Hibbard Dowel Co.

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work on the eligibility payroll date, we find, in accord with the Re- gional Director, that she was ineligible to vote. Accordingly, the challenge to her ballot was properly sustained. As no exception was taken to the remaining findings and recom- mendations of the Regional Director affecting 17 ballots, we shall direct that those ballots be opened and counted. [The Board directed that the Regional Director for the First Re- gion shall, within ten (10) days from the date of this direction, open and count the ballots of Edward Arnold, Janet Baldasaro, George Bennett, John Boyle, Paul Clifford, Douglas Collins, Cecil Crowther, Thomas Gannon, George Kenney, Michael Margareci, Alton Moore, Robert Morrison, Robert Ranney, George Luscombe, George Connolly, Jerry Greenblatt, and the ballot identified as number (18), and shall thereafter serve upon the parties a supplemental tally of ballots.] Harold Hibbard and Ben R. Stein, Individually and as a Part- nership, d/b/a Hibbard Dowel Co. and Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers of America, C.I.O. Local 189, Building Service Employees Union, A.F.L. and Local 18-B, Furniture and Bedding Workers Union , United Furni- ture Workers of America, C.F.O. Cases Nos. 13-CA-1703 and 13-CB-3?8. July 7,1955 DECISION AND ORDER On February 28, 1955, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ent Union and the General Counsel filed exceptions to the Interme- diate Report and supporting briefs. 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 with the exception noted in the margin.' The Board has considered the Intermediate Report, the I The Trial Examiner excluded a certain contract between the Respondents, which the General Counsel offered in evidence, because the parties conceded its execution However, as this document is involved in the issues here presented , we find that the Trial Examiner erred in his ruling. Accordingly , we hereby reverse the Trial Examiner 's ruling and receive this document in evidence as General Counsel's Exhibit No. 15. 113 NLRB No. 4. HIBBARD DOWEL CO. 29 exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and additions indicated below. 1. We agree with the Trial Examiner that the Respondent Company and the Respondent Union respectively violated Section 8 (a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2) of the Act by enter- ing into and maintaining in full force and effect a union-security agreement, although the Respondent Union did not represent a major- ity of the employes in the appropriate unit when the parties executed the agreement. We do so, however, not on the basis of the Trial Examiner's computation of the number of employees in the appropriate unit, but rather on all the facts and circumstances surrounding the execution of the agreement in question which reveal that the Respond- ent Union did not enjoy majority status at that time. The record discloses the following undisputed facts : In January 1954 Local 18-B, the Charging Union, began organizing the Respond- ent Company's employees. While the drive was on, the Respondent Union sent a letter to the Respondent Company on March 15, claim- ing to represent a majority of the Company's employees and request- ing recognition. Shortly thereafter, on March 20, the Respondents met and signed a union-security agreement which required member- ship in the Respondent Union as a condition of employment. Al- though the Respondent Union purported to have exhibited to the Company "a stack of cards" at that time, the Company did not ex- amine them but immediately granted recognition, despite the fact that it was aware of Local 18-B's organizational campaign.2 More- over, the 20 employees who appeared at the hearing credibly testified without contradiction that they had never heard of the Respondent Union until March 25, 5 days after the Respondents had executed their agreement. Indeed, the Respondent Union put in evidence member- ship application and checkoff authorization cards which, according to the undisputed testimony of the signatory employees, were signed on March 25.3 It is significant, that, although the Respondent Union's counsel stated at the hearing when he offered these cards in evidence that he would prove that they were executed before March 20, he did not produce such evidence. In the circumstances, it seems to us that if the Respondent Union had sufficient valid designations on the day 'Local 18-B's International representative, Angilello, who was organizing the Com- pany's plant, credibly testified without contradiction that occasionally he passed out cam- paign leaflets to the Company's two partners and that the partners had seen him dis- tributing such leaflets to employees. 3 These consisted of membeiship application cards and checkoff authorizations signed by 8 employees ; only a membership application card signed by 1 employee ; and only a check- off authorization card signed by another employee. All cards were undated except one which was dated March 25, 1954. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contract was executed, it would have produced them instead of the later cards.4 On the basis of the foregoing, we find that the General Counsel proved a prima facie case, which the Respondent Union made no effort to rebut, that the Respondent Union did not represent a majority of the Respondent Company's employees when the parties signed their union-security agreement.' Accordingly, we find that, by executing and maintaining in effect the union-security agreement, the Respond- ent Company assisted and supported the Respondent Union in viola- tion of Section 8 (a) (2) of the Act and interfered with, restrained, and coerced employees in the exercise of their self-organizational rights in violation of Section 8 (a) (1) of the Act. We also find that, by providing in the agreement for membership in the Union as a con- dition of employment, the Respondent Company created discrimina- tory conditions of employment violative of Section 8 (a) (3) of the Act. As a party to this unlawful union-security agreement we fur- ther find that the Respondent Union violated Section 8 (b) (2) of the Act and restrained and coerced employees within the meaning of Section 8 (b) (1) (A) of the Act. 2. The General Counsel excepts to the Trial Examiner's refusal to order the Respondents to reimburse the employees for dues the Re- spondent Company deducted from their earnings for the benefit of the Respondent Union pursuant to checkoff authorizations. Con- trary to the Trial Examiner, we find that it is within the authority of the Board to order in a proper case reimbursement of deducted dues even though the complaint does not specifically allege that the dues were collected under an unlawful checkoff. This power to direct a refund has been recognized by the Supreme Court as an incident of the Board's general authority to order such affirmative action as will effectuate the policies of the Act.' We also find, in disagreement with the Trial Examiner, that the remedy of reimbursement of checked off dues is appropriate and neces- sary to expunge the illegal effects of the Respondents' unfair labor practices. As discussed above, the Respondent Company has given unlawful assistance and support to the Respondent Union which it has foisted upon the employees as their bargaining representative in dis- regard of their statutory rights. Moreover, by their union-security agreement, implemented by a dues checkoff arrangement, the Respond- ents have unlawfully required the employees to maintain membership in the Respondent Union as the price of employment and thereby to 4 See 2 Wigmore on Evidence, Third Edition, Section 285 (failure of a party to produce evidence in its possession as indicating unfavorable tenor of the evidence) ; see also N. L. R. B. v. Wallicic and Schwalm Company, et al, 198 F. 2d 477, 483 (C A. 3). 6 Cf. International Metal Products Company, 104 NLRB 1076. 6 Virginia Electric and Power Company v . N. L. R. B., 319 U. S. 533, 539; see also N. L. R. B. v. Baltimore Transit Co., 140 F. 2d 51, 58 (C. A. 4). HIBBARD DOWEL CO. 31 support an organization not of their own choosing . In these circum- stances, we find that it will effectuate the policies of the Act to order the Respondents jointly and severally to refund to the employees all dues deducted by the Respondent Company pursuant to checkoff authorizations for the benefit of the Respondent Union.' 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 : I. The Respondents, Harold Hibbard and Ben R. Stein, Individ- ually and as a Partnership, d/b/a Hibbard Dowel Co., Chicago, Illi- nois, their agents, successors , and assigns, shall : 1. Cease and desist from : (a) Entering into, maintaining, renewing, or enforcing any agree- ment with the Respondent Local 189 , Building Service Employees Union, A.F.L., or any other labor organization, which requires their employees to join, or maintain their membership in, such labor organ- ization as a condition of employment , unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (b) Recognizing the Respondent Local 189 , Building Service Em- ployees Union, A.F.L., or any successor thereto, as the collective- bargaining representative of any of their employees for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employment , or other conditions of employment, unless and until Local 189 shall have been certified by the Board as the bargaining representative of such employees. (c) Performing or giving effect to their agreement of March 20, 1954, with the said Local 189, or to any modification, extension, sup- plement, or renewal thereof, or to any other contract, agreement, or understanding entered into with Local 189 relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Local 189 shall have been certified by the Board, provided, however, that nothing herein shall be construed to require the Company to vary any substantive provi- sions of such agreement , or to prejudice the assertion by the employees of any rights which they may have thereunder. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to form labor organizations , to join or assist Local 18-B, Furni- ture and Bedding Workers Union, United Furniture Workers of America, C.I.O., or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage Id 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition 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 and withhold all recognition from Local 189, Build- ing Service Employees Union, A.F.L., as the representative of any of their employees for the purpose of dealing with the Company con- cerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or any other condition of employment, unless and until Local 189 shall have been certified by the Board as such representative. (b) Post at their plant in Chicago, Illinois, copies of the notices attached to the Intermediate Report marked "Appendix A" and "Ap- pendix B."' Copies of such notices, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondents' respective representatives, be posted by the Com- pany immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. II. The Respondent Local 189, Building Service Employees Union, A.F.L., Chicago, Illinois, its officers, representatives, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Entering into, maintaining, renewing, or enforcing any agree- ment with the Respondents Harold Hibbard and Ben R. Stein, Indi- vidually and as a Partnership, d/b/a Hibbard Dowel Co., which re- quires employees to join, or maintain their membership in, Local 189 as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. 8 These notices shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order " Further- more, these notices shall be amended by inserting in the body thereof the following addi- tional paragraph : We will reimburse the employees whose dues and fees in Local 189 , Building Service Employees Union, AFL, have been checked off pursuant to the May 20, 1954, agreement between Hibbard Dowel Co. and that Union and any extension, renewal, modification or supplement thereof, or any agreement superseding it, for the amounts deducted from their earnings. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." HIBBARD DOWEL CO. 33 (b) In any like or related manner causing or attempting to cause the above-named Company or any other employer to discriminate against any employee in violation of Section 8 (a) (3) of the Act. (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its office in Chicago, Illinois, copies of the notice attached to the Intermediate Report marked "Appendix B." 9 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Local 189's representative, be posted by Local 189 immediately upon receipt thereof, and be main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Local 189 to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Thirteenth Region signed copies of the notice attached to the Intermediate Report marked "Appendix B," for posting in the above-named Company's plant, for sixty (60) consecutive days, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Local 189's representative, be forthwith returned to said Regional Director for such posting. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Local 189 has taken to comply herewith. III. The Respondents, Harold Hibbard and Ben R. Stein, Indi- vidually and as a Partnership, d/b/a Hibbard Dowel Co., their agents, successors, and assigns, and Local 189, Building Service Employees Union, A.F.L., its officers, representatives, agents, successors, and as- signs, shall jointly and severally reimburse the Respondent Company's employees whose dues and fees in the Respondent Union were checked off pursuant to the Respondents' agreement of May 20, 1954, or any extension, renewal, modification, or supplement thereof, or any agree- ment superseding it, for the amounts deducted from the employees' earnings. CHAIRMAN FARMER and MEMBER LEEDOM took no part in the con- sideration of the above Decision and Order. U See footnote 8. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint herein alleges that since on or about March 20, 1954, the Company and Local 189 (also referred to as the A.F.L.) have respectively violated Section 8 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) (1), (2), and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, and Section 8 (b) (1) (A) and (2) of the Act by executing on or about March 20, 1954, and maintaining a collective-bargaining contract, although 189 was not at the time of signing of the contract the representative of the employees as provided in Sections 9 (a) and 8 (a) (3) of the Act; said contract providing that as a con- dition of retaining employment with the Company all new employees are required to become and remain members in good standing of Local 189 after 30 days of employment, and all other employees are required to become and remain members in good standing 30 days after the date the contract was signed. Putting the General Counsel to his proof on the allegations of commerce, Local 189 admitted execution and maintenance of the contract and inclusion of the member- ship requirement, but it denied that at the time of signing it was not the representative of the employees. The Company filed no answer although it appeared at the hearing, which opened before me at Chicago, Illinois, on October 12 and 13, 1954, was recessed to enable the General Counsel to obtain enforcement of subpenas against an unwilling Company, and was concluded on January 25. When the hearing reconvened after the recess taken, Local 189 moved to dismiss the complaint on the ground that during the recess Local 18-B petitioned the Board for withdrawal of union-shop authority and asked that such authority under the agreement of March 20 be rescinded; such action by Local 18-B, it being claimed, constituting an abandonment of the charge of unfair labor practice herein and an admission that the agreement was valid. Whether or not, as alleged, Local 18-B acted "in full knowledge of the Board's decisional policy, that it will not entertain a petition for withdrawal of union-shop authority where the agreement creating such authority is invalid," I would not posit on the filing of such a petition a finding of admission that the agreement was valid or of abandonment of the charge. In any case, prosecution of this proceeding lies with the General Counsel, not with Local 18-B. Even a formal application by the Charging Party to withdraw the charge must presumably be submitted by the General Counsel and is subject to consent as set forth in the Board's Rules The memorandum in support of the motion to dismiss speculates that the Charging Party "presumably" concluded that the evidence would not support the allegations of the complaint. But the issues having been stated and the evidence received, it is the Board's function to make the determination. Nor do I recognize any abuse of the Board's processes in this connection even if Local 18-B was zealous in seeking an alternate and speedier remedy. Where abuse has been found, the circumstances have been completely different. The Regional Director's decision to hold in abeyance investigation of the later petition simply and adequately avoided procedural problems and unnecessary labor. The motion to dismiss is denied. A brief has been filed by the General Counsel pursuant to leave granted to all parties. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT WITH REASONS THEREFOR 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED The allegations of commerce and that the Company is engaged in interstate commerce within the meaning of the Act are, as to the Company, admitted by its failure to file an answer, and further supported by a document apparently executed by one of the partners. The evidence further shows, without limitation as to either Respondent, that the Company, an Illinois partnership, is engaged in the manufacture of dowel pins; that during the fiscal year ending January 31, 1954 (the figures submitted being substantially the same for the following fiscal year), it purchased materials in the amount of $98,000, all of which were shipped to its plant in Chicago from points outside the State of Illinois, and sold products valued at $247,000, 85 percent of which was shipped directly from the plant to points outside the State. I find that the Company is engaged in commerce within the meaning of the Act. It was admitted and I find that Local 18-B (also referred to as the C.I.O.) and Local 189 are labor organizations within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES The General Counsel does not claim that the contract is illegal beyond the question whether Local 189 represented a majority when it was signed; and Local 189 admits that a violation occurred if when the contract was signed it did not represent a ma- HIBBARD DOWEL CO. 35 jority of the employees. That is the issue before us. (I do not pass on the claim made for the first time in a footnote to the General Counsel's brief that the contract is in- valid because it permits discharge of an employee who "shall be rejected from mem- bership in the Union.") It is not alleged that the Company violated Section 8 (a) (5) of the Act because the contract was signed at a time when the Company had knowl- edge of a conflicting claim of majority. Neither is violation alleged because the Company signed the contract while Local 18-B was organizing the employees. There- fore, as pointed out at the hearing, we need not concern ourselves with the argument raised that violation must be found if the Company recognized one union while another was engaged in organizational activities; 1 from which it follows that Local 18-B's organizational activities are not directly in issue.2 Nor did either those organi- zational activities or any cards signed for Local 18-B later become material: no evidence was offered to contradict the employees' testimony that they had not previ- ously heard of Local 189 and that they signed its cards on March 25 under the im- pression that they were signing for Local 18-B. The cases cited at the hearing by the General Counsel on the latter point do not show that such organizational activities must here be considered. I do not agree with the contention that reference to such activities in those cases indicates their relevance here. In the Sunbeam and Standard Transformer cases,3 the proof went to the ques- tion whether the claimed majority was induced by the employer; we have no such issue. In the Horton-Hubbard case, ^ the recital of evidence likewise referred to sup- port or assistance by the company. In Harrison Sheet Steel, the proof as analyzed was directed to showing favoritism and support of another union by specific acts as there alleged. In Universal Food Service,6 the questions decided were, unlike the issue here, that one union had a clear majority and another's claim was insubstantial. More detailed analysis of these cases is not necessary for present purposes. (General Counsel's brief cites them, not on the issue of admissibility of Local 18-B's cards, but on the proposition that the Company violated the Act. See footnote 16, infra.) Nor does the instant case rest on proof that employees did not sign cards for Local 189 until after the contract was signed. The question whether or not absence of signed cards precludes majority representation need not therefore be answered. By the same token, evidence of other events after March 20 and the question whether or not strikers on March 25 thought that they were acting under C.I.O. auspices are not our present concern. The evidence does show and the decision can rest on the fact that a majority of the employees in the unit had never attended any Local 189 meetings before March 25 or heard of Local 189 in the plant before that date; that Local 189 was not their representative. That the forms, sponsored by Local 189, are undated (only Harrison Ruth's membership application is dated-March 25, 1954) may be regarded as a suspicious circumstance suggesting that had the dates been noted as the forms required such information would have been unfavorable to Local 189. But we need not rely on suspicion. I am satisfied that the General Counsel's witnesses testified truthfully concerning the date and conditions under which they signed. No memory feat was required to recall the date: it was associated with the strike, which was called on that day. As for credibility generally and explanation of apparent assistance to Local 189 when the employees' sympathy allegedly lay with the C 1.0., reference can be made to the testimony of Dorothy Barnes, who during the course of a detailed cross-examination explained what might otherwise appear to be a contradiction. She testified that she thought the first card which she signed for Local 189 was a C.I.O. card, although Kemp, Local 189's president, who handed the card to her and told her to sign, did not say that it was for the C.I.O. That the card referred to the A.F.L in bold type does not constitute an obstacle to believing her; she did not read the card when told to fill it out or lose her job. Why she assumed that it was a C.I.O. card becomes clear as we realize that up to that time she had not heard of the A.F.L. in the plant, whereas there had been C.I.O. organizational activity. Other employees testified similarly that they had known only of C.I.O. organiza- tional activities and assumed that they were signing C.I.O. cards when in fact they 1In this connection, see AT L. B. B v Corning Glass Works, 204 F. 2d 422 (C. A. 1). 3 The relevance of cards signed for Local 18-B is further considered infra. 3 Sunbeam Corporation, 99 NLRB 546 ; The Standard Transformer Company, 97 NLRB 676. Horton-Hubbard Mfg. Co., 94 NLRB 921. Harrison Sheet Steel Co., 94 NLRB 81. e Universal Food Service, Inc., 104 NLRB 1. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were signing Local 189 1S.7 It appears further that employees were lined up and that they then signed for Local 189 . (This probably, although it does not appear definitely, refers to the second signing if we can judge from the respective times cited and the fact that the second took place when they returned to work after lunch. ) Having seen the witnesses , I can readily understand that theirs was not to question why even had any question occurred to them; and I can further understand that Dorothy Barnes, told after she signed the first time that Kemp represented the A.F.L., never- theless signed for him again. (McKeller testified that he knew what he was signing when he signed the two A.F.L. cards on March 25.8) In relying on the credibility of these witnesses, particularly on the issue of date of signing, on which issue as noted, supra, a simple association was available, I have not overlooked elements of unreliability as, for example , Franklin's in- sistence that he never signed his given name alone and his positiveness that he had signed only one A.F.L. card. The record shows that the Company listed 43 employees as of March 20, 1954, the date when the contract was signed with Local 189. It was assumed that these were on the payroll on March 19, the 20th being Saturday and a nonwork day. Since we are concerned with a contract signed on March 20, the test, in the absence of special circumstances , appears to be whether an employee was on the payroll at least the day before and again at least on March 22, as in- dicating that he was an employee of the Company on March 20. Except for certain instances noted , infra, in which the list appears to have been in error and understandably so, there is no basis for not accepting it as reliable . It was so regarded at the hearing, and is so accepted . But it is quite clear, as indicated in examination of individual records, that although submitted as a list of em- ployees on March 20 in response to a request for such a list, that list is in fact of those who were employed during the payroll period ending Thursday, March 25. Definite if fortuitous proof of this appears in the case of Walker, who entered the Company's employ on March 22, but was included in the list. Of the 43, Howard Belcher is excluded from the unit as a supervisor and Rose Grossman as an office clerical. Some testimony was received on the question whether Virgil Belcher is a supervisor and therefore to be excluded. The other 40 listed were production or maintenance employees. Twenty of these, called by the General Counsel , testified that they signed checkoff authorization cards and membership applications (either or both ) for Local 189 on March 25 ; 9 none of them had heard of Local 189 before that date, and, except for two to whom the question was not put, the record shows that none had before that date attended any meeting called by Local 189. (Some who signed 2 cards recalled only 1.) Considering in order the employees other than those who testified or who have already been named herein, the record suggests that Bielarz and Brodie are to be included in the unit as it existed on March 20. Although not definitive, the testi- mony was to the effect that both had worked prior to March 20 and for at least a short time after that date. It has not been shown , as the issue has been framed by the pleadings, that these were not members of Local 189. Gildon was employed for 213/4 hours during the week ending March 25, and 203/.1 hours during the week ending April 2, but at no other time. In the absence of evidence to the contrary, it is reasonable to deduce that, the workday here nor- mally being 8 hours, this new employee worked consecutively or continuously during the regular work hours in this short period, i. e , on March 23 through 25 and, in the following payroll period, on March 26, 29, and 30.10 P Victoria Ruth testified • "They told me it was the union, and I know they had signed with the CIO union I didn't know different . They gave me the card and we were ex- pecting the CIO out there. I just went ahead and signed it I didn't know any different until they come and argue with me about it." 8 To say that confusion and possible persuasion with respect to signing of cards for Local 189 was thus in part explained is not to find here such an element or degree of coercion as requires ieinibuisement for dues checked off. See remedy, infra. 9 One employee, Harrison Ruth, testified that he signed the membership card on March 25, but did not remember when he signed the authorization card. Like the others, he tes- tified that he had never before heard of Local 189 in the plant. 10 This deduction is supported by the case of George Walker, infra, who worked 291/.1 hours during the week ending March 25 and continued thereafter. He testified that he started on March 22 as we would have deduced A similar evaluation is made in the case of Sykes, snfra, who worked only 121/-, hours during the week ending March 18 and 24 hours the following peiiod, and therefore presumably on March 17 through 19, and 22 and 23. See footnote 11, infra. HIBBARD DOWEL CO. 37 Harrison worked 40 hours during the week ending March 25, from which fact I deduce that he worked on March 19 and 22 through 25. Henson was first employed during the week ending March 25, when she worked 21'/2 hours, and she continued for a short time thereafter . I conclude, as in Gildon's case, supra , that this employment began on March 23. Arthur Johnson and Doris Jean Johnson worked before and after March 20, and are included in the unit. Knight was employed for the first time for 153/4 hours during the week ending March 25, and continued thereafter . The conclusion here, as in Gildon's case, supra, is that she was not in the unit on March 20 , but started on March 24. Knighton , Murphy, McWilliams, Pruitt, and Sykes worked before and after March 20 and are included in the unit." Smith was employed for only 151/4 hours and during the period ending March 23. There is no basis for finding that his employment was terminated at or near the end of that working day. But if it was terminated earlier that day, he would presumably have been employed at least part of March 19 if we allow 8 hours for March 22. The burden of showing that he was not employed on March 19 has not been sustained and I therefore include him in the unit. Tate and Turner, it was testified, were employees on March 20. They are included in the unit. Ware was employed for the first time for 143/4 hours during the week ending March 25, and he continued thereafter. As in Knight's case, supra, I find that this employment began on March 24. Williams was employed for only 13/4 hours and during the period ending March 22. Conceivably what has been noted concerning Smith, supra, might apply here also. But it is extremely improbable that this brief employment began late Friday afternoon, March 19, and ended early the following Monday morning . I find that Williams was not an employee on March 20. Rosa Mae Wilson, it was testified , was an employee on March 20. She is included in the unit. Of the 20 employees who testified that on March 20 they did not belong to Local 189, Walker, as we have noted, was not in the unit on that day . It appears then that 19 employees were not members of, had not even heard of, and were certainly not represented by, Local 189 when the contract was executed on March 20 . Excluding for the reasons noted, supra, Howard Belcher, Grossman , Gildon, Henson , Knight, Walker, Ware , and Williams, the unit consisted of 35 employees at most , no decision being made now on Virgil Belcher's status. The testimony of a hostile and reluctant witness thus indicates that Local 189 did not represent a majority on March 20. An employer may bargain with an uncertified union which in fact represents a majority and in the absence of support or other interference . 12 Cards are evidence of majority. 13 But here, unlike the Corning Glass case, there was neither evidence submitted to the employer prior to execution of the collective -bargaining contract to show a majority, nor in fact ( and this alone is alleged as the violation in the instant case ) any such majority. If the Company did not actively seek to assist Local 189, there was here at least a reckless unconcern with any question of representation . True, it was later brought out that the president of Local 189 , claiming on March 19 that it represented a it Where, as in Pruitt's case, or Knighton's and Murphy's, employment began during the week ending -larch 18, or teiminated duffing the week ending March 25, or as in Sykes' it began and ended during those respective periods, I assume that it was continuous and therefore covered the March 20 date. See footnote 10, supra ( My hearing notes indi- cate that it was stated fiom the Company's iecoids that Murphy worked for 12 bouts during the week ending .March 25 The tianscript is coiiected by the addition of the following on page 286 , line 6 • "And 12 hoots in the week ending March 25 " My notes show also that Stein was asked whether Turner was employed on March 20, and that he answeied , "Yes " The transciipt is corrected to include such a question and answer imme- diately after line 21 on page 287. (These two changes do not affect the findings herein , and it appears unnecessary to reopen the hearing for fui ther testimony on these points Since all of the patties and counsel are located in Chicago, ienispection may ieadily be made of the emplo, ment records Any paity may move for leave to icopen the hearing for the purpose of receiving fui ther proof on the two items listed herein , or either of them ) zz N L R. B. v Corning Glass Works, 204 F 2d 422 (C A 1). 12 Ibtd. , lluntei L'ngbneeiilig Company, 104 NLRB 1016. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority, had a stack of cards.14 But disregard of employees' wishes, if any, and rights, and support for Local 189 are evident in Stein's testimony that he did not look at the cards and did not challenge Local 189's assertion of majority, but imme- diately recognized it. (This by a partner who throughout the hearing insisted on his lack of knowledge of the business, its operation, and the personalities involved!) He now "guessed" that he was satisfied that Local 189's claim was valid. Beyond reference to the contract, there is no allegation of support of Local 189 or other interference with employees' rights as by assistance in obtaining authorization and membership applications. But the credible evidence indicates that, under cir- cumstances which suggest illegal support of Local 189 by the Company, such applica- tions were not signed until 5 days after execution of the collective-bargaining agreement.15 The violation alleged is execution and maintenance of the contract when Local 189 did not represent a majority of the employees covered. The fact of no majority having been found, the violation of Section 8 (a) (1), (2), and (3) by the Company, and Section 8 (b) (1) (A) and (2) by Local 189 must be declared.16 Because the matter seemed of sufficient immediate importance to the General Counsel to warrant an interim appeal, it may be helpful to discuss the rejection of cards offered in evidence by the General Counsel as showing that employees had signed for Local 18-B. In this connection it is unnecessary even to hold that execu- tion of such cards for Local 18-B is not inconsistent with membership in and repre- sentation by Local 189, and therefore has no probative value on the issue of such membership. As for the element of employer knowledge and consequent bad faith, which is not claimed, Local 18-B activity was otherwise shown while there is no suggestion that the Company had knowledge of Local 18-B cards.17 In any event, the General Counsel's reason, stated on the record, for offering these exhibits was to show that the Company had "a greater duty" when another union was organizing the employees. (The distinction between knowledge of activity and of cards has just been adverted to.) The exhibits were not offered to explain any em- ployee's assumption on March 25 (as, for example, Dorothy Barnes', noted supra) that Kemp represented the CIO. As noted, the early signing of cards for Local 18-B would have no probative value on the issue of membership in Local 189 had cards likewise been signed for the latter on or before March 20. If, on the other hand, employees had not signed for Local 189 by March 20, no contrast would be necessary with their signing of Local 18-B cards; it might tend to show further what in that case would be already clear, that they had not designated Local 189 to represent them when the contract was executed. Of the 24 cards offered by the General Counsel, 22 were sponsored by 1 witness, a Local 18-B International representative. A different and practical problem was posed with the offer on behalf of Local 189 of 18 authorizations and applications for mem- bership. Although at the time of offer each of the latter cards was identified as hav- ing been executed on March 25, so that it appeared prima facie that they were not relevant to the issue of representation on March 20, counsel for Local 189 gave assurance of proof that they were in fact executed earlier. In reliance on such assur- ance, and to avoid the possible necessity of recalling each of the many employee witnesses, these exhibits were received. (As stated on the record the "nicety" of limiting introduction of exhibits to periods of direct examination was passed over.) Counsel's promise was not in fact performed, as noted, supra, there was heard only one general reference to a stack of unidentified cards in the possession of the president of Local 189 on March 19. The General Counsel's motion at the close of the hearing to reject the cards spon- sored by Local 189 was denied: aside from the possibility that evidence relevant to the point may at that time have been overlooked, as stated, the exhibits once received can well remain for such argument as Local 189 may properly base thereon. I have already declared my unconcern, in the light of the issue before us, with events which occurred after March 20. Counsel for Local 189 appeared to reflect that unconcern in his assurance that an earlier date would be shown for these cards. As for '4Theie is no suggestion , beyond this statement , that Local 189 on March 19 or 20 had cards signed by any of the employees As noted , the evidence received on this point is that the employees did not sign Local 189 cards until March 25 w I make no finding of suppoit on the testimony of Ahlgrim that his foreman sent him into the shop wheie the A. F. L cards were being signed No such violation is alleged. iu Neiv York State Eniploiers Association, Inc., 93 NLRB 127 ; Julius Resivick, Inc, 86 NLRB 38 ; Bickford S1tloes, Inc, 109 NLRB 1346. "Nor were we here concerned by any alleged claim of majority by Local 18-B. See supra, at footnote 13. HIBBARD DOWEL CO. 39 authorization of the checkoff, the uncontradicted testimony of employees that they signed such authorizations suffices, aside from the absence of any allegation of viola- tion in that connection. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section II, above, occurring in con- nection with the operations of the Company described in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IV. THE REMEDY Since it has been found that the Respondents have engaged in and are engaging in unfair labor practices affecting commerce , I shall recommend that they cease and de- sist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Company violated Section 8 (a) (1), (2 ), and (3) of the Act, and that Local 189 violated Section 8 (b) (1) (A) and (2) of the Act by executing and maintaining an agreement containing an illegal union-security clause. I shall therefore recommend that the Company withdraw recognition from Local 189 and that the Respondents cease giving effect to their agreement of March 20, 1954, or to any modification , extension , supplement, or renewal thereof unless and until Local 189 has been certified by the Board.18 Collection of dues under an unlawful checkoff is a violation to be alleged separate and apart from violation by an unlawful union-security clause.19 No checkoff viola- tion was here alleged, nor was there any 20 reference to dues collection until counsel for Local 189 mentioned it during final argument as a reason for retaining the card exhibits . (It will be recalled that the General Counsel objected to admission of these exhibits. So far was the issue of checkoff removed !) Furthermore, while Dorothy Barnes testified that Kemp told her that she would not be permitted to work unless she signed one of the cards (with no evidence whether it was a checkoff authorization card rather than a membership card ), and it appears that the Company assisted in getting signatures to those cards which were signed after lunch (likewise not further identified ) by directing or permitting the employees to line up to sign, there is no such evidence of coercion in this respect as would warrant a recommendation that the Respondents reimburse employees for checked off dues.21 I shall not recommend that the Board issue a broad cease and desist order since it is not reasonably to be apprehended that the Respondents will commit unfair labor practices different from and not related to those found herein. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 189, Building Service Employees Union, A.F.L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. Local 18-B, Furniture and Bedding Workers Union, United Furniture Work- ers of America, C.I.O , is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby encouraging membership in Local 189, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By contributing support to Local 189, the Company has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 5. By such discrimination and support , thereby interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, 11 This is not intended to require that the Company vary or abandon the substantive featuies of its relations with its employees , established in the performance of the agree- ment, or to prejudice the assertion by the employees of any rights which they may have thereunder ( Salaaat & Salaiat, liac , S8 NLRB 816 ) 19 Cf. Injection Molding Company, 104 NLRB 639, 646-647. 20 Except for a question to Stein and his reply that the Company is now deducting dues pursuant to the contract. 21 See footnote 8, supr a Cf also The Standard Transformer Company, 97 NLRB 669; MUco Undergarment Co, Inc, 107 NLRB 607, 671 379288-56-vol. 113-4 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. By causing the Company to discriminate in regard to hire and tenure of em- ployment in violation of Section 8 (a) (3) of the Act, Local 189 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Local 189 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT enter into, maintain , renew, or enforce any agreement with Local 189, Building Service Employees Union, A F.L., or any other labor or- ganization, which requires our employees to join, or maintain their membership in, such labor organization as a condition of employment , unless such agree- ment has been authorized as provided by the National Labor Relations Act, as amended. WE WILL withdraw recognition from Local 189 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 employment , unless and until said Union shall have been certified by the Board as the bargaining representative. WE WILL NOT perform or give effect to our agreement of March 20. 1954, with Local 189, or to any modification , extension , supplement , or renewal thereof, or to any other contract, agreement , or understanding entered into with said Union relating to grievances , labor disputes , wages, rates of pay, hours of employment , or other conditions of employment , unless and until said Union shall have been certified by the Board. WE WILL NOT in any like or related 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 Local 18-B or any other labor organiza- tion, 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, or to refrain from any or all of such activi- ties , except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All of our employees are free to become, remain , or to refrain from becoming or remaining, members in good standing of Local 18-B, Furniture and Bedding Work- ers Union, United Furniture Workers of America, C.LO., or any other labor organ- ization except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. HAROLD HIBBARD AND BEN R. STEIN , INDIVIDUALLY AND AS A PARTNERSHIP , D/B/A HIBBARD DOWEL CO., Employer. Dated---------------- By---------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS 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 Rela- tions Act, as amended, we hereby notify our members that: ALASKA CHAPTER, ETC. 41 WE WILL NOT enter into, maintain, renew, or enforce any agreement with Harold Hibbard and Ben R. Stein, Individually and as a Partnership, d/b/a Hibbard Dowel Co., or any other employer, which requires employees to join, or maintain their membership in, this or any other labor organization as a condition of employment, unless such agreement has been authorized as pro- vided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner cause or attempt to cause Harold Hibbard and Ben R. Stein, Individually and as a Partnership, d/b/a Hibbard Dowel Co., or any other employer, to discriminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or 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. LOCAL 189, BUILDING SERVICE EMPLOYEES UNION, A.F.L., Labor Organization. Dated---------------- By --------------------------------- -------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Alaska Chapter of the Associated General Contractors of Amer- ica, Inc. and International Union of Operating Engineers, Local No. 302 and A. B. Coates. Cases Nos. 19-CA-999 and 19- CB-317. July 7,1955 DECISION AND ORDER On January 18, 1955, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent Alaska Chapter of the Associated General Contractors of America, Inc., re- ferred to herein as the Association, and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs. The Board 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 exceptions and briefs, and the entire record in the case, and hereby adopts the findings,1 conclusions, and recommenda- 1 The General Counsel agrees with the Trial Examiner's findings that the Respondents were operating their exclusive hiring arrangement in a discriminatory manner.' He excepts, however, to the broad statement of the Trial Examiner in support of the finding, that a contract provision giving hire and job tenure preference to employees referred by a labor organization is unlawful on its face unless the contract also contains a specific 113 NLRB No. 7.