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KAYNARD EX REL. NLRB v. MEGO CORP.

February 9, 1980

Samuel M. KAYNARD, Regional Director of Region 29 of the National Labor Relations Board, for and on behalf of, the National Labor Relations Board, Petitioner,
v.
MEGO CORP. and Samet and Wells, Inc. and Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondents.



The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

Labor relations at the Brentwood, N.Y. plant of respondent employers Mego Corp. and Samet and Wells, Inc. have caused the National Labor Relations Board ("The Board") to resort to section 10(j) of the National Labor Relations Act ("The Act"), 29 U.S.C. Section 160(j) (1976), one of the most rarely used weapons in the Board's statutory arsenal. Section 10(j) gives a district court the power to enjoin alleged unfair labor practices *fn1" even before such charges become the subject of a formal hearing before the Board. An assessment of the propriety of this extreme remedy in the present case will be rendered through a recitation of this Court's Findings of Fact and Conclusions of Law.

 FINDINGS OF FACT

 Mego Corp. and Samet and Wells, Inc. (hereinafter referred to as "Mego") are a large domestic toy manufacturing concern (19).* During 1978, Mego derived over $ 500,000 in profits (19). Mego's corporate headquarters are located at 41 Madison Avenue, N.Y. (17). Mego issues all of its payrolls from this Manhattan office (49). The company's purchasing also is centralized (51).

 Mego's manufacturing plants are situated on Orville Drive in Bohemia, N.Y., and 10 miles away at 50 Emjay Boulevard in Brentwood, N.Y. (18, 59). 160 Mego workers are employed at the Bohemia location (26). At the Brentwood plant, which started production in April of 1979 (29), Mego employs 80 individuals (41). All of the latter employees were "new hires" for Brentwood; none were transferred from Bohemia to work at the new location (34). Although the workers at both Brentwood and Bohemia are engaged in unskilled labor (26-28, 41), there is little, if any interaction between the employees at the two plants. *fn2"

 Sixty percent of the work done at Brentwood concerns Mego's rubber skinned doll operation (29). The other 40% of Brentwood's operation comprises "pack out" of the items produced (31). Only 5% of the dolls packed out at Brentwood originate at the Bohemia plant (34). 80% of Brentwood's operation never was done at Bohemia (51), where 40 separate games and toys are produced (29).

 Through July 1, 1979, Brentwood's plant manager hired all of the Brentwood plant's workers (35), in addition to sharing responsibility with the plant foreman for assigning employees their chores (47). The latter responsibility encompassed job training, transfers of assignments, discipline and overtime payments (48-49). Harry Rotenberg, the Vice President of Mego (17), is in charge of production for all the Mego plants (59).

 On September 8, 1976, respondent Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as "Local 807") became the exclusive bargaining agent for the Mego employees at Bohemia (19). Accordingly, on April 14, 1977, Mego and Local 807 entered into a collective bargaining agreement covering the unit of employees at Bohemia (20). This agreement, in effect from July 1, 1976 until June 30, 1979, contained the following "accretion" provision:

 
In the event that the employer divides the operation of its business or departmentalizes or further subdivides any of its operations, either in the same location or at different locations, and under the same name or different names, directly or indirectly, in whole or in part, all of the employees in all parts for all of the operation, wherever located, will be included in this unit and all of the parts or subdivisions of the operation of the Employer under whatever name and whatever entity, whether a person, firm or corporation and regardless of whether other individuals or persons may also have an interest in the entity, will be bound by the terms and provisions of this Agreement with the same force and effect as if it or they were a party signator at the time of its execution.

 On June 29, 1979, Mego and Local 807 came to terms on a successor agreement (88). Mego representatives signed this agreement on September 24, 1979; Local 807 officials signed the agreement on October 3, 1979 (88).

 Pursuant to their 1977 contract, both Mego and Local 807 intended to treat, and did treat, the Brentwood plant as an accretion to the existing agreement, thereby acknowledging Local 807 as the collective bargaining agent for the Brentwood employees (66, 69, 82, 88, 90, 129, 141, 142, 144, 145, 150, 160, 212, 218, 262, 287, 303, 306-07, 309, 350). Local 807 officially became the Brentwood collective bargaining representative on May 21, 1979 (179, 181). As a result, since May 21, 1979, the employees at Brentwood have been compensated for their services under the same wage and benefit schedule as that in effect at Bohemia (67, 311, 314).

 Until June 27, 1979, however, neither Mego nor Local 807 made it clear to the Brentwood employees that they were covered by the Mego-Local 807 agreement (36, 40, 199, 282, 284, 336). *fn3" Moreover, during the first half of 1979, no dues were paid by Brentwood workers to Local 807, no pension or welfare fund payments were made to Local 807 on behalf of the Brentwood employees, *fn4" and Local 807 was not elected as collective bargaining representative by a majority of Brentwood employees (37, 38, 89, 158, 161, 310, 333).

 In the midst of this rather incongruous situation, a walkout of the workers at Brentwood ensued. This occurred on June 27, 1979 (62, 194, 244, 280). The walkout expressed in dramatic terms the Brentwood employees' dissatisfaction with their wages, with the safety conditions in the plant and with the apparent absence of a union to represent their interests (63-65, 281). When they did find out about their supposed representation by Local 807, several of the striking employees expressed their disgust at Local 807's attitude toward the Brentwood workers (200, 201). Specifically, these employees complained about the fact that a contract purporting to cover the Brentwood employees was negotiated without the majority of said employees being informed of such negotiations (199, 290, 336). This contract was ratified during the strike (88). *fn5"

 After they walked out of the plant, the striking Brentwood workers congregated in the plant's parking lot (195). Shortly thereafter, representatives of Local 101, International Brotherhood of Craftsmen, Professionals and Allied Trades (hereinafter referred to as "Local 101") arrived to assist the Brentwood workers in the expression of their grievances (193, 244). Angelo Rodriguez, a Brentwood employee, had telephoned Local 101's Brentwood office shortly after the walkout began (334).

 By the end of the strike's first day, Local 101 possessed approximately 50 cards authorizing Local 101 to represent the signatories of these cards (195). *fn6" A representative of Local 101 brought these cards to the Board's Regional Office (202, 245). On July 2, 1979, Local 101 filed an unfair labor practice charge that condemned Mego's refusal to bargain with Local 101 (249). The striking Brentwood employees supported Local 101's efforts (69, 113, 204, 292). In fact, the Brentwood workers informed Mego representatives that they would only speak to them with a Local 101 delegate present (102, 115, 212).

 On July 2, 1979, Mego sent telegrams to the striking employees informing the employees that, if they did not return to work by the next day, they would be considered to have quit their jobs (76, 78, 114, 116, 120, 123, 214, 298). Mego, however, never carried out the threats contained in the telegrams (140, 219, 310), even though it did hire temporary employees during the course of the strike pursuant to Local 807's request to ...


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