Halben Chemical Co., Inc.

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Intermountain Equipment Company v. N.L.R.B., 239 F. 2d 480, (C A. 9) the court of appeals quoted the above passage in the Nash-Finch Company opinion, in reaching a similar result Recently the Board, in Speidel Corp., 120 NLRB 733, applied the reasoning of the Nash-Finch and Intermountain Equipment cases, and found that an employer did not violate the Act by paying an Easter bonus to its unrepresented employees and withholding such bonus from employees represented by the union, since (1) such disparate treatment of employees is not inherently unlawful; (2) there was no evi- dence of antiunion conduct on the part of the employer; (3) pay of employees repre- sented by the union was substantially higher than that of unrepresented employees and the employer was concerned about the imbalance in the wage structure, and (4) the employer had reasonable basis for believing that its employees and union con- curred in the employer's position that payment of bonuses was solely a management prerogative. [Recommendations omitted from publication.] Halben Chemical Co., Inc. and Local 284, Association of Process- ing, Maintenance and Distributing Workers of America and Local 14149, Oil, Chemical and Atomic Workers International Union, AFL-CIO, Party to the Contract. Cases Nos. 2-CA- 5751 and 2-CA-6203. September 4, 1959 DECISION AND ORDER On June 4, 1959, Trial Examiner Robert E. Mullin issued his Inter- mediate 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. Thereafter the Respondent Com- pany and Local 14149, Party to the Contract, filed exceptions and supporting briefs. 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 Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the briefs, and the entire record in the case, and hereby adops the findings, conclusions, and recommendations of the Trial Examiner. 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, Halben Chemical Co., Inc., its officers, agents, successors, and assigns, shall: 124 NLRB No. 116. HALBEN CHEMICAL CO., INC. 873 1. Cease and desist from : (a) Assisting or contributing support to Local 14149, or to any other labor organization. (b) Recognizing the above-named Union, or any successor thereto, as the representative of its employees for the purposes of collective bargaining, unless and until said labor organization shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among such employees. (c) Giving effect to the agreements with Local 14149, entered into on December 11, 1957, and thereafter, unless and until said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among the Company's employees. (d) Encouraging membership in Local 14149, or in any other labor organization of its employees, by conditioning the hire or tenure of employment or any term or condition of employment upon mem- bership in, affiliation with, or dues payments to such labor organi- zation, except where such conditions shall have been lawfully established by an agreement authorized by the Act. (e) Interfering with, restraining, or coercing its employees in any other manner, 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 con- dition of employment, as authorized by 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 recognition from Local 14149, or any successor labor organization, as the collective-bargaining representa- tive of any of its employees, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election. (b) Reimburse its employees and former employees for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its plant in New York City, copies of the notice at- tached hereto marked "Appendix." 1 Copies of said notice, to be fur- nished by the Regional Director for the Second Region, shall, after being signed by the Respondent's authorized representative, be posted by it immediately upon receipt thereof and maintained for 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. I 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." 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 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, we hereby notify our employees that: WE WILL NOT maintain, enforce, or give effect to our contracts with Local 14149, Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, unless and until such union demon- strates its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL withdraw and withhold recognition from the above- named Union, or any successor thereto, unless and until it shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL. NOT contribute financial or other support to any labor organization, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their statutory rights. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of their rights under Section 7 of the National Labor Relations Act, except as permitted by Section 8(a) (3) of the Act. WE WILL refund to all our employees and former employees the initiation fees or periodic dues or other moneys illegally extracted from them which have been paid to Local 14149, Oil, Chemical and Atomic Workers International Union, AFL-CIO. ]-IAL13EN CHEMICAL Co., INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in New York City, on March 23, 1959, on complaint of the General Counsel and answer of Halben Chemical Co., Inc., herein called Re- spondent or Company. The issues litigated were whether the Respondent violated Section 8(a)(1), (2), and (3) of the Act. At the close of the hearing, counsel and representatives of the parties argued the merits of their respective positions orally. No briefs were filed subsequent to the hearing. HALBEN CHEMICAL CO., INC. 875 Upon the entire record , and from my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation with its principal office and plant located in New York City where it is engaged in the manufacture , sale, and dis- tribution of moth repellents, deodorants , and related products. During a repre- sentative 12-month period , the Respondent manufactured products valued at over $200,000 of which products over $100 ,000 worth were shipped to customers outside the State of New York. Upon the foregoing facts the Respondent concedes, and I find, that Halben Chemical Co., Inc., is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 284, Association of Processing, Maintenance and Distributing Workers of America and Local 14149 , Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called Local 284 and Local 14149 , respectively, are labor organizations within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events For some time prior to the fall of 1957 the Respondent had a collective-bargaining agreement with Warehouse and Processing Workers Union , Local 284, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (herein called Local 284, Teamsters ).' On October 25, 1957, Jose Godineaux, an employee of the Respondent, filed a decertification petition with the Regional Office, alleging that Local 284, Teamsters , no longer represented the Respondent's employees . Subsequent to a hearing on this petition , the Board, on February 4 , 1958, issued a Decision and Direction of Election , Halben Chemical Co., Inc., Case No. 2-RD-382 (unpublished ) wherein it found that a question concerning representation had arisen . Accordingly, it directed that an election be held among the employees at the Respondent 's plant to determine whether they desired to be represented by Local 284.2 In the meantime , on December 9, 1957, the employees of the Company had gone out on strike . After the work stoppage had lasted for 2 days , the Respondent signed a contract with Local 14149 3 and the employees returned to their jobs. Early in February 1958, Harry Reiss, secretary -treasurer of Local 284, tele- phoned Abrams to ask that the Company abide by its contract with his organi- zation and pay up an accumulated arrearage in dues .4 Abrams' only response was that he had signed an agreement with another union. On about February 4, Reiss telephoned Kimmel, counsel for the Respondent , to lodge a similar protest with him against the Company 's having signed a contract with Local. 14149 when it still had an agreement with Local 284 covering the same employees . Mr. Kimmel testified that he told Reiss that the Company had no alternative but to sign up with Local 14149 because the Company's limited resources would not permit it to withstand the strike which was in progress at the time it executed the agreement. By letter dated February 12, Reiss renewed his demand that the Company live up 'Local 284 , Association of Processing , Maintenance and Distributing Workers of America (herein called Local 284 ) is the successor in interest of Local 284 , Teamsters. The above -mentioned contract was executed between the Company and Local 284, Teamsters. 'The Board 's initial decision in Case No. 2-11,D-382 accorded a place on the ballot in the decertification election to Local 284 , Teamsters. On March 11 , 1958, and after appro- priate notice to all parties, the Board amended the Direction of Election by substituting Local 284 , in the place of Local 284, Teamsters . As used hereinafter "Local 284" in- cludes both the predecessor and the successor. 3 This was in the nature of an interim agreement . By its terms the Company accorded recognition to Local 14149 and the latter agreed to end the strike . The parties further agreed to engage forthwith in collective bargaining on a contract that would contain clauses on seniority , arbitration , grievance procedure , union shop , and checkoff as well as other conventional provisions . This interim arrangement also provided that any subse- quent agreement on a wage increase would be retroactive to December 11, 1957. 4 The Company's complete agreement with Local 284 was never offered in evidence. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to its agreement with his organization. Insofar as appears from the record he received no answer to this communication. On February 24, 1958, Local 284 filed charges in Case No. 2-CA-5751, alleging that the Company had violated Section 8(a)(1), (2), and (3) of the Act by its grant of recognition and a con- tract to Local 14149, in the face of a pending decertification petition and an existing agreement with Local 284. During the months of December 1957 and January and February 1958, the Respondent and Local 14149 were engaged in negotiations for a more complete agreement than that which they had signed initially on December 11. Mr. Kimmel testified that an accord was finally reached, that a formal contract was prepared, that it was signed by the employer and then was forwarded to Local 14149 for signature. At that point, however, the union officials stated that on advice of counsel they would not sign the document until the pending decertification election was held.5 In any event, about April 8, 1958, the Company started checking off dues from the employees' wages.6 Mr. Abrams conceded that this was done despite the fact the employees had never given the Company any authorization to make such deductions from their pay. This continued for about 1 month. By letter dated May 6 the Respondent notified Local 14149 that because of the pending unfair labor practice charges it considered the union-security clause of the contract null and void and that it would check off no further dues pursuant to that pro- vision. In a notice which it posted on the plant bulletin board about May 8 the Respondent likewise notified its employees to the same effect. Abrams testified that since that date the Company has deducted no dues from the wages of its, employees for Local 14149 or for any other union. This testimony was undenied. On June 13, 1958, the Regional Director approved a settlement agreement, previ- ously signed by representatives of the Company, Local 14149, Local 284, and the General Counsel, which disposed of the issues in Case No. 2-CA-5751. Pursuant to the terms of this settlement, the Company agreed to cease and desist from giving effect to its contracts with Local 14149, or from executing any further agreements with that organization or otherwise recognizing, assisting, or encouraging membership in that union unless and until it was certified by the Board. The Company further agreed that it would withdraw and withhold recognition of Local 14149, that it would reimburse its employees for all dues, assessments, and initiation fees paid from the time the aforesaid contracts with Local 14149 became effective, and that it would post the conventional notices. It was undenied that reimburse- ment of dues, pursuant to the settlement agreement, was made to all of the affected employees. On October 9, 1958, Local 284 again filed charges against the Company and alleged that it had violated Section 8(a)(1) and (3) of the Act by continuing to recognize Local 14149 and by discriminatorily refusing to meet with Local 284 (Case No. 2-CA-6203). On February 27, 1959, the Regional Director withdrew his approval of the settlement agreement and issued a consolidated complaint on the charges in Cases Nos. 2-CA-5751 and 2-CA-6203. B. The period *subsequent to the execution of the settlement stipulation Mr. Abrams conceded that after May 1958 the Company, notwithstanding the settlement agreement which it had signed, continued to recognize Local 14149 and comply with all of the provisions of its contracts with that union except for those clauses on union-security and a checkoff. This also appears evident from the nu- merous incidents that are related in the testimony of this witness. Thus, in June 1958, George Roach, vice president of the latter organization, telephoned Abrams to request that the Company adhere to the contract terms on retroactive pay and the Company made the payment.? The Respondent likewise followed the contract terms as to vacation and holiday pay. On the latter provision, a dispute arose in November as to whether election day was to be a paid holiday. As a result, Roach contacted Abrams and the employees received holiday pay as provided by the contract. s The contract bears no date other than "April 1958." 6 The contract had a union-security and checkoff provision. T This was in connection with a pay increase which the contract provided and which was to be retroactive to December 11, 1957. Mr. Kimmel testified that Roach and the employer had made an informal agreement that the actual payment of the retroactive portion of this increase could be withheld until the end of the production season at which time the Company would be in a stronger financial position. HALBEN CHEMICAL CO., INC. 877 After the settlement the Company continued to discuss grievances with representa- tives of Local 14149 . Mr. Kimmel testified that on several occasions Roach con- tacted him as to grievance issues over the interpretation of the contract. Mr. Abrams conceded that since June 1958, Roach has been in the plant several times to talk with Jose Godineaux, the shop steward for Local 14149. According to Abrams, he continued to recognize Godineaux as the shop steward for all of the production and maintenance employees in the plant , regardless of whether they be- longed to Local 14149. From the frank testimony of the company president, it is. obvious that Godineaux was permitted a wide latitude in the factory and that Abrams very plainly permitted him to arrogate some of the management 's own prerogatives. Thus, according to Abrams , on one occasion, when a foreman had difficulty dis- ciplining an employee , Godineaux informed him, "After this, when you have any- thing to say, tell me and I will talk to the employee ." Abrams testified that since that time he had adopted Godineaux's suggestion . The latter also insisted that when- ever a grievance arose it was to be discussed directly with him. Abrams conceded that by its acquiescence in this demand , the Company had allowed Godineaux to circumvent completely the shop foreman as to the processing of any grievances. The General Counsel alleged that the Respondent had required employees and job applicants to pay dues and initiation fees in Local 14149 as a condition of employ- ment. The Respondent denied this allegation . On the other hand, there was evi- dence that by maintaining its contract with Local 14149 the Company gave full effect to the union-security provision of that agreement . Mr. Kimmel testified that subsequent to May 1958 he told Roach that "as a legal matter we were not recognizing the Union." At the same time, counsel for the Company conceded, "as a practical matter we dealt with the union, they represented our people , we had no choice but to deal with them." At sometime during this period Roach complained that the Company was dismissing new employees after only 28 or 29 days' work so that they would not qualify under the union -security provisions of the contract. Mr. Kimmel testified that he assured Roach that to the extent this practice had been fol- lowed, it would not be continued . It must be inferred from this that thereafter when the Company kept new employees on the payroll for more than 30 days Local 14149 could , and did, insist that they become members. Mr. Abrams explained that he has continued to recognize Godineaux as shop steward for all of the employees "because I don't want any trouble." As noted earlier, the latitute accorded this em- ployee reached the point where he had supplanted the foreman as to disciplinary matters and grievances . In this connection Abrams was also asked the following questions and responded as appears below: Q. You knew they [the employees] were paying dues to the Union , didn't you? A. I pretty well knew. Q. And this was after the settlement agreement was executed , is that correct? A. There was nothing I could do about it. About seven new employees were hired by the Company after the settlement stipu- lation. Abrams conceded that he was aware that all of these were contacted by the shop steward. 'Abrams testified "no question he [Godineaux ] talks to them." It is equally clear that the Company was very apprehensive of trouble with Godineaux's union if any employee failed to remain a member after the settlement agreement. Thus, Israel Alicia , a working foreman, had joined Local 14149 in April 1958. Alicia had done so reluctantly and only after Godineaux had told him that if he did not join "he better not come to work," and Abrams had advised him "not to look for any trouble, to join the union." 8 Subsequent to the settlement stipulation , Alicia asked Abrams whether he had to remain in the Union. Although Abrams testified that he told Alicia it made no difference to him, he also stated "I didn't tell him he had to be a member of the Union but I said that the events that would follow would maybe make it necessary for him to leave the job." In response to a question from the General Counsel as to whether he knew if Alicia was then ( at the time of the hear- ing) a member of Local 14149, Abrams answered "I am pretty certain he is because there is peace there." The recognition which the Company accorded Local 14149 , notwithstanding the settlement, was in contrast with its treatment of Local 284. Abrams conceded that he had denied access to the plant to representatives of the latter and testified that when Dominic Santamaria, whom he knew to be an official of Local 284, came to see him "I told him that I had a contract with a different union, to leave me alone." $ The quotations are from the undenied testimony of Abrams. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Concluding findings From the foregoing facts, it is apparent, and I find, that despite the settlement agreement , the Company continued to recognize Local 14149 as the exclusive bargain- ing agent for its employee and, further , that it complied with the contracts which it had with that union in all respects , except as to the checkoff provision . There is no evidence that after May 8, 1958 , the Company deducted union dues from its employees' wages . On the other hand , the Company continued to recognize and bar- gain with Local 14149, it maintained and enforced its contract and bargain with that union in every other respect , and it recognized Godineaux as shop steward for all the employees . Moreover, in this latter connection it permitted Godineaux to supplant even the shop foreman as to disciplinary matters and to ignore the foreman in the processing of grievances . Thus, it was through him that the employees were compelled to voice their grievances and it was from him that they heard of any disciplinary action that was to be taken. In view of this stature which the Re- spondent accorded Godineaux in the factory, its commitment to Roach that new em- ployees would be kept on the payroll for more than 30 days and its admitted com- pliance with most of the terms of its agreement with Local 14149 , I conclude and find that subsequent to the settlement, the Respondent unlawfully encouraged its employees to join that union. Furthermore, it is equally clear that this conduct by the Respondent inevitably compelled the employees to pay dues and assessments in Local 14149 . In view of this manifest failure of the Respondent to abide by the terms of the settlement agreement, the Regional Director had ample grounds for setting it aside and issuing the consolidated complaint in this case . Accordingly, the evidence as to the Respondent's conduct both before and after the settlement must be considered . The Wallace Corporation v. N.L.R .B., 323 U .S. 248 , 253-255. On December 11, 1957, when the Respondent first granted exclusive recognition to Local 14149, it had an outstanding collective -bargaining agreement with Local 284 and there was pending a decertification petition in Case No . 2-RD-382. In the face of this question concerning representation , as well as its contract with another union, it resolved these conflicting claims by granting recognition to Local 14149. Some months thereafter it executed a new contract with the latter organization, whereby it also granted Local 14149 a union-security clause. By granting recognition to that union while a representation question was pending and then according it a union-security agreement , the Respondent violated Section 8(a) (1), (2 ), and (3) of the Act. Novak Logging Company, 119 NLRB 1573 , 1574-1576 ; The Wheland' Company, 120 NLRB 814, 817-818; Illinois Malleable Iron Company, 120 NLRB 451, 452; Pittsburgh Valve Company , 114 NLRB 193 , 194, 195; A. O. Smith Cor- poration, 122 NLRB 321. I so find.9 It is also my conclusion that, notwithstanding the terms of the settlement which the Regional Director approved on June 13 , 1958, the Respondent continued to. recognize and bargain with Local 14149, pursuant to the aforementioned agree- ments. Moreover , on the findings set forth above , it is my conclusion that the- Respondent gave effect to the union -security provision of that contract during this. latter period. Thus, the Respondent continued to engage in that same conduct, ° The Respondent contends that when it recognized Local 14149 in December 1957 that union displayed authorization cards from all of the employees and that during this period no representative of Local 284 actively pressed a claim under its current contract with the Company. This argument , however, ignores the fact that on February 4, 1958, and before the final negotiation of the Company's complete contract with Local 14149, the, Board issued a Decision and Direction of Election in Halben Chemical Co., Inc ., Case No. 2-RD-382, wherein the Board found that there existed a question concerning representa- tion among the employees at the Respondent's plant. In addition , at about this same, time, Local 284 called upon the Company to adhere to its agreement with that organiza- tion . Shortly thereafter, when this demand met with a negative response that union filed the unfair labor practice charges in Case No. 2-CA-5751. Notwithstanding these developments, the Respondent proceeded to finalize the terms of a union -security contract with Local 1. 4149 . Under these circumstances, as the Board has stated in Novak Logging Company, 119 NLRB 1573, at 1574, 1575: . . . The Respondent could not assume to judge for itself upon a showing of authorization cards which of the contending unions was the statutory representative of the employees. A majority card holding by one of the rival unions in these cir- cumstances could in no wise be construed under the Act as imposing on the Respond- ent an obligation to bargain . As reasonably contemplated by the statute , the determi- nation of the existing question concerning representation was exclusively one for- the Board. HALBEN CHEMICAL CO., INC. 879 violative of Section 8(a)(1), (2), and (3) of the Act, which it had agreed to discontinue. For this reason, I conclude and find that the Respondent's action sub- sequent to its execution of the settlement agreement constituted a further and con- tinuing violation of the above sections of the Act. 10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with Respondent's operations described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce in the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Since I have found that the Respondent Company, in violation of Section 8(a) (2) of the Act, unlawfully assisted and contributed support to Local 14149 , the effects of this interference , as well as the Company 's continued recognition of that union as the bargaining representative of its employees , constitute a continuing obstacle to the free exercise by its employees of their right to self -organization and to bargain collectively through representatives of their own choosing . Further, having found that the Company violated Section 8(a) (3) and ( 1) by executing, maintaining, and enforcing an agreement containing unlawful security provisions , the terms of which have frustrated self-organization and defeated genuine collective bargaining by the employees, I will recommend that the Company withdraw recognition from Local 14149 as the representative of its employees and that the Company cease giving effect to the agreement dated December 11, 1957, and all subsequent agreements with Local 14149, unless and until that union shall have demonstrated its exclusive majority representative status pursuant to a Board -conducted election among the employees of the Company. Bowman Transportation , Inc., 120 NLRB 1147, 1151. Nothing in this recommendation should be taken , however, to require the Company to vary those wage, hour, and other substantive features of its relations with the employees themselves, if any, which the latter has established in the performance of this agreement. At the hearing , the General Counsel requested that the Brown-Olds remedy (United Association of Journeyman & Apprentices of Plumbing & Pipefitting Industry, etc., Local 231 (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594) be applied here. This is resisted by both the Respondent and Local 14149. Although it is true that there is no evidence that the Company complied with the checkoff provisions of its contract with Local 14149 subsequent to M'ay 8, 1958, the Respondent, as found above , continued to comply with all other provisions of its agreement with that organization, including the union-security requirement. Here, as in American Dredging Company, 123 NLRB 139, "the record shows that by the unlawful provisions of the contract . the Respondent has unlawfully encouraged employees to join the Union . -thereby inevitably coercing the em- ployees to pay dues and assessments to the Union." See also: N.L .R.B. v. Broderick Wood Products Company et al., 261 F. 2d 548 , 559-560 (C.A. 10); A. O. Smith Corporation, 122 NLRB 321. Consequently, I shall recommend that the Respond- ent refund to its employees sums equal to the initiation fees and dues paid by those employees to Local 14149 . The Respondent's liability shall extend .to all such moneys collected by that union after December 11, 1957 , and not heretofore refunded. Broderick Wood Products Company, supra; News Syndicate Company, Inc., 122 NLRB 818. Although those funds are, presumptively , in the control of Local 14149, there is no charge or complaint herein against that union. For that reason I must recommend that this -remedy be directed only to the Respondent . A. O. Smith Corporation, supra; cf. Morrison-Knudsen Company , Inc., et al., 123 NLRB 429. 10 In justification of the Company's submission to the demands of Local 14149 and its tolerance of Godineaux's activities, President Abrams testified that he feared that any other course would have precipitated a strike which the Respondent could not afford. The position of a small company, such as the present Respondent with only S to 15 employees, when confronted with these pressures may, indeed, be difficult. It is well settled, however, that a plea of economic hardship will not permit an employer to solve his own problems, by violating the rights which the Act guarantees to his employees. Star Publishing Co. v._ N.L.It.13., 97 F. 2d 465, 470 (C.A. 9). 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the nature of the unfair labor practices committed, I shall also recom- mend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Unions are labor organiza- tions , within the meaning of the Act. 2. By contributing support to Local 14149, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 3. By discriminating with respect to terms and conditions of employment, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By the foregoing conduct, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] Otarion Listener Corp., and its subsidiary Audio Electronics Co. and Local 1783, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case No. 2-RC-9924. Septem- ber 4, 1959 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election duly executed by the parties, an election by secret ballot was conducted on May 21, 1959, under the direction and supervision of the Regional Director for the Second Region among the employees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 75 eligible voters, 74 cast valid ballots, of which 37 were for, and 36 were against, the Petitioner, and 1 ballot was challenged. The challenged ballot was sufficient to affect the results of the election. Both the Petitioner and the Employer filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation of both the objections and the challenged ballot and on June 24, 1959, issued and duly served upon the parties his report on objections and challenges. In his report, the Regional Director recom- mended that objections of the Employer and the Petitioner be over- ruled and that the challenge to the ballot of Betty Moss be overruled and her ballot be opened and counted. The Petitioner and the Em- ployer filed exceptions to the Regional. Directors' report. 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 Rodgers and Fanning]. 124 NLRB No. 109.