Revere Metal Art Co., Inc.

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by unilaterally setting higher rates of pay for those hired to replace its employees who were on strike, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Company has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The Teamsters and the Machinists have, and their agents have, engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act by inducing and encouraging employees of Hart Motor Express and Associated Trans- port34 to engage in strikes or concerted refusals in the course of their employ- ment to perform services for their respective employers, an object thereof being to force or require such employers to cease doing business with W. W. Wallwork Fargo, Inc. 7. 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.] B The complaint also alleged that the Union s unlawfully induced the employees of K. W. McKee, Inc., not to handle Wallwork freight. However, the General Counsel failed to offer any evidence in support of this allegation. Revere Metal Art Co., Inc. and Isabelo Rodriguez Amalgamated Union, Local 5, UAW, Independent and Isabelo Rodriguez. Cases Nos. 2-CA-5330 and 2-CB-1932. March 10, 1959 DECISION AND ORDER On October 30, 1958, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled consolidated proceed- ing findings that Revere Metal Art Co., Inc., the Respondent Company, and Amalgamated Union, Local 5, UAW, Independent, the Respondent Union, had engaged in and were engaging in certain unfair labor practices 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 Respondent Union filed exceptions to the Inter- mediate Report. No exceptions were filed by the Respondent Com- pany. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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 entire record in the cases and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 1 The Respondent Union's request for oral argument is hereby denied because the record and exceptions adequately present the issues and positions of the parties. 123 NLRB No. 16. REVERE METAL ART CO., INC. ORDER 115 Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that : A. The Respondent Company, Revere Metal Art Co., Inc., New York City, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Entering into, maintaining, renewing, or enforcing any agreement with the Respondent Amalgamated Union, Local 5 UAW, Independent, which provides for obligations to the Union on the part of employees other than the payment of initiation fees ancy dues, or which requires its employees to join, or maintain their- membership in, such labor organization, as a condition of employ- ment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (b) Recognizing and dealing with said Local, or any successor thereto, as the collective-bargaining representative of any of its employees for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until Local 5 shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the employees of the said Respondent Company. (c) Performing or giving effect to its agreement of November 13, 1956, with said Local 5, or to any modification, extension, supple- ment, or renewal thereof, or to any other contract, agreement, or understanding entered into with Local 5 relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Amalgamated Union, Local 5, UAW, Independent, shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted elec- tion among the employees of said Respondent Company, provided, however, that nothing herein shall be construed to require the Company to vary any substantive provisions of such agreement or to prejudice the assertion by the employees of any rights which they may have thereunder. (d) Soliciting checkoff authorizations for, or membership in the said Local by threats or otherwise, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action : (a) Withdraw and withhold all recognition from Amalgamated Union, Local 5, UAW, Independent, as the representative of any of its employees for the purpose of dealing with the Company con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other condition of employment, unless and until said Local shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respondent Company's employees. (b) Jointly and severally with the said Local reimburse its em- ployees for any initiation fees, dues, or other moneys paid or checked off as a condition of employment pursuant to the agreement of November 13, 1956, or any extension, renewal, modification, or sup- plements thereof, or any agreement superseding it. (c) Preserve and make available to the Board or its agents, upon request, for examination and copying, all records and reports neces- sary to analyze the amount of moneys due under the terms of this Order. (d) Post at its plant, in New York City, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Company, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason= able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix B." (f) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order what steps the Respondent Company has taken to comply herewith. B. The Respondent Union, Amalgamated Union, Local 5, UAW, Independent, New York City, its officers, representatives, agents, successors, and assigns shall: 1. Cease and desist from : (a) Entering into, maintaining, renewing, or enforcing any agreement with the Company which provides for obligations to the 2In 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." REVERE METAL ART CO., INC. 117 Union on the part of employees other than the payment of initia- tion fees and dues as a condition of employment, or which grants the Union exclusive recognition , or which requires employees to join, or maintain their membership in the Union as a condition of employment, unless such agreement which grants exclusive recog- nition or requires membership has been authorized as provided in Section 8 (a) (3) of the Act. (b) Acting as the exclusive bargaining representative of any of the employees of Respondent Revere Metal Art Co., Inc., for the purpose of dealing with said Company concerning grievances, labor disputes, wages, rates of pay, hours of employment , or other condi- tions of employment unless and until said Union shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among the Company 's employees. (c) In any like or related manner causing or attempting to cause the Company to discriminate against any employee in violation of Section 8(a) (3) of the Act. (d) In any like or related manner restraining or coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action : (a) Jointly and severally with the Company reimburse the Com- pany's employees for any initiation fees, dues , or other moneys paid or checked off as a condition of employment pursuant to the agreement of November 13, 1956, or any extension , renewal, modi- fication, or supplements thereof, or any agreement superseding it. (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all records necessary to analyze the amounts of moneys due under the terms of this Order. (c) Post at its offices and meeting halls in New York City, copies of the notice attached hereto marked "Appendix B ." 3 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Union's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered , defaced, or covered by any other material. (d) Mail to the said Regional Director signed copies of Appendix B for posting by the Company at its New York City plant, as provided above herein . Copies of said notice to be furnished by the Regional Director, shall, after being signed by the Respondent Union's representative, be forthwith returned to the Regional Direc- tor for disposition by him. 8 See footnote 2. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the said Regional Director in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT enter into, maintain, renew, or enforce any agreement with Amalgamated Union, Local 5, UAW, Indepen- dent, which requires our employees to join, or maintain their membership in, such labor organization as a condition of em- ployment unless such agreement has been authorized as provided by the Labor Management Relations Act. WE WILL withdraw and withhold recognition from the above- named labor organization as the representative of any of our employees for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the above- named labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL NOT perform or give effect to our agreement of November 13, 1956, with said Local 5, or to any modification, extension, supplement, or renewal thereof, or to any other con- tract, agreement, or understanding entered into with Local 5 relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Amalgamated Union, Local 5, UAW, Independent, shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees, provided, however, that nothing herein shall be construed to re- quire us to vary any substantive provisions of such agreement or to prejudice the assertion by our employees of any rights which they may have thereunder. WE WILL NOT solicit checkoff authorizations for, or member- ship in said Local by threats or otherwise, or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to REVERE METAL ART CO., INC. 119 refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. WE WILL jointly and severally with the above-named labor organization reimburse our employees for initiation fees, dues, or other moneys paid or checked off as a condition of employ- ment pursuant to the agreement of November 13, 1956, or any extension, renewal, modification, or supplements thereof, or any agreement superseding it. All our employees are free to become, remain, or refrain from becoming or remaining, 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 Act. REVERE METAL ART CO., INC., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Isabelo Rodriguez, an individual, herein called the Charging Party, the General Counsel by the Regional Director for the Second Region (New York, New York), of the National Labor Relations Board, herein called the Board, issued his complaint dated December 26, 1957, against the Re- spondents, Revere Metal Art Co., Inc., herein referred to as the Company, and Amalgamated Union, Local 5, UAW, Independent, herein referred to as the Union, alleging that the Respondents respectively violated Section 8(a)(1), (2), and (3), and Section 8(b)(1)(A) and (2), and Section 2(6) and (7) of the Act. Copies of the charges, an order consolidating the cases, the complaint, and notice of hearing were duly served upon the Respondents and the Charging Party. The Respondents' respective answers deny the commission of unfair labor practices. Pursuant to notice a hearing was held before the Trial Examiner on various days between February 3 and 28, and on October 9, 1958, at New York City. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded the parties. The parties presented oral argument at the closing of the hearing. The Union and the Gen- -eral Counsel filed memoranda. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a New York corporation, maintains its principal office and place of business in the City of New York where it is engaged in the manufacture, sale, and distribution of pen parts. During the past year the Company manufactured and sold products valued in excess of $800,000, of which products valued in excess of 50,000, were shipped from its plant to points outside the United States. It is found that the Company is engaged in commerce within the meaning of the Act. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If. THE LABOR ORGANIZATION INVOLVED Amalgamated Union, Local 5, UAW, Independent, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The events In about June or July 1956, the Union began an organizing campaign among the Company's employees. These activities were conducted under the direction of Benjamin Ross, general manager and secretary-treasurer of the Union, by, among others, Sam Vogel, then an organizer and business representative, and Saul Yellin, president. Various of these representatives daily sought to interest em- ployees in joining the Union by talking to them as they entered and left the plant on the three shifts operated by the Company. The Union also engaged in organizational picketing. By August the organizing campaign had adversely affected production. John A. Bruno, then general foreman of the plant conducted a poll among some of the employees to determine union interest. In about the middle of August employee Manuel Colon was discharged, and the Union filed a charge alleging discrimina- tion. For about 2 weeks, beginning in about the middle of August, Colon joined the picket line which then declared the Company to be unfair. During this latter period of picketing, the Company was cut off from coolants and lubricants essen- tial to the operation of its machinery and production was further adversely affected. There was also in this period a cessation of its garbage removal service and shipments to and from the plant stopped. At this time customers came to the plant to pick up finished products. At the suggestion of one of these customers, Harry Kason, president of the Company, near the end of August consulted with counsel about this matter for the first time and arranged to have counsel conduct negotiations with the Union. About August 28, the Company and Union arranged a meeting for September 10. Negotiations began after Colon was returned to work and the picketing ceased. Kason testified that about the end of August, when he had arranged to have counsel conduct the negotiations with the Union, he had assumed or had come to believe that the Union represented a majority of the employees and that he had then recognized the Union. On various occasions during the course of picketing which had preceded recognition, according to Kason, Yellin or Vogel "shuffled," "flashed" or "flipped" cards in his presence the first few of which bore the names of persons Kason recognized as the Company's employees and he assumed that the other cards also bore the names of employees.' Kason further testified that he assumed that the signatures were bona fide, but did not check the Company's records to determine whether this was so, that there had been some 27 to 29 cards so shown him, and that he had assumed relying on his estimate of the number of employees in the unit and from information supplied him by Bruno, that the number of cards involved represented a majority. Kason explained that he had also been influenced in his assumption that the Union represented a majority by the slowdowns and cessations in production. There was no claim to representation by a rival organization. For the week ending September 1, the Company had in its employ 58 persons in the unit bargained for with the Union. At the hearing Vogel identified the signatures on 14 cards which he had obtained which were dated prior to September 1. Of those in the Company's employ for the week ending September 1, the exhibit file also shows cards dated prior to September 1 bearing the names of four additional employees whose signatures were not identified. There were meetings between the Company and the Union on various dates between September 10 and November 13, when a contract was executed. Early in the exchange of proposed contracts the Company proposed a provision under which the contract would be inapplicable to those who had been employed by the Company 3 months or more and who refused to sign a checkoff card, until the 1 According to Vogel, it was not until the picket line was removed that he first "flashed" the cards to Kason. Yellin's testimony is not entirely clear as to when, if at all, Yellin first permitted Kason to see the cards in the same or in a similar manner. REVERE METAL ART CO., INC. 121 Union filed with the Company checkoff cards executed by at least 50 percent of the employees.2 Sometime in the fall after negotiations had started, Vogel appeared at the plant with cards to sign up employees and was stopped by Bruno at the doorway. Bruno persuaded Vogel to leave the cards with him so as not to interrupt the employees at work, and then Bruno reported this incident to Kason. About a week later both Yellin and Vogel appeared at the plant and gave Bruno another quantity of cards which were to be signed by the employees. By the next day Bruno had also discussed this incident with Kason. Kason told Bruno to have the cards signed but not to turn them over to the union organizers.3 About a week later Vogel came to the plant to obtain the cards and Bruno informed him that they had not as yet been signed. Bruno also told Vogel that he intended to go into business for himself and that in the event he was not there when Vogel returned he, Bruno, would leave the cards in his desk. On October 24, in accordance with Kason's instructions Bruno obtained signa- tures to 24 union cards from among the employees at the plant. About one-third of these empoyees had by then signed cards earier in the Union's campaign at Vogel's behest. In the course of the interviews with the employees at least in one instance Bruno threatened an employee with discharge if he did not sign a card. Bruno left the Company's employ around November 1. After Bruno had left Vogel removed the signed cards from Bruno's desk and took them to the Union's office. There are three additional cards in the exhibit file, one is dated October 5, and two are dated October 24, showing the names of persons then in the Company's employ and whose signatures were not identified. During the course of negotiations proposed contracts were exchanged between the Company and the Union and no agreement was reached until November 13. At a conference in the latter part of October the Union insisted it represented a majority of the employees and the Company asked that the cards be shown to Kason. At the end of October Yellin showed the cards to Kason at Kason's office. Kason did not then or at any other time check the writing appearing on the :signature line of the cards against the Company's records to determine au- thenticity of the signatures. The contract of November 13 which granted exclusive recognition to the Union contains, among others, the following provisions which require membership in "good standing" in accordance with the Union's rules as a condition of em- ployment: Article II, Section 1 All employees in the bargaining unit or units, presently employed, shall be- come members of the Union thirty (30) days after the date of this agree- ment and all new employees in the bargaining unit or units shall become members of the Union thirty (30) days after the date of their employment and shall thereafter continue to remain members of the Union in good stand- ing for the duration of this contract, as a condition of employment. Article III, Section 3 Newly hired employees shall be hired from any source available to the Employer, on a trial basis of one (1) month, subject to discharge by the Employer within this period, for any reason whatsoever. If employment is continued beyond this trial period, then each newly hired employee shall forthwith make application to the Union in accordance with Union regula- tions existing at the time, for membership in the Union, and shall remain in good standing in the Union in accordance with the Union rules and regu- lations for the duration of this agreement. 2 The text of the proposed provision, article 1, section 2, follows : This agreement shall not apply to any employees of the Employer who have been employed for a period of three (3) months or longer prior to the date of the execu- tion of this contract who refused to join the Union or who refused to sign authoriza- tion permitting deductions from their salaries for the purpose of paying Union dues and/or assessments until the Union files with the Employer written authorizations for deductions from at least 50% of the employees of the Employer. 3 This finding is based upon Bruno's testimony. Kasen denied having authorized super- visors to obtain union authorization cards from employees between October 1 and Novem- ber 13, 1956. Upon the basis of the demeanor of the witnesses this denial is not credited. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article VIII, Section 1 Upon the request of the Union, the Employer shall promptly discharge any employee who is not in good standing with the Union. The constitution and bylaws of the Union contain as a requirement for becoming and/or remaining a member in good standing, duties and obligations other than the payment of initiation fees and dues. For example, under articles 11, 14, and 15, of this document, fines, and assessments may be levied by the executive board on any member found guilty of violating the constitution, bylaws, or union rules, such as by seeking redress against the Union in a court of law without first ex- hausting his remedies under the constitution and bylaws. It appears further that both fines and assessments are required to be paid before regular dues can be accepted, and that there is a requirement that a member shall be suspended when he owes dues for 3 months and be expelled when he owes dues for 6 months.4 After the contract was signed the Company engaged in additional acts of soli- citation of membership for the Union. At Kason's instructions his secretary, Josephine Gardner, who had been given blank membership and checkoff cards by Yellin filled in such matters as the name and address for each of the em- ployees and had them distributed among the employees by the foreman for signa- ture. With some exceptions these cards were returned to the office. Gardner called employees to the office whose cards were not returned and they then signed' the cards. Kason, too, interviewed some employees who did not sign cards. Kason explained to them that he would not want to lose them as employees and' that they had to sign the cards under the union-security provisions of the contract. Gardner thereafter returned the membership cards and a set of checkoff cards to the Union and kept a set of checkoff cards for the Company. Dues were paid'. by checkoff, but the employees did not pay initiation fees. B. The conclusions Essentially, the issue presented here is whether the Union represented an uncoerced majority of the employees when the Company dealt with the Union. as having a majority status. It appears from Union President Yellin's testimony that the sole basis for the Union's claim to majority status is the cards produced at the hearing. At the end of August, when the Company recognized the Union, it was necessary for the Union to have valid cards from at least 30 of 58, employees in the contract unit to attain a majority status. On November 13, when the contract was executed, it was necessary for the Union to have valid: cards from at least 29 of the 56 employees in the unit for the payroll week ending November 17, to attain a majority status. Adding the cards dated prior to September 1 bearing the names of 4 employees, whose signatures were not identi- fied, to the 14 cards Vogel obtained, the maximum number of cards from among, the Company's employees the Union could have had at the end of August is 18. If the 3 cards which are dated in October bearing employees' names but whose signatures were not identified were added, the total would be 21.5 It thus appears that neither at the end of August nor on November 13, did the Union possess sufficient valid cards to constitute a majority. In reaching this result on the majority issue, the 24 cards dated October 24, have been excluded from con- sideration as they were obtained by the solicitation of Bruno, the then general foreman of the plant. It is accordingly found that the Company violated Section 8(a)(1), (2), and (3) of the Act by the following conduct: (1) dealing with the Union beginning at about the end of September 1956, as the exclusive representative while the Union did not have a majority status; (2) entering into a contract on November 4 This constitution became effective in November 1957. Prior thereto there was another constitution in effect. It appears unnecessary in the circumstances to pass upon the pro- visions of that document as well. 5 There are six additional cards in the exhibit file thus far not discussed. These cards. like others which have been rescribed were not authenticated at the hearing. One of these cards shows the same name as that of an employee whose signature Vogel had obtained prior to September 1. Two cards dated prior to September 1 bear the names of persons who left the Company's employ in or prior to the payroll period ending August 25. Two, cards dated in October, bear the names of persons who were not employed by the Company until December. The remaining card is undated and shows the name of a person who was first employed by the Company in May 1957. REVERE METAL ART CO., INC. 123 13, 1956, granting exclusive recognition to the Union while the Union did not have a majority status; (3) providing in the contract of November 13, 1956, for membership in the Union as a condition of employment while the Union did not have a majority status; (4) effectuating this provision requiring membership in the Union through the solicitation of employees for membership and checkoff cards by Gardner and Kason, including Kason's threats of loss of employment; and (5) solicitation by Bruno of employees for union cards including the use of a threat of loss of employment. It is further found that the Company violated Section 8(a)(1), (2), and (3) of the Act by providing as a condition of employ- ment in the contract of November 13, 1956, for obligations to the Union on the part of employees other than the payment of initiation fees and dues permitted by the proviso to Section 8(a)(3). It is found that the Union violated Section 8(b)(1)(A) and (2) of the Act by the following conduct: (1) entering into a contract with the Company on November 13, 1956, under which the Union was granted exclusive recognition while the Union did not have a majority status; (2) providing in the contract of November 13, for membership in the Union as a condition of employment while the Union did not have a majority status; and (3) providing in the contract of November 13, for obligations to the Union on the part of employees other than the payment of initiation fees and dues as a condition of employment. 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 commerce 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 have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found as set forth in the section entitled, "The conclusions," that the Company violated Section 8(a)(1), (2), and (3), and that the Union violated Section 8(b)(1)(A) and (2) of the Act, in that: the Company dealt and contracted with the Union as the exclusive representative of its employees although the Union did not represent a majority of its employees; the Company and the Union by contract provided for obligations to the Union on the part of employees other than the payment of initiation fees and dues as a condition of employment; although the Union had not attained a majority status, the Company and the Union by contract provided for membership in the Union as a condition of employment and the Company effectuated this provision through solicitation for membership and checkoff cards which included the use of threats of loss of employment; and Bruno solicited employees to join the Union including the use of a threat of loss of employment. Accordingly, it will be recommended that the Company and the Union be ordered to cease and desist from this conduct and to take certain affirmative action designed to effectuate the policies of the Act including, a requirement that the Company withhold and withdraw all recognition from the Union, unless and until the Union shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election; and an order that the Company cease giving effect to any contract between it and the Union or any modification or extention thereof, but shall not by virtue of this order be required to vary the wages, hours, or other terms and conditions of employment which were established in performance of this agreement; and a direction that the Company and the Union jointly and severally refund to the employees all dues deducted by the Company pursuant to checkoff authorizations for the benefit of the Union.6 On the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Union, Local 5, UAW, Independent , is a labor organization within the meaning of the Act. See, for example, Hibbard Dowel Company, 113 NLRB 28. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 3. The Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Steelworkers of America , AFL-CIO [Boyles Bros. Drill- ing Company] and International Hod Carriers and Common Laborers Union, Local No. 16, AFL-CIO. Case No. 33-CC-51. March 11, 1959 DECISION AND ORDER On December 31, 1958, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, 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, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On September 22, 1958, International Hod Carriers and Common Laborers Union, Local No. 16, AFL-CIO, filed a charge against United Steelworkers of America, AFL-CIO, herein called the Respondent, charging the Respondent with violation of Section 8(b) (4) (A) of the Labor Management Relations Act, 61 Stat. 136, herein called the Act. On October 17, 1958, the General Counsel of the National Labor Relations Board, herein respectively called General Counsel and the Board, caused a complaint to issue against the Respondent. The Respondent received notice of the filing of the charge on September 23, 1958, and duly received copies of the charge, complaint, and notice of hearing. In substance the complaint alleges that on about September 7, 1958, the Respondent engaged in a labor dispute and strike with Boyles Bros. Drilling Company, herein called Boyles, that Boyles was engaged in construction work for Phillips Petroleum Company, herein called Phillips, and that, although the 123 NLRB No. 20.