Paul M. O'Neill Int'l Detective Agency, Inc.

PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 167 Paul M. O'Neill International Detective Agency, Inc. and New Jersey Guards Union, Ind.' and Independent Guards Union,' Party to the Contract. Cases Nos. 02-CA-73 (formerly 2-CA- 5416) and 22-RC-157 (formerly 2-RC-8588). July 20, 1959 DECISION AND ORDER On September 10, 1958, Trial Examiner Henry S. Salim issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also recommended that the elec- tion conducted on April 5,1957, be set aside and a new election directed at such time as the Regional Director deems the circumstances permit a free choice of a bargaining representative. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs; NJGU filed a brief in sup- port of the Intermediate Report.3 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.4 The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions : We find, like the Trial Examiner, that the Respondent rendered unlawful assistance to IGU, in violation of Section 8 (a) (2) and (1) of the Act.' We are aware, as our dissenting colleagues point out, that certain of the Trial Examiner's credibility resolutions are not free from doubt. However, it is well settled that a Trial Examiner's resolutions of credibility, insofar as they are based on demeanor, will not be over- 1 Hereinafter referred to as NJGU. 2 Hereinafter referred to as IGU. 3 The Respondent has requested oral argument. This request is hereby denied because the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 4 The Respondent excepted to the Trial Examiner's refusal to compel the General Counsel to produce certain written statements of witnesses who testified for the General Counsel. By order of November 20, 1955, the Board sustained this exception and or- dered the General Counsel to make available to the Respondent such pretrial written statements of witnesses as the Respondent designated. The Board order also provided that the Respondent could move to reopen the record for the purpose of further examin- ing any witnesses whose pretrial statements had been made available. The Board has been administratively advised that such statements have been made available to the Respondent and that the Respondent does not wish to reopen the record. 5 However, we do not adopt the Trial Examiner's finding that the Respondent unlaw- fully dominated IGU, as such finding is not warranted by the record. 124 NLRB No. 7. 168 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD ruled unless the clear preponderance of all the relevant evidence con- vinces us that such resolutions were incorrect." Moreover, there are certain factors, not disputed by the Respondent, which in our opinion tend to corroborate the testimony upon which the Trial Examiner relied, in finding that the Respondent gave unlawful assistance to IGTJ. We note the remarkable success of IGU's organizing campaign as contrasted with that of NJGU. NJGU had begun its campaign to organize the Respondent's previously unrepresented employees in June 1956. At that time, only one organizer was active but, in late October and early November, he was joined by three or four other organizers. NJGU's campaign continued for about 6 months, until November 26, 1956, when it filed its petition for an election; at that time, it had obtained authorization cards from only 64 guards. On the other hand, IGU was formed in the fall of 1956 and began to solicit authorization cards on or about November 11. By November 21, just 10 days later, it had obtained between 130 and 150 signatures; 2 days later, it executed a collective-bargaining agreement with the Respondent. The record suggests no reason for this difference in the reception accorded the two unions by the employees other than that supplied by the General Counsel's witnesses and found by the Trial Examiner, namely, the active participation by management in the solicitation of cards for IGU. The substance of the agreement between IGU and the Respondent also merits our attention.7 In addition to the usual recognition clause, the agreement contained a union-security clause and provision for dues checkoff upon authorization, all matters of interest to IGTJ. However, the only changes in the working conditions were the insti- tution of paid vacations and the granting of four holidays on which a time and a half rate would be paid. Working hours remained the same. The wage structure similarly remained unchanged. Prior to the agreement, wages ranged from $1 per hour, the minimum pre- scribed by law, to a maximum of $1.25. IGU sought to increase the minimum rate to $1.15, but sought no change in the maximum rate. The agreement as executed provided for a range of rates from $1 to :$1.25 per hour, but the Respondent thereafter upgraded certain of the plants so that the guards assigned there were earning a higher rate than before. However, Fischer, IGU's president, testified that when the Respondent upgraded one of the plants subsequent to the execu- : tion of the agreement, IGU was not consulted. In summary, it does not appear that the IGU provided any substantial gains for the em- ployees whom it claimed to represent." This circumstance corrobo- e Standard Dry Wall Products, Inc., 91 NLRB 544, 555 , enfd . 188 F. 2d 362 (C.A. 3). 7 See, e . g., Dixie Bedding Manufacturing Company , 1'21 NLRB 139. s The Bureau of Labor Statistics reports that the average hourly earnings for guards in the Newark, New Jersey , area in December 1955 was $1 .86 per hour ; in December 1957 PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 169 rates the testimony of the witnesses credited by the Trial Examiner insofar as such testimony points to a collusive arrangement between the Respondent and IGU. Moreover, we do not attach as much weight as do our dissenting colleagues to various matters which they cite as a basis for overruling the Trial Examiner's credibility findings. The dissent asserts, for example, that the Trial Examiner erred in characterizing as "hazy" Schramma's testimony as to whether Leahey, Respondent's director of operations, was at the Garden State terminal when the guards were organizing IGU. Unlike the dissent, we are unable to equate Schram- ma's statement that he "could deny" that Leahey was present with an unequivocal denial. Under the circumstances, the Trial Examiner was clearly justified in relying, at least in part, on this equivocation when he resolved the issue of Schramma's credibility .9 Nor can we agree with the dissent that the inaccuracies and inconsistencies in other testimony of Schramma and Fischer did not afford a valid rea- son for discrediting them. Finally, unlike our dissenting colleagues, we do not believe that reversal of the Trial Examiner's credibility resolution in favor of Howe is required by the discrepancy between the date on which Howe testified that he signed his IGU card and the date noted on the card itself. The record reveals that when counsel for IGU asked Howe to identify the card, Howe's response was "That looks like my signa- ture on there." This constituted the entire line of testimony relating to the card. At no time was the date, which appears in handwritten numerals, or the remainder of the writing on the card, verified or even adverted to by the parties. Under these circumstances, in view of the. fact that the Trial Examiner, on the basis of demeanor, credited Howe's specific, oral testimony that his meeting with Sweeney and Schramma occurred on or about November 24, we do not believe that the mere fact that the unverified date on the card conflicts with such testimony warrants overruling the Trial Examiner's findings. We note also in this regard that guard Doran, whose credibility is not ques- tioned in the dissent, corroborated Howe's testimony on this point." THE REMEDY The Respondent has excepted to the Trial Examiner's recommen- dation that the objections to the election be sustained and the election set aside. In support of this exception, the Respondent contends that the average rate was $2 .03 per hour. See Occupational Wage 'Survey, Bulletins Nos. 1188-10 and 1224-12 (U.S. Department of Labor ). The Respondent's plants were in that area. 6 We do not rely on Schramma 's equivocal denial as affirmative evidence of Leahey's presence when IGU was formed, but cite it only as supporting the Trial Examiner's refusal to find Schramma to be a credible witness. ]a However, for reasons noted in the dissent, we do not adopt the Trial Examiner's finding that Summerfield 's captain gave him an IGU card to sign. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no misconduct occurred within the Woolworth period 11 and, there- fore, that the objections should be overruled.12 We find no merit in this contention, as the agreement, which contained a union-security clause, was unlawful at its inception by reason of the Respondent's illegal assistance to IGU, and continued to be unlawful during the Woolworth period.13 In any event, in order to effectuate the policies of the Act, the election must be set aside, because the Board cannot, and will not, certify an assisted union. Accordingly, we shall set aside the election and shall direct that a new election be held at a future date to be determined by the Regional Director in accordance with our Order herein. 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 the Respondent, Paul M. O'Neill International Detective Agency, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Assisting or interfering in the formation or administration of Independent Guards Union, or any other labor organization of its employees. (b) Recognizing Independent Guards Union as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said Union shall have demonstrated its exclusive majority representa- tive status among the Respondent's employees in New Jersey pursuant to a Board-conducted election. (c) Giving effect to the collective-bargaining agreement of Novem- ber 23, 1956, between the Respondent and Independent Guards Union, or to any extension, renewal, or modification thereof : provided, how- ever, that nothing in this Decision and Order shall require the Re- spondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which the Respondent has established in the performance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. n F. W. Woolworth Co., 109 NLRB 1446. 12 The Respondent has also excepted to the Trial Examiner 's failure to make specific findings concerning NJGU's objections to the election , apart from recommending that the election be set aside . We find no merit in this exception . The misconduct alleged in the objections is essentially the same as that alleged in the complaint , and separate findings for each would have been merely repetitive. It is clear that the Trial Examiner, in finding that the illegal assistance occurred , also found that the objections should be sustained. 13 See Bryan Manufacturing Company , 119 NLRB 502 , enfd. sub nom. Local Lodge No. 1424 , International Association of Machinists , AFL-CIO v. N.L.R.B., 264 F. 2d 575 (C.A., D.C.). PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 171 (d) Entering into, or giving effect to, any contract conditioning employment upon membership in Independent Guards Union, except as authorized by Section 8 (a) (3) of the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Independent Guards Union, as exclusive bargaining representative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority representative status among the Respondent's employees in New Jersey pursuant to a Board-conducted election. (b) Refund forthwith to all employees, and former employees, at the various plants in New Jersey for which the Respondent furnishes plant protection and from whose wages it has withheld or deducted funds for transmittal to Independent Guards Union, the amount of all such deductions. (c) Post at its offices in New York, New York, and Newark, New Jersey, and at all guard houses of plants and premises at which Respondent furnishes guard services, the owners of such plants and premises being willing, copies of the notice attached hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by its authorized representative, be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily placed. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-second Region in writing, within 10 days from the date of this Order, what steps it has taken to comply therewith. IT IS FURTHER ORDERED that the election of April 5, 1957, be, and it hereby is, set aside, and these proceedings be, and they hereby are, remanded to the Regional Director for the Twenty-second Region for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 14 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." 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS BEAN and FANNING, concurring in part and dissenting in part: We concur with the majority of our colleagues insofar as they have adopted that portion of the Intermediate Report which finds that the Respondent violated Section 8(a) (3) and (1) by executing a. collective-bargaining agreement containing a union-security clause at, a time when IGU was not in compliance with Section 9 (f) , (g), and (h) of the Act.15 However, we do not agree with the majority's finding that the execution of this agreement also constituted a viola- tion of Section 8 (a) (2) because, as will hereinafter be indicated, we would not find that Respondent illegally assisted IGU. Our colleagues in the majority appear to have recognized that cer- tain discrepancies exist between the record and the Trial Examiner's findings. They are, however, satisfied that the allegations of illegal assistance in the complaint have been sustained by the record. With this, we cannot agree. A careful analysis of the relevant evidence leads us to the conclusion that the record does not support the Trial Examiner's findings of fact. It is, of course, well settled that, in every case, the General Counsel must show, by a preponderance of the evidence, that a violation of the Act has occurred.16 It is, equally well settled that the credibility findings of a Trial Examiner are entitled to great weight insofar as they are based on demeanor, and such resolutions of credibility will not be overruled unless the clear preponderance of all the relevant evidence convinces us that the Trial Examiner's resolutions were in- correct.17 However, the Board need not defer to the Trial Examiner where conclusions are to be reached, where inferences are to be drawn, or where credibility findings are based on factors other than demeanor, because, in these instances, the Trial Examiner's observation of the witnesses gives him no advantage over the Board in logically evaluat- ing the evidence.18 An independent evaluation of the record has been made. We are convinced that this evaluation shows that the Trial Examiner erred in crediting and discrediting certain witnesses, and perforce conclude that the General Counsel has not sustained his burden of proof. The Trial Examiner was importantly influenced in reaching his conclusion that unfair labor. practices had been committed by his discrediting of Respondent's witnesses. He found that these witnesses "frequently contradicted themselves and one another. Then, too, the testimony of Leahey, Sweeney, Schramma, and Fischer is not only 15 Philadelphia Woodwork Company, 121 NLRB 1642. le Glen Raven 'Silk Mills, Inc., 101 NLRB 239, 240 , enfd. 203 F . 2d 946 (C.A. 4). 1' Local 169, Industrial Division International Brotherhood of Teamsters , Chauffeurs, Warehousemen, and Helpers of America, AFL (Rheent Manufacturing Company), 111 NLRB 460; Standard Dry Wall Products , Inc., supra. is Valley Steel Products Co., 111 NLRB 1338; Lewisville Flooring Company, 108 NLRB 1442, 1444-1445. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 173 vague, evasive, and inconsistent, but in certain respects, improbable as well as incredible. Their contradictory and unconvincing testi- mony detailed above and below, creates a suspicion that they were concealing an unlawful motive, which in this case was an attempt to forestall and abort the organizational activities of the New Jersey Guards Union by lending their efforts to Respondent's establishment of the Independent Guard Union. . . ." The Trial Examiner's con- clusion as to the incredibility of the Respondent's witnesses, as is apparent from the above quotation, was not based on demeanor, but on instances of alleged inconsistency and improbability in testimony which he listed. The Board is therefore in a position to test the validity of the Trial Examiner's conclusions by examining the testi- mony upon which he relied. The Trial Examiner found that Donald Leahey, Respondent's di- rector of operations, was not a believable witness, relying on the following : (a) Leahey "incredibly testified," according to the Trial Examiner, that, although in charge of personnel, none of the captains at the various plants discussed with him whether any of the guards under their command performed their duties properly. In fact, counsel for NJGU asked Leahey on cross-examination whether captains often discussed with him "whether a man was good or bad, or performing his duty in the right way." Leahey answered in the affirmative, and later also testified that the captains report whether the guards are "making the rounds properly, or . . . are sloppy in appearance, or something like that." (b) The Trial Examiner found that Leahey had inconsistently testified at one time that he had first learned of NJGU's organizing activity in September or October 1956, and at another time that this had occurred in November 1956. The Trial Examiner also found that Leahey had first identified the Anheuser-Busch plant as the place where he had learned of such activity, but later stated it was at the Garden State Truck Terminal. In fact, the evidence shows not in- ^consistency by Leahey but misunderstanding of the testimony by the 'Trial Examiner. Leahey testified that he had learned of the IGU (not NJGU) activity in September or October 1956, and that in November 1956 when on a regular visit to the Garden State Truck Terminal, Fischer, president of the IGU, told him that NJGU was organizing the Anheuser-Busch plant. (c) The Trial Examiner found inconsistency between Leahey's testimony at the present hearing that O'Neill, president of Respond- ent, had expressed himself as willing to discuss recognition of IGU with Fischer when the IGU signed up a majority of employees, and his testimony at the earlier representation hearing that O'Neill had told him he wasn't going to bother with any union because they were 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all "a bunch of hoodlums, extortionists, and racketeers." In fact, the alleged inconsistency exists solely because the Trial Examiner quoted only a part of Leahey's testimony at the earlier hearing.19 The Trial Examiner refused to credit the testimony of Sales Man- ager Bernard Sweeney because Sweeney "was vague in his testimony regarding what transpired during the contract negotiations with re- spect to wages." In fact, Sweeney's testimony shows no such vague- ness. He- testified on these subjects at length, on examination by the Trial Examiner, on cross-examination by NJGU, and on redirect ex- amination by IGU. His testimony shows that he was fully aware of all phases of the contract negotiations including wages. The Trial Examiner also was critical of Sweeney for allegedly being unable to recall the names of any guards who had grievances, although he repre- sented the Respondent in grievance matters. In fact Sweeney named at least three individuals who were involved in grievance matters- Glen, Meyers, and Chapter. He also testified that he had processed many grievances. The Trial Examiner discredited guard captain Boerenson because the latter "incredibly testified" that he did not known how and under what circumstances the guards under his command, with one excep- tion, came to sign IGU authorization cards, and that he had never seen IGU officers Fischer, iSchramm, and Hughes speak to any guards, although they came to the guardhouse on many occasions to leave and pick up IGU cards. The Trial Examiner concluded : "It would seem for union organizers not to speak to the employees they were attempt- ing to organize is particularly significant in evaluating the conditions under which the guards joined and the circumstances under which IGU was established." In fact, there is nothing incredible about Boerenson's testimony. Boerenson worked the 8 a.m. to 4 p.m. shift with only one guard assisting him; the other guards worked the swing and midnight shifts. Also, Boerenson was stationed inside, and the other guard on duty with him was stationed outside, the guard- house. Further, Boerenson testified that he saw IGU officer Hughes talking to "the man that was with me on the particular shift," but that Hughes "may have been around nights on other shifts that I don't about." He also testified that IGU officers spoke to the men the first time they came to his plant "introducing themselves, letting the men know what their plans were, and what they were going to submit to Mr. O'Neill." IGU officer Fischer stated that he had visited Boeren- son's plant at night, when the captain was not on duty, and talked to six employees about signing up with the IGU. When all the evidence 19 At the earlier hearing Leahey testified that O'Neill had also said : "You can tell Mr. Fischer for me that I do not want to see him at any time. If he goes out and has a majority of the men in the field that want to go ahead with him and his union, then I will talk to him and not before . He certainly would be wasting my time and his time in coming over to see me." PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 175 is considered, there is nothing inconsistent or incredible about Boeren- .son's testimony, and, therefore, the conclusion which the Trial Exam- iner drew from his erroneous evaluation of Boerenson's testimony is without foundation. The Trial Examiner discredited Fischer and Schramma, president and vice president respectively, of IGU, on the following grounds : (a) They could not agree on how many guards had signed authori- zation cards and Fischer was vague and uncertain as to what guards at which plants received wage increases and in what amounts. (b) Fischer was evasive as to whether Respondent had given him a list of the plants for which it furnishes guard services. (c) Schramma displayed an "appalling ignorance" of what oc- curred during the time IGU was organized "He was unable to recall or was hazy as to when the Union was established, the date he was elected vice president, the circumstances surrounding his election, how many members were present, and whether Leahey was present when the I.G.U. was organized." The facts show that., as to dates and numbers, Schramma and Fischer were uncertain and used approximate figures. Schramma was also uncertain about some aspects of the ICU's organization. But there is nothing unusual in a witness being unable to recall exact details, particularly numbers and dates, of events which had occurred more than a year previously. Contrary to the finding of the Trial Examiner, Fischer was not evasive as to whether he had received a list of plants from the Respondent. He stated clearly and categor- ically that he had received such information from guards and not from the Respondent. Also contrary to the Trial Examiner, Schramma was not hazy in recalling whether Leahey was present at the IGU's organization meeting. Schramma denied that Leahey was present .21 20 The Trial Examiner reports that Schramma testified as follows in reaching his con- elusion that Schramma was hazy as to whether Leahey was present at the organiza- tional meeting: Q. Was Mr. Leahey there at the plant . .. on the day in which you were organiz- ing [IGU] ? A. I don't think he was. Q. Will you deny that he was? A. I could. In response to questioning by NJGU's attorney, Schramma 's full testimony on this point is as follows : Q. On the day on which you organized this IGU at the Garden State Truck Termi- nal, was Mr. Sweeney at the Garden State Truck Terminal at the time you were organizing ? I don't mean in the room ; at the plant. A. No. Nowhere in the plant. Q. Was he there during that day? A. No, he wasn't. Q. Was he there the day before? A. Let's see . I don't think he was. I don't think I saw him for a long time until I runned [sic] Into him up at Continental Can, or Continental Paper. Q. Was Mr. Leahey there at the plant-not in your room-on the day on which you were organizing? A. I don't think he was. (Footnote continued on following page.) 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Not only has the Trial Examiner assigned invalid reasons for dis- crediting witnesses for the Respondent, but he has also made impor- tant findings essential to his ultimate conclusion without substantial, or even any, evidential support. The Trial Examiner found that the proposal and impetus for the formation of IGU was "conceived, instigated, encouraged and directly participated in by the Respondent." There is not a scintilla of evi- dence to support this finding. The Trial Examiner found that Leahey and Sweeney instructed the guard captains at the various plants to have the guards sign the IGU cards and return them to the captains and arranged to have the sib ied cards collected from the captains. The Respondent rendered guard service to 33 plants. There is evi- dence which is controverted, of assistance at only three of these plants. There is no evidence of assistance at any of the other 30 plants. The only possible basis for the Trial Examiner's generalized statement is the hearsay statement, objected to by Respondent, of NJGU organizer John Morris, that he had been told by certain guards that Sweeney had solicited signatures for IGU cards. The guards who allegedly gave Morris this information were not called as witnesses. It is well settled that an affirmative finding of fact may not be based upon un- corroborated hearsay. 1 The Trial Examiner found that NJGU organizers were excluded from gatehouses whereas IGU organizers were permitted to enter the houses. But McElaney, the General Counsel's principal witness, testi- fied that Leahey had instructed him to keep unauthorized persons, i.e., everyone except guards on duty, from entering the premises. Further the evidence shows that both NJGU and IGU representa- tives were at the gatehouses soliciting support from among the guards. To prove illegal assistance, the General Counsel relied on the testi- mony of five witnesses. In making findings based on the testimony of these witnesses, the Trial Examiner went beyond the evidence and ignored important internal questions of credibility. Witness Sum- merfield testified that while he was on guard duty his captain gave him a union card to sign. Although Summerfield stated that he did not look at the card and could not say whether it was an NJGU or IGU card, the Trial Examiner found that it was an IGU card. There is no evidence to support this finding. Witness Howe testified that "around November 24" Sweeney and Schramma asked him to sign an IGU card, which he did, and told him simultaneously that IGU had already submitted a contract to Q. Will you deny that he was? A. I could. It is obvious that from this recital that, by his answer "I could," Schramma was deny- ing that Leahey was present at the terminal on organization day just as he had made a similar denial with respect to Sweeney. 21 Ohio Associated Telephone Company, 91 NLRI; 932, 934-935. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 177 Respondent. Both Sweeney and Schramma denied Howe's testimony. On cross-examination of Howe, it was shown that Howe's signed IGU card was dated November 19, 1956, which was before the IGU asked the Respondent for recognition and submitted a proposed contract. In other words, Howe's alleged conversation with Schramma and Sweeney could not have occurred when Howe said it did, thus casting serious doubt as to whether it occurred at all. The General Counsel made no attempt to reconcile the discrepancies in Howe's testimony and the Trial Examiner, in crediting Howe and discrediting Schramma and Sweeney, simply ignored the contradiction. Witness Doran testified that guard -captain Boerenson had importuned him to sign an IGU card, but he refused to do so. Boerenson denied Doran's testimony. The credibility of Boerenson is discussed above. Witness John Morris, an organizer for the NJGU, testified as to details of the NJGU's organizing campaign. The most important witness for the General Counsel was Brendan McElaney, who was formerly a guard captain for the Respondent at the Givaudan Corporation plant. Mc Elaney's name is not even mentioned in the Intermediate Report, al- though some of the most important findings of fact are based com- pletely on his testimony, almost all of which is contradicted by Re- spondent's witnesses. His credibility is therefore directly in issue. At the time of testifying, McElaney was working for one of the Re- spondent's competitors, which has a contract with NJGU; he had lied on his job application with the Respondent when he stated that he had never been convicted of a crime, although he had once been convicted of petty larceny; he testified that he had hired and dis- charged guards working under his command, but further testimony showed this to be untrue; at one point in his testimony, he charac- terized himself as ". . . number one man. . . at Givaudan . . .", but at another as "more or less a receptionist than anything else." In finding that guard captains were supervisors, the Trial Examiner, inferentially, partially discredited McElaney, for he did not find that captains possessed the authority to hire and discharge. Finally, the Trial Examiner concluded that the guard captains were supervisors and the Respondent was responsible for their al- leged assistance to the IGU. In reaching this conclusion he has ignored the unit finding in the contemporaneous representation pro- ceeding where the Board, upon agreement of the parties, included guard captains in the unit of guards, thus in effect finding that they were not supervisors. This de novo review of the record leads us inexorably to the con- clusion that the Trial Examiner's incorrect credibility resolutions resulted in erroneous findings based thereon. The majority states that "certain of the Trial Examiner's credibility resolutions are not 525543-60-vo1. 124-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free from doubt," but they are nonetheless convinced that the record as a whole supports the Trial Examiner's findings. It seems to us that the discrepancies in the Intermediate Report go to the heart of the case and amount to a failure of proof. Accordingly, we would dismiss the complaint insofar as it alleges illegal assistance, and would find only that the Respondent violated Section 8(a) (3) and (1) by entering into a collective-bargaining agreement containing a union- security clause at a time when IGU had not yet achieved compliance with Section 9(f), (g), and (h) of the Act. We would also overrule NJGU's objections to the election and would certify IGU as the exclusive bargaining representative of the employees in the appro- priate unit. APPENDIX 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 assist, or interfere in the formation or adminis- tration of, Independent Guards Union, or any other labor organ- ization of our employees' choosing. WE WILL NOT recognize Independent Guards Union as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said Union shall have demonstrated its exclusive majority representative status among our employees in New Jersey pursuant to a Board-conducted election. WE WILL NOT give effect to our collective-bargaining agreement dated November 23, 1956, with the Independent Guards Union, or to any extension, renewal, or modification thereof : provided, however, that nothing in this Decision and Order requires us to vary or abandon those wage, hour, seniority, or other substantive features of our relations with our employees, established in per- formance of any such agreement, or to prejudice the assertion by employees of any rights they may have thereunder. WE WILL NOT enter into, or give effect to, any contract condi- tioning employment upon membership in Independent Guards Union, except as authorized by Section 8(a) (3) of the National Labor Relations Act, as amended. WE WILL NOT give effect to any checkoff cards heretofore executed by our employees, authorizing the deduction of periodic dues from their wages for remittance to Independent Guards Union. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 179 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL refund to all our employees and former employees at the various plants in New Jersey for which we provide guard services the amount of all funds withheld or deducted from wages for transmittal to Independent Guards Union. All our employees are free to become, to remain, or to refrain from becoming or remaining members of the above-named labor organiza- tion or any other labor organization. PAUL M. O'NEILL INTERNATIONAL DETECTIVE AGENCY, INC., Employer. Dated---------------- By------------------------------------- (PAUL M. O'NEILL) 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 STATEMENT OF THE CASE A union undertook to organize the employees of the Respondent for the purpose of having that union become their representative for collective bargaining . Shortly thereafter, another union began to solicit Respondent's employees for the same purpose. These contemporaneous campaigns by both these unions culminated in a representation hearing before the Board and a subsequent election . The union which was defeated, filed objections to the election and charges of unfair labor practices upon which the General Counsel issued a complaint alleging, inter alia, that to discourage the unionization of their employees by an outside union, the Respondent in violation of Section 8(a),(2) 1 encouraged support of the union it favored. The losing union's objections to the election and the unfair labor prac- tices alleged in the complaint were consolidated for hearing in order to resolve these issues. Upon the entire record in this case, upon consideration of the arguments and motions of counsel, including the briefs filed by the parties and citations of cases. alleged to be dispositive of the issues in this proceeding, and from observation of the demeanor of the witnesses while testifying, the Trial Examiner makes the. following: FINDINGS OF FACT Beginning in June 1956 the New Jersey Guards Union , hereinafter referred to as NJGU, which is a labor organization within the meaning of Section Z(5) of the Act, began to organize the employees of the Paul M . O'Neill International Detective Agency, Inc., the Respondent in this proceeding . By the time the NJGU filed its petition for certification with the Board on November 27, 1956, it had obtained signed union membership application cards from 64 of the approximately 157 guards employed by the Respondent, authorizing the union to act as bargaining agent for the signers. Sometime between the end of October and the beginning of November 1956, the Independent Guards Union , hereinafter referred to as IGU, also began an organiza- 1 Section 8 (a) (2) prohibits an employer from interfering with the formation or admin- istration of a union or to contribute support, financial or otherwise, to it. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional drive to recruit members from among the guard employees of the Respondent at the 33 plants in New Jersey at which the O 'Neill Detective Agency furnishes plant protection.2 When the IGU had signed up approximately 141 of Respondent's guards,3 the IGU's officers met on November 21, 1956, with Paul M . O'Neill and Bernard T. Sweeney, president and sales manager , respectively, of the Respondent, at which time the IGU submitted to them the employee's signed authorization cards and a copy of a proposed collective-bargaining agreement . On November 23, 1956, a collective-bargaining agreement was executed by the IGU and Respondent. Three days later, on November 26, the rival union, NJGU, made a demand for recognition to which Respondent did not reply whereupon that union filed a petition with the Board on November 27, 1956, requesting certification as representative of the Respondent's guards. On December 27, 1956, a hearing was held on the NJGU petition at which time the IGU appeared as intervenor in the proceeding . There- after, on March 12, 1957, the Board directed that an election be held among all uniformed guards, including captains in uniform employed by the Respondent in New Jersey to determine whether they desired to be represented by the NJGU or IGU or neither of them .4 Pursuant thereto, an election was held on April 5, 1957, and a tally of the ballots showed the following results: Votes cast for New Jersey Guards Union ____________________________ 17 Votes cast for Independent Guards Union___________________________ 127 Votes cast against participating labor organizations ___________________ 7 On April 12, NJGU filed objections to the election and on May 14, it also filed charges against the Respondent , which included substantially the same allegations as were made in the objections to the election . Upon these charges, a complaint issued on December 31, 1957, alleging that the Respondent violated Sections 8(a)(1), 8 (a)•(2) and 8(a)(3) of the National Labor Relations Act, 61 Stat. 136, as amended, herein called the Act.5 On January 21, 1958, the Regional Director issued his report on objections, in which he recommended that the Board direct a hearing upon the objections to the election. Thereupon the Board , on February 21, 1958, issued an order directing that the NJGU's objections to the results of the election be consolidated with the unfair labor practice complaint and ordered a hearing to be held thereon to resolve the issues raised by both the NJGU's objections to the election and the allegations in the complaint.6 With respect to the unfair labor practices , the complaint alleges in substance as follows: On November 23, Respondent and Independent Guards' Union entered into a collective bargaining agreement , recognizing Independent Guards' Union as the exclusive representative for its employees. Said -Independent Guards' Union was not duly selected by a majority of employees and does not represent an uncoerced majority of Respondent's employees. Said agreement contains a union security provision requiring as a condition of employment that all employees eligible shall become members of the Union within thirty days after the execution of this agreement , or within thirty days after his hire, as the case may be. All employees who become members of the Union shall remain members of the Union during the term of this agreement, , These New Jersey plants are located in an area bounded by Hackensack on the north to Trenton on the south and from Dover on the west to Hoboken-Jersey City on the east. a It appears that many of the same Respondent's guards who first signed NJGU ap- plications, subsequently signed Independent Guards Union cards also. * The unit which the Respondent recognized in its collective-bargaining agreement exe- cuted on November 23, 1956 (General Counsel's Exhibit No. 3) with the IGU comprises ,all plant guards "excluding clerical employees, port watchmen, captains and all super- visors with the authority to hire, discharge, discipline or effectively recommend changes in the status of employees as to wages, hours and working conditions." S The General Counsel by an order dated December 6, 1957, transferred Case No. 2-'CA-5416 from the Second Region to the Twenty-second Region and assigned it Case No. 22-CA-73. u The Board referred Case No. 2-RC-8588 to the Regional Director for the Twenty- second Region for the purpose of arranging a hearing. The General Counsel by an order dated March 10, 1958, transferred Case No. 2-RC-8588 from the Second Region to the Twenty-second Region and assigned it Case No. 22-RC-157. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 181 and providing further that the Respondent check off and deduct monthly from the pay of the employees union dues, and turn over monies so deducted, to the Independent Guards' Union. The agreement was entered into, maintained, enforced and given effect to at times when Independent Guards' Union had not received from the Board notices of compliance with Section 9, subsections (f), (g) and (h) of the Act and was not in compliance with Section 9, subsections (f), (g) and (h) of the Act. The said agreement does not comply with the requirements of Section &(a)^(3) of the Act. Respondent, by its officers and supervisors, including Donald J. Leahey, State Supervisor, Bernard T. Sweeney, Personnel Manager, Charles A. Boerenson, Captain of Guards, Brendan McElaney, Captain of Guards, has rendered un- lawful assistance and support to Independent Guards' Union by the following conduct: (a) Distributing among its employees applications for membership in said Union; (b) Soliciting and instructing its employees to sign membership applications for said Union; (c) Instructing its officers and supervisors to distribute among its employees membership cards in said Union and to solicit its employees to sign membership cards in said Union; (d) Permitting representatives of said Union to enter upon its plant and facilities to solicit for members and to campaign among its employees, although denying such access to other labor organizations; (e) Collecting from its employees membership application cards for said Union; (f) Informing its employees that it would recognize no other labor organiza- tion other than said Union as their collective bargaining representative; (g) Instructing its employees to authorize dues for said Union to be deducted from their pay; (h) Executing, maintaining in effect, and enforcing the terms of a union security clause contained in the collective bargaining agreement referred to above; (i) Deducting and checking off union dues for said Independent Guards' Union from the pay of Respondent's employees; (j) Establishing a company-wide seniority list on the basis of "seniority within the union" and enforcing said list with regard to layoffs, recalls and other terms and conditions of employment of Respondent's employees. nRespondent filed an answer acknowledging that the New Jersey Guards Union labor organization within the meaning of the Act and admitting the jurisdictional allegations of the complaint with respect to commerce but denying the commission of any unfair labor practices. Pursuant to notice, a consolidated hearing was held at Newark, New Jersey, from April 7 to April 10, 1958, inclusive, before Henry S. Salim, the duly designated Trial Examiner. All parties were represented by counsel, and were afforded full opportunity to participate in the hearing and to introduce relevant evidence bearing on the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. All parties filed briefs. THE BUSINESS OF THE RESPONDENT The Respondent during the year 1957 performed services at various places of business in New Jersey, valued in excess of $200,000 which services were furnished to these said various enterprises, each of which annually produces, handles, and ships good valued in excess of $50,000 to points outside the State of New Jersey. By reason of the foregoing facts, it is conceded and found that the Respondent O'Neill Detective Agency, Inc., was engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case.7 The Issues (1) Whether the Respondent initiated, assisted, and supported the IGU in its formation and administration in order to prevent NJGU from being certified as the bargaining agent for its guard employees. 7 Paul M. O'Neill International Detective Agency, Inc., 115 NLRB 760. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Whether the Respondent's captains of the guard are supervisors within the meaning of Section 2 ( 11) of the Act so as to make Respondent liable for their alleged illegal conduct. (3) Whether a collective-bargaining agreement containing a union-security pro- vision entered into before the signatory union's officers achieved compliance with the filing requirements of the Act 8 is a violation of Section 8(a) (3) where the union first achieved compliance after the execution of the agreement but the union-security provisions were not put into operation until after compliance. (4) Whether NJGU, the Charging Party, waived its right to file unfair labor practice charges by participating in the Board-conducted election with full knowledge of the facts alleged in the complaint. THE ALLEGED UNFAIR LABOR PRACTICES Sequence of Events Subsequent to the time that NJGU began to solicit Respondent O'Neill's guards to join its union, a meeting was held by some of Respondent's employees in the guards' room of the Garden State Trucking Terminal (one of the facilities for which Respondent furnishes guard services) in order to form a union. The forma- tion and establishment of IGU and the election of its officers was the result of that meeting. Sometime in the early part of November 1956, about 3 or 4 months after the New Jersey Guards Union (NJGU) had begun its organizational drive to recruit members from among the plant guards of the Respondent O'Neill Detective Agency, Donald J. Leahey, director of operations and Bernard P. Sweeney, sales manager of Respondent,9 with the assistance of Frank M. Fischer and Clem Schramma, guard employees of Respondent, and who are also president and vice president of the Independent Guards Union (IGU), began to distribute IGU membership application cards to some of the guard captains at the various plants in New Jersey for which Respondent furnishes guard services.10 Leahey and Sweeney instructed the said cap- tains at these various plants to have their guards sign the IGU cards and to return the signed cards to the captains.ll Leahey and Sweeney then arranged to have the signed IGU cards collected from the said guard captains at the various plants.12 At those plants which did not have captains but chief guards, the same instructions were given.13 There were gatehouses at each plant for which. Respondent furnished guard services, through which all visitors to the plants were processed before gaining admittance to the plant premises. NJGU organizers were excluded from these gatehouses, whereas the officers of the IGU were admitted to these gatehouses at the various plants in order to contact Respondent's guards with respect to joining the IGU. After these IGU application cards had been distributed and signed by the guards, Leahey, Sweeney, Fischer, and Schramma collected them from the various plants. Particularly illuminating of the circumstances under which Respondent's guards signed the IGU application cards is the following testimony of Edward R. Howe, who was still in the employ of the Respondent at the time he testified. As such, he depended on his job as a guard for his livelihood and he understood that after testifying he would continue in the employment of the Respondent. This practical consideration has led the Trial Examiner to place considerable credence upon his testimony, with respect to resolving the salient issues in this proceeding. 8 Sections 9(f), (g), and (h) specify that a union must file certain documents and state- ments for each of its officers before the Board may process any case brought by the union. The filing requirements must be complied with before the Board may issue an unfair labor practice complaint pursuant to a charge filed by such a union ; or act on any petition by a labor organization for a Board election or before the Board may certify the organization as a collective-bargaining representative of employees. 91t was stipulated that Leahey and Sweeney were supervisors within the meaning of Section 2(11) of the Act. 10 Membership in the IGU was limited to Respondent's guard employees. 11 Leahey's and Sweeney's denials are discredited for the reasons hereinafter indicated. 12 Cf. Coast Aluminum Company, 120 NLRB 1326. 13 Those plants having seven or more guards have a captain ; those with less than seven but more than five have a chief guard. The captains' wage scale was $1.25 to $1.50 per, hour ; guards $1.10 to $1.25. Chief guards received -5 cents an hour more than rank- and-file guards. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 183 Howe testified that he signed an NJGU application card "about the middle of November" 1956, and that "around November 24" Sweeney sought him out at the gatehouse of the Continental Paper Company where he is a member of Respondent's guard force. At that time, Howe testified, Schramma, vice president of the IGU, was introduced to him (Howe) by Sweeney who said: This gentleman represents the International Guards Union, and his union went before Mr. O'Neill and submitted a contract which calls for four holidays at double time, five days vacation the first year, ten days vacation the third year, and fifteen days vacation the fifth year. [Sweeney] said, Mr. O'Neill figures the contract was suitable for the men, and he agreed with them that he wouldn't recognize any other union. Howe's testimony continued that Sweeney handed him an IGU authorization card and an additional six or seven IGU cards. Q. Did Mr. Sweeney give you any instructions with respect to these cards? A. He told me to have the guards sign them . . . one particular guard . I told him that Mr. Sweeney was in with some cards, union cards for him to sign. . Q. Did you tell him that Mr. Sweeney told you to tell him to sign a card? A. I did. Q. Did you have any further conversation with any other employees, guard employees, of Continental Paper Company? A. Well, I just passed the word on to the rest of them, that the cards were there. . Q. At the time you had the conversation with Mr. Sweeney and he gave you a card for the Independent Guards Union, did he give you any instructions with respect to the card that he gave you? A. I asked him, I said, "Do you want me to sign this card?" He said, "Well you might as well sign it while I am here," so I signed it while he was there, . [and] I handed it back to Mr. Sweeney.14 Q. During this conversation did Mr. Schramm have anything to say at all with respect to these cards? A. No, sir. He just sat there.15 Howe's testimony continues as follows: [Sweeney] said, "This union [IGU] has come before Mr. O'Neill and sub- mitted a contract, and O'Neill read it and figured it was suitable for the men, and he recognizes that union, and he is not going to recognize any other union.16 Howe also testified that he signed both a NJGU card and an IGU card. When he was asked why he signed two cards with two different unions, he answered: Well, Mr. Sweeney said he would not recognize any other union. He sort of scared me for the simple reason I figured if I didn't sign it, I would have no job. John J. Doran, who was one of Respondent's guards assigned to the Continental Paper Company plant, testified that when Sweeney came to the plant at the time related immediately above, that Howe gave him an. IGU authorization card and said: "O'Neill is starting a union, and he explained that Mr. Sweeney had been there, had explained the aims of the union, and had left a bunch of cards for each man to sign. So, he said, `there's one for you.' " Doran testified that the following morning he spoke with his captain of the guard, Boerenson, who told him, "there had been left a card here for me to sign, that all the men were signing with the Independent Guards Union, and there was a card for me." Doran testified that he refused to sign a card and that Boerenson importuned him to do so on five different 14IGU's Exhibit No. 1 which is an authorization card of that Union, shows Howe signed it on November 19, 1956. 15 Howe testified that Schramma, vice president of IGU, told him nothing about the purposes and aims of the IGU, "Mr. Sweeney done all the talking." 1e See McCulloch Motors Corporation, 120 NLRB 577, where the Board in finding a violation of Section 8 (a) (2) stated: "The proposed plan stressed the fact that 'manage- ment has approved the formation of the Committee and will accord it full consideration.' " See also Coast Aluminum Company, supra, where the president of the Respondent Com- pany in an 8(a) (2) proceeding told the employees that the union he favored was the only union he would recognize. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions between November 1956 and March 1957. On the last occasion in March, Doran testified that Boerenson said: "[Don't] let fifty cents 17 stand in the way, that if I signed it O'Neill would know I was on his side and not on the side of the New Jersey Guards Union." Doran persisted in refusing to sign. Shortly after that on March 20, 1957, Doran received a telephone call at night from a person who identified himself as Leahey. He was informed that he was being transferred that same evening from the Continental Paper Company plant, Ridgefield Park, New Jersey, to the Givaudan plant in Clifton, New Jersey. Doran advised his caller that he could not accept the transfer because he did not know whether the person he was speaking to was Leahey, and that he would report that evening to his regularly assigned job. When he did so report, Sweeney came to the Continental Paper Company guardhouse and fired Doran for not following out orders.18 Another guard by the name of Foggen, who worked under Captain Boerenson at the Continental Paper plant and who did not sign an IGU card is no longer employed by Respondent. William J. Summerfield, one of Respondent's guards at the Anheuser-Busch plant, testified that his captain, one, Allegar, handed him an IGU card in November 1956 and said "sign this." Summerfield also testified that he inquired of the captain what the dues were and Allegar replied: "Fifty cents a month, but you don't have to worry. O'Neill will pay for it." 19 Additional evidence 20 with respect to the allegations in the complaint that the Respondent unlawfully assisted and supported the IGU within the meaning of Section 8(a)(2) of the Act, shows that in the fall of 1956, shortly after the Re- spondent became aware of the advent of NJGU, a meeting was held in the guards' room of the Garden State Trucking Terminal (one of the facilities for which Respondent furnishes guard services) in order to form IGU. Schramma, vice president of the IGU, testified that there were about 15 O'Neill guards present, whereas Fischer, the president, states there were about 9.21 Schramma, after con- siderable probing of his memory by counsel, testified that the election of officers was held at the same meeting referred to above "sometime after 7 P.M." in October while Fischer fixes the time as "around 6 P.M." on September 5.22 Fischer testified that he went to see Leahey on October 5 "to ask him permission to negotiate a contract 23 . with Mr. O'Neill as to our union." [Emphasis sup- plied.] At another point in his testimony, he fixed the date at "back in Septem- ber . . . between the 9th and 19th." It appears that two meetings of the IGU were held, the dates of which Fischer was unable to definitely fix and that the necessary forms which are required to be filed with the Board by Sections 9(f), (g), and (h) of the Act were notarized by Leahey who brought these compliance papers to the various plants at which the 17 The monthly dues of the IGII were 50 cents. Is Doran testified that in the 16 months he worked for Respondent, he never received a complaint about the quality of his work until February 1957 (after he had refused to sign an IGII card), when he was accused by Sweeney of having entertained unauthor- ized persons in the guardhouse. Doran denied this occurred. 19 TRIAL EXAMINEE : Weren't you interested in knowing anything about the union [IGII] ? WITNESS [Summerfield] : As long as they told me it was the union, and the cap- tain handed it to me, and that was a11. If you got to take and hold a job by joining a union, so you join the union. 20 Official notice has been taken of the transcript in Case No. 22-RC-157, formerly Case No. 2-RC-8588 which is a part of the record in this proceeding. 21 Schramma testified as follows : Q. Was Mr. Leahey there at the plant . . . on the day in which you were organ- izing [IGII] ? A. I don't think he was. Q. Will you deny that he was? A. I could. S Q. And this guardroom is inside the gatehouse at the plant, isn't it, on company property? A. It is inside the yard . . . on company property. 22 The other officer of IGII was Louis Hughes, secretary-treasurer, who is a brother- In-law of Leahey, Respondent's director of operations. 23 See footnote 32, in fra. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 185 three IGU officers were guards in order for them to sign the forms and for Leahey to notarize their signatures. Fischer testified at the representation hearing that he signed these compliance papers at the Federal Pacific Electric Company plant on November 21, 1956, but in the unfair labor practice proceeding, he testified it was the Garden State Trucking Terminal and fixed the date as "around the 21st of October." With respect to the IGU authorization cards, Fischer first testified they received them from the printers on November 16 or 17, then he changed this to November 7 or 8, and that they were distributed about November 11. Fischer also testified that "close to 141 guards" signed these cards but at the representation hearing he testified it was 130 while Schramma places the number at "over 150." On November 21, 1956, at about 9:30 a.m., Fischer, Schramma, and Hughes met at Respondent's office in New York City with O'Neill and his assistant, Sweeney. At that time the IGU authorization cards were presented and a proposed contract was submitted for the first time by IGU to Respondent 24 The meeting concluded at approximately 4:30 p.m. They again met on November 23 at which time a collective-bargaining agreement was executed, the expiration date of which was November 22, 1958, with an :automatic renewal provision of 1 year, unless notice to the contrary is given by either party. The only working conditions heretofore existing which were changed as a result of this contract was that provision was made for four holidays and for vacations. The minimum and maximum wage rate re- mained the same, but the hourly wage rates at some plants were upgraded but not to a level exceeding the maximum which had existed prior to the execution of the contract 25 The contract also contained a union-security provision requiring em- ployees as a condition of employment to become members of IGU within 30 days and to remain members during the term of the agreement. The contract also provided for union dues checkoff of 50 cents each month from the guard's pay upon his written instruction. At the time this collective-bargaining agreement was executed on November 23, 1956, the IGU's officers were not in compliance with the filing requirements of the Act and they did not comply until December 26, 1956. However, the union-security and checkoff provisions of the contract were not enforced until January 20, 1957, about a month after compliance had been achieved. Sweeney testified that he is in charge of administering the contract on Respond- ent's behalf with respect to any grievances arising under it. From the time of the execution of the agreement until the date of the hearing in April 1958, a period of 18 months, Sweeney testified that the IGU officials consulted with him on six occasions with respect to ascertaining from company records the dates on which various guards were hired in order to determine how long a vacation they were entitled to, and on another occasion he consulted with Fischer about transferring a guard to a different shift. Sweeney also testified that no grievances were processed until after the election in April 1957, approximately 4 months subsequent to the time Respondent and IGU executed their collective-bargaining agreement. Leahey who is in charge of Respondent's personnel problems for New Jersey testified that he has handled no grievances or had any other dealings with the IGU in the day-to-day administration of the collective agreement, other than having new employees sign checkoff authorization cards. Fischer testified that since the agreement's execution he has consulted with Respondent over a period of 17 months regarding five "petty grievances" including two or three with respect to vacations. Sweeney also testified that the arbitration provision of the contract has never been resorted to by either the Respondent or the IGU. When Sweeney was asked how an employee's griev- ance would be processed, he answered: ". he could speak to the captain, who in turn would call me. Or, if he wants to make use of the Union, he would call Mr. Fischer; I imagine that would depend on the individual. . . . As a matter of fact, the man is perfectly free to even call the office himself, as they do on a number of occasions." 24 However, according to Howe, one of Respondent's guards, Sweeney, told him that ICU's proposed contract was submitted to O'Neill prior to November 19, 1956. =It appears from Sweeney's testimony that in those cases where the guards' hourly rates at individual plants were increased that this resulted when "a number of these plants volunteered to pay a higher rate" as "the rate of pay that is paid to guards is predicated on the rate that the [Respondent] receives from the individual plant." It appears , therefore, that the individual plant, and not the Respondent, assumed the increased wage costs attendant upon the upgrading of the guards. See Paul H. O'Neill International Detective Agency, Inc ., 1115 NLRB 760, and page 728 of the transcript. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contentions The Respondent's position is that the employees did have freedom of choice in their selection of which union should represent them; that IGU was the result of the free agreement of its employees and that it was the spontaneous reaction of a group of employees without suggestion or help by the Respondent. The General Counsel, on the other hand, contends that the Respondent's influence so pervaded the establishment of IGU that the employees' choice was unlawfully restrained. Analysis of the Testimony Against this fact pattern, Respondent's contentions in its effort to exonerate itself from a finding of unfair labor practices are singularly unimpressive. Certain un- disputed and demonstrable facts in this case, which have been referred to heretofore, and additional indicia detailed below, strengthen and fortify this conclusion. A study of the record shows that the Respondent's witnesses frequently contradicted themselves and one another. Then, too, the testimony of Leahey, Sweeney, Schramma, and Fischer is not only vague, evasive, and inconsistent, but in certain aspects, improbable as well as incredible.26 Their contradictory and unconvincing testimony detailed above and below, creates a suspicion that they were concealing an unlawful motive, which in this case was an attempt to forestall and abort the organizational activities of the New Jersey Guards Union by lending their efforts to Respondent's establishment of the Independent Guards Union and it is so found. Corroborative of the above conclusions is the following testimony. Boerenson, Respondent's assistant director of operations, but who was captain of the guards at the Continental Paper Company plant, at the period of time relevant herein, incredibly testified that IGU authorization cards were handed to him and that he placed them in the desk drawer at the guardhouse. A few days later, when Hughes, secretary-treasurer of IGU, came to the guardhouse, Boerenson testified, he gave the signed cards to him. Boerenson disclaimed any knowledge as to how and under what circumstances the guards under his command (with one exception) came to sign these IGU authorization cards. Captain Boerenson, on cross-examination, also testified that although Fischer, Schramma, and Hughes, the officers of IGU came to the guardhouse on various occasions during IGU's organizational campaign to leave authorization cards and to pick them up when they were signed, that he never saw them speak to any of the guards. It would seem for union organizers not to speak to the employees they were attempting to organize is particularly significant in evaluating the conditions under which the guards joined and the circumstances under which IGU was established. Leahey testified at one point in the record that the first time he learned of the NJGU's activity to organize the Respondent's employees was in September or Octo- ber 1956, but at another point in his testimony, he inconsistently testified it was in November 1956. He first stated he learned about it while he was at the Anheuser- Busch plant but later in his testimony he stated that Fischer told him about it at the Garden State Truck Terminal. Leahey also tesified that when Fischer requested an appointment with O'Neill, president of Respondent, to discuss recognition of IGU that O'Neill told him (Leahey) he would be agreeable to discuss the matter when Fischer signed up a majority of the Respondent's employees. However, when it was pointed out to Leahey that at the representation hearing O'Neill had testified be told Leahey, "I am not going to bother with any union. I don't care who they are. The vast majority are a bunch of hoodlums, extortionists, and racketeers, and I don't want to bother with them," Leahey answered: "Why, he could have said that, to be truthful with you. I don't recall too much of what he did say." Fischer and Schramma, president and vice president, respectively, of the IGU could not agree on how many of Respondent's guards had signed authorization cards and Fischer was vague and uncertain as to what guards at which plants received wage increases and in what amounts. It seems incredible that these important aspects of the negotiations, some of which were ultimately incorporated into the provision of the existing collective-bargaining agreement with Respondent would not have been remembered by him.27 Fischer also was evasive in his testimony with 26 Leahey incredibly testified that even though he was in charge of all Respondent's personnel in New Jersey that none of the captains of the guards at the various plants had ever discussed with him whether any of the guards under their command performed their duties properly. 27 Fischer testified that when the wage rate at the Givaudan plant was changed, subse- quent to the execution of the collective agreement, that the IGU was not consulted. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 187 respect to whether Respondent during the period of time he was signing up members for IGU had given him a list of the plants for which it furnishes guards and the names of those guards. Schramma, vice president of IGU, displayed an appalling ignorance of what occurred during the period of time that IGU was being established, although he was alleged to have been one of the dominant personalities in the organization of this union. He was unable to recall or was hazy as to when the union was estab- lished, the date he was elected vice president, the circumstances surrounding his election, how many members were present and whether Leahey was present when the IGU was organized. Nor is it believed that the presence of Sweeney, Respondent's official, at the Continental Paper Company in November 1956, at the same time that Schramma, IGU's vice president was there was a mere temporal coincidence . On the contrary, it is believed that Sweeney was there, as testified to by Howe, for the purpose of urging employees to join the IGU and that Schramma was merely there to accord an aura of legitimacy to the incident. Schramma's silence during this incident is not characteristic of a union official's actions during a spirited organizational cam- paign. In fact, it ]ends credence to the conclusion that Schramma was a figurehead and the IGU a device to prevent NJGU from gaining any additional adherents from among the ranks of the Respondent's guard employees. Sweeney, sales manager and assistant to O'Neill, was vague in his testimony regarding what transpired during the contract negotiations with respect to wages. Sweeney also represented the Respondent in administering the grievance provisions of the contract but when he was asked the names of the employees who had such grievances he was unable to recall any specific guards. Nor did he know who were the IGU members who comprised the Union's grievance committee. He testified that he never met with such a committee although O'Neill, Respondent's president, had delegated this function to him. An important aspect of contract negotiations are the wage provisions, yet Sweeney who was one of the two representatives for the Respondent in negotiations leading up to the ultimate execution of the collective agreement with the IGU was vague in testifying as to this aspect. He was unable to specify which plants (other than Givaudan and Federal Pacific Electric) were given a general upgrading in classification with its concomitant wage increase for guards. Fischer, president of IGU and one of its representatives in its negotiations with Respondent, when asked which plants (other than Givaudan and Federal Pacific Electric) were given wage increases, made the general assertion: "There was a few others, too." Discussion and Conclusions Section 8(a)(2) is designed to prevent interference by employers with organiza- tions of their workers that serve or might serve as collective-bargaining agencies and it was enacted to assure employees that they would be free to choose any type of organization they desired without interference from the employer.28 The forma- tion and administration of labor organizations are the concern of the employees and not of the employer. The conduct of an employer which has the effect of defeating the freedom of employees to carry out this function constitutes an unfair labor practice 29 The Supreme Court 30 has said: It would indeed be a rare case where the finders of fact could probe the precise factors of motivation which underlay each employee's choice. Nor- mally, the conclusion that their choice was restrained by the employer's inter- ference must of necessity be based on the existence of conditions or circumstances which the employer created or for which he was fairly responsible and as a 2S See S. Rept. 573, 74th Cong., 1st sess. pp. 9-11 ; H. Rept. 1147, 74th Cong. 1st sess., pp. 17-19; S. Rept. 105, 80th Cong., 1st sess., p. 12; 93 Cong. Rec. 6643, 41.69, A-2253, reprinted in Legislative History of the Labor Management Relations Act, 1947 (Govern- ment Printing Office, 1948) at pp. 418, 1539, 1103, 1525; H. Rept. 245, 80th Cong., 1st sess., pp. 28=29, 38, 42 ; S. Rept. 105, 80th Cong., 1st sess., pp. 3, 12-13, 25, 26 ; H. Conf. Rept. 510, 80th Cong., 1st sess., pp. 40-41, 5455, reprinted in Legislative History of the Labor Management Relations Act, 1947, supra, at pp. 31.9320, 329, 333, 409, 418- 419, 431, 432, 544-545, 558; Report of the Joint Committee on Labor Management Rela- tions, S. Rept. 986, pt. 3, 80th Cong., 2d sess., pp. 67-68, 99-100. 29 N.L.R.B. v. Pennsylvania Greyhound Lines, 303 U.S. 261 ; N.L.R.B. v. Newport News Shipbuilding & Drydock Co., 308 U.S. 241; Elastic Stop Nut Corporation v. N.L.R.B., 142 F. 2d 371, 380 (C.A. 8). 30 N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 588. i88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vesult of which it may reasonably be inferred that the employees did not have That complete and unfettered freedom of choice which the Act contemplates. Appraising the totality of the foregoing circumstances in the case at bar, including Respondent's solicitation of memberships for IGU and other conduct described in the preceding paragraphs, it is apparent that their cumulative effect establishes a pattern of assistance and support and that Respondent unlawfully participated and assisted in the formation and administration of IGU so "that the employees did not have that complete and unfettered freedom of choice which the Act contem- plates." The employer must not intrude in matters concerning the self-organization of his employees and the employees must be free from all restraint and coercion. The Act imposes upon an employer total and complete impartiality and the utmost of honest neutrality, since even slight suggestion as to the employer's choice between unions may constitute powerful support, and have telling effect among men who know the consequences of incurring the employer's strong displeasure in such matters.31 Especially is this so where the adherence of the employees is being sought by a rival labor oragnization. Thus, during a contest between rival unions the employer may not accord such treatment to one of the rivals as will give it an improper advantage or disadvantage. A duty is placed upon the employer to main- tain a position of strict neutrality while rival unions seek support of the employees. An employer does not observe such neutrality where, as here, he takes it upon himself to inaugurate a membership drive among his employees by the union of his preference. Therefore, where an unaffiliated union like the IGU has evolved out of the circumstances apparent in this proceeding, it is reasonable to conclude that the employees not only supposed but knew that the Respondent approved it and their choice for that reason is not as free as Section 8(a) (2) demands.32 In N.L.R.B. v. The Summers Fertilizer Company, Inc., et al., the United States Court of Appeals for the First Circuit stated: 33 It cannot be denied that employees have a right to choose either an inde- pendent unaffiliated union composed solely of fellow employees or a union affiliated with a national or international organization, but where such choice 'occurs after the initiation of organizational drives by other unions and after the demand for recognition by one of these unions, any form of benefit con- itributed by the employer to a particular union must be closely examined. See N.L.R.B. v. Brown Paper M. Co., 108 F. 2d 867 (C.A. 5), cert. denied 310 U.S. 651. The test to be applied is whether such benefit is allowable coopera- tion with the freely chosen representative of the employees or is it in fact an inducement to these employees to choose an organization, which without this support, would very likely not have been so chosen. The evidence in this case shows that the proposal and impetus for the formation of IGU was conceived, instigated, encouraged, and directly participated in by the Respondent and that it provided various forms of direct support to that organization, including identification of itself with IGU in order to induce its employees to join IGU and to discourage them from affiliating with NJGU. In some instances this discouragement was evidenced by Respondent's disparate treatment of the com- peting unions and those employees who did not accord warm support to the union favored by it. It would appear also that the incorporation of the union-security and checkoff provisions, at a time when Respondent knew NJGU was organizing its employees, were intended to implement this overall scheme of combating NJGU by rendering contractual assistance to an organization which its employees had not freely chosen 34 The making of a contract under such circumstances with the "International Association of Machinists, Tool and The Makers Lodge No. 35 (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 78 ; N.L.R.B. v. Faultless Caster Corp., 1.35 F. 2d 559, at 561 (C.A. 7). 32 See Majestic Metal Specialties, Inc, 92 NLRB 1854, 1856, where the organization was started by employees, but only after it "obtained permission" from management and the Board found domination. (Emphasis supplied.] 33 251 F. 2d 514. 34 Dolores, Inc., 98 NLRB 550, 551 ; John B. Shriver Company, 103 NLRB 23, 38. Cf. Sunbeam Corporation, 99 NLRB '546, 550 ; and The Whelan Company, 120 NLRB 814, where the Board held that an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize one of these unions until its right to be recognized has been finally determined under the special procedures provided in the Act. The Board also pointed out the un- reliability of membership cards as evidence of majority representation during an organ- izational campaign between rival unions. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 189 competing IGU when it knew that IGU did not represent an uncoerced majority was "the most potent kind of support imaginable." As a matter of fact, IGU's failure to call a formal meeting to discuss the provisions of the contract, either before or after its execution, or even to consult with the membership, shows that this union-security dues checkoff contract was entered into without the express or implied consent or approval of the employees.35 Hence, the majority of the em- ployees were effectively foreclosed from selecting their bargaining representative or making known their wishes as to the terms or conditions of employment which ICU's officials were authorized to seek on their behalf. Such a result is inconsistent with the Act's basic policy of affording employees the fullest freedom in the exercise of their right to bargain through representatives of their own choosing. Neverthe- less, the Respondent accorded IGU representative status and dealt with it as the representative of its employees. Moreover, the trier of these facts is persuaded that this collective agreement was not the result of honest and determined bargaining by both sides. Then too, the precipitate manner in which the Respondent recognized IGU in order to head off further organizational efforts by NJGU is an indicium of assistance. When it is considered that the IGU officers presented the signed authorization cards on November 21 and that negotiations were thereupon immediately commenced by the Respondent which culminated in the execution of a contract at the next meet- ing of the parties on November 23, as contrasted with Respondent's refusal to even answer NJGU's letter of November 26, requesting recognition, it is concluded that the Respondent did act precipitately in not only recognizing IGU but almost imme- diately thereafter executing a contract with it 36 When this precipitate action is contrasted with NJGU obtaining only 64 signed authorization cards between June and November 27, 1956, as compared with IGU obtaining between 130 and 150 signatures within a few weeks, the conclusion is inescapable that such extraordinary success would not have been possible without the aid and assistance of Respondent. Furthermore, this premature recognition of IGU's representative status placed it in a position of prestige and power which facilitated its recruitment of members from among Respondent's employees. To paraphrase what was said in N.L.R.B. v. Faultless Caster Corporation,37 it is clear that viewing the events as a whole, the entire course of conduct of Respondent's officials and guard captains, including the officers of the IGU, the rapidity with which one event followed another, and the manner in which they were timed with reference to each other, there emerges a planned and calculated design to interfere with the statutory rights of its employees and the organizational efforts of the NJGU. For all the reasons hereinabove indicated, it is found that Respondent by failing to adhere to the neutrality imposed upon it violated Section 8(a)(1) and contributed unlawful assistance to IGU in violation of 8(a)(2) of the Act.38 The question of whether the Act has been violated, however, requires not only an appraisal of the particular conduct which has been described above, but also a determination of whether the Respondent is liable for the statements and conduct of its guard captains because the Respondent contends that it is not responsible for their conduct. In determining this, it must be ascertained whether the captains of the guards are supervisors within the meaning of Section 2(11) of the Act.39 A corporate employer acts through agents among whom are his supervisors for whose conduct he is responsible on the basis of common-law rules of agency. In ascer- taining who are agents of the employer, Section 2(13) of the Act provides: In determining whether any person is acting as an "agent" of another person so as to make such person responsible for his acts, the question of whether the specific acts were actually authorized or subsequently ratified shall not be controlling. 11 Mohawk Business Machines Corporation, 116 NLRB 248. 89 See Hannaford Bros. Co., 119 NLRB 1100, footnote 6. 871.35 F. 2d 559, 561. Is N.L.R.B. v. National Container Corp., 211 F. 2d 525 (C.A. 2), enforcing 103 NLRB 1544. 39 Section 2 (11) of the Act reads as follows : The term "supervisor" means any individual having authority, in the interest of the employer, to hire, :transfer, suspend, lay off, recall, promote, discharge, assign, reward„ or discipline other employees, or responsibly to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, bur requires the use of independent judgment. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The testimony reveals that the duties and responsibilities of the guard captains consisted of instructing new guards in their duties; submitting periodic written reports to Respondent's officials; acting as liason between the plant officials and Respondent; maintaining time records of guards under their command; assigning overtime work to the guards; supervising safety and fire prevention measures; checking on appearance and sobriety of guards; 40 ascertaining whether they are performing their duties satisfactorily; disciplining guards for infractions of their duties; recommending the hiring and discharge of guards; granting leaves of absence and scheduling shifts and weekly work schedules of the guards. In the event of an emergency the guards at the various plants are instructed to contact their respective captains. In addition, the captains wear distinctive uniforms, different than those worn by the guards under them; they receive a higher wage rate than the rank-and- fife guards and they do not walk a tour of duty in making the rounds of the particular plant or premises. Equally significant is the fact that there is comparatively little supervision of guard captains by Respondent's officials because there are available only a few of Respondent's officials to superintend the considerable area in which are located the 33 plants serviced by Respondent in New Jersey. ,One of the leading cases on this subject of an employers' responsibility is Interna- tional Association of Machinists, etc. v. N.L.R.B.,41 where the Supreme Court ruled that the employer could be held responsible for the behavior of his agents even though the illegal acts performed in assisting a union were not expressly authorized by him. The Court noted that these acts might not be attributed to the employer if the respondeat superior doctrine was strictly applied but the employer was held liable because it was the intent of Congress in enacting the statute to permit organi- zational activities to function without any "taint" of employer influence. It was also held that inasmuch as the workers had just cause to believe that the superiors were acting on behalf of management, these workers could not exercise freedom of choice in areas of protected union activity. Respondent seeks to avoid responsibility for the conduct of its captains of the guard by asserting that these individuals had no authority to bind the Company. Argumentatively assuming that they had no express authority, employers are re- sponsible, nevertheless, for the conduct of personnel where the respondent employer knew of the unlawful conduct but failed to disavow or disassociate itself therefrom, or where the attitude or acts of the employer appeared to endorse such conduct or where the employees' duties, responsibilities, and relationship to management are such that employees may reasonably assume their conduct and statements originate from and express the view of management. In this proceeding, the record clearly demonstrates that Respondent's guard captains exercised considerable authority over subordinate guards, exercised independent judgment in responsibly directing these guards, "and were in a strategic position to translate policies and desires of man- agement" to them. Moreover, the Trial Examiner is convinced that the guards had just cause to believe that the captains were acting and speaking for and on behalf of Respondent, and that Respondent clothed them with general authority not only to impede the progress of NJGU's campaign among Respondent's guards but also to supplement Respondent's policy of assisting IGU in its organizational efforts.42 The captains of the guard, therefore, are found to be supervisors within the meaning of Section 2 (11) of the Act so as to make Respondent liable for their statements and conduct.43 The General Counsel contends that the authorization cards which made up the purported majority held by IGU and which were obtained through Respondent's coercive recruitment efforts made illegal Respondent's granting exclusive recognition to IGU and executing a contract which contained a union-security provision. Under such circumstances, argues the General Counsel, when Respondent granted exclusive recognition to the IGU and then required its employees as a condition of their em- ployment to join and pay dues to IGU, an organization which they were coerced into joining, such conduct violated not only Section 8(a)(1) and (2) but also Section 8(a)(3). Moreover, claims the General Counsel, when the Respondent implements its policy of assistance to IGU by awarding a union-security agreement, despite the fact that IGU was not in compliance with the filing requirements of Section 9(f), 4O The captain is authorized to send a guard home when the circumstances warrant such action. 41 311 U.S. 72, 79, 80. 42H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 520; Colonial Fashions, Incorpo- rated, 110 NLRB 1197; Section 2(13) of the Act, supra. 43 See The Midvale Corporation, 114 NLRB 372, 375 ; Harrison Sheet Steel Co., 94 NLRB 81, 82, PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 191 (g), and (h) of the Act, and therefore, "not entitled to any union security even if it were the properly designated representative," such action constitutes a violation of Section 8(a)(1), (2), and (3) of the Act. The Respondent, in answer to this contention of the General Counsel, states that the collective-bargaining agreement entered into between it and IGU contains a separability clause which effectively deferred the application of the union-security clause until compliance, and, furthermore, the union-security provisions were not enforced until January 20, 1957, almost a month after IGU came into compliance on December 31, 1956. The proviso to Section 8(a)(3) of the Act 44 dealing with the conditions under which a union-security clause is lawful provides in relevant part as follows: . Provided, that nothing in this Act . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in Section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein . (i) if such labor organization is the representative of the employees . . . and has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with Section 9(f), (g), (h). .. . [Emphasis supplied.] Assuming, arguendo, that 1GU was legally in compliance with Section 9(f), (g), and (h) at all times pertinent herein, nevertheless, the representative status of IGU is a prerequisite to the valid execution of a union-security provision. IGU, however, as a result of Respondent's unfair labor practices, became the beneficiary of illegal assistance and could not, therefore, become "the representative of the employees" because it did not represent an uncoerced majority of the employees at the time it executed the union-seczrity agreement. The proviso to Section 8(a)(3) expressly provides that an employer cannot make a union-security agreement if the labor or- ganization is "established, maintained or assisted by any action defined in Section 8(a) of this Act as an unfair labor practice." Since IGU was illegally assisted, Re- spondent's union-security clause did not meet this statutory requirement and was therefore invalid. By executing and maintaining this union-security agreement, im- plemented by the provision for checkoff of dues, the Respondent violated Section 8(a)(3) by unlawfully requiring its employees to join IGU as the price of employ- ment and thereby to support an organization not of their own choosing.45 Therefore, the union-security agreement does not conform to the limitations of the proviso to Section 8(a)(3), namely, that the agreement must have been made with a properly qualified union which became by lawful means the representative of an uncoerced majority of the employees. Because of the unfair labor practices committed by Respondent, IGU qualifies in none of these respects because it attained representative status by unlawful means and lacked the support of an uncoerced majority thereby violating Section 8(a)(3) of the Act.46 Moreover, the Respondent's contention that there was no violation of Section 8(a)(3) because the union-security provisions were not enforced until after com- pliance with Section 9(f), (g), and (h) lacks merit for the following reason. The execution of an illegal union-security clause falls within the prohibition of Section 8(a)(3) because "the mere existence of such an agreement without more tends to encourage membership in a labor organization. The individual employee is forced to risk discharge if he defies the contract by refusing to become a member of the union." 47 A final defense by the Respondent, which goes to the entire complaint, contends 44 As amended by Public Law 189, 82d Cong., 1st sess. (1951). 41N.L.R.B. v. Knickerbocker Plastic Co., Inc., 218 F. 2d 917, 923-9124 (C.A. 9) : Dixie Bedding Manufacturing Company, 121 NLRB 139; John B, Sehriver Company, 103 NLRB 23 at pp. 38-39. Cf. Eastern Massachusetts Street Railway Company, 110 NLRB 1963 at p. 1967, and Max Factor and Company; 118 NLRB 808, 812. 46N.L.R.B. v. Gottfried Baking Co., Inc., et at., 210 F. 2d 772 (C.A. 2) ; Atlantic Freight Lines, Incorporated, 117 NLRB 464, 470-471. "An employer cannot by dealing with a union, constitute it the lawful representative of employees who have not chosen it to represent them" (Dickey v. N.L.R.B., 217 F. 2d 652, 655 (C.A. 6) ). 47 Red Star Express Lines V. N.L.R.B., 196 F. 2d at 81. Accord : N.L.R.B. v. Gottfried Baking Co., Inc., et at., 210 F. 2d 779-780; N.L.R.B. v. Associated Machines Inc., 239 F. 2d 858 (C.A. 6). Cf. N.L.R.B. v. B. F. Shuck Construction Co., Inc., et at., 243 F. 2d 519, 521 (C.A. 9) ; N.L.R.B. v. Gaynor News Company, Inc., 197 F. 2d 719, 723-724 (C.A. 2), affd. 347 U.S. 17. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that under the Aiello Dairy Farms doctrine 48 NJGU waived its right to file unfair labor practice charges when it elected to proceed with the election because it knew at that time of the Respondent's alleged interference and support of IGU. Under the holding in the Aiello case the Board held that where a union believes that the employer has refused to bargain it may either elect to file unfair labor practice charges or petition the Board for an election. If it requests and participates in an election, however, it may not subsequently initiate a refusal-to-bargain proceeding, since a refusal to bargain and election proceedings are mutually inconsistent for the following reason. For the Board to proceed upon a representation petition requires the Board to find that a question of representation exists, to be resolved by an election. On the other hand, a charge of unlawful refusal to bargain under Section 8(a)(5) of the Act must allege in effect that there is no question of repre- sentation and that the union involved is in fact the exclusive representative, with whom the employer is legally required to bargain. The basis of the two proceedings are thus mutually inconsistent. Respondent, therefore, misconceives the applica- bility of the Aiello doctrine as it has reference only to a refusal-to-bargain proceed- ing, and not to the situation posed by the facts in the instant proceeding. It is found, therefore, on the basis of all the facts in the record, that the Respond- ent Paul M. O'Neill International Detective Agency, Inc., committed unfair labor practices in violation of Section 8(a)(2) and (3) of the Act, thereby interfering with, restraining, and coercing the employees in the exercise of rights guaranteed by the Act in violation of Section 8(a) (1). THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it shall be recommended that it and its successors cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully recognized and rendered support to the Independent Guards Union and unlawfully entered into a collective-bargain- ing contract containing union-security provisions, it shall be recommended that the Respondent withdraw and withhold all recognition from said IGU as the collective- bargaining representative of its employees, unless and until it shall have demonstrated its exclusive representative status pursuant to an election conducted by the Board. Having also found that the collective agreement dated November 23, 1956, granting recognition to the IGU was, in the total facts of this case, not only a further form of unlawful assistance, but also a violation of the proviso to Section 8 (a) (3) of the Act, it shall also be recommended that the Respondent cease giving effect to that contract, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract. Since it has been found that Respondent coerced its employees to become and remain members of IGU, it is also recommended that the Respondent reimburse its employees for any IGU dues deducted from their wages pursuant to checkoff au- thorizations and paid to, or being retained for the IGU, by paying to each of them a sum of money equal to the total of such dues deducted from said employees wages.48 Having found that ICU's artificial creation was a means to combat NJGU as well as to frustrate self-organization and defeat genuine collective bargaining by its employees, the Trial Examiner is convinced that the Respondent-created IGU cannot emancipate itself from habitual subservience to its creator without being com- pletely disestablished so as to insure that employees would have the complete and untrammelled freedom of choice guaranteed by the last paragraph of Section 1 of the Act 50 and by Section 7.51 The Board, with judicial approval, has required since its earliest days the permanent withdrawal of recognition from, and complete dis- establishment of, any labor organization so "corrupted" by employer domination, 48 110 NLRB 1365. 49 Hibbard Dowel Co., 113 NLRB 28, 30. 60 That section declares it to be the policy of the United States to protect "the exercise by workers of full freedom . . . designation of representatives of their own choosing," which, In turn, reaffirms the rights guaranteed in Section 7. See Texas & New Orleans Railroad Company v. Railway Clerks, 281 U.S. 548, 569, '570. 5' Which reaffirms the right of employees "to bargain collectively through representa- tives of their own choosing." Section 9(a) further provides that "Representatives desig- nated or selected for the purpose of collective bargaining by the majority of the employees in 'a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining. . . . 11 [ Emphasis sup-, plied.] 'See N.L.R.B. v. A. J. Tower Company, 329 U.S. 324, 331. PAUL M. O'NEILL INT'L DETECTIVE AGENCY, INC. 193 support, and interference as to be inherently incapable of ever affording employees "an agency for collective bargaining." 52 The Board, with the approval of the Su- preme Court, has stated that where the employer's interference has been so extensive as to constitute domination, disestablishment of the assisted union is the proper remedy where, it is satisfied that the employer's unlawful assistance cannot otherwise be dissipated.63 Where, as here, however, the weight of the Respondent's economic power over its employees has been thrown behind IGU so as to have dominated its formation and coerced its majority acceptance, Respondent merely being ordered to cease assisting and interfering with its employees organizational rights and to withdraw recognition from IGU unless and until it has demonstrated its representative status, and a declara- tion of future neutrality, though of aid, will not necessarily suffice to wholly dissipate the unwholesome affect of its violations of the Act 54 because the employees may well hesitate to reject in any future election a union which the Respondent has so forcibly created and ardently favored in the past.55 The General Counsel, however, did not allege in his complaint that Respondent "dominated" 56 the Independent Guards Union 57 so that such failure to so plead 62N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 268, 271. 'Bowman Transportation, Inc., 120 NLRB 1147: . . . the purpose of a remedial order in Section 8(a)(2) assistance cases is to assure the taint of employer assistance has been removed before an employer can again deal exclusively with the assisted union. 61 See N.L.R.R. v. Stow Manufacturing Co., 217 F. 2d 900, 904 (C.A. 2). 55 ". . . leaders in a company union are necessarily company representatives, accus- tomed to submission to the company, and 'men accustomed to such submission to the company seldom regain independence overnight.' " Majestic Metal Specialties, 92 NLRB 1854 at page 1859. ','In Ben Corson Manufacturing Co., 112 NLRB 323 at pages 344-345, the indicia for determining whether an employer's unlawful assistance amounts to domination is stated as follows : . The basic criterion for [domination] would seem to be whether despite the illegal assistance thus given, the organization is shown to have an independent origin, life, and functioning of its own, apart from any advantage it may have derived from the assistance wrongfully given it. s s s e • s By negative implication, it would seem that where the proposal for the formation of the organization comes not from the employees but the employer, and further where the impetus for the formation likewise comes from the employer, and when in addition, the organization has no discernible resources except the one which the employer has illegally given it, the picture is one of domination rather than mere illegal assistance. In Cop pus Engineering Corporation, 115 NLRB 1387, the following indicia are set out at page 1393, in determining whether a labor organization is employer dominated rather than merely assisted : . . . [whether] the employer's having proposed its formation ; having recognized it without requiring proof of majority status while requiring such proof from an out- side union ; the employer being in a position to control the organization through its power to unseat the representatives or committee members ; that the employees ini- tially never had a free choice in choosing this form of representation ; that the employees had no way of choosing whether to continue to be represented by this type of organization ; the absence of any provision for membership of the employees in the organization ; the absence of a written constitution, bylaws, dues, or other form of self-financing; and that the organization does not have and never attempted to negotiate a written contract with the employer. Where a number of the foregoing factors are present in a case, the Board has found the organization to be employer dominated. [Citing cases.] Other factors are membership being confined to employees of Respondent (Rehrig-Pacific Company, 99 NLRB 163, 165) and management representatives taking part in the internal affairs of the organization or attempting to influence its policies (Coast Aluminum Company, 120 NLRB 1326). See Adhesive Products Corporation, 117 NLRB 265, 267. 57 The General Counsel also stated during the hearing that "there is no claim of domination." 52 5 5 43-6 0-vol. 1.24-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD makes it difficult, if not impossible, to rectify the situation which calls for redress or to effectuate the congressional mandate in Section 10(c) of the Act which requires that the remedy should expunge the effects of these illegal activities and return the parties to the status quo ante the unfair labor practices. Hence, an effective remedy can neither be fashioned to meet the situation which calls for redress nor a deter- minative order issued which will effectuate the policies of the Act or eradicate and dissipate the resultant effects of the particular conduct revealed by this record.58 CONCLUSIONS OF LAW 1. The business operations of Respondent constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. New Jersey Guards Union and Independent Guards Union are labor organiza- tions within the meaning of Section 2(5) of the Act.59 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engag-. ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By forming, assisting, and interfering with the administration of the Inde- pendent Guards Union, and by recognizing and entering into a contract which pro- vides for a union-security clause and a dues-checkoff provision and by according continuing effect to its contract with said IGU, Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. [Recommendations omitted from publication.] 5s See Eichleag Corporation v. N.L.R.B., 206 F. 2d 799, 804-806 (C.A. 3). 55N.L.R.13. v. Standard Coil Products Co., Inc., 224 F. 2d 465, 467-469 (C.A. 1), cert. denied 3'50 U.S. 902. The Westchester Corporation 1 and International Union of Oper- ating Engineers, Local 99-99A-99C, AFL-CIO, Petitioner. Case No. 5-RC-2737. July 20, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert W. Knadler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer moved to dismiss the petition upon the ground that it is not subject to the Board's jurisdiction, because it is not en- gaged in trade, traffic, or commerce. The Employer is a nonprofit membership cooperative corporation organized under the laws of Delaware. It is engaged in the District of Columbia in furnishing maintenance and other general services to its apartment owner- members at cost.2 1 The name of the Employer appears as corrected at the hearing. 2 The Employer and the Westchester Management Corporation have entered into a contract under which the latter, for a fee, has agreed to act as the Employer's agent in 124 NLRB No. 21.