C. Ray Randall Manufacturing Co, Corp.

In the Matter of C . RAY RANDALL MANUFACTURING COMPANY, COR- PORATION and PLAYTHINGS, JEWELRY & NOVELTY WORKERS INTERNA- TIONAL UNION, CIO and C. RAY RANDALL EMPLOYEES ASSOCIATION, PARTY TO THE CONTRACT Case No.1-CA-309.Decided January 17, 1950 DECISION AND ORDER On October 11, 1949, Trial Examiner George Bokat issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certaiii unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, C. Ray Randall 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Houston and Reynolds]. 2 As no exceptions have been filed to the Trial Examiner's failure to recommend that the Respondent reimburse its employees for checked -off union clues , we find it unnecessary to pass on the Intermediate Report in this respect. Unlike the Trial Examiner, we find on this record that danger exists that the Respondent .may in the future commit other unfair labor practices not directly related in kind to those it has already committed . We shall therefore issue a broad cease and desist order. See .James R. Kearney Corp., 81 NLRB 26. 88 NLRB No. 18. 140 C. RAY RANDALL MANUFACTURING COMPANY 141 Manufacturing Company, North Attleboro, Massachusetts, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of or contributing support to, C. Ray Randall Employees Associa- tion or any other labor organization, and from otherwise interfering with the representation of its employees through a labor organization of their own choosing; (b) Recognizing or in any other manner dealing with C. Ray Ran- dall Employees Association, or any successor thereto, as the collective bargaining representative of any of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other conditions of employment; (c) Giving effect to its contract of December 13, 1948, with C. Ray Randall Employees Association, or to any amendment, extension, or renewal thereof, or to any other contract with this labor organization or any successor thereto, including the arrangement for the deduction of dues; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Playthings, Jewelry & Novelty Workers International Union, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right 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, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from C. Ray Randall Employees Association as the representative of any of its employees for the pur- pose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other con- dition of employment, and completely disestablish said organization as such representative; (b) Post at its plant in North Attleboro, Massachusetts, copies of the notice attached hereto and marked Appendix A.3 Copies of said ' In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice , before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, to be furnished by the Regional Director for the First Region, shall after being duly signed by the Respondent's representative, be- posted by the Respondent immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous- places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to, insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the First Region in writing,. within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations. Board, and in order to effectuate the policies of the National Labor .Relations Act, we hereby notify our employees that : WE WILL NOT dominate or interfere with the formation or ad- ministration of, or contribute support to, C. RAY RANDALL. EMPLOYEES ASSOCIATION or any other labor organization of our employees. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL NOT recognize C. RAY RANDALL EMPLOYEES ASSOCIA- TION, or any successor thereto, as the representative of any of our employees for the purpose of collective bargaining. WE WILL NOT give effect to our agreement of December 13, 1948,. with C. RAY RANDALL EMPLOYEES ASSOCIATION, or to any ainend- ment, extension, or renewal thereof, or to any other contract,. agreement, or understanding entered into with this labor organi- zation or any successor thereto, including the arrangement for the deduction of dues. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist PLAYTHINGS, JEWELRY & NOVELTY WORKERS INTERNATIONAL UNION. CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement re- C. RAY RANDALL MANUFACTURING COMPANY 143 quiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE HEREBY DISESTABLISH C. RAY RANDALL EMPLOYEES ASSOCIA- TION as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, and we will not recognize it or any successor thereto for any of the above purposes. C. RAY RANDALL MANUFACTURING COMPANY, Employer. By ------------------------------------------------ (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Robert E. Greene, for the General Counsel. Adler, Flint & Zucker, by Mr. Walter Adler, of Providence, R. I., for the Respondent. Rothbard, Harris & Oxfeld, by Mr. Sidney Birnbaum, of Newark, N. J., for the -CIO. STATEMENT OF THE CASE Upon a charge filed on November 22, 1948, by Playthings, Jewelry and Novelty Workers International Union, CIO, herein called the CIO, the General Counsel of the National Labor Relations Board, called herein respectively the General Counsel and the Board, by the Regional Director of the First Region (Boston, Mass.), issued his complaint dated July 6, 1949, against C. Ray Randall Manu facturing Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (2), and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies. of the charge and the complaint, together with notice of hearing, were duly served upon the Respondent, the CIO, and C. Ray Randall Employees Association, herein called the Association. With respect to the unfair labor practices, the complaint alleged, in substance, that the Respondent, by various acts detailed in the complaint, initiated, spon- sored, and formed the Association in about October 1948, and since that date has dominated, supported, and interfered with the administration of the Association. In its duly filed answer the Respondent, while admitting the jurisdiction of the Board, denied the commission of the alleged unfair labor practices. The Association, by its duly filed answer, denied that it was the recipient of any assistance or domination by the Respondent. Pursuant to notice, a hearing was held on July 26 and 27, 1949, at Attleboro, Massachusetts, before George Bokat, the undersigned Trial Examiner duly des- ignated by the Crief Trial Examiner. The General Counsel, the Respondent, and the CIO were represented by counsel and participated in the hearing. Full 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, counsel for the Association stated that he was. withdrawing his appearance for the Association and would not participate fur- ther in the proceeding since the Association had arrived at a settlement with. the General Counsel's representatives. At the conclusion of the General Coun- sel's case-in-chief the Respondent moved to dismiss the complaint. The motion was denied but was renewed at the close of the hearing and taken under ad'- visement. It is disposed of in accordance with the findings of fact and con- clusions of law made below. The parties availed themselves of the opportunity to argue orally but pursuant to leave granted only the Respondent filed a brief with the undersigned. Upon the entire record in the case and from observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation organized and operating under the laws of the Commonwealth of Massachusetts, is engaged, at North Attleboro, in the manufacture, sale, and distribution of jewelry, novelties, and metal ornaments. During the fiscal year 1948, the Respondent purchased raw materials consisting principally of brass and imitation stones valued in excess of $300,000. Approxi- mately 95 percent of such raw materials were shipped to the Respondent's plant. in North Attleboro from points outside the Commonwealth of Massachusetts. Sales for the same period exceeded $500,000, in value, and approximately 95, percent of these finished products was shipped to points outside the Common- wealth of Massachusetts. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED 0 Playthings, Jewelry and Novelty Workers International Union, CIO, and C. Ray Randall Employees Association, are labor organizations within the meaning of the Act admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Resolution as to supervisors There is no substantial dispute as to the facts. The General Counsel called four witnesses in support of the main issue as to whether the Respondent vio- lated Section 8 (a) (2) of the Act, and derivatively Section 8 (a) (1). No, independent violations of Section 8 (a) (1) were either alleged or proved. Three of the witnesses were foremen, two of whom were primarily responsible for the formation of the Association. Since the Respondent disputes the allegation that these and other foremen active in the Association are supervisors within the definition of the Act' that issue will be determined first. I Section 2 (1I.) provides : "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." C'. RAY RANDALL MANUFACTURING COMPANY 145 At all times material herein, the Respondent employed about 225 employees, exclusive of supervisors. It is headed by President Harold Pulver and in descend- ing order the hierarchy consists of Vice-President Joseph Pulver and Superin- tendent Harry Stanford.' The plant is divided into about 11 departments each: headed by a foreman. So far as the record reveals the smallest department consists of 7 employees, the largest about 45. Some of the foremen spend some, if not most, of their time working alongside the employees. Frank J. McNally, one of the supervisors who testified, is foreman of the department with the 45 employees, and has the help of an assistant supervisor. McNally normally per- forms only supervisory duties. All of the foremen are held out by the Respond- ent as being in charge of their respective departments and are recognized by their employees as such. The foremen pass out and direct the work of their employees. When a foreman needs a new employee he so informs Superintendent Stanford and if Stanford agrees, and the vacancy cannot be filled by transfer from another department, the foreman is given authority to interview applicants. The next step is within the discretion of the foreman ; he might make his selection from among the applicants without further consultation with the superintendent, or might seek his advice as to who to choose. The foremen have authority to recommend wage increases to the superintendent and they are usually accepted. They have the same authority in regard to layoffs or discharges. I find, contrary to the contention of the Respondent, that its foremen are super- visors within the meaning of Section 2 (11) of the Act. Suffice it to say that the admitted duties of the foremen described above necessitate the use of their inde- pendent judgment in effectively recommending the hiring, discharging, or reward- ing of the employees under their supervision. Nor can it be questioned, upon the record as a whole, that the foremen responsibly direct their employees.' B. Formation and activities of the Association Sometime in the fall of 1948, the CIO began to organize the Respondent's employees. As a result, there was considerable discussion among the employees about the desirability of a union. An employee in Foreman McNally's depart- ment told McNally "that most of the boys in [his] department would like to form an association of their own." McNally replied that he would find out what he could do about it. McNally, together with Foreman Stuart J. Stanford, a brother of Superintendent Stanford, had previously worked at a neighboring plant where an independent union functioned. McNally discussed the problem with Stuart Stanford and they agreed to seek the advice of a local lawyer named William J. McGivney. Shortly prior to October 26, 1948, they made an appoint- ment to see McGivney. The same day Stuart Stanford went to his brother and Vice-President Pulver and told them that he and McNally were thinking of 2 while there probably are other officers , it is not revealed by the record. S Cf. Fitzgerald Mills Corp ., 77 NLRB 1156 ; Morowebb Cotton Mills Company, 75 NLRB 987; Chicopee Manufacturing Company, 85 NLRB 1439. In his brief to the Trial Examiner , counsel for the Respondent argues that the foremen were not the Respondent's agents under the ordinary rules of agency because "there is not one shred of evidence to show that the C . Ray Randall Company actually authorized these foremen to engage in any form of union activity." I find no merit to this argument. Not only were the foremen acting within the scope of their employment, but Section 2 (13) of the Act provides : In determining whether any person is , acting as an "agent" of another person so as to make such other person responsible for his acts , the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD starting an "employee association" and had an appointment to see McGivney that evening. "They were against it," testified Stuart Stanford.' Nevertheless, they kept the appointment with the lawyer. McGivney advised them to ascertain if the employees favored an independent union and if they did that they should then obtain a charter and incorporate under the state law. McNally, doubtful whether foremen could belong to the proposed union, asked the question of McGivney. "I asked him definitely because I wasn't quite sure that we could, but he definitely told us that we could belong." On the following day, McNally and Stuart Stanford had separate petitions prepared for each department bearing the heading: "Those employees wishing to join the C. Ray Randall Employees Association sign below." They then went to the foreman of each department, explained the purpose of their visit and asked each foreman to select an employee to circulate the petition in his department. Following a completely favorable poll of the employees, McGivney prepared an "Agreement of Association" to incorporate the Association. He explained to McNally and Stuart Stanford that it would have to be subscribed by 12 charter members who would constitute the Board of Directors and that temporary officers should be selected from among the 12 to serve until the following March when a regular election of officers would be held. McNally and Stuart Stanford also advanced $25 for the filing fee for the charter.' On either October 27 or 28, 1948, McNally and Stuart Stanford met with 10 other employees of their selection who had agreed to serve as charter members and the Board of Directors. They met during the lunch hours in Superintendent Stanford's office ° and signed the articles of incorporation. Of the 12 who signed, 7 were foremen. They also selected temporary officers with McNally as president and Foreman Armand La Pierre as treasurer. The Association's charter was issued on November 4. Membership cards were printed and given to the employee in each department who had previously cir- culated the petition heretofore described, for distribution to the employees! Dues were fixed at 25 cents a month. A Grievance Committee composed of a representative from each department was selected by secret ballot. The em- ployees voted in their respective departments, in at least Foreman McNally's department on company time. The result of this election was posted on the time clock on each floor and a copy given to President Pulver. A constitution and bylaws, modeled on the one in the plant where McNally and Stuart Stanford had previously worked and furnished by McNally to Mc- ' After the Association was formed however, President Pulver, in a meeting with Associa- tion officials, informed them that although he saw no necessity for a union, he would cooperate since the employees wanted one, and would have his lawyer get together with the Association's lawyer to work out a contract. 6 They were later reimbursed by the Association's treasurer. 6 According to Foreman Armand La Pierre, this meeting took place during working time. ' Stuart Stanford, who with McNally, secured permission from his brother for the use of the office, testified that they did not inform him of the purpose and that the superin- tendent was not present during the meeting. 8 The card reads as follows : APPLICATION FOR MEMBERSHIP I, the undersigned, employee of____________________ hereby apply for membership in the C. Ray Randall Employees ' Association and do hereby authorize its officers and/or agents to represent me in collective bargaining with my employer. I also authorize deduction of Association obligations from my wages as may be provided in agreement between my employer and the Association. Signature____________________ The authorization for the deduction of dues by the employer is discussed later. C. RAY RANDALL MANUFACTURING COMPANY 147 Givney, was prepared . Copies were distributed to the employees for their com ments by the foreman of each department . Some of the employees complained that too many foremen were holding office in the Association and it was decided to hold an immediate election instead of permitting the Board of Directors and temporary officers to function until March as originally planned . The election was held on November 19, by the employees voting by secret ballot in their own departments. Some of the foremen were candidates . According to McNally, who was elected president , he was an unwilling candidate . The ballot not only contained a choice of officers and nominees for the Board of Directors, but also the following inquiry : Do you wish the officers of the C. Ray Randall Employees Association to bargain collectively with the management concerning wages and hours and other working conditions and to enter into a contract in these matters? Yes______ No______ When the ballots were counted, however , it was found that there were more ballots than eligible voters and the election was voided. November 22 was set as the date for the new election. Prior to the election on that day , McGivney telephoned McNally at the plant and asked "if it would be possible for him to come down and talk to the employees and explain how seriously the balloting should be handled." All of the employees including the foremen , assembled on the fourth floor of the plant at about 4 or 4:30 in the afternoon to listen to McGivney. McNally told the Association steward of his department to instruct the employees to go to the fourth floor to get some "points " from McGivney "on the supervision of our next election." McNally addressed the employees first. "I just declined to run. I told them I didn't care to be President of the Association ; I couldn't put enough time into it for one thing." After McGivney spoke, the employees returned to their own departments where they voted on company time. Although the rank -and-file employees were paid by the hour, they suffered no loss in pay. The election results showed only one foreman elected to office-Armand La Pierre as treas- urer.' The vote on authority to bargain with the Respondent carried by 87 to 78. Meanwhile, on November 12, McGivney had written to the Respondent request- ing it to recognize the Association as the collective bargaining agent of all the employees on the representation that the Association had in its possession cards signed by a majority of the employees . On December 4, the Association met with the Respondent for the purpose of negotiating a contract . The meeting lasted from 10: 30 a. in. to 2 p. in. The parties agreed on the terms of a contract which was formally executed on December 13 to run until December 1, 1949, and yearly thereafter unless terminated by a 60 -day notice. Under the terms of the agree- ment the Respondent "recognizes the Association as the sole collective bargaining agency for all employees in the plant excepting executives , office workers , super- visory or clerical help." And in other respects it appears to be a typical collec- tive bargaining agreement . Evidently the Respondent relied on the Association's representation that it represented a majority of the employees and perhaps the Association vote, because the membership cards were never turned over to Re- spondent for its inspection . The Respondent executed the contract with knowl- 9 La Pierre testified that he did not want the office because he "didn't have the.time to do anything with it. When they wanted me to be Treasurer , I tried to resign and they didn't want me to , so I decided to go along . . . ." ( 249) La Pierre continued in office until the following March when the first regular election took place. 882191-51-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edge of the pendency of unfair labor practice charges, filed by the CIO, a copy of which it received on November 26, 1948, alleging that the Association was company-dominated. Although the agreement made no provision for the deduction of dues from the wages of the employees to be paid to the Association, nevertheless this was done commencing shortly after the signing of the agreement. Foreman La Pierre, treasurer of the Association, turned over to the bookkeeper of the Respondent a list of the members of the Association who had signed membership cards. These cards, it will be remembered, authorized the deduction of Association obligations from the wages of the signer "as may be provided in agreement between my employer and the Association." No evidence of any agreement for the deduction of Association obligations appears in the record other than La Pierre's request of the Respondent's bookkeeper. The checkoff list supplied to the bookkeeper included the names of all of the Respondent's foremen. The CIO filed its charge herein with the Regional Office on November 22, 1948. On about January 25, 1949, a field examiner of the Regional Office visited the Respondent's plant and obtained signed statements from the four witnesses who testified in this hearing and probably from others. Sometime around Christmas of 1948 or shortly after the visit of the field examiner to the plant on January 25, McGivney advised McNally that "it would be better" if the foremen resigned from the Association. La Pierre, therefore, acting under instructions from McNally and Stuart Stanford, crossed off the names of all the foremen who were on the check-off list supplied to the. bookkeeper. Although the foremen took no other formal steps to resign from the Association, they no longer considered themselves members. As pointed out above, however, La Pierre continued to serve as treas- urer until March. Prior to the filing of the charges by the CIO, all meetings of the Association took place on company property." Eight or nine of the meetings of its officials took place in Superintendent Standford's office, most of therm on company time. C. Concluding findings It is apparent from the facts found above that the Respondent rendered illegal support and assistance to the Association and interfered with the free choice of its employees to join or not join a labor organization within the meaning of Section 7 and Section 8 (a) (2) of the Act. At least until the receipt of the charge herein on November 26, 1948, all organizational steps and meetings of the Association took place in the Respondent's plant, many on company time without deduction from the employees' hourly pay. Thus, petitions were circulated in each department among the employees whether they wished to join the Associa- tion; the first meeting of the Board of Directors took place in Superintendent Stanford's office and later 7 or 8 additional meetings were held there ; the membership cards and copies of the Association constitution and bylaws were circulated in each department ; balloting for the Grievance Committee and for the two elections of officers also occurred in each department ; and the attorney for the Association was permitted to address all of the employees on company time. It must now be determined whether the Respondent's conduct has been con- fined to thus assisting and supporting the Association or whether, in line with 10 In his brief to the Trial Examiner , Respondent's counsel concedes that Association meetings continued to be held on company property until January 26, 1949. C. RAY RANDALL MANUFACTURING COMPANY 149 the Board's policy enunciated in Carpenter Steel Company," the Respondent's conduct constituted domination of the Association as well. In my opinion, in the leading role played by the Respondent's foremen in the affairs of the As- sociation lies the determinative answer to this question. Thus, Foreman McNally and Stanford selected and hired an attorney in the first step of creating the Association ; prepared petitions and with the assistance of all of the Respondent's foremen caused them to be circulated among all the employees ; advanced $25 for the filing fee of the articles of incorporation ; supplied the model for the Association's constitution and bylaws, and selected the Board of Directors, 7 of whom were foremen. The Board of Directors in turn selected the temporary officers which included McNally as president, and Forman La Pierre as treas- urer; when the first election was held, McNally permitted his name to stand as candidate for president, albeit reluctantly ; and with the same reluctance, La Pierre permitted his candidacy as treasurer for the second election and con- tinued to serve in that office until the next regular election of officers. Further- more, under the initiative of the foremen, the two elections for the officers and the separate election for the Grievance Committee were held in each department. Through the dominant position of its foremen in the Association therefore, the Respondent was in a position of control over the Association and its policies. While it is true that the. foremen no longer consider themselves members of the Association, neither the Association nor the employees were ever formally advised of their resignations. Nor did the Respondent in any way ever make known to its employees its disapproval or disavowal of the actions of its fore- men. I find that the very close identification of the Association with manage- ment in the minds of the employees renders the Association a continuing obstacle to the free exercise by the employees of their right to select or reject a bargaining representative. Under these circumstances, having formed the Association and having dominated it through its inception and early stages the taint of its domi- nation can only be removed by an order of disestablishment.12 I also find that the Respondent's execution of an exclusive bargaining contract with the Association in the face of an unresolved charge of company domination of the Association, under the facts here disclosed, also constituted an act of assistance and support in violation of Section 8 (a) (2). I feel likewise about the Respondent's acquiesence in Treasurer La Pierre's request for the deduction of dues from the employees' wages, particularly since the agreement made no provision therefor. Upon the entire record in the case I find that the Respondent not only assisted and supported the Association but dominated it as well. IV. THE REMEDY Having found that the Respondent has engaged in the unfair labor practices set forth above, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent's conduct has exceeded the bounds of inter- ference and support and constituted domination of the Association as well. In accordance with the Board's policy as announced in Carpenter Steel Company, I shall recommend that the Respondent withdraw all recognition from and dis- establish the Association as the representative of any of its employees for the 11 76 NLRB 670. 12 Cf. Hershey Metal Products Company, 76 NLRB 695; Crosby Chemicals Inc., 85 NLRB 791 ; Madix Asphalt Roofing Corp., 85 NLRB 26. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. I shall also recommend that the Respondent cease giving effect to its contract with the Association or to any modification or extension thereof, as well as to cease checking off Association dues from the wages of its employees. Nothing herein shall be taken, however, to require the Respondent to vary those wages, hours, and other substantive features of its relations with the employees which it has established in the performance of any agreement as extended, renewed, modified, supplemented, or superseded. Clearly, in checking off dues the Respondent did not meet the requirements of Section 302 of the Act quoted below." It will be remembered that the applica- tion card for membership in the Association contained the following sentence: "I also authorize deduction of Association obligations from my wages as may be provided in agreement between my employer and the Association." [Emphasis supplied.] The written contract of December 13, 1948, contained no provision for the checkoff of dues. The Respondent deducted dues only upon receipt from V oreman La Pierre of a list of the Association's members and without receiving Trom the members of the Association individual written authorizations. So far gas the record reveals the application cards were never shown to the Respondent. Normally, I do not believe that it would be within my province to determine whether the Respondent violated Section 302 since subsection (d) thereof pro- vides : "Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both," and subsection (e) thereof gives jurisdiction to the district courts of the United States over violations of Section 302.14 [Emphasis supplied.] The only possible bearing that the appropriate provisions of this Section might have in this case would be in determining whether Congress intended that the Board enlarge its normal policy where it has found a violation of Section 8 (a) (2) and is con- fronted with the problem of whether to order the reimbursement of checked-off dues in order to "effectuate the policies of this Act." [Emphasis supplied.] The Board normally orders the reimbursement of checked-off dues only in those cases where the actions of the employer are tantamount to coercing all employees to join the dominated organization. I have found that the deduction of dues by the Respondent from the employees' wages constituted additional support within the meaning of Section 8 (a) (2). And I would have made the same finding even if the requirements of Section 302 had been met.15 However, following the Board's normal policy and absent the arguable intent of Congress as provided. by Section 302, I would not, under the facts above found, recommend that the Respondent reimburse the employees for their checked-off dues. Although the Respondent dominated and assisted the Association and was undoubtedly responsible for the adherence of some employees to this organization, I am unable to find that the Respondent's actions were tantamount to coercing all employees into joining the 13 Section 302 (a) makes it unlawful for an employer "to pay or deliver, or to agree to pay or deliver, any money . . . to any representative of any of his employees ...." Section 302 (c) (4) exempts from this provision ". . . money deducted from the wages of employees in payment of membership dues in a labor organization ; Provided, that the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable agreement, whichever occurs sooner." 1' Compare 'Crosby Chemicals Inc., supra, and Julius Resnick, Inc., 86 NLRB 38, wherein the Board makes reference to Section 302. 11 See Kresge Department Store, 77 NLRB 212. C. RAY RANDALL MANUFACTURING COMPANY 151 Association and supporting it either by direct dues payments or by the deduction of dues from their wages. I have been careful not be find that the Respondent violated Section 302 be- cause I am unwilling for anyone to conclude that I am thereby finding that the Respondent "willfully" violated the pertinent provisions of that Section. The possible bearing that Section 302 might have in fashioning an appropriate remedy was neither raised nor litigated at the hearing. I think it unnecessary for the purpose of this problem, however, to decide whether the Respondent violated Section 302 or not. The facts as to the method of deducting dues were adduced at the hearing and the Respondent was put on notice by the General Counsel that he was requesting that the employees be reimbursed for their checked-off dues. While it may be a matter of semantics, I think it only necessary to point to what the facts clearly demonstrate for whatever possible bearing they may have in determining an appropriate remedy, and that is that the Respondent, in checking off dues, did not meet the requirements of Section 302. It still must be determined, however, whether the Respondent should make its employees whole for their checked-off dues in the light of noncompliance with Section 302. A meritorious argument can be made in support of such a view. The question however is close and really one of policy. I have studied the legis- lative history concerning Section 302 and it is not very helpful. Section 8 (a) (2) (C) (i) of the original House bill (H. R. 3020) made it an unfair labor prac- tice to deduct dues from the wages of an employee unless such action is volun- tarily authorized by the individual employee. The House, however, finally adopted the Senate version as now embodied in Section 302, making it a mis- demeanor for a "willful" violation thereof. The failure of the House version to become law would seem to negative any suggestion that the Board go beyond its normal policy in cases involving reimbursement for dues deductions. I shall not therefore recommend that the Respondent reimburse its employees for the amount of their checked-off dues. The findings which have been made above are based entirely upon and derive from the Respondent's course of conduct in dominating and interfering with the formation and administration of the Association and in contributing support to It. Except for such unlawful conduct flowing out of the Respondent's rela- tions to the Association, the record does not disclose that the Respondent engaged in any other unfair labor practice ; nor am I persuaded from the record of this ease, that a danger exists that•the Respondent in the future may commit any other unfair labor practices proscribed by the Act which are not directly related in kind to the unfair labor practices which it has been found to have committed in the past. Under the circumstances, it will not be recommended that the Board issue the usual broad cease and desist order used where the commission of other unfair labor practices is reasonably apprehended. It will be recommended, therefore, that the Respondent cease and desist from otherwise interfering with the representation of its employees by a labor organization of their own choosing. Upon the basis of the above findings of fact and upon the entire record of the case, I make the following : CONCLUSIONS OF LAW 1. Playthings, Jewelry and Novelty Workers International Union, CIO, and C. Ray Randall Employees Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of C. Ray Randall Employees Association and by contributing support thereto, the 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By said acts , the Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 ( 6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, I recommend that the Respondent, C. Ray Randall Manufacturing Company, North Attleboro, Massachusetts, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the formation or administration of C. Ray Randall Employees Association, or the formation or administration of any other labor organization, and from contributing support to the C. Ray Randall Employees Association, and from otherwise interfering with the representation of its employees through a labor organization of their own choosing ; (b) Recognizing C. Ray Randall Employees Association, or any successor thereto, as the representative of any of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to the contract of December 13, 1948, with C. Ray Randall Employees Association, or to any amendment, extension, or renewal thereof, or to any other contract, agreement, or understanding entered into with this labor organization or any successor thereto, including the arrangement for the deduc- tion of dues ; provided, however, that nothing herein shall be construed to require the Respondent to vary any substantive provisions of such agreement, or to prejudice the assertion by the employees of any rights that they may have thereunder. 2. Take the following affirmative action which I find will effectuate the policies of the Act : (a) Withdraw all recognition from C. Ray Randall Employees Association as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, and completely disestablish said organization as such representative; (b) Post at its plant in North Attleboro, Massachusetts, copies of the notice attached to the Intermediate Report herein, marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to be sure that such notices are not altered, defaced or covered by any other material ; (c) File with the Regional Director for the First Region on or before twenty (20) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which the Respondent has complied with the foregoing recommendations. C. RAY RANDALL MANUFACTURING COMPANY 153 It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, Respondent notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceedings (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board, shall be promptly made as required by Section 203.85. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeo- graphed and if mimeographed shall be double spaced. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 11th day of October 1949. GEORGE BOKAT, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT dominate or interfere with the formation or administration of, or contribute support to, C. Ray Randall Employees Association or any other labor organization of our employees. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL NOT recognize C. Ray Randall Employees Association, or any suc- cessor thereto, as the representative of any of our employees for the purpose of collective bargaining. WE WILL NOT give effect to our agreement with C. Ray Randall Employees Association, or to any amendment, extension, or renewal thereof, or to any other contract, agreement, or understanding entered into with this labor 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization or any successor thereto, including the arrangement for the deduction of dues ; provided, however, that nothing in this RECOMMENDA- TION requires us to vary any substantive provisions of any such agreement or to prejudice the assertion by any employee of rights thereunder. WE REREBY DISESTABLISH C. Ray Randall Employees Association as the representative of any of our employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. C. RAY RANDALL MANUFACTURING COMPANY, Employer By ------------------------------------------------ (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.