The Grand Union Co.

THE GRAND UNION COMPANY 589 neyman Engineer's Temporary Permit shall have been issued to him as herein- after provided . If and when his clearance card is accepted , he shall be governed by the wage scale rules and by-laws of said Local Union. Article XV, Section 3 (a). Members of one Local Union shall not seek employment, be employed, or remain at work at the craft within the territorial jurisdiction of another Local Union without the consent of such other Local Union , which consent may be evidenced by its acceptance of the clearance card presented to it by the member involved, as provided in the constitution or by the issuance of the temporary permit hereinafter described . If the member involved does not present a clear- ance card to such other Local Union, or the Local Union to which the clearance card is presented fails to act thereon, or the Local Union to which the clearance card is presented acts thereon and refuses to affiliate such member, and the Busi- ness Representative of such other Local Union , in such cases, shall thereupon consent to the issuance of the temporary permit (described herein) then the member involved shall be entitled to receive and required to secure successively, during the period within which said consent be granted and his work continue, such number of weekly journeymen engineers ' temporary permits if he is a stationary engineer, as shall be issued to him by the said Business Representative under the regulations established by the General Excutive Board. Such permits shall, for the period issued, allow the holder thereof to seek, accept, and hold employment within the territorial jurisdiction of such other Local Union out of which said temporary permits shall be issued, but subject always to such regula- tions as shall be imposed thereon by the General Executive Board. Article XV, Section 3 (c). No member of this organization shall be permitted to remain at work at the craft in the territorial jurisdiction of any other Local Union than the one to which he shall belong for a longer period of time than that covered by the temporary permit issued to him , nor shall any such member working under the authority conferred by a temporary permit be removed from said work or replaced by a member of the Local Union issuing the said temporary permit until the expiration of the period for which the said temporary permit was issued, unless such removal be for a good and sufficient cause. Article XV, Section 3 (h). ... No temporary permit as described in this article shall be issued to or used by any person who is not, at the time, either a member of the International Union of Operating Engineers or an applicant for membership therein. Article XXIII, Subdivision 3, Section (a). Members of Local Unions shall conform to and abide by the Constitution, Laws, Rules, Obligation and Ritual , and the decisions, rulings, orders and direc- tions of any authority of the International Union empowered by this Constitu- tion to make them. Each member shall keep the Recording-Corresponding Secretary properly and promptly notified of his residence and any change thereof. Each member shall hire none but those in good standing with a Union having jurisdiction over the work to be done nor purchase commodities without the union label thereon when otherwise possible. The Grand Union Company and Robert E. Gray Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Robert E. Gray. Cases Nos. 2-CA-5225 and P-CB-1872. December 19, 1958 DECISION AND ORDER On July 8, 1958, Trial Examiner Herbert Silberman issued his Intermediate Report in the above consolidated proceeding, finding that the Respondent Employer had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a) (1) 122 NLRB No. 68. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (3) of the Act, and that the Respondent Union had engaged in and was engaging in certain unfair labor practices in violation of Section 8(b) (1) (A) and (2) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action,, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondents and the General Counsel filed exceptions to the Intermediate Report and briefs in support. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins,. and Fanning] . 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 Intermediate Report, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as indicated below. We find merit in the exceptions of the General Counsel to the Trial Examiner's ruling that the union authorization cards signed by employees Edward Conn, Sidney Jansen, Bernard Westcott, Shirley Westcott, and Timothy Fitzgerald in the fall of 1955, during an earlier organizing campaign of the Respondent Union more than a year before the campaign and the events in question here, were properly counted in ascertaining majority status. On the facts of this case we would not presume, as did the Trial Examiner, that the 1955 cards continued effective.' We note that the 1955 campaign in which the cards were secured was unsuccessful and resulted in no bargaining, and that all five employees testified that they did not wish the Union to represent them in the 1956 campaign and had signed no cards authorizing the Union to represent them until at ter December 18, 1956, when the contract with its union-security clause was executed. Accordingly, we find that the General Counsel has. proved that 64 (rather than 59) out of a total of 101 employees in the contractual unit had not designated the Respondent Union as. their collective-bargaining agent when the December 18, 1956, agree- ment was executed. THE REMEDY For the reasons stated by the Trial Examiner and in conformity with the established policy of the Board, we find that it would not effectuate the policies of the Act to permit the retention of payments. 1 Compare Knickerbocker Plastic Co ., Inc., 104 NLRB 514, 529-530, enfd. 218 F. 2d 917 (C.A. 9), where the cards from the previous year were found to have been signed during the same organizational campaign which had been interrupted by the employer's unfair labor practices ; see Safeway Stores, Incorporated, 99 NLRB 48, footnote 3, p. 49,. where the current majority of the union did not depend upon cards from an earlier cam- paign, and the Board simply noted that three out of five employees who had signed the year before had affirmed their original designations. THE GRAND UNION COMPANY 591 of union dues and other moneys which have been unlawfully ex- acted from employees of Respondent Company as the price of their employment. Accordingly, in order to expunge the coercive effects of such illegal exaction, we adopt the remedy recommended by the Trial Examiner, which requires the Respondents jointly and severally to reimburse the employees of the Respondent Company for dues checked off pursuant to the Respondents' unlawful agree- ment, extending it to include any other moneys unlawfully exacted under such agreement .2 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 : A. Respondent, The Grand Union Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Recognizing any labor organization as the exclusive repre- sentative for the purpose of collective bargaining of the employees in a unit appropriate for such purposes unless such representative shall have been freely designated or selected by a majority of the employees in the unit. (b) Entering into, maintaining, or enforcing any agreement with a labor organization which requires its employees to join, or to maintain membership in, such labor organization as a condition of employment, unless such labor organization is the representative of the employees as provided in Section 9(a) of the Act and the agreement in all other respects conforms to the requirements of Section 8(a) (3) of the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, 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 such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Local 294, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of 2N.L.R.B. v. Broderick Wood Products Company, 261 F. 2d 548 ( C.A. 10 ) ; Lakeland Bus Lines, Incorporated, 122 NLRB 281 ; Los Angeles-Seattle Motor Express, Incorpo- rated, 121 NLRB 1629. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America reimburse its employees and its former employees whose dues in the Respondent Union were checked off pursuant to the Respondents' agreement of December 18, 1956, for the amounts so deducted from their earnings and for any fees, assessments, or other moneys unlawfully exacted under said agreement. (b) Post at its warehouse in Waterford, N. Y., copies of the notice attached hereto marked "Appendix A."3 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Company, be posted by the Company immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that the notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix B." (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps have been taken in compliance. B. Respondent, Local 294, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Entering into, maintaining, or enforcing any agreement with The Grand Union Company which requires employees to join, or maintain membership in, Local 294 as a condition of employment, unless the Union is the representative of the employees as provided in Section 9(a) of the Act and the agreement in all other respects conforms to the requirements of Section 8(a) (3) of the Act. (b) In any like or related manner restraining or coercing em- ployees of The Grand Union Company 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) Jointly and severally with The Grand Union Company reimburse the employees and former employees of the Company whose dues in the Respondent Union were checked off pursuant to the Respondents' agreement of December 18, 1956, for the amounts so deducted from the employees' earnings, and for any fees, assess 3 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." THE GRAND UNION COMPANY 593 ments, or other moneys unlawfully exacted under the said agreement. (b) Post at its business offices copies of the notice attached hereto marked "Appendix B."4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent Union, be posted by it immediately upon receipt thereof and be maintained by it for a period of sixty (60) consecutive days there- after in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Second Region signed copies of the notice marked "Appendix B" for posting for a period of sixty (60) consecutive days, at the Company's Waterford, N. Y., warehouse in places where notices to employees are customarily posted. (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps have been taken in compliance. * Footnote 3 applies here also. 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 any labor organization as the exclusive representative for the purposes of collective bargaining unless such labor organization shall have been freely designated or selected by a majority of our employees in an appropriate collective-bargaining unit. WE WILL NOT enter into, maintain, or enforce any agreement with a labor organization which requires our employees to join, or to maintain membership in, such labor organization as a con- dition of employment, unless such labor organization is the representative of the employees as provided in Section 9(a) of the Act and the agreement in all other respects conforms to the requirements of Section 8(a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, 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 pro- 505395-59-vol. 122-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tection, 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 condition of employment as authorized in Section 8(a) (3) of the Act. WE WILL reimburse our employees and former employees whose dues in Local 294, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America were checked off pursuant to our agreement of December 18, 1956, with the said Union, for the amounts so deducted from their earnings, and for any fees, assessments, or other moneys un- lawfully exacted under the said agreement. All our employees are free to become, remain, or refrain from becoming, members of any labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations Act, as amended. THE GRAND UNION COMPANY, 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 LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA 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 : WE WILL NOT enter into, maintain, or enforce any agreement with The Grand Union Company which requires employees to join, or maintain membership in, Local 294 as a condition of employment, unless we shall have become the representative of the employees as provided in Section 9 (a) of the National Labor Relations Act and the agreement in all other respects conforms to the requirements of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of The Grand Union Company in the exercise of their right to self-organization, to form, join, or assist labor organ- izations, 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 such activities, except THE GRAND UNION COMPANY 595 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. WE WILL reimburse the employees and the former employees of The Grand Union Company whose dues in Local 294 were checked off pursuant to our agreement of December 18, 1956, with the Company for the amounts so deducted from their earnings, and for any fees, assessments, or other moneys un- lawfully exacted under the said agreement. LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, 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 Upon charges filed by Robert E. Gray, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, N.Y.), on July 18, 1957, issued an order consolidating the above- captioned cases and a consolidated complaint against the Respondents, The Grand Union Company, herein referred to as the Company, and Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union or Local 294, alleging that they had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Thereafter, on October 15, 1957, an order amending the complaint was issued. Copies of the charges, the order of consolidation, the consolidated complaint, the order amending the complaint, and the notices of hearing were served upon the parties. The Com- pany and the Union entered answers to the complaint and to the amendment to the complaint in which they denied the commission of any unfair labor practices. In addition, the Union pleaded as an affirmative defense, in substance, that the Charging Party was assisted by the Company in his attempt to represent the latter's employees and to become their collective-bargaining agent and, therefore, is disqualified from filing the charges herein. With respect to the unfair labor practices, the amended complaint, in substance, alleges that on December 18, 1956, the Company and the Union executed a collective- bargaining agreement which recognized the Union as the exclusive representative of the employees in a described bargaining unit at the Company's Waterford, N.Y., warehouse and which required the said employees to become and to remain members in good standing of the Union as a condition of employment. The amended com- plaint further alleges that at all times material to this proceeding the Union was not the representative of the aforesaid employees within the meaning of Section 9(a) of the Act, but nevertheless the parties entered into, maintained in effect, and enforced the said agreement and, since December 18, 1956, employees have paid to the Union dues and other moneys pursuant to its terms. By reason of the foregoing it is alleged that the said collective-bargaining agreement is invalid and in violation of the Act and that by entering into, maintaining, and enforcing such agreement the Company has violated Section 8(a)(1) and (3) of the Act and the Union has violated Sec- tion 8(b)(1) (A) and (2) of the Act. Pursuant to notice, a hearing was held on various days between October 29 and December 10, 1957, in Albany, Waterford, and Troy, N.Y., before Herbert Silber- man, the duly. designated Trial Examiner. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross- 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument at the close of the hearing. At the opening of the hearing the General Counsel and the Charging Party moved to dismiss the affirmative defense set forth by the Union in its answer. This motion was granted. A further motion by the Charging Party to strike the answers of the Company and the Union on the ground that copies thereof had not been served upon the Charging Party was denied. Each of the Respondents and the Charging Party submitted briefs to the Trial Examiner which have been carefully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Grand Union Company, a Delaware corporation with its principal office and place of business in East Paterson, N.J., is engaged in the operation of warehouses and retail food and grocery outlets in various States of the United States. During the calendar year 1956 the Company purchased and caused .to be delivered to its Waterford, N.Y., warehouse, the establishment involved in this proceeding, groceries, meats, and other products valued at an amount in 'e'xcess of $1,000,000. These products were transported to the said warehouse in interstate commerce directly from States of the United States other than the State of New York. The parties admit, and I find, that the Company is, and has been at all times material hereto, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events On December 18, 1956, the Company and the Union entered into a collective- bargaining agreement which recognized the Union as the exclusive bargaining agency for all employees at the Company's Waterford, N.Y., warehouse excluding office employees, watchmen, permanent salaried supervisors, bakery employees, trucking department employees, and inspectors, which required that as a condition of employ- ment all employees covered by the agreement shall within the statutory grace period become members of the Union and remain members in good standing during the term of the contract, and which also contained a checkoff provision. The complaint alleges that the Union did not represent a majority of the employees in the described bargaining unit when the agreement was executed. The single issue of fact in this proceeding is whether on December 18, 1956, the Union was the representative of the employees covered by the contract within the meaning of Section 9(a) of the Act. In the fall of 1956 the Union renewed a campaign, which it had pursued inter- mittently since 1954, to organize the employees at the Company's Waterford, N.Y., warehouse. In late November it sought recognition as the representative of these employees and threatened the Company with a strike and picketing unless the Com- pany entered into a collective-bargaining agreement with it. On December 5, 1956, a meeting was held in Albany attended by various representatives of the Company and the Union, including Bernard A. Lubeck, who is in charge of labor relations for the Company, Robert L. Hood, the Company's counsel, Nicholas M. Robilotto, president of Local 294, and Harry Pozefsky, the Union's counsel. The Union's representatives indicated that they had in their possession designation cards signed by a majority of the Company's employees and agreed to produce them for inspection. The meeting was thereupon adjourned to the Union's offices where the Company's representatives were shown a typewritten sheet listing the employees who had signed cards for the Union as well as the cards themselves.' A total of 45 cards was produced which the Company's representatives checked against its payroll records. Four of the cards were found to have been signed by persons no longer in the Company's employ and three by persons who were working in classifications not included within the proposed bargaining unit. With respect to the remaining cards, the Company's representatives were uncertain as to the authenticity of the signatures on three and were unable to make a comparison of the signatures on two others because they did not have speci- I The list having been destroyed or mislaid was not available at the hearing. THE GRAND UNION COMPANY 597 men signatures of these employees with them. In addition, the Company's represen- tatives questioned the validity of eight cards which bore dates more than 12 months old. Thus, including all doubtful cards, the Union had 38 authorizations from employees who were working in the classifications for which it was seeking recogni- tion. At the time there were 101 employees in the proposed bargaining unit.2 The Company's representatives therefore informed Robilotto that the Union did not represent a majority and that the Company would negotiate with the Union when it succeeded in obtaining designations from a sufficient number of employees 3 The Union's representatives indicated that it would be a matter of only a few days before they would have more designation cards. No one representing the Company at this meeting made a list of the names of the employees whose designation cards had been shown to them. During the following 2 weeks Lubeck had many telephone conversations and several meetings with the Union's representatives. On one of these occasions, according to Lubeck, Robilotto said, "He thought that he had enough representation for us to negotiate, and he thought that we should sit down and negotiate a contract; otherwise he would have to take drastic action." In these conversations and meetings Lubeck discussed with the Union some of the terms and conditions which might be included in a contract between the parties. Another meeting was held at the Company's headquarters in East Paterson, N.J., on December 14, 1956, which was attended, among others, by Lubeck and Hood for the Company, Robilotto and Pozefsky for the Union, T. Ciampi of Teamsters Local 563, the bargaining agent for the employees of the contract carrier which moved merchandise in and out of the Company's Carlstadt, N. J., warehouse, and Sasso and Phil Blum of Teamsters Local 863, the representative of the employees at the Carlstadt warehouse. At the opening of the meeting Robilotto accused Lubeck of double- crossing him by failing to negotiate a contract with Local 294, and stated that the Union had signed up a majority of the employees. The Company's representatives replied that Local 294 had not exhibited cards signed by a majority of the employees. Robilotto responded that "if we [the Company] didn't get busy soon, why, they would have picketing at Carlstadt and Waterford." Ciampi said that the carrier's drivers would not cross a picket line and Sasso voiced the opinion that, despite a no-strike pledge, the Carlstadt warehouse employees would likewise refuse to cross a picket line. Hood asked Robilotto to produce the additional cards he had received since December 5, but Robilotto replied that he did not have the cards with him. Hood then inquired whether he would be willing to have the question of the Union' s majority determined by a National Labor Relations Board election. Robilotto answered, "No, that that certainly wasn't necessary, that he had already displayed sufficient interest, and [the Company] could take his word that he had sufficient cards to warrant our recognizing Local 294 as a proper bargaining agent for the Waterford Warehouse employees." Robilotto said that the Company could check the cards at a later date in Albany. At one point during the meeting three or four union people walked out of the room after threatening that the Company would be faced with a strike and picketing. However, they were brought back to the meeting and the Company's representatives promised that they would recommend to their superiors that the Com- pany sit down and discuss with the Union the terms and conditions of a contract which would be contingent upon the Union's obtaining a sufficient number of signa- tures from the employees. The Company thereupon engaged an Albany attorney, Sol Rubenstein, in connec- tion with the labor problem at its Waterford warehouse. Rubenstein testified that his assignment was to see how many new designation cards the Union had obtained after December 5, in order that he might be able to advise the Company as to whether the Union represented a majority. On Monday, December 17, 1956, Rubenstein met with Robilotto at the Union's office. Rubenstein was shown between 16 and 19 cards which purportedly had been signed after December 5. Rubenstein's testimony was vague and self-contradictory as to the number of these cards which bore dates between December 5 and 17 .4 Rubenstein compared these cards with a list handed to him by Robilotto, which the 2 The Company's representatives believed that there were 103 employees in the proposed bargaining unit. However, for reasons stated below, I find that there were only 101 employees in the unit. 3 About December 11 Lubeck again informed the Union's representatives that if they produced cards signed by a majority of the employees in the proposed bargaining unit the Company would recognize the Union and negotiate a contract with it. 4 There are only two cards in evidence, signed by Joseph John Jolicoeur and Joseph L. Slupski, which are dated between December 5 and 17, 1956. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD latter represented as being the names of the employees whose cards had been shown to Lubeck and Hood previously,5 to determine whether there were any duplications, and he found none. However, Rubenstein had no payroll or other relevant company records with him at this meeting. Consequently, he had no way of knowing whether the cards he inspected bore genuine signatures , whether the persons whose names appeared on these cards were employed by the Company, or whether these persons if employed by the Company were working in classifications covered by the proposed bargaining unit. Thus, instead of independently investigating the genuineness of the cards, Rubenstein accepted the assurance of the Union's representatives that the cards were authentic and had been signed after December 5. Rubenstein also testified that he made no record of the names of the persons whose cards were shown to him. Nevertheless, upon the basis of the cards he inspected plus the list with the names of the employees whose cards had previously been shown to Hood and Lubeck, Ruben- stein concluded that the Union represented more than 50 percent of the employees in the proposed bargaining unit. After his meeting with Robilotto, Rubenstein telephoned Lubeck at the Company's headquarters in East Paterson, N.J., and informed Lubeck that he saw a sufficient number of cards in addition to those which had been produced for the Company's inspection on December 5 to demonstrate that the Union represented a majority of the employees in the proposed bargaining unit and advised Lubeck to recognize the Union as the representative of those employees. A meeting of various company officials was held that same afternoon, December 17, to consider what action should be taken in the matter. Attending the meeting, in addition to Lubeck, were: Mr. Shield, president, Mr. Davern, senior vice president, William Dempsey, vice president in charge of store operations, and Robert L. Hood, attorney. The persons present at the meeting discussed what economic effect a strike and picketing would have upon the Company's business. The Company then was at its busiest period of the year. The operation of its stores depended upon the movement of merchandise by trucks to and from its warehouses in Carlstadt and Waterford. The consensus of opinion was that the stores would be unable to operate longer than 2 weeks without trucking service and this would affect the jobs of 6,000 employees. Shield inquired whether it was possible for the Company to petition for an election among the employees at its Waterford warehouse. It was explained that such an election was a long, involved process and by the time an election could be held the holiday season would be over and the Company's stores probably would be closed. Hood stated that based upon a conversation with Rubenstein and the designation cards he had seen on December 5 it was his advice that the Company immediately recognize and attempt to negotiate a contract with Local 294. Neither then nor at any time thereafter was the Company given the names of employees who purportedly had signed designation cards for the Union between December 5 and 17, 1956. Shield decided to accept Hood's advice. However, he stated that before entering into negotiations with the Union he first wanted to talk to the employees at the Waterford warehouse and explain the circum- stances to them. That evening Lubeck, Davern, and Shield drove to Waterford. The same night there was a meeting at the Ten Eyck Hotel in Albany, N. Y., be- tween company representatives, including Lubeck and Rubenstein, and the Charging Party in this case, Robert E. Gray. At this meeting, Gray advised the Company that he was there as the legal representative of a substantial percentage of all the warehouse employees and mentioned a figure of approximately 85 employees. Before the meet- ing was concluded Gray said that he would send a confirmatory telegram to Mr. Shield in which he would put the Company on notice that he represented these employees. At the time of the meeting with Gray the Company had decided that it would recog- nize Local 294 and Gray was told this. However, the Company had not yet advised the Union of its decision, but this fact was not communicated to Gray. At 10 o'clock the next morning, December 18, President Shield spoke to about 75 employees in the Waterford warehouse.6 Shield told the employees that the Com- pany's attorneys, Hood and Rubenstein, had advised him that Local 294 held a sufficient number of designation cards to make it necessary for the Company to recognize the Union and that it was the intention of the Company, immediately after 5 Rubenstein testified that he did not know who had prepared the list. With respect to this list and the cards which had been inspected previously by Hood and Lubeck, Ruben- stein testified, "I think I did look at the cards while I was there, and checked 'them with the list that Nick [Robilottol had written out, and the names corresponded." 9I credit Lubeck's testimony as to what took place at this meeting. Lubeck demon- strated a good recollection of the events about which he testified at the hearing and impressed me as sincerely striving to answer the questions asked him fully, accurately, and without distortion. THE GRAND UNION COMPANY 599 the meeting, to go to Albany and negotiate a contract with the Union. In response to a question, he said that in all probability the agreement would contain a union-shop clause requiring the employees to join Local 294 within 30 days. He further stated that he had received information that a majority of the employees had also designated Mr. Gray and the logical conclusion was that a great many employees had signed for both the Union and Mr. Gray. However, he said, because Local 294 had obtained their designation cards first the Company had to negotiate with the Union despite the sentiment among the employees in favor of Mr. Gray. At this meeting there was an expression of substantial opposition to the Union. An employee asked those who opposed Local 294 to raise their hands, and all except about six of the employees did so. At the close of the meeting, another employee said he realized the predicament the Company was in, he felt Mr. Shield was in a tough spot, he had confidence in Mr. Shield, and then turned to the others and suggested a rising vote of confidence in Mr. Shield. Everybody arose and applauded and the meeting ended. After the contract had been executed, Lubeck asked Attorney Hood what the Company would be required to do, upon the expiration of the 30 days' grace period, if any of the employees refused to sign cards for the Union and pay their monthly dues. Hood later advised Lubeck that on behalf of the Company he had made arrangements with the Union to waive enforcement of the union-shop clause. This fact was never communicated to the employees. All the employees signed checkoff cards and the question of discharging anyone for nonpayment of dues never arose. The contract between the Company and the Union, although for a term in excess of 2 years, was enforced by the parties from its execution only until about August 3, 1957. During this period union dues were deducted from the employees' wages and paid to Local 294 pursuant to the checkoff provision of the agreement. On August 9, 1957, a representation election was conducted by the National Labor Relations Board among the employees at the Company's Waterford warehouse in a voting unit which included all the employees covered by the contract with the Union plus the bakery department employees.? The employees were given the choice of voting for the Union, Robert E. Gray, or neither. A majority of the votes was cast for Robert E. Gray and on August 19, 1957, a certification of repre- sentatives was issued. Thereafter, on September 23, 1957, the Company and Robert E. Gray entered into a collective-bargaining agreement effective until February 27, 1961, which specifically recognizes the latter as the exclusive repre- sentative of the employees in the certified unit.' B. The Union's lack of majority The fact that Local 294 was unsuccessful in the election held on August 9, 1957, does not resolve the issue of whether the Union represented a majority of the employees covered by its contract with the Company when the agreement was executed on December 18, 1956. The parties disagree as to the number of em- ployees who were in the contractual unit on December 18, 1956. For the week ending December 22, 1956, which includes the day in question, the Company's payroll lists 104 employees in the job classifications covered by the contract. Four of these employees, namely, Wilson Terry, Mary Durivage, Frederick Knipple, and Christine Timm, were absent from work the entire week and never thereafter returned. It was stipulated that Wilson Terry was not in the unit on the critical day, but there is a dispute with respect to the other three. Arthur N. Hennineson, superintendent of the Waterford warehouse, testified that by December 18, 1956, Frederick Knipple had been absent for a considerable length of time without leave of the Company and Mary Durivage had been absent because of illness for a period of approximately 1 month. Neither one returned to work. In these cir- cumstances, I infer that Knipple and Durivage voluntarily quit their employ with the Company on the respective days they first absented themselves from work and find that they should not be included in the contractual unit as of December 18, 1956. Christine Timm was an extra girl in the egg room who worked whenever she was needed. When she was not working the Company considered her status to be that of a temporarily laid-off employee. She did not work during the week in question and subsequently moved from the Waterford, N.Y., area. Although there is no evidence as to when this move took place, she signed an application for membership in the Union on January 15, 1957, in which she gave as her res- idence a Waterford, N.Y., address and stated that she was employed by The Grand Union Company. This demonstrates that she had not then quit her employ 7 See Grand Union Co., 118 NLRB 685. 8 See The Grand Union Company, 123 NLRB No. 191. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Company. I shall, therefore, include her in the contractual unit as of December 18, 1956. Accordingly, I find that 101 employees were in the unit on December 18, 1956. Considerable evidence was adduced at the hearing as to which of these 101 em- ployees the Union did or did not represent when it entered into its agreement with the Company. Forty-seven employees testified without contradiction that on or before December 18, 1956, they had not signed any card designating the Union as their bargaining agent and had not otherwise selected the Union to represent them. These employees were: Alfred F. Arciello John Kane Antonetta Ascenzi Clarence Keeler Beverly Bame John Keller Vernon Baucus Frances Kelts Thomas Bayly Eva Kessler Anna Burns Joseph Kokernak John Warren Carter, Jr. Albert LaMarre John Warren Carter, Sr. Stephen LeMay Frederick Demarest Robert Lester Irving Francis De Voe Philip Mabb Shirley De Voe (Kessler) Betty Ann Mattoon Peter Drewecki Josephine Mazula Raymond Gaudreau William McConnell Kathleen Gendron 9 Douglas Murray Elizabeth Gilchrist Mary Perretta Robert Gordon John Emmett Russell George Guthier Joseph Schultz Raymond Heller Hugh George Smith Garrett Holt Henry Soucy Harold Hotaling Ronald Edward Soucy Elizabeth Hull Thomas Taylor Winfield Hull John Tiro Martin Johns Peter Worhach Francis Patrick Kane There are five employees, who were in the contractual unit at the time in ques- tion, who did not testify at the hearing and who the General Counsel contends should be counted with those who had not designated the Union as their repre- sentative on or before December 18, 1956. These employees are: Christine Timm, Harry Williams, Frank Lawyer, Elsie M. McCullen, and Rufus Sweet. An ap- plication for membership in the Union dated either January 14, 15, or 16, 1957, was introduced in evidence for each. The testimony of the Union's business agent, Howard Bennett, shows that the Union has no card or other record indicating that any of these employees had designated the Union as his or her collective-bargaining representative on or before December 18, 1956. It is the Union's position that this evidence alone is insufficient proof that these five employees had not selected the Union as their bargaining agent before the execution of the contract because the employees might have made such designations orally. The Union is correct in its assertion that the Act does not require the selection of a representative for the purposes of Section 9(a) to be made in writing. "The . Act requires no specific form of authority to bargain collectively. . . . Authority may be given by action as well as in words. . . . Not form, but intent, is the essential thing. The intent required is merely that the union or other organization or person act as the employees' representative in collective bargaining. . It is only necessary that it be manifested in some manner capable of proof, whether by behaviour or language. Oral authority is not invalid. It is merely, as always, more difficult to prove." Lebanon Steel Foundry v. N.L.R.B., 130 F. 2d 404, 407 (C.A., D.C.), cert. denied, 317 U.S. 659. See also N.L.R.B. v. Premo Pharmaceutical Lab- oratories, Inc., 136 F. 2d 85, 86 (C.A. 2). Although the burden of proving that the Union did not represent a majority of the employees in the contractual unit on December 18, 1956, rests upon the General Counsel, it may be sustained by evidence other than the testimony of the individual employees concerned that they had not selected the Union as their bargaining agent. Howard Bennett testified that it is the ordinary custom of the Union when it engages in a membership drive to obtain signed applications from the employees. There is no evidence that the Union departed from its customary practice in this instance. More than 9 Line 18 on page 249 of the transcript is corrected by changing the number "56" to "57." THE GRAND UNION COMPANY 601 50 employees in the contractual unit were witnesses at the hearing and, although many of these witnesses were interrogated at length by the Union's counsel about possible oral designations, not one testified that he had made any oral designation of the Union as his bargaining representative, or had been asked to do so. Furthermore, the testimony of Bernard A. Lubeck and Sol Rubenstein shows that in attempting to demonstrate its majority status to the Company, the Union relied exclusively upon cards signed by the employees. From all these circum- stances, I infer that the Union neither solicited nor obtained any effective oral designations from employees in the contractual unit. I find, therefore, that Christine Timm, Harry Williams, Frank Lawyer, Elsie M. McCullen, and Rufus Sweet had not either orally or in writing designated the Union as their collective- bargaining representative on or before December 18, 1956. Applications for membership in the Union dated either January or November 1956 were produced for George Seguin, William O'Leary, James E. Brady, and Anna Bourgeois, each of whom testified that he or she had not signed the card on the date indicated and had not designated the Union as his or her representative on or before December 18, 1956. 'George Seguin denied that the figures "1/15/56" alongside the date on the card which he signed is in his handwriting and testified that he signed the card in January 1957. 1 credit this testimony. James E. Brady and William O'Leary both testified that they did not sign any cards until after December 18, 1956, and that they did not insert any date on the cards which they signed. I credit their testimony and find that the cards dated "11/27,/56" bearing their signatures were not signed on that day but were signed after December 18, 1956. Anna Bourgeois similarly denied that the date "11/27./56" on her card is correct. She testified that she signed the card on January 16, 1957, and the card was dated when she signed it. The date on her card is in a different handwriting than the balance of the written information and was written in pencil while the rest of the card was filled out in ink. Although the appearance of the card does not indicate any erasure of date, I nevertheless credit Anna Bourgeois' testimony that she signed the card on January 16, 1957. Accordingly, I find that George Seguin, James E. Brady, William O'Leary, and Anna Bourgeois had not designated the Union as their collective -bargaining representative on or before December 18, 1956. An issue is raised with respect to three employees who had applied for member- ship in or had been members of the Union or a sister local before beginning their employment with the Company but who testified that they had not voluntarily designated the Union as their representative while they were working for the Company. James Fluewelling testified that he had signed an application for mem- bership in the Union in 1953 or 1954, when employed by another concern. How- ever, the Union lost a representation election the same year and thereafter Fluewelling had no further connection with the Union. Chester Hotaling was a member of the Union in 1941. Upon his subsequent discharge from military service he refused to pay to the Union a reinstatement fee of $50 and his mem- bership lapsed. Thus, neither Fluewelling nor Hotaling were members of the Union when they began working for the Company and neither had evinced any current desire to be represented by the Union when the contract in question was executed. The third employee, Warren Hedden, prior to his employment with the Company on June 9, 1956, was a member of Teamsters Local 787. After the contract was entered into between the Company and the Union, Hedden requested and was given a transfer card to Local 294. Hedden's transfer of membership from Local 787 to Local 294 after December 18, 1956, does not contradict his testimony that he had not designated the Union as his representative prior thereto. I therefore find that on December 18, 1956, the Union did not represent James Fluewelling, Chester Hotaling, or Warren Hedden.lo The final question as to designations relates to five employees who signed ap- plications for membership in the Union during the fall of 1955. The General Counsel and the Charging Party contend that these cards were ineffective as evidence of a current representative interest more than a year later when the contract was executed. The arguments advanced are: First, that the Board does not accept cards older than a year to support a petitioner's showing of interest in a representation proceeding; and, second, that the Union told various employees during its 1956 organizational campaign that those who had signed cards in 1955 would be required to sign new cards if they still desired the Union's representation. 10 Since the Union did not have cards from Fluewelling, Hotaling, or Hedden prior to December 18, 1956, when it attempted to demonstrate its majority to the Company's representatives, it could not have relied upon designations from any of these three employees. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither of these arguments is meritorious. The Board's policies with respect to processing petitions under Section 9(c) of the Act are purely administrative and have no applicability to the present case. As to the second argument, the fact that the Union sought to obtain more recent designations during its 1956 organ- izational campaign does not of itself render prior designations invalid. The five employees who signed the cards in question are Edward Coon, Sidney Jansen, Bernard Westcott, Shirley Westcott, and Timothy Fitzgerald." These employees testified that they did not desire the Union to represent them in 1956, and did not sign any designation cards in that year prior to the execution of the contract on December 18. However, none of these employees had taken any effective action to revoke their prior designations.12 In two early cases alleging violations of Section 8(5) of the Act, Luckenbach Steamship Company, Inc., 12 NLRB 1330, and Surpass Leather Company, 21 NLRB 1258, the Board held that cards dated approximately 1 year before the unions' requests for recognition and bar- gaining were unacceptable as evidence of the unions' majority status. However, my attention has been directed to no other unfair labor practice proceeding in which there was a similar decision. On the Other hand, in N.L.R.B. v. Piqua Munising Wood Products Co., 109 F. 2d 552, 554 (C.A. 6), the court rejected the argument that designation cards dated 2 years before the union's demand for collective bargaining may not be counted in determining the union's majority. In so ruling the court stated, "Respondent's contention that some of the cards lack probative value because dated in 1935 and 1936 is without merit. It is a well- established rule of evidence that when the existence of a personal relationship or state of things is once established by proof, the law presumes its continuance until the contrary is shown or until a different presumption arises from the nature of the subject matter." This appears to reflect the Board's current rule. Thus, in two relatively recent cases, the Board counted as proof of a current representative„ status designation cards signed by employees more than a year before the union's demand upon the employer to engage in collective bargaining. Safeway Stores, Incorporated, 99 NLRB 48, 49, and 56; Knickerbocker Plastic Co., Inc., 104 NLRB 514, 529, enfd. 218 F. 2d 917 (C.A. 9). Accordingly, I find that Coon, Jansen, Bernard Westcott, Shirley Westcott, and Timothy Fitzgerald should not be counted with the other employees whom the Union did not represent on Decem- ber 18, 1956. Since the General Counsel has proved that 59 employees out of a total of 101 employees in the contractual unit had not designated or selected the Union as their collective-bargaining agent when the agreement between the Union and the Company was executed on December 18, 1956, I find that the Union on that date did not represent a majority of the employees covered by the agreement. C. Conclusions The Union argues that its status as the majority representative of the employees in the contractual unit was established not only by the number of designation cards received by it before December 18, 1956, but also by an alleged vote of approbation by the employees at the meeting in the morning of December 18 when they were addressed by Company President Shield. At the conclusion of the meeting, after Shield earlier had informed the employees that he had been advised that the Union had received cards signed by a majority of the employees and that the Company was going to negotiate a contract with the Union, the employees present gave him a rising vote of confidence. According to the Union, by this action and by the failure of any employee to contradict Shield's statement that the Union had cards from a majority, the employees "ratified his actions and affirmed their support of Local 294. They likewise adopted the Company's action as their own." I find no merit to this argument. The employees were not asked whether they desired the Union to represent them and their vote of confidence in Shield, in the circumstances, was not an affirmation by those present who had not previously designated the Union that they were now doing so. On the other hand, all but six of the employees who attended the meeting raised their hands when a show of hands by those who opposed the Union was called for. Thus, al- "I find that the General Counsel has failed to establish by a preponderance of the evidence that the card bearing the signature of Timothy Fitzgerald and dated October 19, 1955, is a forgery. la Jansen testified that he asked someone whom he does not know but thinks may have been an employee of the Union for return of his card and was told the card was no longer good. Coon testified that he wrote the Union a letter of resignation but no competent evidence was adduced that the letter was mailed. THE GRAND UNION COMPANY 603 though the employees did not engage in any debate with Shield as to whether he was correctly informed that a majority had signed cards for Local 294, the sense of the meeting was that the overwhelming majority of the employees present did not desire the Union to be their representative. Their rising vote at the end of the meeting was not an expression of support for the Union but merely an indication of their loyalty to and confidence in their Company's president. Thus, contrary to the Union's contention, the transactions at the meeting do not lend themselves to the interpretation that the employees then and there indicated a desire to be presented by the Union. The Company in defense of its actions advances the argument that "having acted in good faith in its reliance upon the cards exhibited to it and having relied upon the opinion of its counsel, and not having knowledge of the alleged illegality or inadequacy of the cards, cannot be charged jointly with the Union as being guilty of any unfair labor practice." It argues further that since the Union declined to petition the Board for an election and had threatened to picket the Company's warehouses unless a contract was entered into forthwith, despite the Company's unwillingness to recognize and bargain with Local 294, it was com- pelled to do so; its only alternatives were "either to risk a serious strike disastrous to its business, throwing thousands of people out of work, or to accept [the des- ignation] cards at its face value." Thus, in part, the Company's defense is that if it acted unlawfully it did so reluctantly under pressure of union coercion. How- ever, threats of a strike or other economic exigencies do not excuse or justify action proscribed by the Act. An employer has a duty to resist the demands of a union when to yield to those demands would violate his employees' statutory rights.13 The Company's argument that it acted in good faith in reliance upon the cards exhibited to it and in reliance upon the opinion of its counsel likewise is deficient in merit. Absence of an intention to violate the Act does not excuse unlawful infringements upon the rights guaranteed employees by Section 7. Further- more, the requirement, set forth in Section 8(a)(3) of the Act, that a "labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective-bargaining unit" before an employer may enter into an agreement containing a union-security provision is absolute.14 The section contains no mitigating qualification which pardons an employer who enters into such an agreement under the mistaken, although good-faith, belief that the labor organization was the majority representative of the employees covered thereby." In any event, upon the evidence, I find that the Company did not have a sincere, good-faith belief that the Union on December 18, 1956, represented a majority of the employees in the proposed bargaining unit. The perfunctory manner in which the Company investigated the Union' s claim of majority,16 and the circumstances 13 N.L.R.B. v. Pappas and Company et at., 203 F. 2d 569 (C.A. 9) ; N.L.R.B. v. Goodyear Tire & Rubber Company, 129 F. 2d 661, 664 (C.A. 5). See N.L.R.B. v. Bell Aircraft Corporation, 206 F. 2d 235, 237 (C.A. 2), wherein the court stated: It was a reluctant violator of Section 8 (a) (1) and possibly had to choose between doing so and suffering the consequences of another strike. But compliance with the statute was possible and union coercion which induced the employer to violate it is not relevant. 14 Bryan Manufacturing Company, 119 NLRB 502, section G of .the Intermediate Report ; Adam D. Goettl et at. d/b/e International Metal Products Company, 104 NLRB 1076, footnote 1. 15Note that the further proviso of Section 8(a)(3) of the Act (with respect to the enforcement of a union-security provision by an employer) excuses what would otherwise be unlawful discrimination against an employee if the employer has no reasonable grounds for believing that the employee's membership in a labor organization was denied for unlawful reasons. This contrast between the first and second proviso of Section 8(a)(3) of the Act indicates a congressional intent that good faith should not exonerate an employer who enters into a union-security agreement with a labor organization which is not the majority representative. 16 According to testimony adduced on behalf of the Company, it purportedly satisfied itself as to the Union's majority after inspecting two groups of designation cards. With respect to the first group, which was checked by Hood and Lubeck, out of 45 cards pro- duced, 7 were rejected outright because they were signed by persons not included within the proposed bargaining unit and the Company's representatives questioned the validity of 13 others. Despite this experience, when Rubenstein, about 2 weeks later, checked the second group of cards, other than ascertaining that there were no duplications between the two groups, he accepted the Union's representations as to their validity. Thus, in effect, the Company acceded to Robilotto's demand that the Company should "take his 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which prompted it to recognize and hastily to enter into a contract with the Union, despite the information it received on the night of December 17 indicating that a majority of the employees possibly had designated Robert E. Gray as their repre- sentative, show that the Company was motivated by an anxiety to avoid a costly strike rather than by any honest conviction, prudently reached, that the Union, in fact, legitimately represented a majority of the employees in an appropriate collective-bargaining unit. I have found that the Company and the Union entered into a contract on December 18, 1956, which recognized the Union as the exclusive bargaining agent for the employees covered by its terms and which required the employees to become members of the Union within a defined period of grace, notwithstanding the fact that the Union was not then the representative of the employees within the meaning of Section 9(a) of the Act. This was an unlawful trespass upon the employees' right to select a collective-bargaining representative of their own choosing. The Company thereby violated Section 8(a)(1) of the Act and the Union by accepting the benefits of such unlawful recognition violated Section 8(b) (1) (A) thereof. These infringements upon the rights guaranteed employees by Section 7 of the Act were aggravated by the inclusion of a clause in the agreement granting recognition which required the employees covered thereby as a condition of employment to become members of the Union. In the circumstances, such union-shop provision created discriminatory conditions of employment encouraging membership in the Union. Therefore, by entering into, maintaining in effect, and enforcing the December 18, 1956, contract, the Company also violated Section 8(a)(3) of the Act. Similarly, the Union as a party to the execution and en- forcement of the agreement was engaged in an unlawful attempt to cause the Company to create conditions which would result in discrimination prohibited by Section 8(a)(3) of the Act, and thereby violated Section 8(b)(2) of the Act. That the parties to the contract may have had a supplementary, parol under- standing that the union-shop clause would not be enforced is not a mitigating circumstance because the purported modification of the contract was never com- municated to the employees. Furthermore, as none of the employees risked dis- charge by refusing to become members of the Union, the intention of the parties to adhere to the oral understanding was never tested.17 Accordingly, as alleged in the complaint, I find that, by their conduct described above, the Employer has violated Section 8(a)(1) and (3) and the Union has violated Section 8 (b) (1) (A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operations of the Respondent Company, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents hate engaged in certain unfair labor prac- tices, it will be recommended that they cease and desist therefrom and that they take affirmative action designed to effectuate the policies of the Act. . Following a representation election, which the Union lost, the Company withdrew recognition from Local 294 as the bargaining agent for its Waterford warehouse employees and ceased enforcing its contract with the Union. Consequently, an order directed towards the accomplishment of such objectives would be superfluous and, because the complaint does not allege any violation of Section 8(a)(2) of the Act, inappropriate. Foundation Company, 120 NLRB 1453. The evidence shows that all the employees covered by the December 18, 1956, agreement signed cards authorizing the Company for the benefit of the Union to deduct union dues from their earnings and that, pursuant to these authorizations and the terms of the contract, the Company made such deductions from about December 18, 1956, through August 3, 1957. The General Counsel and the word that he had sufficient cards to warrant [the Company] recognizing Local 294 as a proper bargaining agent for the Waterford Warehouse employees." The cursoriness with which the second group of designation cards was checked does not suggest that the Company was genuinely seeking to discover whether the Union represented a majority of its employees in the proposed bargaining unit, but indicates only a feeble gesture toward compliance with its responsibilities under the Act. 17 County Electric Co., Inc., et al., 116 NLRB 1080, 1081-1082; Red Star Express Lines of Auburn, Inc. v. N.L.R.B., '196 F. 2d 78, 81 (C.A, 2). THE GRAND UNION COMPANY 605 Charging Party request that my recommendations include a direction that the Respondents reimburse each affected employee for dues checked off by the Com- pany and remitted to the Union under the terms of the agreement. The propriety of such recommendation is indicated by the decision in United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada, etc. (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, where, under analogous circumstances,18 the Board ordered reimburse- ment for dues and assessments paid to a labor organization, explaining its reasons as follows: ... Here, the dues and the assessments were required and collected pursuant to a contract which clearly contravened the public policy of the Act. Dues and assessments here collected constituted the price these employees paid in order to retain their jobs. We therefore conclude that the remedy of reim- bursement of all such monies is appropriate and necessary to expunge the illegal effects of the unfair labor practices found here. * * It is our view that, where payment of dues is required under a closed-shop contract, as where assessments are required under an otherwise valid agree- ment, reimbursement of such monies actually collected will best effectuate the policies of the Act. Otherwise the very fruits of the unfair labor practice itself will remain in the hands of the respondent. In several recent cases the Board, without explanation, failed to include in its orders provisions for reimbursement of dues and other moneys paid under the compulsion of unlawful union-security agreements, although such remedy would appear to have been appropriate.19 However, I do not construe such unexplained omissions as a reversal by the Board of its remedial policies expressed in the Brown-Olds case. Accordingly, I shall recommend that the Respondent Company and the Respondent Union jointly and severally reimburse the employees covered by their contract of December 18, 1956, for all dues deducted by the Company pursuant to checkoff authorizations for the benefit of the Union. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By entering into, maintaining , and enforcing an agreement which required the employees covered thereby as a condition of employment to become and to remain members of the Union, although the Union was not the representative of the aforesaid employees within the meaning of Section 9(a) of the Act, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act and the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 2. 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.] 's Cases such as Hibbard Dowel Co., 113 NLRB 28; The Englander Company, Inc., 114 NLRB 1034; Broderick Wood Products Company, 118 NLRB 38; Bryan Manufacturing Company, 119 NLRB 502; and Coast Aluminum Company, 120 NLRB 1326, are dis- tinguishable because, unlike the Instant proceeding, in each a violation of Section 8(a) (2) of the Act was alleged in the complaint and was found by the Board. But see : The Englander Company, Inc., 118 NLRB 707; Imperial Wire Company, Inc., 118 NLRB 775; Morse Brothers, et at., 118 NLRB 1312. 1D Booth and Flinn Company, 120 NLRB 545; Kalof Pulp & Paper Corp., 120 NLRB 714; Joe K. Miller, d/b/a K.M. & M. Construction Co., 120 NLRB 1062; and Foundation Company, 120 NLRB 1453. With respect to the K.M. & M. Construction Co. case, where the Board omitted to order the respondents to reimburse employees for moneys, dues, fees, and assessments paid to the respondent union under the terms of an agreement containing an unlawful union-security provision, despite the Trial Examiner's finding that such remedy will effectuate the policies of the Act and recommendation that the order in the case should Include such remedy, the opinion has been expressed that "the Board apparently is going along with the `reprieve' granted by NLRB General Counsel Jerome Fenton. who has given construction employers and unions until September 1 to bring their hiring practices into conformity with the law. Thereafter, he has warned, the Brown-Olds penalty will be Invoked." L.R.R., Summary of Developments, June 2, 1958, p. 4. See also address by Jerome D. Fenton, NLRB General Counsel, 42 LRR 249, 251.