Jan Power Inc. Maintenance Service, 798 (1968)

Jan Power Inc. Maintenance Service and Service and Maintenance Employees Union, Local 399

M & M Enterprises Co. d/b/a Columbia Building Maintenance Co. Inc.; and System Building Service Inc. and Service and Maintenance Employees Union, Local 399

Service Employees Council and Service and Maintenance Employees Union, Local 399

Miscellaneous Warehousemen, Drivers & Helpers Union, Local 986 (Service Employers Council; Jan Power Inc. Maintenance Service; and M & M Enterprises Co. d/b/a Columbia Building Maintenance Co. Inc., and System Building Service Inc.

and Service and Maintenance Employees Union,

Local 399 and City Building Maintenance Co.;

Crystal Building Maintenance Co.; and Western Pacific Management Co., Parties to the Contract.

Cases 31-CA-631, 31-CA-632, 31-CA-705, and 31-CB-234

November 13, 1968 DECISION AND ORDER

BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING

AND ZAGORIA

On May 23, 1968, Trial Examiner Maurice Alexandre issued his Decision in the above-entitled proceeding, finding that certain Respondents had engaged and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent Employers filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember 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, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of he Trial Examiner except as modified below.

1. The Trial Examiner found, and particularly in the absence of exceptions we agree, that Respondents Jan Power Inc. Maintenance Service and M & M Enterprises Co., hereinafter referred to as Jan Power and M & M, committed independent violations of Section 8(a)(1) of the Act by the acts and conduct of their supervisors and officials, including, inter alia, unlawfully interrogating and threatening employees, creating an impression of surveillance, improperly promising wage increases, and unlawfully discouraging protected activity on behalf of Service and Maintenance Employees Union, Local 399, hereinafter referred to as Local 399.

The Trial Examiner also found, and particularly in the absence of exceptions we agree, that Respondents Jan Power and M & M unlawfully solicited membership applications and checkoff authorizations and unlawfully deducted dues from employees' wages on behalf of Miscellaneous Warehousemen, Drivers & Helpers Union, Local 986, hereinafter referred to as Local 986, in violation of Section 8(a)(2), and that Respondent Jan Power discriminatorily reduced employees' work hours in violation of Section 8(a)(3) of the Act.

2. The Trial Examiner found that Respondent Service Employers Council, hereinafter referred to as the Council, its employer-members and Local 986 did not violate the Act by executing, maintaining, and enforcing the collective-bargaining agreement containing a union-security provision.' The General Counsel and the Charging Party have excepted to these findings. For the reasons set forth below, we find merit in their exceptions.

The Trial Examiner concluded, and we agree, that the collective-bargaining agreement should be set aside if the evidence established 'sufficient precontract misconduct to taint the majority.' We do not agree, however, with the Trial Examiner's findings that. (1) although Jan Power and M & M engaged in substantial postcontract misconduct, the number of employees coerced and the coercion practiced by these employers before the contract was 'minimal,' and therefore was insufficient to establish that Local 986's majority was tainted; and (2) the coercion practiced by Jan Power, M & M, and Western should not be viewed in the aggregate to determine whether the misconduct was 'sufficiently pervasive to taint the entire majority within the multi-employer unit.' In Clement Brothers Company, Inc., 165 NLRB 1 The Council is composed of Respondent Jan Power, Respondent Council to bargain collectively on its behalf and became a party to the M & M, City Building Maintenance Co., hereinafter referred to as City , collective-bargaining agreement. The Trial Examiner found, and we and Crystal Building Maintenance Co., hereinafter referred to as Crystal. agree, that the employees of all five employers , including Western,

Western Pacific Management Co., hereinafter referred to as Western , was constituted a unit appropriate for the purpose of collective bargaining.

apparently not a formal member of the Council, but authorized the 173 NLRB No. 120

JAN POWER INC. 799

No. 87, the Board viewed the question of whether a union's precontract majority had been tainted by coercion as not 'susceptible to resolution by a simple mathematical formula,' but rather that 'the character of the coercion should be more realistically measured in terms of its pervasive effect.' In the instant case, the record indicates, and the Trial Examiner found, that in the weeks preceding the execution of the collective-bargaining agreement with Local 986, Jan Power, Western, and M & M coerced employees into joining Local 986 and abandoning Local 399 activities by unlawfully interrogating them about Local 399 and by encouraging and soliciting membership applications for Local 986.

We believe, furthermore, that the precontract misconduct of all unit employers should be considered in the aggregate in determining whether Local 986's majority was tainted. We reach this conclusion on the basis of the Trial Examiner's findings that the five employers had authorized the Council, or its administrator, to bargain collectively and sign a contract on their behalf, they all executed counterparts of the same collective-bargaining agreement with Local 986, and together their employees comprise an appropriate multiemployer bargaining unit. We note in agreement with the Trial Examiner's finding that prior to the execution of the collective-bargaining agreement, unit employers, on several occasions involving a substantial number of employees, rendered improper assistance to Local 986.

In addition, the evidence of substantial postcontract misconduct renders it more likely that 'the coercion taking place before the contract was executed was substantially more widespread than appears from the foregoing ....'2 Thus, the Trial Examiner found that subsequent to the execution of the agreement, Jan Power and M & M on approximately 20 separate occasions violated the Act by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. The unlawful activities included threatening employees with loss of jobs if they supported Local 399, threatening to go out of business if the employees selected Local 399 as their representative, deducting dues for Local 986 from employees' paychecks even though checkoff authorizations had not been signed, informing employees that it was in touch with union spies, and taking reprisals against some employees by reducing their hours of work because of their activities on behalf of Local 399.

Under the above circumstances, and on the record as a whole, we find that the coercion practiced by the employers was sufficiently pervasive to taint Local 986's entire majority.' Accordingly, we find that Respondents Jan Power and M & M, and Respondent Council, acting as the agent for and on behalf of the employers, including those who engaged in unlawful activities as described above, violated Section 8(a)(2) and (1) of the Act by recognizing Local 986 as the exclusive bargaining representative and by executing and maintaining an agreement with Local 986 at a time when that union did not represent a free and uncoerced majority of employees. We also find that Local 986 violated Section 8(b)(1)(A) and (2) of the Act by entering and maintaining the said agreement at a time when it did not represent a free and uncoerced majority of the employees in the multiemployer bargaining unit.' THE REMEDY

We have found that Respondents Jan Power, M & M, and the Council have engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, and that Respondent Local 986 has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. We shall, therefore, in order to effectuate the basic policies of the Act, order that the following remedial action be taken.

We shall adopt the recommended 'Remedy' of the Trial Examiner insofar as it applies to reimbursement of employees coerced and discriminated against by Respondents Jan Power and M & M. We shall, in addition, order Respondents Jan Power, M & M, and the Council to withdraw and withhold all recognition from Respondent Local 986, unless and until the said labor organization shall have been certified by the Board as the collective-bargaining representative of the employees in question, and to cease and desist from giving any force or effect to the collectivebargaining agreement, or to any extension, renewal, or modification thereof. Nothing herein shall, however, be construed as requiring Respondents Jan Power and M & M to vary or abandon any existing term or condition of employment.' We shall also order Respondent Local 986 to cease and desist from acting as the collective bargaining...