defense of Suburban and UTU raises novel and interesting questions. Stemming from the admitted fact that Daniel Rava, chief negotiator for the UTU, was at the same time organizing Suburban's employees for the Teamsters, and the contention that he was an agent of the Teamsters 10 The General Counsel contends that the signatures were "coerced" be- cause Peterson told a number of employees they would lose benefits unless they signed the petition , and because Morris Lipschitz told Rava that he would be in with the Company 1000 percent if he assisted in obtaining the signatures on the petition. I accept Peterson's explanation that he "meant" that delay in executing the contract might result in a loss of benefits because of a governmental freeze, and do not regard his statements as coercive, particularly since it was true that the benefits of the new contract would be lost, at least temporarily , if it were not executed . As to the statement to Rava, since Rava obviously did not go along with Lipschitz, it could not have affected the signing of the petition . Lipschitz' statement does show the strong desire of Suburban to conclude the contract with UTU and keep the Team- sters out. 11 Rava obtained cards from the Teamsters, and then gave them to Manga, for the purpose of seeing to it that Suburban and UTU did not execute a contract before the Teamsters could file a petition,12 Suburban and UTU make three contentions. First, they argue that, but for Rava's conduct designed to prevent, and preventing, the execution of the contract dur- ing the insulated period, the contract would have been exe- cuted. Accordingly, the Board should deem the contract to have been executed, a bar to the Teamsters petition, and therefore no question concerning representation existed. Second, they argue that the Teamsters petition should be dismissed because the Teamsters did not have "clean hands," having used Rava's services when Rava was UTU's chief negotiator., Finally, they urge that Rava's duplicity, in the context of UTU being the incumbent Union and the employees' choice of UTU being reaffirmed by the signa- tures on the ratification petition, make application of Mid- west Piping here particularly inappropriate and that the Board should as matter of policy refrain from applying it to the instant situation. The facts relied upon by Respondent and UTU to sup- port the aforesaid contentions mainly concern the activities and conduct of Daniel Rava. Rava first contacted the Teamsters some time in July. In early September, he called Teamster Representative Martin McDermott to see if the Teamsters was interested in representing Suburban's em- ployees. Rava, along with Suburban employee, Joseph Manga, met with McDermott shortly thereafter. McDer- mott told Rava that the TeamĀ§ters could not help at that point because there could not be an election until the con- tract expired, and also that he would check with the Interna- tional to see if there was some sort of no-raid agreement. On September 15, the day after the membership meeting of UTU rejected the "package" by a 49-to-3 vote, Rava went to the Teamsters hall with Peterson and obtained from Mc- Dermott both Teamsters authorization cards, and a decerti- fication petition. Peterson at that time told Rava that he was making a mistake, that it was not a wise thing to do. Pe- terson shortly thereafter told UTU Representative McPhil- lips about this incident, and McPhillips in turn informed UTU International Official Kenneth Moore about it. After the September 24 meeting, which broke up in "chaos," Rava gave the cards and the decertification petition to Manga, who solicited employees' signatures on them. The testimony and exhibits show that Rava was reimbursed by the Team- sters for telephone calls and gasoline to the extent of about $150. Some other employees of Suburban had telephone bills and gasoline expenses paid, and Bien received a loan of $400, which he later repaid. (The loan was arranged after Bien's termination from Suburban on November 16.) Rava was elected chairman of UTU's negotiating committee late in August, so much of the conduct described above oc- curred while he was in that office, and he took that office after he had first become interested in obtaining Teamster representation for Suburban's employees. These activities by Rava form part of the basis for who did the actual organizational work of obtaining signatures. 12 Under Board law, the 60-day penod prior to the expiration date of a contract is an "insulated" period, meaning that the Board will not entertain a petition for an election by an outside union seeking to unseat an incumbent union during that period . Thus, only if no contract is executed during the 60 days can a rival union file a petition for an election thereafter. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's and UTU's defense . In addition, they con- tend that Rava's presentation of the "packages" at the meet- ings was designed to prevent ratification . The testimony shows that at the September 14 meeting Rava did not read the entire contract , which contained more than 20 double- spaced pages, as finally executed (and apparently at that time also), but only the "highlights ," and made no recom- mendations. The vote , as noted above , was 49 to 3 against ratification. McPhillips testified that he took no position with respect to Rava's presentation because he could sense the men did not want the package. On September 24, at the second ratification meeting,13 Rava again read the highlights of the package . Although he testified that he recommended the package , I believe that he was mistaken, as both Manga and Kunz testified to the contrary . The meeting broke up in chaos, as noted above. At a discussion subsequent to the meeting among McPhil- lips, Peterson , and Rava , it was mutually agreed that there had not been a fair opportunity to present the package. McPhillips testified that he "tried to encourage him (Rava] not to be, you know, upset by these things...." At a subsequent meeting with Suburban officials , it was decided that another membership meeting would be pointless. A state mediator suggested that a petition be circulated among the men . Rava suggested a mail ballot , opposing a petition, and it was decided to take a mail ballot . Subsequently, McPhillips and Zechman decided to circulate a petition. On the above facts , I do not consider that Rava was charged by the Teamsters with ensuring that a contract between UTU and Suburban not be executed so that the Teamsters could file a valid petition. The testimony of both Rava and McDermott shows that Rava sought and received information from McDermott , not a mandate from him to prevent a contract from being concluded and executed. It may well be that Rava , himself, obviously desirous of changing the employees' representative from UTU to Teamsters, and knowing that could be possible only if no contract was executed by September 14, was not unhappy with the results of the September 14 and 24 meetings. But the testimony of Rava as to what he told the employees at the ratification meetings on those days was substantially confirmed by General Counsel witnesses and was not seri- ously contradicted by Suburban or UTU witnesses. Although Rava did not affirmatively recommend the "packages" reached in bargaining between Suburban and UTU, his presentation does not appear to have been unfair. The very fact that the Company upped its "ante" after the first two rejections , indeed , demonstrates that the failures to ratify were eminently wise and successful from the employ- ees' standpoint . Further confirmation of the fact that Rava's presentation was not unfair lies in the failure of other UTU officials and representatives present either to supplement Rava's presentation , object to it, or in any other way to indicate dissatisfaction . 14 In short, whatever Rava's subjec- 13 McPhillips estimated there were about 20 to 25 present, Rava and em- plooee Castiglione about 30, and Manga about 50.i Indeed , Zechman and McPhillips knew about Rava 's liaison with the Teamsters shortly after the September 14 meeting, and of course before the September 24 meeting, but said nothing to the members even at the latter meeting about Rava 's presentation. rive desire may have been, the performance of his official duties as chief negotiator was carried out with no overt reflection of any sinister purpose. By the same token, I reject UTU's contention that no question concerning representation existed because the con- tract should and would have been executed prior to the filing of the petition. As the evidence does not support the contention that Rava misconducted himself in the negotia- tions or in presenting the results of the negotiations to the employees, there is no warrant for concluding that the con- tract would have been executed. Whether this claimed de- fense would be legally tenable if the facts showed that Rava deliberately prevented ratification of the contract is an in- teresting question. From Suburban's standpoint, it would seem to make no difference, for Suburban's execution of the contract on October 14 was with knowledge of the Team- sters petition, and without any claimed knowledge, or even suspicion, of any misconduct on Rava's part in his presenta- tion to the employees. From UTU's standpoint, this de- fense , were it factually supported, would have somewhat more to commend it on equitable grounds, although it might be argued that the UTU should control its own officials, and cannot rely on misconduct by one of them to save it from attack by an outside union. From the employees' standpoint, however, if the contract would have been execu- ted, no Teamster petition could have been filed, and the equities would appear to favor regarding as done what should have been done. I suggest these possibilities for fur- ther consideration by the Board in the event the Board should disagree with my conclusion that Rava's conduct at the ratification meetings was not designed to prevent the execution of the contract so that the Temasters could file its petition. With regard to Rava's "duplicity" in seeking to have the Teamsters supplant UTU while at the same time continuing to function as UTU's chief negotiator, I do not regard this as having any legal significance. Had Rava, in playing a dual role, demonstrably permitted his Teamsters activities to affect his UTU functions, a different question, as dis- cussed above, would be presented. But as matters stand, the lack of such showing means that the "duplicity" 15 did not cause the failure of Suburban and UTU to execute a con- tract prior to the filing of the Teamsters petition. A final contention concerns the Teamsters' use of Rava, knowing him to be a UTU official, and, therefore, allegedly lacking "clean hands." Had the Teamsters come to Rava, I would look at the situation with a much more jaundiced eye, but I do not regard their acceptance of his proffered services as so reprehensible as to disqualify the Teamsters from filing their petition, or of such a nature as to cause the Board to reject it. In all the circumstances, and for the reasons stated, I conclude that Suburban violated Section 8(a)(2) and (1) of the Act by executing the contract with UTU while a real question concerning representation was pending before the Board. 15 I express no opinion on the ethics of Rava's seeking Teamster represen- tation while remaining the UTU's chief negotiator. SUBURBAN TRANSIT CORP. 471 2. The 8(a)(1) and (3) violations-Suburban Having found that the contract between UTU and Subur- ban of October 14, 1971, was unlawfully executed, it follows that the strikers were at the very least engaged in a protected concerted activity and could not be discharged for striking or refused reinstatement upon request. This would be equal- ly true whether the strikers were protesting the discharges of two Suburban drivers, Comrie and Hink, or were protest- ing the contract's execution, in which latter case they would be unfair labor strikers, rather than economic strikers. 16 Respondent Suburban also argues that the strike "was unlawful, as shown by the Temporary Restraining Order entered November 1, 1971 in the State Court." I am not sure whether Respondent is saying that this injunction made the strike unlawful even if the contract was invalid, or that the injunction demonstrates the legality of the contract, and hence the "unlawful" or "unprotected" nature of the strike. In any event, neither contention is meritorious. Clearly, a decision on a temporary restraining order does not preempt the Board from deciding the unfair labor practice issue now presented to it. Nor does disobedience of the court's order, whatever effect it might have in terms of possible contempt of court to those who continued to strike, make unlawful- vis-a-vis Board law-otherwise lawful or protected conduct. I have assumed, as the parties all appeared to do at the hearing, that if the October 14 contract was lawfully execu- ted, the 8(a)(3) allegations of the complaint would fail. Al- though I do not reach the question, and perhaps could not in view of the way the matter was litigated, I am not certain that the "no-strike" clause in that contract was applicable to the instant situation. For the clause, found in article 13 of the contract, entitled "Discipline and Investigation," pro- viding generally for grievance and arbitration, provides "Recourse to outside tribunals will not be made by either party until the [Union] has been advised and given a reason- able opportunity to intervene and dispose of or adjust the situation as the case may be. This, with the understanding that there shall be no authorized strike during such period the dispute is pending under the discussion with either the local lodge or the Grand Lodge." As the strike was to pro- test, at least in part, the execution of the contract with the UTU, it may well not represent the kind of "grievance" that could be resolved by the grievance and arbitration provi- sions of the contract, for UTU could hardly be expected to represent the employees who struck against it. See Kansas Meat Packers, A Divison of Aristo Foods, Inc., 198 NLRB No. 2. Arguably, therefore, the limited kind of no-strike provision would not apply here. As I said, however, I need not resolve this problem. 16 Although some of the employees who attended the meeting of the Team- sters at which it was decided to strike testified that the discharges were not discussed there to their recollection , both Rava and McDermott testified that there were discussions about the discharges , but that the bulk of the discus- sion concerned the signing of the contract of October 14. McDermott sent a telegram to Suburban on October 27 advising the Company that the Team- sters considered the discharges an unfair labor practice , and also that they considered the action taken against the strikers an unfair labor practice On all the testimony , I conclude that the strike was caused both by the discharges of Conine and Hink and by the execution of the contract. It was, accordingly, an unfair labor practice strike , as one of its causative factors has been found to be an unfair labor practice. C. H.A.M.L.-The Alleged 8(a)(2) and (1) Violations Starting at the end of the story in this case is more illumi- nating than starting at the more usual beginning. I refer to the rather remarkable events on the night of November 3, 1971. The scenario of that night, almost without more, indicates that HAML was exerting every effort to keep Teamsters from becoming the employees' bargaining representative. The night's events culminated a feverish day of activity-all the events of the HAML case taking place on the day and night of November 3 and the very early morning hours of November 4. Austin Zechman, president of UTU, called Sidney Kuchin, HAML vice president, late in the afternoon of November 3, and requested recognition for the UTU. About 6 p.m., Kuchin called Pat Kilcoyne, HAML opera- tions manager, to be available. About 7:30 that evening, Kuchin called Ronnie Kohn's home, where a birthday party for Kohn (Suburban's operations manager) was in progress, with Kilcoyne and his wife, among others , there as guests. Mr. and Mrs. Kilcoyne and Kohn then left the party and went to Suburban's office. Zechman, Kuchin, and Lee Ja- cobs, president of HAML, were awaiting them there, as were Bascocky, Lobmayer, and Fayda, the new UTU bar- gaining committee which had been appointed by Zechman. Bascocky was drafted for the new committee by Zechman, even though he had, as Zechman knew, signed a Teamster card earlier that day. The parties "negotiated" from about 8 p.m. to about 1:30 a.m. the next morning. Zechman had told everyone present that "it was important to get the con- tract signed, negotiated and signed so we could get it in before the Teamsters, certainly."t7 The parties used the October 14 Suburban-UTU contract as a model or guide. As each portion of the contract was agreed upon, Mrs. Kilcoyne typed that part. Finally, at the conclusion of the session at approximately 2 a.m., the con- tract was signed by HAML officials, and then taken to a motel, where Kenneth Moore, vice president of UTU was staying, to be executed for the UTU. About 7:30 a.m. on November 3, the day' s events began. At that time, Kilcoyne, HAML's operations manager, called Bien, Suburban's chief dispatcher, and told Bien that Local 701 (the Teamsters) was organizing HAML's employ- ees. Zechman was standing next to Bien at the time.is (The Teamsters had in fact begun to organize at HAML that morning , employee Wayne Langdon having obtained au- thorization cards from McDermott the preceding day.) Bien told Zechman what was being said, and Zechman re- sponded that "we'll have to go down there and organize them." At about 11:30 that morning, Bien called Flanagan, HAML's dispatcher, to ask Flanagan what drivers he could give Bien for New York runs that night. Flanagan replied, "I am going to have to cut you a couple short. We are down here getting people signing cards." Flanagan also men- 17 Zechman's testimony on cross-examination. He subsequently stated that the Teamsters was not mentioned at all during that meeting . He was either confused the second time or else was differentiating between "during" and "at the beginning" of the meeting. is I credit Bien's testimony in this respect and in other respects where contradicted by Zechman. I also credit his testimony concerning Kilcoyne's call. Kilcoyne did not deny the call ; he testified that he told Bien that he heard "rumors...that the Teamsters had their eye on HAML." 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned that Alexander and Zechman were down there, and that Lobmayer was going to help them.19 A number of employees, Bascocky , Schuster, Coudray, Schorr, and Langdon, testified that when they came back to the HAML garage following their runs in the afternoon, they were solicited to sign UTU authorization cards 20 Each of these employees had earlier that day signed a Teamsters card . Doing the soliciting were Alexander, Lobmayer, and Thomas . Lobmayer had himself signed a Teamsters card that morning . Lobmayer also testified that "about a half a dozen or so" of the employees he solicited for UTU authori- zation cards told him they had already signed Teamsters cards. According to Schorr, Flanagan told him to go see someone in the drivers room . Schorr and Schuster both testified that they were told by Lobmayer that the authori- zation paper was "just" for an election." When Lobmayer and the other UTU organizers de- termined they had a majority of employees signed up for the UTU, they notified Zechman , who in turn called Sidney Kuchin . The events of that evening , related above, then occurred . The next morning, Flanagan asked Kilcoyne how everything went in regard to the contract , and Kilcoyne replied , "All signed, sealed and delivered." This is not a straight Midwest Piping case, for the contract was executed before the Teamsters petition was filed, with- out any claim to represent the employees having been made by the Teamsters . But the law does not permit an employer, in circumstances such as these , to recognize one of two competing unions when the recognition is designed to keep the other union from obtaining representation rights. UTU's role in the affair was not, of course , illegal . As Zech- man said, UTU wanted a contract signed as quickly as possible for the express purpose of keeping the Teamsters from filing a petition . If UTU had won a legitimate race to achieve a majority among HAML 's employees , with the Teamsters never getting off the ground , then the race would really be to the swift. But the blatant haste by HAML in cooperating with UTU's efforts to freeze out the Teamsters is just the kind of assistance the law prohibits. HAML offi- cials knew that the Teamsters had started organizing; HAML officials suggested that UTU counter the Teamsters efforts, and, although the evidence of direct assistance in obtaining signatures on the mimeographed UTU "authori- zations" is not particularly strong , gave at least tacit approv- al to, and benevolent observation of, the UTU organizers at HAML's garage. Significantly , Louis Lobmayer, who was instrumental, along with Alexander and Zechman , in obtaining the signa- tures on the UTU's "cards," himself had earlier that same day signed a Teamsters authorization card , and testified that "about a half a dozen or so" of the card signers for 19 Flanagan contradicted himself a number of times on the stand and was evasive in his responses . Although he first denied knowing what union was involved, saying only that he heard rumors some union was signing up the drivers, he later told Schuster, "Go see your chairman , Mr Lobmayer," and when asked if he knew what union was involved replied , "Well, I have to say yes because he had a paper in front of him and it said something about the U.T.U." I do not credit his testimony where in conflict with Bien's 20 The "cards" were xeroxed authorizations , which had earlier been dictat- ed and prepared by Zechman on Suburban equipment21 Lobmayer denied having said this. I credit Schorr and Schuster UTU had told him they had signed Teamsters cards. Fur- thermore, four other employees who signed UTU cards test- ified to having signed Teamsters cards earlier.22 The next day (the same "day" that the contract with UTU was execu- ted) the Teamsters filed a petition with the Board. As the Court of Appeals for the First Circuit pointed out in N.L.R.B. v. Hunter Outdoor Products, Inc., 440 F.2d 876, 880 (C.A. 1, 1971): "Particularly where an employer is aware of organizing efforts by a rival union, it acts at its peril in according hasty recognition when one union claims majority support. . . . The most prudent course . . . would have been to petition the Board for a Board-conducted election pursuant to [Section] 9(c) of the Act." The court went on to say "The line between `close cooperation' and `interference with the freedom of choice of the employees' is a delicate one and often difficult to maintain, particularly where rival unions are involved." The instant case is a particularly appropriate one for application of these principles. UTU, which did not appear on the scene at HAML until after the Teamsters began soliciting the employees signatures on their authorization cards (viz, Lobmayer's having signed a Teamsters card, and then assisting the UTU to obtain signatures on its hastily xeroxed "authorizations" ). UTU Official Zechman, a Sub- urban employee, was with chief dispatcher Bien at Subur- ban when Kilcoyne, HAML operations manager called Bien to tell him that the Teamsters were organizing. When the drivers came in to the HAML facility, they were directed by Chief Dispatcher Flanagan to the UTU representatives, who used a seniority roster to check off those who signed the UTU forms. Whether or not Flanagan was actually a supervisor,23 there is no question, in my opinion, but that he was acting as an agent for HAML in so directing the em- ployees. Indeed, when Flanagan was asked by Bien to fur- nish some drivers for Suburban, Flanagan said he could not do so, that "I am going to have to cut you a couple short. We are down here getting people signing cards." The fact that UTU in these circumstances obtained a majority of signatures, some of which the record shows were of employees who had already signed Teamsters cards, is insufficient to justify the quick recognition, and hasty sign- ing of a bargaining agreement almost identical, except in respects where the different nature of HAML's operation required changes, to that signed October 14 at Suburban. The transactions at HAML must also be viewed in the context of Suburban's unlawful recognition of UTU there, since the two companies constitute a single employer'24 and 22 It is possible , of course , that some of Lobmayer's unidentified six were the same as some of the other four 23 1 find that he was, having authority responsibly to direct employees, such as assigning overtime , being called by employees who are unable to work for some reason, and determining whether to send drivers to Suburban from HAML when requested by Suburban dispatchers or officials as noted below. Furthermore , Kilcoyne specifically told Flanagan to keep out of any union business , plainly regarding Flanagan as "management ." There would be only one supervisor , Kilcoyne, for about 55 drivers , if Flanagan were not supervi- sor 24 Suburban and HAML are both located in New Brunswick, New Jersey, about a mile apart , and both are in the bus transportation business The president of HAML, Lee Jacobs, is vice president of Suburban ; Sidney Kuchin is vice president and secretary of HAML and secretary of Suburban Virtually all the stock of Suburban is owned by Morris Lipschitz, who is SUBURBAN TRANSIT CORP. 473 since many of the same officials who participated in the first violation also participated in the second. The contract be- tween UTU and HAML was indeed negotiated at Subur- ban. As I have earlier found, it was evident where the preference of both companies lay, they wanted to keep UTU in, and by so doing to keep the Teamsters out. I conclude, for all the foregoing reasons, that HAML violated Section 8(a)(3) and (1) of the Act by recognizing, and sign- ing a contract with UTU on November 3 and 4, 1971. As this contract contained a union-security provision, Respon- dent HAML also violated Section 8(a)(1) and (3) by its execution. The complaint alleges that HAML independently violat- ed Section 8(a)(1) of the Act by Flanagan asking employee William Coudray to spy at a Teamsters meeting on Novem- ber 5, and to call Pat Kilcoyne and inform Kilcoyne what had taken place at that meeting. Flanagan denied that he told Coudray to attend the meeting or to call Kilcoyne and tell him what had occurred. However, Kilcoyne testified that Coudray did in fact call him and tell him about the meeting, although he (Kilcoyne) told Coudray that the in- formation was unsolicited, that he really wasn't interested, and that he had given instructions to Flanagan not to get involved with the union business, just, to stay out of it and do his own job. I cannot conceive of Coudray at that time attempting to build up a case against HAML by calling Kilcoyne, as he did, and manufacturing a story about Flan- agan having told him to call. I must conclude, accordingly, that Flanagan did so tell him. Therefore, as I have found that Flanagan was a supervisor, this conduct is attributable to HAML even though Flanagan was instructed to stay out of the union business, and HAML accordingly violated Sec- tion 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondents Suburban and H.A.M.L. are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Suburban and H.A.M.L. constitute a single employer within the meaning of Section 2(2) of the Act. 2. UTU and Local 701, Teamsters, are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By entering into a collective-bargaining contract with UTU, containing a union-security provision, on October 14, 1971, Respondent Suburban has engaged in unfair labor practices within the meaning of Section 8(a)(l), (2), and (3) of the Act. 4. By discharging or refusing to reinstate on November 5, 1971, employees who struck on October 27, 1971, Re- spondent Suburban has engaged in unfair labor practices president of Suburban . The HAML stock is owned in equal parts by Morris Lipschitz' son, Herman , and Lee Jacobs and Sidney Kuchin , both sons-in- law of Morris Lipschitz. Kuchin is the manager of Suburban , but he and Lee Jacobs negotiated the contract with HAM L. It is clear that the two compa- nies are closely related , perform similar functions , interchange employees and equipment on many occasions, and that the labor relations of both are in large measure in the hands of Lee Jacobs and Sidney Kuchin . For these reasons, I conclude that they constitute a single employer within the meaning of Sec. 2(2) of the Act. within the meaning of Section 8(a)(1) and (3) of the Act. 5. By entering into a collective-bargaining contract with UTU, containing a union-security provision, on November 4, 1971, Respondent H.A.M.L. has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 6. By requesting an employee to keep under surveillance the union activities of other employees, Respondent H.A.M. L. has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY It having been found that Respondents unlawfully'assist- ed UTU by entering into contracts with,that Union at Sub- urban and H.A.M.L., respectively, I shall recommend that they cease and desist from such conduct and from giving effect to the contracts which have been executed or to any extension , modification, or renewal thereof, with the under- standing that nothing in my recommended Order shall be construed as requiring or permitting the varying or aban- doning of wages, hours, seniority, or other substantial provi- sions contained in the contracts. It'having been found that Respondent Suburban discri- minatorily discharged or refused to reinstate the employees listed in Appendix C attached hereto, I shall recommend that it reinstate them with backpay computed under the formulae of F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 719, and that it cease and desist from violating the Act in this manner. It having been found that Respondent H.A.M.L. unlaw- fully requested an employee to engage in surveillance, I shall recommend that it cease and desist from violating the Act in this manner. I shall also recommend that Respondents post appropri- ate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 A. Respondent Suburban, New Brunswick, New Jersey, its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing or contracting with United Transporta- tion Union, Lodge No. 1589, as the exclusive representative of its employees for the purposes of collective bargaining, unless and until said labor organization shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among Respondent's em- ployees. (b) Giving effect to its contract dated October 14, 1971, with UTU, or to any extension, renewal, or modification thereof, until said labor organization shall have demonstrat- 25 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed its exclusive majority representative status pursuant to a Board-conducted election among Respondent 's employees. (c) Discriminating against its employees by discharging them , or refusing to reinstate them , for engaging in a strike. (d) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Withdraw and withold any recognition it has granted to UTU, unless and until the said labor organization has been certified in the manner aforesaid by the National La- bor Relations Board. (b) Offer immediate and full reinstatement to the em- ployees listed in Appendix C of this Decision to their former jobs, or, if such jobs no longer exist, to a substantially equiv- alent job, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discharges or refusals of rein- statement, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its facility at New Brunswick , New Jersey, copies of the attached notice marked "Appendix A."26 Co- pies of said notice, on forms provided by the Regional Di- rector for Region 22, after being duly signed by the Respondent 's representative , shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. B. Respondent H.A.M.L., New Brunswick , New Jersey, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Recognizing or contracting with United Transporta- tion Union, Lodge No. 1589, as the exclusive representative of its employees for the purposes of collective bargaining, unless and until the said labor organization shall have de- monstrated its exclusive majority representative status pur- suant to a Board-conducted election among Respondent's employees. (b) Giving effect to its contract executed November 4, 1971, with UTU, or to any extension, renewal , or modifica- tion thereof, until said labor organization shall have de- monstrated its exclusive majority representative status pursuant to a Board-conducted election among Respondent 's employees. (c) Requesting any employee to keep under surveillance the union activities of other employees. Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Withdraw and withhold any recognition it has grant- ed to UTU , unless and until the said labor organization has been certified in the manner aforesaid by the National La- bor Relations Board. (b) Post at its facility in New Brunswick, New Jersey, at places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix B." n Copies of said notice , on forms provided by the Re- gional Director for Region 22, after being duly signed by Respondent's representative , shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are custom- arily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or cov- ered by any other material. (c) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 26 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 27 See fn 26. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT give effect to the collective -bargaining agreement entered into November 4, 1971, with UTU, or to any extension , renewal , or modification thereof, unless and until the said labor organization shall have demonstrated its exclusive majority representative sta- tus pursuant to a Board -conducted election among our employees. WE WILL NOT recognize UTU as the exclusive repre- sentative of our employees for the purpose of collective bargaining unless and until it has been selected by them in the manner prescribed above. WE WILL NOT request any employee to spy on the union activities of other employees. WE WILL NOT in any other manner interfere with, re- strain , or coerce our employees in the exercise of rights guaranteed them by the National Labor Relations Act. H.A.M.L. CORPORATION (Employer) (d) In any other manner interfering with, restraining , or Dated By coercing employees in the exercise of their rights under (Representative) (Title) SUBURBAN TRANSIT CORP. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Building , 16th Floor, 970 Broad Street , Newark, New Jersey 07102, Telephone 201- 645-2100. APPENDIX C Joseph L. Alfonso George Millan Joseph Peter CastiglionePeter Morelli James Diorio John Freitas Rudy Hamblin John Kunz George Laverdiere Carl Legere Joseph Manga Daniel Rava Philip Reinhardt Tim Roche Pat Spano John K. Williams G. Woodward 475 Copy with citationCopy as parenthetical citation