Charles W. Carter Co.

CHARLES W. CARTER CO. 251 the authority to hire and discharge and are supervisors within the meaning of the Act : English Street mill: The superintendent, assistant superintendent, foremen, and assistant foreman in the knitting department, foremen in the looping department, the dye house, and the finishing room, and a person named Steed, who is in charge of electrical equipment and the boiler. Glenn mill: The superintendent and all foremen. Full-fashion and seamless mill: The superintendent, all foremen- fixers, and the foreman in the finishing department. Accordingly, we exclude these classifications from the unit found appropriate. The record shows that the Petitioner already represents under cur- rent contract the employees in the English Street boarding rooms Nos. 1 and 2 who the parties agree should be excluded from the unit. We shall therefore not include them in the election herein. However, the boarders at the Glenn mill and the full-fashion and seamless mill are unrepresented and we shall include them. If the Petitioner is selected as representative of the employees in the unit described below, the parties may merge this unit and the English Street unit for bargain- ing purposes. Accordingly, we find that all production and maintenance employees of the Employer's three hosiery mills located at High Point, North Carolina, and referred to as the English Street mill, the Glenn mill, and the full-fashion and seamless mill, including all plant clericals, and the watchmen, but excluding the boarders in boarding rooms Nos. 1 and 2, all office clerical employees, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [The Board vacated the Order dismissing the petition.] [Text of Direction of Election omitted from publication.] Charles W. Carter Co.-Los Angeles and Mrs. Edwin Selvin International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, and Its Local 986, and Its Joint Council No. 42, and Its Western Conference of Team- sters Organizing Committee and Mrs. Edwin Selvin. Cases Nos. 21-CA-2147 and 21-CB--686. Janwry 30,1956 DECISION AND ORDER On October 3, 1955, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that 115 NLRB No. 43. 252 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD 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 General Counsel filed exceptions, and argument in support thereof, to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner a ORDER Upon the entire record in this 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 Respondent Company, Charles W. Carter Co.-Los Angeles, Los Angeles, California, its officers, agents, successors, and assigns, shall : IIn accordance with the General Counsel's exceptions , Member Murdock would, as set forth below , find certain additional independent violations of the Act , and would , accord- ingly, include in the Order certain additional specific provisions. A majority of the Board , however, deems it unnecessary to supplement the Intermediate Report. The Trial Examiner , on the basis of his unfair labor practice findings, sustained all the violations alleged in the complaint ; and the additional findings sought by the General Counsel would be merely cumulative and would not enlarge the scope of the Order herein. Indeed, the General Counsel generally concedes that the Trial Examiner's recommended order is sufficiently broad in scope to enjoin the specific conduct involved in the exceptions. Cf. International Typographical Union, et al ., 86 NLRB 951 , at 961 ; Chicago Typo- graphical Union No. 16 and International Typographical Union, 86 NLRB 1041, at 1044; the former remanded in part, but enforced on this point in American Newspaper Pub- lishers v. N. L. R. B., 193 F. 2d 782 (C. A. 7). 2 Member Murdock , however, finds merit in the General Counsel 's exceptions and would expand the Board's findings and Order accordingly. The General Counsel, in his excep- tions, specifically excepts to ( 1) the Trial Examiner 's failure to find that the speeches made by the Respondent Company's counsel and president to the employees constituted independent violations of Section 8 (a) (1), (2 ), and (3 ) ; ( 2) the Trial Examiner's failure to recommend that the Respondent Company be ordered to cease and desist from informing its employees that they have to become members of the Unions , and from assisting or contributing support to the Unions ; ( 3) the Trial Examiner 's failure to find that the demands of the Unions on the Company to compel its employees to join the Unions and to enter into a union-shop contract, and the picketing of the Unions in further- ance of these demands constituted independent violations of Section 8 (b) (1) (A) and 8 (b) (2) ; and ( 4) the Trial Examiner 's failure to recommend that the Unions be ordered to cease and desist from picketing activity. The independent violations were properly alleged in the complaint and established by the evidence. The General Counsel was diligent to except to the Trial Examiner's failure to make findings thereon and to include in the order provisions specifically prohibiting such conduct. ( The statement in footnote 1 that the Trial Examiner sustained "all the viola- tions alleged in the complaint" must mean only that he found that all the sections of the Act alleged to have been violated were violated -not that he found that all conduct alleged in the complaint to be violations was illegal .) In these circumstances Member Murdock believes that the General Counsel is entitled to have his exceptions honored. He further believes that this specificity in the order and the notice to the employees is necessary and desirable to purge fully the effect of the specific acts of unlawful conduct on the employees. CHARLES W. CARTER CO. 253 (a) Cease and desist from: (1) Encouraging membership in Respondent Unions, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 986, and Western Conference of Team- sters Organizing Committee, or in any other labor organization of its employees, by compelling them to become or remain members of those organizations under threat of discharge, or by discriminating in any other manner in regard to hire or tenure of employment, or any term or condition of employment, except to the extent authorized by Section 8 (a) (3) of the Act. (2) Giving effect to its contract of December 7, 1954, with the above- named labor organizations, or to any extension, renewal, modification, or supplement thereof, or to any superseding agreement, unless and until said labor organizations shall have been certified by the National Labor Relations Board as the representative of Respondent Com- pany's employees, provided that Respondent Company, in complying herewith, shall not be required to vary or abandon the wages, hours, seniority, or other substantive features of its relations with employees established in performance of said contract. (3) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Withhold and withdraw all recognition from Respondent Unions, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO, Local 986, and Western Conference of Teamsters Organizing Committee, as the exclusive representative of its employees for the purpose of collective bargaining unless and until said labor organizations shall have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (2) Post in conspicuous places, at its place of business, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of the Re- spondent Company, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in 8 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." 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent Company to insure that said notices are not altered, defaced, or covered by any other material. (3) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. II. The Respondent Unions, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 986, and Western Conference of Teamsters Organizing Com- mittee, their officers, representatives, and agents, shall : (a) Cease and desist from: (1) Causing or attempting to cause Respondent Company, Charles W. Carter Co.-Los Angeles, to discriminate against employees in violation of Section 8 (a) (3) of the Act. (2) Giving effect to the contract of December 7, 1954, with the Respondent Company or to any extension, renewal, modification, or supplement thereof, or to any superseding agreement, unless and until Respondent Unions shall have been certified by the National Labor Relations Board as the representative of the aforesaid employees of Respondent Company. (3) In any other manner restraining or coercing employees of the Respondent Company in the exercise of the rights guaranteed by Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Post in conspicuous places in their business offices, including all places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix B." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of Respondent Unions, be posted by them immediately upon receipt thereof and main- tained 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 them to insure that said notices are not altered, defaced, or covered by any other material. (2) Mail to the Regional Director for the Twenty-first Region signed copies of the notice for posting, the Respondent Company will- ing, in places where notices to the employees of the Company are cus- tomarily posted, for a period of sixty (60) consecutive days thereafter. Copies of said notice shall be furnished by the Regional Director, A See footnote 3, supra. CHARLES W. CARTER CO. 255 signed by the Respondent Unions, and forthwith returned to the Regional Director for said posting. (3) Notify the Regional Director for the Twenty- first Region in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. III. Respondents Charles W. Carter Co.-Los Angeles, its offi- cers, agents, successors, and assigns, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local 986, and Western Conference of Teamsters Organ- izing Committee, their officers, representatives, and agents, shall cease and desist from giving effect to any checkoff cards heretofore executed by the employees of Respondent Company authorizing the deduc- tion of periodic dues and initiation fees from their wages for remit- tance to Respondent Unions, Local 986 and Western Conference of Teamsters Organizing Committee, and shall refund to all employees and former employees whose dues and fees were checked off pursuant to the checkoff agreement, or any extension, renewal, modification, or sup- plement thereof, or any agreement superseding it,, the amounts de- ducted from the employees' earnings. IT IS FURTHER ORDERED that the complaint, insofar as it alleges the commission of unfair labor practices by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO, and by Joint Council No. 42, be, and it hereby is, dismissed. 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, as amended, we hereby notify our employees that : WE WILL NOT recognize and we will withhold recognition from International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America , AFL-CIO, Local 986, and Western Conference of Teamsters Organizing Committee as the exclu- sive representative of our employees, for the purposes of collec- tive bargaining, unless and until either of those labor organiza- tions shall have been certified by the National Labor Relations Board as said representative. WE WILL NOT give effect to our agreement of December 7, 1954, with the above-named labor organizations, or to any extension, renewal, modification, or supplement thereof, or any superseding agreement, unless and until those Unions shall have been cer- tified by the National Labor Relations Board as the representative of an appropriate unit of our employees. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' WE WILL NOT encourage membership in Local 986 and Western Conference of Teamsters Organizing Committee, or in any other labor organization of our employees, by compelling employees to become or remain members of such organization under threat of discharge, and we will not discriminate in any other manner in regard to their hire or tenure of employment, or any term or con- dition thereof, except to the extent authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL NOT give effect to any checkoff cards heretofore ex- ecuted by our employees authorizing the deduction of periodic dues and initiation fees from their wages for remittance to Local 986 and Western Conference of Teamsters Organizing Commit- tee and we will refund to all our employees and former employees from whose wages we have deducted or withheld funds for trans- mittal to the above-named labor organizations the amount of all such deductions and withholdings. All our employees are free to become, remain, or to refrain from be- coming or remaining, members of the above-named Unions, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of em- ployment or any term or,condition of employment against any em- ployee because of membership in or nonmembership in any such labor organization . CHARLES W. CARTER Co.-Los ANGELES, 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 OF INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, LOCAL 986, AND WESTERN CONFERENCE OF TEAMSTERS ORGANIZING COMMITTEE 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, as amended, we hereby notify you that : CHARLES W. CARTER CO. 257 WE WILL NOT give effect to our agreement with Charles W. Car- ter Co.-Los Angeles,_ dated December 7, 1954, and we will not enter into, give effect to, or enforce, any extension, renewal, modi- fication, or supplement thereof, or any superseding agreement, until we shall have been duly certified by the National Labor Relations Board as the representative of the employees of Charles W. Carter Co.-Los Angeles in an appropriate unit. WE WILL NOT cause or attempt to cause Charles W. Carter Co.- Los Angeles to discriminate against employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT give effect to any checkoff cards heretofore exe- cuted by the employees of Charles W. Carter Co.-Los Angeles authorizing the deduction of periodic dues and initiation fees from their wages for remittance to Local 986 or Western Con- ference of Teamsters Organizing Committee, and we will refund to all said employees and former employees from whose wages such funds have been withheld the amount of all such deductions and withholdings. WE WILL NOT in any manner restrain or coerce the employees of Charles W. Carter Co.-Los Angeles in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA, AFL-CIO, LOCAL 986, Labor Organization. .Dated---------------- By------------------------------------- (Representative ) (Title) WESTERN CONFERENCE OF TEAMSTERS ORGANIZING COMMITTEE, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought under Section 10 (b) of the National Labor Rela- tions Act, 61 Stat. 136, herein called the Act, and stems from a complaint issued by the General Counsel of the National Labor Relations Board against Charles 390609-56-vol. 115-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. Carter Co.-Los Angeles,' herein called Respondent Company, and against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and its Local 986, and its Joint Council No. 42, and its Western Conference of Teamsters Organizing Committee, herein called Respondent Unions. The complaint, dated June 28, 1955, alleged that Respondents had engaged in unfair labor practices, Respondent Company within the meaning of Section 8 (a) (1), (2), and (3), and Respondent Unions within the meaning of Section 8 (b) (1) (A) and (2) of the Act. Copies of the charges, the consolidated complaint, and notice of hearing thereon were duly served upon Respondents. In their duly filed answer Respondent Unions denied the commission of any unfair labor practices. In its oral answer submitted and received at the hearing, Respondent Company in effect denied the commission of any unfair labor practices. Pursuant to notice a hearing was held at Los Angeles, California, on August 29, 1955, before a duly designated Trial Examiner. The parties were represented by counsel 2 and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce relevant evidence. At the close of the hearing, the parties were afforded an opportunity to argue orally and to file briefs. Oral argument was presented by the General Counsel and no briefs have been received. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Charles W. Carter Co.-Los Angeles is a California corporation which maintains its principal office and place of business at Los Angeles where it is engaged in the sale of parts for trucks, busses, and industrial machinery, as well as in the overhaul of such parts. During the year 1954 Respondent Company sold and shipped parts valued at $96,963 to the Territory of Hawaii, and parts valued at $69,082 to the States of Arizona, Nevada, and New Mexico. It also sold parts valued at $124,983 to the United States Government, all of which were shipped to installations of the armed services located in States other than California. I find that the operations of Respondent Company affect commerce within the meaning of the Act, and that it would effectuate the purposes of the Act to assert jurisdiction herein. U. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and its Local 986, and its Joint Council No. 42, and its Western Conference of Teamsters Organizing Committee are labor organizations admitting to membership the employees of Respondent Company. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issue The complaint alleges that on November 18, 1954, Respondent Company recog- nized Respondent Unions as the bargaining representative of its employees in a unit of approximately 20 to 22 employees, including counter clerks, phone order clerks, shipping clerks, receiving clerks, service clerks, pickup and deliverymen, and the janitor. It further alleges that Respondents executed a collective-bargaining agree- ment on or about December 7, 1954, which included a clause requiring the above- identified group of employees to join Respondent Unions within 31 days, all this at a time when Respondent Unions had not been duly designated as their representative by an uncoerced majority of the employees in said unit. Respondent Unions have denied the commission of any unfair labor practices. Respondent Company has 'The pleadings were amended at the hearing to reflect the correct name of Respondent Company. 2 Counsel for Respondent Unions duly filed an answer denying the commission of unfair labor practices but did not appear for the hearing. The General Counsel announced on the record that counsel for Respondent Unions had appeared at the former's office some minutes prior to the hour set for the hearing ; had furnished him with certain documents subpened for the hearing; and had announced that he did not intend to participate in the hearing. Counsel for Respondent Company also stated- on the record that he had observed counsel for Respondent Unions in the vicinity of the hearing room immediately prior to the commencement of the hearing. It may be noted that the hearing had been previously postponed at the request of counsel for Respondent Unions. Under these cir- cumstances, the hearing tool: place in the absence of the latter. , V CHARLES W. CARTER CO. 259 answered that it had an "indication" from Respondent Unions at the time the contract was signed that Respondent Unions represented "some . . . employees." Respondent Company has a complement of approximately 80 employees. The group involved herein, insofar as the record indicates, had not been previously or- ganized. The mechanics in Respondent Company's shop were and are represented by a different labor organization. The organizational activity set forth hereinafter was directed , it is clear, solely at the unorganized employees in the above -described unit. The propriety of said unit is not attacked herein by the General Counsel. It may be noted that no representatives of Respondent Unions testified herein. Although the complaint has named four divisions of the Teamsters organization as Respondents, namely, the International , Local 986, Joint Council No. 42, and Western Conference of Teamsters Organizing Committee, the General Counsel did not establish what titles the union representatives held with the respective organiza- tions. A letter of intent to conclude a contract , described below, was signed on November 22, 1954, by Bob Seamon and Charles Ciolino in behalf of Joseph Dillon of the Western Conference of Teamsters. The contract, signed on December 7, 1954, was signed by the same two men in behalf of Local 986. A subsequent addendum to the contract providing for a checkoff of union dues , was signed by the two men several weeks later in behalf of Western Conference. They also signed Dillon's name to the last two documents. There is no evidence directly connecting Local 986 with the Western Conference of Teamsters, although apparently it is an affiliate thereof. As is apparent, the International and Joint Council No . 42 were not parties to any of the documents attacked herein and it will be recommended below that the case against them be dismissed. B. Sequence of events The initial attempt to organize the employees in the above -described unit took place sometime in June 1954. Two or three persons representing the Teamsters organization, including Seamon, visited President Jack Ketchum of Respondent Company. The Teamsters' representatives asked for the cooperation of Ketchum, as he uncontrovertedly testified , in organizing his employees in the unorganized unit. Ketchum declined, stating that the law required him to stay out of the matter and that it was up to the Union to handle this. He refused their request to meet with the employees during working hours. The union representatives then asked permis- sion to hold the meeting at the plant at the end of the workday and Ketchum agreed. Such a meeting was held and was attended by most , if not all, of the 20 to 22 men in the unit. The union representatives distributed union designation cards and explained the- advantages of union membership . They proceeded to conduct a secret ballot and counted the votes , but did not disclose the results . The result apparently was not to their liking, because they appeared to be disgruntled over the tally and soon left. There is no evidence that any of those present signed cards and there is evidence that the majority of the men destroyed the designation cards which had been handed to them. Some days later, on June 24, one of the employees in the unit, Joe Brock, brought a letter to President Ketchum. It was signed by 16 employees of the parts depart- ment, essentially the unit involved herein , and it read as follows: TEAMSTERS AUTOMOTIVE WORKERS Local Union No. 495 846 South Union Avenue Los Angeles 17, California GENTLEMEN : We, the undersigned, decline your invitation to join your local Union. We also do not wish to sign the attached card for it gives us no choice as to our thinking. Thank you for your trouble and courtesy. Sincerely yours, PARTS DEPARTMENT EMPLOYEES OF CHARLES W. CARTER Co.-Los ANGELES. The record does not disclose why the letter was directed to Local 495 rather than Local 986. The contract subsequently signed on December 7 reveals that Local 495 represents the employees of other concerns in the industry . See also Acme Engraving Co., 21-CA-1993 (Intermediate Report issued February 15, 1955, to which no exceptions were filed ). Brock informed Ketchum that he intended to mail this letter. Ketchum replied that it would not be necessary to mail the letter because the failure of-the men to sign union cards at the meeting would amply demonstrate to the union representatives that the employees were not interested in union representation. There is no evidence that the letter was ever mailed. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ketchum uncontrovertedly testified that he received a number of visits from representatives of the Teamsters between June and November 1954. These repre- sentatives uniformly expressed themselves to the effect that Ketchum should exert his influence to change the attitude of his employees on the question of union organ- ization, intimating that a lack of interest by the employees on this question might result in a picket line. Ketchum, however, insisted on maintaining a position of neutrality and did so until the morning of November 17, 1954. On that morning, two pickets appeared at Respondent Company's main plant. One stationed himself at the rear gate and the other, Seamon, picketed the front gate. Ketchum was uncertain as to the content of the signs they bore, but recalled that they identified the pickets as representatives of the AFL. This resulted in a substantial number of the customers of Respondent Company as well as incoming trucks refusing to enter the plant premises. After several hours Ketchum tele- phoned his industrial relations adviser and representative herein, Ben Nathanson. He informed Nathanson of the presence of the pickets, told him that he had agreed to negotiate a contract with the Teamsters, and asked Nathanson to handle the matter. Seamon came to Ketchum's office at about this time and Ketchum agreed to discuss a contract with him if the pickets were removed. The pickets were removed in midafternoon. On the following day, November 18, the Teamsters' representatives met with Nathanson in the latter's office. Among those present were Representatives Dillon, Ciolino, and Seamon; it appears that Ketchum also was present. According to Nathanson, this meeting was held "without advance knowledge insofar as the temper of the employees within the appropriate unit was concerned." Nathanson urged that a consent election be held to determine the question of majority representation but the union representatives refused to agree. The parties then orally agreed on the terms of a contract. These terms included a union-shop clause. It was agreed that union application cards would be brought to the plant of Respondent Company for management to pass out to the employees after explaining to the employees that a contract of this nature had been agreed upon. The union representatives did claim at this meeting, according to Ketchum, that they represented "at least some members of the unit." They produced no evidence of such representation and neither Nathanson nor Ketchum requested such evidence. According to Ketchum, he knew that several of his employees had formerly belonged to the Teamsters organization some years before during other employment, but that they had taken withdrawal cards. His testimony also disclosed that none of these expressed any present sentiment in favor of Teamsters' representation. A ma- jority of the employees in the unit testified herein and it appears that at the most four were in this category of either having left the organization or having taken with- drawal cards some years before. On November 22, Nathanson drew up a letter which the parties considered as a letter of intent to negotiate a contract. This device was utilized because copies of the contract then in effect in the automotive parts industry in the area were not available. This letter stated that it was prepared in order to formalize the agree- ment reached on November 18 to enter into a contract with the Western Conference of Teamsters. In the letter Respondent Company agreed to conform the contract to the contract then in existence between Local 495 of the Teamsters and automotive- industries in the area. The letter treated with wage rates and holiday pay and stated' that the contract would become effective upon signature as of November 18, 1954, for- t year, consistent with the above-mentioned contract. It was signed by Nathanson and by Ciolino and Seamon in behalf of Joseph Dillon of the Western Conference of Teamsters. On December 7, 1954, a formal contract was signed by Local 986 and Respond- ent Company. Again Ciolino and Seamon signed in behalf of Dillon. The con- tract was made effective from November 18, 1954, to November 17, 1955, and from, year to year thereafter. It contained the customary provisions of a collective-bar- gaining agreement, treating with rates of pay, hours of work, holidays, vacations, health and welfare fund contributions, arbitration of grievances, and other condi- tions of employment. The contract also contained union-security language providing for maintenance of union membership and requiring all employees to become and', remain members of Local 986 within 31 days after entering Respondent Company's employ or after the date of the contract. There is no evidence that Local 986 or any of its affiliates represented any employees on this date, December 7, 1954. In fact, the testimony of the great majority of the employees then in the unit discloses that they did not then belong to Local 986; nor had they then designated it as their bargaining representative. CHARLES W. CARTER CO. 261 It appearing thereafter that employees in the unit were reluctant to join Local 986, Nathanson suggested that a dues checkoff clause be agreed to. He was of the belief that he could thus prevent representatives of Local 986 from visiting the premises of Respondent Company, apparently for the purpose of collecting dues. Thus, ap- proximately 2 weeks after December 7, 1954, on a date not precisely fixed herein, Nathanson for Respondent Company and Seamon and Ciolino in behalf of Dillon of the Western Conference of Teamsters signed a 1-page undated document requiring Respondent Company, inter alia, upon request of the respective employees, to deduct dues and initiation fees and to remit same to the Union. Respondent Company took active steps to cement this contractual relationship with the Unions. Late in November, after coming to terms with the Unions, Ketchum took a trip to Hawaii and returned on or about December 13, 1954. On a date not precisely fixed by the record, but apparently sometime during the first 2 weeks of December, Nathanson addressed the employees within the unit involved herein. He informed them that Respondent Company had come to an agreement with the Teamsters; that the best way to handle the matter was to go along with the wishes of the Unions; that a picket line would put Respondent Company out of business; and that the employees, under the contract, would get a 31-day period within which they would be required to join up. This produced considerable turmoil and dissatisfaction among the employees who were still opposed to union representation. When Ketchum returned from his trip, on or about December 13, he found matters in this state. Accordingly, he ad- dressed the employees on December 15 or 16; explained that Respondent Company had to take this action in order to remain in existence; asked for their cooperation; informed them of the 30-day (actually 31) union-security language; and announced that they would have to join in order to retain their jobs. It was on this occasion that Ketchum instructed Secretary-Treasurer Hayden of Respondent Company to distribute union application cards among the employees. Hayden in turn delegated this task to several employees, including one Otis Town- send, who assumed a leading role in this activity. Hayden, it appears, did distrib- ute some cards. Townsend, who was personally not sympathetic to the concept of union organization, did convene the employees in the unit on the night of Decem- ber 22. As instructed by Hayden, he distributed both union designation cards as well as cards authorizing dues deductions. At least 17 employees in the unit, a clear majority, signed both cards either on December 22 or 23. In several cases it ap- pears that the dues deduction card may have been signed several days later. The record demonstrates that 16 of the 17 who signed union designation cards under these circumstances were opposed to union representation, did not desire it, and that some, in fact, went so far as to write on the card that they were signing under protest. Again, as indicated, none of the employees in the unit had desig- nated the Teamsters as their bargaining representative either at the time the letter of intent was signed or even on the date the contract was signed, December 7, 1954. And, although they did designate the Union on December 22 and 23, this took place only after the direct intervention of the representatives of Respondent Company who distributed union cards to the employees, informed them that they had no choice in the matter, and announced that they had a 31-day period to join the Union or be discharged. It is clear and I find that under these circumstances the signing of the cards on December 22 and 23 was not a voluntary but rather a coerced expression of union adherence by the employees in the unit. Nor is the former union membership of several employees in the unit of any avail to Respondents. Firstly, their former membership and present nonmembership would be more indicative of a present rejection of union membership and, secondly, their cases are insufficient to affect the antiunion majority. Hayden further testified that Respondent Company, since recognizing Local 986, has informed new employees of the union-security language in the contract and has required them to fill out union application cards upon entering its employ. Respond- ent Company announced on the record herein that all dues collected by it pur- suant to the checkoff clause have been unilaterally placed by it in a trust fund, pre- sumably until the outcome of this proceeding. C. Conclusions Section 9 (a) of the Act, in establishing the principle that a representative desig- nated for the purposes of collective bargaining shall be the exclusive representative of all the employees in a bargaining unit, states that the representative shall be selected "by the majority of the employees" in the bargaining unit. And Section 8 (a) (3) of the Act, in delineating the limited union-security provisions which are 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, permitted under the Act as a condition of employment, specifies that the contracting labor organization shall be the representative of the employees as provided in Sec- tion 9 (a) of the Act, at the time the agreement is made. This case reduces itself to one where Respondent Unions were recognized by Respondent Company on November 18, and Respondents entered into a contract on December 7, 1954, at a time when Respondent Unions had essentially no rep- resentation in the bargaining unit. Even without a contractual requirement for compulsory union membership an employer illegally assists and supports a labor organization by granting it exclusive recognition, as Respondent Company did, when it knows that the labor organization does not represent a majority in the appropriate bargaining unit at the time of such recognition. In this case Respondent Unions did not represent a majority and Respondent Company knew this to be the fact. This illegal assistance and support is only aggravated where the agreement granting recognition requires the covered employees as a condition of their em- ployment to join and pay dues to a labor organization they have not freely chosen, and, in fact, have not chosen at all. While the record demonstrates that Respondent Company engaged in this conduct primarily because of pressure exerted by Respond- ent Unions, and not because of convictions of its own, it is well established that this cannot constitute a defense. N. L. R. B. v. Price Valley Lumber Co., et al., 216 F. 2d 212 (C. A. 9); and N. L. R. B. v. Lloyd A. Fry Roofing Company, et al., 193 F. 2d 324 (C. A. 9). I find that the General Counsel proved a prima facie case which Respondent Unions made no effort to rebut; that Respondent Unions did not represent a ma- jority of the employees of Respondent Company in an appropriate unit when Re- spondent Unions achieved recognition and when the parties signed their union- security agreement. Accordingly, I find that by executing and maintaining a union- security agreement Respondent Company assisted and supported Respondent Unions in violation 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. It is.further found that by providing in the agree- ment for membership in Respondent Unions as a condition of employment, Re- spondent Company has created discriminatory conditions of employment which are violative of Section 8 (a) (3) of the Act. I further find that as a party to this unlawful union-security agreement, Respondent Unions, namely Local 986 and Western Conference of Teamsters, have violated Section 8 (b) (2) of the Act and have restrained and coerced employees within the meaning of Section 8 (b) (1) (A) of the Act. N. L. R. B. v. Henry Heide, Inc., 219 F. 2d 46 (C. A. 2); Hibbard Dowel Co., 113 NLRB 28; Robbie Shoe Corp., 113 NLRB 314; The Item Company, 113 NLRB 67; District Lodge 67, International Association of Machinists, AFL, 110 NLRB 727; International Metal Products Company, 104 NLRB 1076; Haffenreffer & Co., Inc., 104 NLRB 206; John B. Shriver Company, 103 NLRB 23; and Universal Food Service, Inc., 104 NLRB 1.3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondent Company described in section I, 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 thereof. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent Company unlawfully recognized and rendered support to Respondent Unions and unlawfully entered into a bargaining contract 8 Although Secretary-Treasurer Hayden of Respondent Company testified that new employees are required to fill out applications for union membership upon entering Re- spondent Company's employ, I have some doubt that the complaint specifically attacked this practice and do not believe the matter to have been litigated. In Hearst Publishing Company, Inc, 113 NLRB 384, the Board found such a practice, where it stemmed from contract provisions, to be violative of the Act See also Bazley and Junedale Meat Markets Company, 114 NLRB 66. In the present case, there was no such contract provision. However, in view of the question whether this issue is before me for decision, and inas- much as the remedy hereinafter recommended will in any event be diapositive of the problem on a broader basis, I make no finding of an unfair labor practice on this matter. . GENERAL FOODS CORPORATION 263 containing union-security provisions. It will therefore be recommended that Re- spondent Company withdraw and withhold all recognition from Respondent Unions as the collective-bargaining representative of its employees ; cease- giving effect to its contract of December 1954 with that organization, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract, unless and until it is certified by the Board as such representative; and that Respondents reimburse all employees and former employees for all sums withheld for dues and fees. Hibbard Dowel Co., supra. However, nothing herein shall be construed as requiring Re- spondent Company to vary or abandon the wages, hours, seniority, or other sub- stantive features of its relations with the employees themselves which it may have established in performance of said contract as extended, renewed, modified, sup- plemented, or superseded, or to prejudice the assertion by the employees of any rights they may have under such contract. Respondent Company's coercion of employees to join Respondent Unions, the potent support and assistance rendered to that organization, including its unlawful recognition and bargaining with it as the exclusive representative of its employees, although carried out by Respondent Company primarily as the result of pressure by Respondent Unions, demonstrate that the commission of similar unfair labor prac- tices may be anticipated in the future. The remedy should be coextensive with the threat. I shall, therefore, recommend that Respondents be ordered to cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and its Local 986, and its Joint Council No. 42, and its Western Conference of Teamsters Organizing Committee are labor organizations within the meaning of Section 2 (5) of the Act. 2. By recognizing, by executing and maintaining a contract containing union- security provisions with Respondent Unions, and by enforcing said provisions, thereby encouraging membership in Respondent Unions, Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (2) and (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By executing and maintaining a contract containing union-security provisions, and by attempting to cause Respondent Company to discriminate against employees in violation of Section 8 (a) (3) of the Act, Respondent Unions, Local 986 and Western Conference of Teamsters Organizing Committee, have engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Unions, Local 986 and Western Conference of Teamsters Organizing Committee, have engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. 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.] - General Foods Corporation, Northland Dairy Division, Petitioner and General Teamsters Union, Local 406, affiliated with Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case No. 7-ISM-146. Jan- uary 30,1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Bernard Gottfried, 115 NLRB No. 45.