Baines Service Systems, Inc.

BAINES SERVICE SYSTEMS, INC. 563 Baines Service Systems, Inc. and Local 144, Hotel, Hospital, Nursing Home & Allied Health Ser- vices Union, Service Employees International Union, AFL-CIO and Building Service Employ- ees International Union, Local 32E, AFL-CIO, Party to the Contract Building Service Employees International Union, Local 32E AFL-CIO and Local 144, Hotel, Hospital, Nursing Home & Allied Health Ser- vices Union, Service Employees International Union, AFL-CIO and Baine Service Systems, Inc., Party to the Contract. Cases 29-CA-6731 and 29-CB-3525 March 18, 1980 BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO DECISION AND ORDER On October 25, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondents filed ex- ceptions and a supporting brief, the General Coun- sel filed exceptions, and the Charging Party submit- ted a letter in support of the Administrative Law Judge's Decision in lieu of a brief in opposition to Respondents' exceptions. 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 and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge.2 The General Counsel excepts to the Administra- tive Law Judge's failure to find two additional as- pects of Respondent Employer's conduct violative of Section 8(a)(1) of the Act. Both of these charges involved former employee Michael Curry and a former supervisor, David Zahler. ' The record does not disclose whether the assistant housekeeper. Walter Cochrane, was acting in a supervisory capacity on the date the collective-bargaining contract was executed and the Board makes no de- termination as to his status, However, the result herein is not affected be- cause even if Cochrane were found to have been a bargaining unit em- ployee on that date, the number of employees Respondent Employer em- ployed at Aishel Avraham Nursing Home at the time of contract execu- tion did not constitute a representative complement of the number of em- ployees ultimately to be employed there See West Penn Hat & Cap Cor- poration, 165 NLRB 543 (1967); Cowles Communications. Inc. and Sufsun Co.. Inc.. 170 NLRB 1596 (1968); Prince Pontiac. Inc., 174 NLRB 919 (1969). 2 The Administrative Law Judge's reimbursement order is modified in two respects. First, reimbursement is required of all moneys extracted from the employees, not only those amounts which were withheld from their wages. Second, the order does not include those employees who voluntarily became members of Respondent Union prior to their employ- ment at Aishel Avraham Nursing Home Haven Manor Health Related Facility, 226 NLRB 329 (1976); Bristol Consolidators. Inc., 239 NLRB No. 74 (1978). 248 NLRB No. 87 In the first incident, Curry testified that during the latter part of June 1978 he was called into Zahler's office and asked why he was being so vocal in support of Local 144, the Charging Party herein. Zahler told him that if he would reduce his activities Zahler would try to get him a higher paying job in the maintenance department. Zahler's own testimony verified this incident. Zahler stated that he was told by both the president and vice president of Respondent Employer that they knew Curry was instigating support for Local 144 and for that reason he called Curry into his office and asked him to "calm down" about the Union (Local 144) in exchange for a possible better paying posi- tion in maintenance. The second incident involved Respondent Em- ployer creating the impression that Curry's activi- ties on behalf of Local 144 were under surveil- lance. Curry testified that, as he was leaving work one afternoon in September 1978, he saw Brown, a Local 144 organizer, near the nursing home's en- trance. Curry stopped his car in the driveway and gave Brown some signed Local 144 authorization cards which Brown had given him. At 8:30 a.m. the next morning, Curry was at work cleaning the floor when Zahler told Curry that he had better "watch out" and that he was being watched. Zahler then told him that his encounter with Brown the previous day had been observed and that he had better be careful because "they were watching" him.3 Both of these issues were alleged in the consolidated complaint and were fully liti- gated at the hearing. Therefore, we find that Re- spondent Employer violated Section 8(a)(1) by en- gaging in the foregoing conduct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Baines Service Systems, Inc., Brooklyn, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Promising employees wage increases and other benefits if they refrain from exercising their right to engage in protected concerted activities. (b) Giving its employees the impression that their exercise of protected concerted activities is under surveillance. (c) Contributing support and assistance to Re- spondent Union or to any other labor organization of its employees. :' The complaint does not allege, and we do not find, that Respondent engaged in actual surveillance. BAINES SERVICE SYSTEMS, NC. 563 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Recognizing Respondent Union as the bar- gaining representative of any of its employees at the Aishel Avraham Nursing Home for the pur- pose of dealing with the Company concerning any conditions of employment, unless and until said labor organization shall have demonstrated its ex- clusive majority representative status pursuant to a Board-conducted election amo:.g the Employer's employees. (e) Giving effect to the collective-bargaining agreement of June 5, 1978, between Respondent Employer and Respondent Union, or to any exten- sion, renewal, or modification thereof; provided, however, that nothing herein shall require Respon- dent Employer to vary or abandon any wages, hours, or other substantive feature of its relations with its employees which the Employer has estab- lished in the performance of the contract, or to prejudice the assertion by employees of any rights they may have thereunder. (f) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Respondent Union as the collective-bargaining rep- resentative of its employees at the Aishel Avraham Nursing Home, unless and until said labor organi- zation shall demonstrate its exclusive majority rep- resentative status pursuant to a Board-conducted election among its employees. (b) Jointly and severally with Respondent Union reimburse, with interest, all employees now or pre- viously in its employ at Aishel Avraham Nursing Home in Brooklyn, New York, for all initiation fees, dues, and other moneys illegally extracted from them pursuant to the unlawful collective-bar- gaining contract. However, reimbursement does not extend to those employees who voluntarily joined and became members of Respondent Union prior to their employment at Aishel Avraham. (c) Post at its place of business at the Aishel Av- raham Nursing Home in Brooklyn, New York, copies of the attached notice marked "Appendix A."4 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by its representatives, shall be posted 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." by Respondent Employer 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 it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. Respondent Building Service Employees In- ternational Union, Local 32E, AFL-CIO, Bronx, New York, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining agent of any of the employees of Respondent Employer at the Aishel Avraham Nursing Home in Brooklyn, New York, for the purpose of dealing with that Company concerning conditions of employment of its employees, unless and until Respondent Union shall have demonstrated its exclusive majority rep- resentative status pursuant to a Board-conducted election among such employees. (b) Giving effect to the June 5, 1978, collective- bargaining agreement between Respondent Em- ployer and Respondent Union, or to any extension, renewal, or modification thereof. (c) Telling employees of Respondent Employer at the Aishel Avraham Nursing Home that they are compelled to join Respondent Union as a con- dition of employment. (d) In any other manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Em- ployer reimburse, with interest, all employees of Respondent Employer now or previously em- ployed at the Aishel Avraham Nursing Home, for all initiation fees, dues, and other moneys illegally extracted from them pursuant to the unlawful col- lective-bargaining contract. However, reimburse- ment does not extend to those employees who vol- untarily joined and became members of this Union prior to their employment at Aishel Avraham. (b) Post at conspicuous places in the Respondent Union's business office and other places where no- tices to its members are customarily posted copies BAINES SERVICE SYSTEMS, INC. 565 of the attached notice marked "Appendix B." 5 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respon- dent Union, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other mate- rial. (c) Furnish the Regional Director with signed copies of the aforesaid notice for posting by Re- spondent Employer at the Brooklyn nursing home, where notices to all employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall be signed by Respon- dent Union and forthwith returned to the Regional Director. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. See fn. 4, supro. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an oppor- tunity to present evidence, the National Labor Re- lations Board had found that we committed certain unfair labor practices and had ordered us to post this notice. We intend to abide by the following: WE WILL NOT promise employees wage in- creases or other benefits if they refrain from exercising their right to engage in protected concerted activity. WE WILL NOT give employees the impres- sion that their exercise of protected concerted activities is under surveillance. WE WILL NOT assist or contribute support to Building Service Employees International Union, Local 32E, AFL-CIO, or to any other labor organization of our employees. WE WILL NOT recognize that Union as the exclusive bargaining representative of our em- ployees at the Aishel Avraham Nursing Home unless and until the said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among our employees. WE WILL NOT give effect to the collective- bargaining contract dated June 5, 1978, with that Union; provided, however, that nothing in the Board's Decision and Order requires us to vary or abandon those wages, hours, or other substantive features of our relationship with our employees, established in the performance of said agreement, or to prejudice the assertion by employees of any rights they may have thereunder. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their statutory right to engage in concerted activities, or to form, join, or assist any labor organization of their choice, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL jointly and severally with that Union reimburse, with interest, all employees now or previously employed at the Aishel Av- raham Nursing Home in Brooklyn, New York, for all initiation fees, dues, and other moneys unlawfully extracted from them pursuant to the unlawful collective-bargaining contract. However, reimbursement does not extend to those employees who voluntarily joined and became members of that Union prior to their employment at Aishel Avraham. BAINES SERVICE SYSTEMS, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an oppor- tunity to present evidence, the National Labor Re- lations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: WE WILL NOT act as the exclusive bargain- ing representative of any employees of Baine Service Systems, Inc., at the Aishel Avraham Nursing Home, unless and until we have dem- onstrated our exclusive majority representative status pursuant to a Board-conducted election among those employees. WE WILL NOT give effect to the collective- bargaining agreement dated June 5, 1978, be- BAINES SERVICE SYSTEMS, INC. 565 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween this Union and that Company, or to any extension, renewal, or modification thereof. WE WILL NOT in any other manner restrain or coerce the employees of that Company, or of any other company, in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement as authorized in Section 8(a)(3) of the Act. WE WILL jointly and severally with that Company reimburse, with interest, all employ- ees now or previously in its employ at the Aishel Avraham Nursing Home in Brooklyn, New York, for all initiation fees, dues, and other moneys unlawfully extracted from them pursuant to the unlawful collective-bargaining contract. However, reimbursement does not extend to those employees who voluntarily joined and became members of this Union prior to their employment at Aishel Avraham. BUILDING SERVICE EMPLOYEES IN- TERNATIONAL UNION, LOCAL 32E, AFL-CIO DECISION STATEMENT OF THE CASE THOMAS A. RIcci, Administrative Law Judge: A hear- ing in this proceeding was held at Brooklyn, New York, on August 1 and 2, 1979, on complaint of the General Counsel issued on December 12, 1978, against two Re- spondents. The complaint rests upon two charges, each filed on October 16, 1978, by Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, Ser- vice Employees International Union, AFL-CIO, here called Local 144 or the Charging Party. The first charge, Case 29-CA-6731, is against Baines Service Systems, Inc., now a Respondent, called Baines. The second charge, Case 29-CB-3525, is against Building Service Employees International Union, Local 32E, AFL-CIO, now also a Respondent and herein called Local 32E. The issue to be decided is whether, when the two Respon- dents, on June 5, 1978, signed a collective-bargaining agreement, they committed unfair labor practices, Baines having violated Section 8(a)(l), (2), and (3), and Local 32E having violated Section 8(b)(l)(A) and (2). Briefs were filed by all parties. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER Baines Service Systems, Inc., a New York State cor- poration, has its principal office in the city of Mount Kisco, New York, and is engaged in providing cleaning services to nursing homes and other commercial, nonre- tail enterprises. During the past year, a representative period, in the course of its business, it supplied cleaning services valued in excess of $50,000 to nursing homes lo- cated in the State of New York, each of which received in excess of $100,000 in gross annual revenues and each of which had purchased supplies directly or indirectly from outside the State of New York valued in excess of $50,000. I find that this employer is engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that both Local 144 and Local 32E are labor or- ganizations within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR L.ABOR PRACTICES A. The Case in Brief In the spring of 1978 a new building, five or six stories high, was reaching the stage of completion in Brooklyn, New York; privately owned, it was to be called the Aishel Avraham Nursing Home, where the patients would be cared for. The owners decided to have the housekeeping work-cleaning the place-done by an outside contractor. Baines Service is in the business of furnishing such work by contract to many institutions, including nursing homes of this kind; it has about 20 such separate contracts, some of them also in Brooklyn. Local 32E has for some time been the collective-bargain- ing agent representing the employees of Baines Service at some of these homes in Brooklyn, with a separate con- tract for each home. The contract between Aishel Avra- ham and Baines Service, for providing the housekeeping services, was signed sometime in March or April 1978. The first employee Baines placed in this home to do the cleaning work was David Zaler, then hired to be the executive housekeeper, and to remain in charge of all employees that company planned to hire later. Zaler first arrived on June 5, 1978; there also arrived that day Walter Cochrane, who had worked a year for Baines at another jobsite and was transferred here, and Al Simp- son, a porter. These three started to do preparatory cleaning up. The home did not begin doing business- that is, no patients were received-until 2-1/2 months later, on August 15. From then on as each of the five floors of patient space, totaling 200 beds, were filled up- wards one at a time, more and more housekeeping em- ployees were put on its payroll by Baines. It took several months before all five patient floors were being used. On the same day, June 5, 1978, that it hired Zaler, the first employee in the new unit,' Baines signed a collec- tive-bargaining agreement with Local 32E. That is, a document purporting to be such a contract was placed into evidence, furnished to the General Counsel, I assume, by Respondents. Whether this document was in fact signed on June 5, I really do not know, because, apart from inserted dates and the added signature of Paul Baines, president of Respondent Employer here, the I Both Respondents agreed at the hearing that for collective-bargaining purposes the employees of Baines Service at this one home constitute an appropriate bargaining unit under the statute apart from any employees of Baines employed elsewhere. BAINES SERVICE SYSTEMS. INC. 567 printed exhibit does not refer to the Aishel Avraham Nursing Home at all. Instead, it reads only as a contract between Baines and Local 32E.2 And there is no evi- dence, indeed no claim, that on June 5-if in fact the contract was signed that day-any employee in this bar- gaining unit had authorized Local 32E to act on his behalf.3 For purposes of decision here, I will give Re- spondents the benefit of doubt and consider the case as though the contract was really signed on June 5, 1978. The complaint alleges that because there were only two or three employees hired and working in the unit when the contract was made, and because the parties knew a much greater number would have to be hired- as in fact they were-both Respondents violated the law by thus usurping the statutory rights of employees to choose their own bargaining agent. Paul Baines, the president of Respondent Employer, was the only witness called on behalf of both Respondents. He was a witness of weak credibility-evasive, argumentative, inconsistent, departing from his own records-so that considering his total testimony I am unable to understand just what de- fense he intended to articulate-either factually or as a matter of law. B. Analysis and Conclusion The evidence shows, and I find, that on June 5, 1978, the Baines Company had three persons at work in the bargaining unit, two of them supervisors and only one a porter.4 I also find, as the record no less clearly shows, that by the time the patients first arrived in the home and Baines' business became what he contracted it to be, the number had reached six, rank and filers, that is. That Baines knew the number was going to increase is such an obvious truism in this case that there is not reason enough to discuss the suggestion that he did not know what the future held. And that the representatives of Local 32E, whoever they were, also knew, before June 2 The recognition clause in the exhibit received reads as follows: The Employer recognizes the Union as the sole bargaining agent for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment for all employees hired in the Bronx, Westchester, Rockland. Douchess and Putnam Counties and are classified as porters, cleaners ad util- ity men, both male and female, who perform work on Industrial and Noncommercial Properties, excluding all supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. s See Bronxwood Home for Adults, 244 NLRB No. 84 (1979), in which the Board recently held that where the owner of a newly opened nursing home signs a contract with a union, and there is no evidence (necessarily an affirmative burden of proof resting upon the respondent employer) that the union had been authorized by an employee majority, an unfair labor practice has been proved with nothing more. ' Cochrane came from another nursing home serviced by Baines and was made assistant to Zaler, the conceded supervisor. Two employees testified that Cochrane gave them orders as to what work they were to do when Zaler was not there. The home is covered 7 days a week; 2 of these days Zaler is off completely. Cochrane, therefore, is in complete charge of the entire operation at least 16 hours a week, He is also in charge mn the morning when both he and Zaler are scheduled but Zaler arrives late. Baines said he only goes to the home about twice a month; Cochrane did not testify. Where ordinary porters are paid about 3.50 an hour, Cochrane was paid 4 25. And finally the computer payroll records maintained by the Company place him In the catagory 720. which Baines said at the hearing is the numerical designation for executives. 5, there would be a full complement of porters at the Aishel Avraham Home is also unquestionable. I find that by executing this contract, on June 5, covering the housekeeping employees of Baines Service at his home, Respondent Employer violated Section 8(a)(1) and (2) of the Act, and Respondent Union violated Section 8(b)(l)(A). Cowles Communications. Inc., 170 NLRB 1596 (1968). See also Prince Pontiac, Inc., 174 NLRB 919, 923, at fn. 14 (1969). Zaler, the "executive" supervisor placed in the Aishel Avraham Home on June 5, testified he had with him that day only two other men-Cochrane and Simpson. Zaler was put in full charge by the Baines Company, with power to hire and fire. For the first 2 weeks or so he kept only slips of paper to record who worked and when, and once a week Curtis Goins, a vice president of Baines Service, used to visit the place, talk to Zaler, and pay off the employees in cash, however much Zaler told him they had worked. By mid-June Zaler began to keep a log of hours worked and by whom. A copy of this record was received in evidence. Later, on or about July 17, the company for the first time started keeping re- cords of employment for employees in this home. Some of these records were also received in evidence. Asked, at the hearing, as a witness for Respondents, who or how many employees had worked on the first day, or at any other day up to July 17, Baines kept saying he did not know. Respondent Employer offered nothing, writ- ten or probative oral testimony, to give the lie either to its own supervisor's oral testimony or to his written re- cords. At one point in his vacillating testimony, as a gen- eral recollection Baines said there were "four housekeep- ing and one utility man" actually at work on June 5. This, after his clear admission he did not even remember when it was that the first employee was hired at this par- ticular home, which he only visits about twice a month. From his testimony toward its close: "Q. Were you at the home on that day? [June 5] A. I might have been, I don't remember. Q. Do you recall whether or not you were there? A. No, I don't remember." With this the posture of the defense, I credit Zaler's testimony-oral or supported by his own comtemporan- eous writings. It is therefore a fact only he, Cochrane, and Simpson were hired by June 5. Simpson quit 2 weeks later. A man named Aponte started work on June 6, worked "a little longer" than Simpson, and then also quit. Nieves came to work on June 7, worked only 2 or 3 days, and then also left. From the beginning no one else was hired until Michael Curry came on June 15, and his brother, Thomas Curry, on June 17. From this date on there was no record of any kind until the Baines home office added this nursing home to its total payroll. Zaler continued to testify that by July 15 there were still no more than four or five employees all told. By the time the home started to accept paying patients on August 15, there were about six and when all five patient floors were filled, quite later, a total of 15 or 16 were at work, all this according to Zaler. This was the Compa- ny's authorized representative in charge of the operations speaking. He was not effectively contradicted. I believe him. Whether or not 6, 7, or 8 months later there were 12, 14, or 16 employees included in the bargaining unit BAINES SERVICE SYSTEMS. IC. 567 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and bound by the contract, a matter Baines talked about at length as a witness, means nothing. Moreover, his at- tempt to read his own records so as to exclude a number of people doing housekeeping work discredited him all the more. Referring to a couple of ladies listed on the payroll, he said they did laundry, and were outside the ambit of this case, had nothing to do with the Union. But he also admitted Baines Service has no other contract at this home, and no union or collective-bargaining agree- ment other than the one at issue. On cross-examination the General Counsel then proved the Company had been deducting union dues from the earnings of these same ladies and forwarding them to Local 32E. To say that Baines, and whatever agent of Local 32E he dealt with, misconceives the principle underlying this statute is to put it mildly. Baines said that when he told Local 32E he wanted to transfer a man from a home where that union was established, the union representa- tive answered "in order for the union to okay it [the transfer], I would have to sign a contract for this site [Aishel Avraham Nursing Home]," and that he that day told the Local 32E agent: "Okay." It is substance that counts, not words. What Baines really did that day-and it was before even Cochrane came to Aishel Avraham- was accept that Union as bargaining agent, an oral rec- ognition agreement, as it were. It is too late a day in his- tory to comment on the right of employees in America to freely engage in union activities. What both these men still have to learn is that it is the employees who choose which union they want, if they want any at all, and not for the union or the employer to force upon them any organization they prefer. The illegality of Respondents' acts can also be phrased as prohibited assistance by the Company to the Union, and prohibited acceptance of such assistance by the Union. The contract includes a union-security provision, binding employees to membership in Local 32E as a con- dition of employment. Because the unlawfully executed contract so provides, it also constitutes a violation of Section 8(a)(3) by Respondent Employer and a violation of Section 8(b)(2) by Respondent Union, and I so find. Interpace Corporation, 189 NLRB 132 (1971). The parties enforced this part of the contract. In mid- August a group of employees were called into the office where Goins, the company vice president, told them Local 32E was going to be their union. Charles Ayers, Local 32E representative, was present, and he then dis- tributed membership cards; when the men asked, "Do we have to sign them," Ayers answered, "We didn't have no choice." On another occasion Goins called three or four men to a meeting and criticized them for trying to replace Local 32E with another union. In the conver- sation he found occasion to tell the men "it was like working for the telephone company. It's a closed shop, and you have to become a member." Zaler, the execu- tive, also asked the men to sign dues-deduction authori- zations a number of times but they refused. Finally, in February 1979, he asked them again, saying "either they sign the card or they would be fired." Zaler said the same thing to employee Jaimungel in October: "if you don't sign this card, you will have to leave." Finally, now or then, some of the employees did sign both kinds of cards. And the Company deducted both union dues and union initiation fees from their earnings and forward- ed the money to the Union. It even deducted money from the pay of certain employees and forwarded it to the Union as dues in instances where the employees had refused to sign any forms at all. How many employees were thus coerced into paying money to the Union this record does not clearly show. But that is a matter for the compliance stage of this proceeding. I find that by Ayers' statement to the employees that they were compelled to join Local 32E as a condition of employment, Respondent Union violated Section 8(b)(1)(a) of the statute. I also find that by Zaler's state- ments that the men would be discharged if they refused to sign dues-deduction cards in favor of Local 32E, and by Goins' statement that employees must become mem- bers of Local 32E to keep their jobs, Respondent Em- ployer violated Section 8(a)(1). 5 IV. THE REMEDY Both Respondents must be ordered to cease giving effect to their June 5, 1978, collective-bargaining agree- ment and to cancel it entirely. Each of them must also be ordered to cease and desist from committing both the kind of unfair labor practices which have here been found and any other unfair labor practice under this stat- ute. They must also be ordered to reimburse every em- ployee from whose pay Respondent Employer deducted any moneys whatever, either for union dues or for union initiation fees. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth above, occur- ring in connection with the operations of Respondent Employer as described in section I, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. By unlawfully assisting and supporting Respondent Union, Respondent Employer has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 2. By threatening to discharge employees unless they signed dues-deduction and membership cards in favor of Respondent Union, and by telling its employees that they were required to become members of Local 32E as a condition of employment, Respondent Employer violated and is violating Section 8(a)(l) of the Act. 3. By accepting recognition as the sole bargaining rep- resentative of employees and by executing and maintain- ing the collective-bargaining agreement as found herein, Respondent Union has restrained and coerced and is con- tinuing to restrain and coerce employees of Respondent Employer in the exercise of the rights guaranteed them Tuschak/Jacobson, Inc. /a Franklin Convalescent Center, 223 NLRB 1298 (1976). BAINES SERVICE SYSTEMS, INC. 569 in Section 7 of the Act, in violation of Section 8(b)(l)(A) ployer has violated and is violating Section 8(a)(3) of the of the Act. Act, and Respondent Union has violated and is violating 4. By telling employees of Respondent Employer that Section 8(b)(2) of the Act. they were compelled to join Respondent Union as a con- 6. The aforesaid unfair labor practices are unfair labor dition of employment, Respondent Union has violated practices within the meaning of Section 2(6) and (7) of and is violating Section 8(b)(l)(A) of the Act. the Act. 5. By enforcing the union-security provision of the [Recommended Order omitted from publication.] contract found illegal in this Decision, Respondent Em-