Couch Electric Co.

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its dis- patchers are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for the Eighth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith? a In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an agreement is reached, embody it in a signed contract. The bargaining unit is: All dispatchers and assistant dispatchers, excluding chief dispatchers and all other employees. WE WILL NOT interfere with the efforts of Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, to ne- gotiate for, or represent, the employees in the appropriate bargaining unit. EASTERN GREYHOUND LINES (A DIVISION OF THE GREYHOUND CORPORATION), Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Couch Electric Company and International Brotherhood of Electrical Workers, Local 11 , AFL-CIO and District 50, United Mine Workers of America, Party to the Contract Sullivan Electric Company and International Brotherhood of Electrical Workers, Local 11, AFL-CIO and District 50, United Mine Workers of America, Party to the Contract. Cases Nos. 21-CA-4704 and 21-CA-47931. July 18, 1963 DECISION AND ORDER On March 25, 1963, Trial Examiner David Karasick issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- 143 NLRB No. 73. COUCH ELECTRIC COMPANY 663 from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and briefs in support of their exceptions.' Respondents also filed a motion to reopen the record to join Interstate Employers, Inc., as a party re- spondent. General Counsel filed a memorandum in opposition to said motion. 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 McCulloch and Members Rodgers and Fanning]. 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. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings,2 conclusions, and recom- mendations 3 of the Trial Examiner, except as modified herein. The Board also denies Respondents' motion to join Interstate Employers, Inc., as a party respondent." REMEDY The Trial Examiner recommended that Respondents be required to refund to their employees all initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful union-security agree- ments. However, as there is no evidence that employees were coerced into joining or signing checkoff authorizations running to District 50, we shall not adopt this recommendation.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following deletions : i Respondents also requested oral argument . The request is denied as the record, in- cluding the exceptions and briefs , adequately presents the issues and the positions of the parties. 2 Respondents have excepted to the Trial Examiner's finding that Respondent Henry Wallace Couch is an individual doing business as Couch Electric Company. Respondents assert that Couch Electric is a California corporation , Couch Electric, Inc. The Trial Examiner's finding was based on Mr. Couch's own testimony . There is no evidence in the record that Mr. Couch is doing business under a corporate name. 3 General Counsel has excepted to the Trial Examiner's recommendation of a "narrow" cease-and-desist order. We find this exception without merit Respondents' violations of the Act, including the discharge of Roberts, arose entirely from the fact that they uni- laterally undertook to determine existing questions concerning representation . This con- duct does not indicate such an attitude of hostility to the purposes of the Act as to require a "broad" order. Air Master Corporation, 142 NLRB 181. 4In support of their motion to add Interstate Employers , Inc., as party respondent, Respondents assert 'that, subsequent to the hearing in this case, Respondents became mem- bers of Interstate and agreed to be bound by the collective-bargaining agreement between that association and District 50 General Counsel opposes the motion. The motion is denied as the facts alleged do not justify the proposed amendment. 5 Air Master Corporation, supra. For the reasons stated in his partial dissent in that case , Member Rodgers would adopt the Trial Examiner ' s reimbursement recommendation. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delete paragraph 2(c) under "A" and paragraph 2(b) under "B" of the Recommended Order and conform Appendixes A and B ac- cordingly by deleting therefrom the reimbursement paragraphs.6 I Substitute the following for the paragraph immediately below the signature line of Appendix A: I will notify the above-named employee If presently serving in the Armed Forces of the United States of his right to full ieinstatement upon application in accord- ance with the Seledtive Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on February 27, 1962, in Case No. 21 -CA-4704 and on March 7, 1962, in Case No . 21-CA-4721, by International Brotherhood of Electrical Workers, Local 11, AFL-CIO, the General Counsel of the National Labor Relations Board, herein called the Board , issued a complaint on April 10 , 1962, and an amend- ment to complaint on April 17, 1962, in Case No 21-CA-4704, and a complaint on April 19, 1962 , in Case No. 21-CA-4721. On April 27, 1962, the General Counsel issued an order consolidating the two cases and adding an amendment to each of the complaints theretofore issued. The consolidated complaints , as amended, alleged that Couch Electric Company,' herein sometimes called Respondent Couch, and Sullivan Electric Company, herein called Respondent Sullivan (together collectively herein called Respondents ), each violated Section 8(a)(1),(2 ), and (3 ) of the Na- tional Labor Relations Act, as amended, 61 Stat. 136, 73 Stat . 519, herein called the Act. A hearing, at which all parties were represented , was held on May 21, 22, and 23, 1962, before Trial Examiner David Karasick at Los Angeles , California. Fol- lowing the close of the hearing, briefs were filed by all the parties 2 Upon consideration of the entire record in these proceedings and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENTS Henry Wallace Couch, an individual, doing business as Couch Electric Company, is an electrical contractor whose principal office and place of business is located in South Gate, California. During the year 1961, Respondent Couch purchased and received from business enterprises located within the State of California goods and materials valued in excess of $50,000, which goods and materials had been received directly by the business enterprises in question from places located outside the State of California. Respondent Sullivan, a California corporation, maintains its principal office and place of business in La Mirada, California, as an electrical contractor. During the year 1961, Respondent Sullivan purchased and received goods and materials valued in excess of $50,000, which goods and materials were either received directly from points located outside California or were received from other business enterprises within the State of California which in turn received them directly from points located outside California Respondents each concede, and I find, that each has been, at all times material to these proceedings, an employer engaged in commerce and operations affecting com- merce within the meaning of Section 2(2), (6) and (7) of the Act 1 Following the close of the hearing and the receipt of briefs, notice was served on all parties of the withdrawal from the proceedings of Leon M Cooper as attoiney for Re- spondent Couch and Respondent Sullivan. 2 After the hearing had closed, the General Counsel filed and served upon each of the parties a motion to correct the transcript of testimony. The motion, to which no oppo- sition has been filed, is hereby granted. In addition, it is hereby ordered that the follow- ing additional corrections be made in the transcript Page 7, line 16, strike the word "objections" and Insert the word "occasions" in lieu thereof, and line 24, strike the word "opposed" and insert the word "posed" in lieu thereof, page 14, line 14, strike the word "other" and insert in lieu thereof "their"; page 180, line 1, strike the word "Inter- national" and insert the word "National" in lieu thereof ; and page 249, line 19, strike the word "position" and insert the word "opinion" in lieu thereof. COUCH ELECTRIC COMPANY II. THE LABOR ORGANIZATIONS INVOLVED 665 International Brotherhood of Electrical Workers, Local 11, AFL-CIO, herein called the IBEW, and District 50, United Mine Workers of America, herein called District 50, are, and have been at all times material to these proceedings , labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A Alleged illegal recognition of and bargaining with District 50 by Respondents 1. Respondents' dealings with the IBEW, For an undisclosed number of years, the IBEW and the National Electrical Con- tractors Association, Los Angeles Chapter, herein called NECA, have bargained col- lectively and have entered into contracts dealing with the wages, hours, and working conditions of inside wiremen on construction 3 employed by the 150 to 160 electrical contractors who are members of NECA.4 The contract with which these proceedings are concerned contained, inter alia, union shop and exclusive hiring hall provisions and recognized the IBEW as the sole bargaining agent of the employees in question. Some electrical contractors who were not members of NECA adopted and agreed to be bound by the terms and conditions of the contract so negotiated. In the latter part of May 1959, Donald D. Rea and Company, herein called Rea, labor relations consultants in Los Angeles, informed officials of NECA that Rea repre- sented approximately 20 electrical contractors, that some of these contractors were also members of Southeast Electrical Contractors Association, herein called the SECA, and that some of them were also members of NECA. Rea at this time re- quested permission to participate in current negotiations then going on between NECA and the IBEW. Between that time and September 1959, Rea sought unsuccessfully to participate in bargaining negotiations between NECA and IBEW. The Respond- ents here were among the electrical contractors whom Rea sought to represent.5 Following these unsuccessful efforts to participate in negotiations, nothing further was done until shortly before the June 30, 1961, expiration date of the 1959 contract 6 Both Respondent Couch and Respondent Sullivan, though not members of NECA, were parties to the agreement by virtue of having signed a form entitled "Non- Association Members Signing Union Agreement" 7 on May 25, 1960, and January 12 or 13, 1961, respectively, as well as copies of the 1959 agreement signed shortly before May 25, 1960 by Respondent Couch and on an undetermined date prior to January 19, 1961, by Respondent Sullivan.8 3 This is essentially a unit comprised of all electricians and electrician apprentices, ex- clusive of supervisors and all othei employees, as set forth in it petition filed by the IBEW on February 2, 1962, and is clearly an appropriate one for the purposes of collec- tive bargaining 4 There are approximately 900 electrical contractors in Los Angeles County 5 Respondent Couch during this period had signed a document author izing Rea to repre- sent Couch "in all matters pertaining to labor relations" and stating that the document "supersedes, terminates and makes null and void any other prior authorization given by me to any association, corporation or individual to represent our Company in Labor Relations " 6This agreement remained in effect from July 1, 1959, through June 30, 1961 7 Respondents in them brief consider this document as "in essence an authorization for the NECA to bargain for the employer." Whether this is a proper construction to be placed upon the document or whether, instead, it is to be regarded as an agreement to be bound by the terms of the contract between IBEW and NECA is not material to the issues posed in these proceedings since both Respondents also signed copies of the contract itself 8 A great deal of testimony was elicited by the parties concerning the date Respondent Sullivan first signed the basic contract of July 1, 1959, and later re-signed copies of the same document as a means of reinstating the agreement following notice from the IBEW that it had been terminated because of his failure to make certain benefit payments re- quired by its terms Respondent Sullivan and the IBEW witnesses who testified with re- spect to this matter were so confused and uncertain in their recollections that I do not believe any reliable weight reasonably can be accorded this evidence. I do not regard it necessary, however, for the purposes of the issues to be decided herein, that a resolution be made of the question as to whether the contract had been reinstated as to Respondent Sullivan after January 19, 1961. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 13, 1961, Rea wrote to the NECA, stating that his firm represented a large number of the members of SECA, and requesting the right to participate in forthcoming negotiations between the NECA and the IBEW. This request met the same fate as that accorded the prior one made by Rea. It was denied by the NECA on February 21, 1961, on the ground that the NECA was "the exclusive collective bargaining representative of the industry" and could not permit Rea "to participate in such functions." On April 26, 1961, Rea wrote to the IBEW, stating that Respondents, among other named electrical contractors, were members of SECA and enclosing individually signed bargaining authorizations for each of the firms named, including Respondents .9 In addition, the letter set forth a number of proposed changes in the existing contract. On April 28, 1961, the IBEW gave written notice of its "desire to amend and/or terminate" the contract between that union and the NECA as well as "individual contractors and other parties." The notice set forth a number of changes proposed by the IBEW. Following other communications between Rea and the IBEW, a meeting occurred in Rea's offices on June 21, 1961. At this meeting, in addition to Rea and Lawrence H. Larsen, a labor relations consultant of the firm, Respondent Couch and represent- atives of 19 other electrical contractors were present along with LeRoy McCall, assistant business manager of the IBEW, and other representatives of that union. Respondent Sullivan did not attend this meeting.10 A document, listing the names and representative capacities of those attending the meeting was captioned "I.B.E.W. LOCAL UNION 11 & SOUTHEAST ELEC- TRICAL CONTRACTORS MEETING." McCall objected to this and, at his request, the words "Southeast Electrical Contractors Association" were stricken and the words "the following Companies" written in their place. In addition, McCall added the following statement, which he and Rea signed, at the bottom of the document: "This is not a meeting of the South East [sic] Contractors Association." No agreement was reached at this meeting. According to the testimony of Larsen, the fault lay with McCall who walked out even though Rea had agreed to meet on a separate basis for each employer. McCall testified, however, that he left at Rea's invitation after McCall had stated that the IBEW was not in a position to negotiate with the employers present as a group for fear of setting a precedent for association- wide bargaining. I do not regard as necessary to the issues herein a resolution of the question as to whose fault, if anyone's, the failure of this meeting may be at- tributed. The fact is that the meeting ended without agreement of the parties and that they did not again meet thereafter. In September 1961, the NECA and the IBEW agreed upon final changes in the master agreement which had been reopened upon notice served by the IBEW on April 28, as above noted. Beginning in the first week in December 1961, Joe Dugan, a business representative of IBEW, made several trips to Respondent Couch's office for the purpose of presenting to him the newly negotiated NECA contract for his signature. On each occasion, Respondent Couch was out. A week or two before Christmas, Dugan finally saw Couch. On this occasion, Dugan told Couch that he was there to sign the new inside wiremen's agreement. According to the uncon- troverted testimony of Dugan, Couch replied that a meeting of the SECA was to be held the following Monday and that at that time Couch would decide whether he was going to sign the IBEW-NECA contract or some other agreement and that he might possibly sign a District 50 agreement. Also during the month of December, Dugan called Respondent Sullivan on several occasions but in each instance was told that he was out of his office. On one of these occasions, Dugan left a message that he was attempting to get in touch with Sullivan in regard to the signing of the new IBEW-NECA agreement. Sometime in January 1962, Dugan received a telephone call from Respondent Sullivan during which the latter stated that he was going to sign a District 50 contract. 2. Respondents' recognition of and bargaining with District 50 On January 24, 1962, Don S. Petry, a representative of District 50, sent a letter to Respondent Couch, stating that District 50 represented a majority of the "pro- duction and maintenance" employees of Respondent Couch and demanding recogni- tion. Respondent Couch referred this letter to Larsen who arranged a meeting in 9 These authorizations were the same as those which had been signed by Couch in 1959, footnote 5, supra On this occasion, the authorization of Couch was signed on January 16, 1961, and that of Sullivan on January 31, 1961. 10 Respondent Sullivan was represented, both as an individual firm and as a member of SECA, by Rea and Larsen. COUCH ELECTRIC COMPANY 667 Rea's offices. The meeting was held on January 26. Petry, Couch, and Larsen were present. At Larsen's request, Petry produced 14 application-for-membership and checkoff authorization cards 11 which had been signed by the employees and Couch examined the cards and verified the validity of the signatures. Larsen then asked Petry if he had any proposals to offer. Petry thereupon produced a series of proposals in the form of a mimeographed contract. Larsen and Couch retired to another room and together discussed the proposals. Following this, they returned to their meeting with Petry, discussed the proposals further with him, and then signed the contract. This meeting took 3 to 4 hours. The contract, with an effective term from January 26, 1962, through November 22, 1963, provides, among other matters, for a union shop requiring employees to become members of District 50 after 7 days 12 and also provides for a checkoff by Respond- ent Couch of union dues and initiation fees. On January 29, 1962, Petry sent a letter to Respondent Sullivan, stating that District 50 represented a majority of the "production and maintenance" employees and demanding recognition. On January 31, 1962,13 Petry, Respondent Sullivan, and Larsen met at Rea's offices. There the same procedure was followed as had occurred in the case of Respondent Couch 3 days before and the parties signed an agreement after a meeting which took an equal length of time.14 The contract signed by Respondent Sullivan was identical to that signed by Respondent Couch.15 Both contracts provided for an effective term from date of execution to November 22, 1963, with automatic renewal absent written notice to amend or terminate. Pursuant to the provisions of the agreements, initiation fees and dues were deducted by Re- spondents from the wages of their employees and remitted to District 50. Between the time Respondents and the IBEW last met on June 21, 1961, and the time each of the Respondents executed a contract with District 50, Respondents had applied to the IBEW hiring hall for employees. On July 19, 1961, Respondent Sulli- van placed a call to the IBEW hiring hall for two journeymen electricians who were dispatched on July 20.16 Similarly, eight electricians were dispatched from the IBEW hiring hall to Respondent Couch at various dates between January 10 and 25, 1962. Also during this period of time, Respondents made payments to a pension fund pro- vided for by the terms of the IBEW-NECA contract.17 Respondent Sullivan made such payments at least as late as September 1961, while Respondent Couch made such payments at least as late as February 1962. 3. Contentions of the parties The General Counsel contends that Respondents violated Section 8(a)(1), (2), and (3) of the Act by recognizing District 50 and by executing and maintaining col- lective-bargaining contracts with that labor organization which contain union shop and checkoff provisions. The IBEW concurs in the position so taken by the General Counsel.18 11 Fifteen employees were on the payroll of Respondent Couch on that date. 12 Respondents are engaged in business as electrical contractors in the construction industry. 12 Larsen was apparently in error when he testified that the parties met on January 28 or 29 since Petry's letter demand recognition bears the date of January 29 and the con- tract signed by the parties is dated January 31. Accordingly, I find that the latter date was the one upon which the parties met. 14 On this occasion, Petry produced membership application and checkoff authorization cards for all nine of the employees then on the payroll 15 A supplement to the contract with Respondent Sullivan, covering a wage rate for an additional employee classification, was executed on February 5, 1962. 16 A third journeyman electrician had been dispatched to Respondent Sullivan from the IBEW hall on July 13, 1961. 17 In this connection, the second paragraph of the introductory clauses of the contract states in part as follows: It is agreed that in accord with the National Employees Benefit Agreement entered into between the National Electrical Contractors Association and the International Brotherhood of Electrical Workers on September 3, 1946, as amended, the Employer will forward to the designated Local Employees Benefit Board an amount equal to 1% of his gross labor payroll paid to the employees in the bargaining unit repre- sented by the Union under this Agreement. . . . 19 In addition, the IBEW advances the theory that Respondents violated the Act by recognizing and entering into contracts with District 50, not only because the IBEW was 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel relies on the Midwest Piping 19 doctrine of the Board in sup- port of his contention that Respondents were not entitled to recognize or bargain with District 50, and, that having done so, they thereby violated the Act. In the Midwest Piping case, the Board held that where two or more rival unions each claim to represent a majority of the employees and a real question concerning representa- tion exists, the employer may not recognize or bargain with one of such unions until a determination has been made of its right to recognition under the special procedures provided for in the Act.20 The reason for this rule is that such conduct "constitutes interference with the Board 's function of resolving the representation question and also is a breach of the Employer's obligation to remain neutral ." Phillip Davisson et al., d/ b/a Scherrer and Davisson Logging Company, 119 NLRB 1587. Respondents deny that they have violated the Act and assert that their contracts with the IBEW expired on June 30, 1961 ; that the IBEW had refused to bargain on on June 21 , 1961; that thereafter the IBEW made no attempt to bargain or to repre- sent Respondents ' employees ; and that therefore no active and continuing claim for recognition existed since no petition for representation had been filed at the time Respondents recognized and entered into contracts with District 50.21 In effect, this constitutes an argument that no real question concerning representation existed at the time Respondents recognized and entered into contracts with Distiict 50 4 Concluding findings with respect to alleged illegal acts of Respondents in recognizing and bargaining with District 50 The evidence in these proceedings shows that Respondents recognized the IBEW as the exclusive representative for bargaining purposes of the employees in question by virtue of the terms of the IBEW-NECA contract to which each had become a party. From April 26 to June 21, 1961, Respondents sought to bargain with the IBEW, first on the basis of Respondents' membership in SECA and finally on an indi- vidual basis. This conduct also constituted recognition of the IBEW as representa- tive of the employees involved. In addition , in July 1961 , Respondent Sullivan called upon the IBEW hiring hall to supply electricians ; and as late as January 25, 1962, Respondent Couch similarly called upon the IBEW to supply him with men. Further- more, payments to the National Employees' Benefit Fund were made , at least as late as September 1961 by Respondent Sullivan and February 1962 , or later, by Re- spondent Couch Both the use of the IBEW hiring hall for the purpose of securing employees and the payments to the employees ' benefit fund were governed by spe- cific provisions of the 1959-61 NECA-IBEW contract . The contract provided that the hiring hall would not be made available "to other employers engaged in the same class of work as the Employer [signatory to the contract ] unless such other employers comply with the terms and conditions of the agreement. . " Thus , the acts of Respondents in calling upon the IBEW hiring hall and in making payments to the employees' benefit fund were consistent with an indication of continuing recogni- tion of the representative status of the IBEW If Respondents were in doubt as to the IBEW 's continuing claim of recognition, they did nothing to express it by way of word or deed Indeed, Respondents indi- cated they were aware of the IBEW 's interest in continuing to represent the employees Thus, when a week or two before Christmas 1961 a representative of the IBEW sought to secure Respondent Couch's agreement to be bound by the terms of the newly negotiated IBEW-NECA contract, which had finally been agreed upon in then claiming recognition as the bargaining representative of their employees but also because Respondents were then bound by the NECA-IBEW contract to which Respondent Couch became a party in May 1960 and Respondent Sullivan sometime prior to Janu- ary 19 , 1961 The IBEW further argues that , under these circumstances , District 50 would have been barred from securing a Board election since less than 2 years had elapsed from the date upon which each of the Respondents entered into such contract and the date upon which each of the Respondents entered into an agreement with District 50 For the reasons hereafter stated , I do not regard it as necessary to pass upon these con- tentions of the IBEW in arriving at a resolution of the issues presented in these proceedings 19 Midwest Piping of Supply Go, Inc, 63 NLRB 1060 20 This principle was more recently affirmed by the Board in Yovak Logging Company, 119 NLRB 1573 2i As previously noted, I do not consider it necessary to pass upon the further question whether the contract to which Respondent Sullivan and the IBEW were parties and which was canceled on January 19, 1961 , was thereafter reinstated COUCH ELECTRIC COMPANY 669 September, Respondent Couch stated that a meeting of SECA 22 was to be held the following Monday, at which time he would decide whether he would sign the latest IBEW-NECA contract or some other agreement and that he might possibly enter into a contract with District 50. Likewise, Respondent Sullivan, in January 1962, told the same representative of the IBEW who had been trying to get in touch with him for the same purpose that he was going to sign a contract with District 50. In neither instance was any mention made of a doubt regarding majority or a question raised as to the right of the IBEW to recognition and in neither instance could Re- spondents reasonably believe that the IBEW had abandoned its claim of representa- tion The very act of the IBEW in seeking to secure the signatures of Respondents to the newly negotiated agreement in itself constituted a demand for recognition and a reiteration of its continuing claim of representation . The Mastic Tile Corporation of America, 122 NLRB 1528 . Jewett & Sherman Co, 110 NLRB 806. On the record as a whole, I am convinced, and find, that Respondents in each instance had no reasonable basis for questioning the fact that the IBEW was continuing to claim recognition as the bargaining agent of the employees but chose , for other reasons,23 to ignore its claim and instead recognized and entered into contracts with District 50 and that at the time they did so a real question concerning representation existed 24 The remaining other assertions of Respondents that the Midwest Piping doctrine is inapplicable to prehire contracts in the construction industry by virtue of the pro- visions of Section 8(f) of the Act , that the contracts with District 50 are valid be- cause based upon a showing of majority representation by that union in each instance, and that the IBEW never presented evidence that it represented a majority of the employees or sought certification prior to the time the agreements with District 50 were executed are contentions which the Board has rejected in prior decisions. See Bear Creek Construction Co., 135 NLRB 1285 ; Novak Logging Company, 119 NLRB 1573, The Wheland Company, 120 NLRB 814. Upon the basis of the foregoing facts, and upon the record as a whole, I find that Respondent Couch , by recognizing and entering into a contract with District 50 on January 26, 1962, and Respondent Sullivan, by recognizing and entering into a con- tract with District 50 on January 31, 1962, interfered with , restrained, and coerced their employees in the exercise of rights guaranteed in Section 7, thereby violating Section 8 (a) (1) of the Act , and contributed unlawful assistance and support to Dis- trict 50, thereby violating Section 8 (a) (2) of the Act. I further find that, by includ- ing a union -shop provision in each of said contracts, Respondents in each instance discriminated in regard to hire or tenure of employment of employees . thereby encouraging membership in District 50 and discouraging membership in other labor 23Although Respondents adduced evidence that SECA was basically a social organiza- tion, the fact remains that it sought to bargain collectively with the IBEW on behalf of Respondents and other of its members 23As to Respondent Couch , at least, the evidence provides a basis for inferring his motivation in preferring District 50 to the IBEW According to the nndenied testimony of Russell Roberts, as noted hereafter , on February 5, 1962 , Respondent Couch stated, in substance , that although he was still under contract with the IBEW , lie had signed an agreement with District 50 in order to benefit by lower wage rates since lie was tired of paying high wages to "some of these local bench sitters " The IBEW-NECA contract which went into effect on July 1, 1959 , had provided an hourly wage rate for jouineynien electricians on and after July 1, 1960, of $4 65 and graduated hourly wage rates for apprentices , depending upon their experience , from $2 33 to $3 95 The District 50 con- tract signed by Respondent Couch on January 26, 1962 , provides the following hourly wage rates. journeymen electricians , $4 40, electricians, $3 75 to $4 15 helpers, $3 50 , laborers , $2 85. Despite these provisions of the District 50 contract , Respondent Couch was paying at least 7 of the approximately 14 employees covered by the contract wage rates varying from $2 20 to $3 15 per hour during the period of Roberts ' employment 24 This conclusion is not altered by the fact that , on February 2, 1962 , the IBEW filed a petition with the Regional Office of the Board in Los Angeles, seeking an election in a unit comprising all electricians and electrician apprentices employed by Respondent Couch and that the petition so filed was dismissed by the Regional Director on February 16 on the ground that the contract between District 50 and Respondent Couch constituted a bar to further proceedings looking toward an election and certification of representa- tives It is a well-established principle that alleged unfair labor practices may not be properly raised as an issue in representation proceedings Automotive Supply Company, Inc, 124 NLRB 1380 . Accordingly, the Regional Director 's determination that Respond- ent Couch's contract with District 50 rendered further proceedings in the representation case unwarranted did not constitute and cannot be construed as a bar to consideration of the legality of Respondent Couch's conduct raised by the issues set forth in the com- plaint in the instant proceedings. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations , in violation of Section 8 (a) (3) of the Act. In addition, I find that the conduct of Respondents in checking off initiation fees and dues from "employees covered by the unlawful union security agreement which served to coerce such pay- ments constituted discrimination in regard to an important condition of employment, i.e., wages," and that Respondents thereby encouraged membership in District 50 and discouraged membership in other labor organizations, thereby further violating Section 8 (a) (3) of the Act. Masters-Lake Success, Inc., 124 NLRB 580, 581. B. The discharge of Russell Roberts Russell C. Roberts began work for Respondent Couch as a journeyman electrician on February 6, 1962. Roberts had applied for membership in the IBEW in October 1961 and had been working on a permit granted by that union thereafter and during the period of his employment by Respondent Couch. According to the credited testimony of Roberts, on the day before he began work, he was interviewed by Respondent Couch who asked if he was an IBEW man and Roberts replied that he was. Respondent Couch also asked Roberts what he thought of District 50, and Roberts answered that he did not know much about it and did not care for that union.25 During their conversation, Respondent Couch stated in substance that he was still under contract with the IBEW but had signed up with District 50 so that he could get a lower wage rate because he was tired of paying high wages to "some of these local bench sitters." 26 During the period of his em- ployment, Roberts obeyed all orders given to him and never received any complaints regarding his work. On the Friday preceding his discharge,27 when he returned to the shop at the end of the day, Louis Dartez, the dispatcher, asked him whether he was going to join District 50 and when Roberts answered that he was not, Dartez then replied, "That is either going to be that or your job." On the following Monday morning, February 26, 1962,28 when he reported for work, Dispatcher Dartez gave Roberts his check and told him that he was sorry but that he had been advised to terminate Roberts in regard to their conversation on Friday.29 -6 Respondent Couch denied that he had asked Roberts to what union he belonged and denied that he had stated that he was still under contract with the IBEW. His version of their conversation was that they had discussed the IBEW ; that Roberts had said that it business agent of the IBEW had bumped him off his job at another company and re- placed him with a class A journeyman ; and that Couch told Roberts that Couch was working under the terms of a District 50 agreement but did not then or later tell Roberts that he would have to join District 50. As between the two versions, I credit that of Roberts I do so because I believe that, since both witnesses agree that the two unions and the contract with District 50 were discussed, it seems more likely to me that the question as to Roberts' union membership would have been raised, particularly since this must have been a matter of interest to Couch in view of the fact that he had so recently executed the union-shop contract with District 50 Further, despite Roberts' admitted lack of extensive education and an absence in his testimony of a skillful or artistic use of language, he impressed me in this part of his testimony, and as a whole, as an honest and reliable witness. "Respondent Couch did not deny that he had made this statement to Roberts. =T Roberts mistakenly recalled this date as March 2 rather than February 23, 1962 21 On the same morning, Respondent Couch met with a representative of District 50 to discuss a grievance regarding Couch's failure to pay the wage rates and overtime pro- vided for in the contract between District 50 and Respondent Couch. e9 Dartez denied that he had talked to Roberts on the Friday preceding his discharge and further denied that he had discussed District 50 with Roberts or had told 'him that lie would have to join District 50 or lose his job. Roberts was terminated before work the morning of February 26 at which time, Dartez testified, "[I] just told him that I was instructed to terminate him " Dartez further testified that he was a member of IBEW and was not a member of District 50. According to Dartez' testimony it would appear that, without any prior indication or warning, he informed Roberts just before work was to begin for the day of the bare fact that he was instructed to terminate him. While it is possible, it does not seem likely that Dartez did not volunteer or Roberts did not ask why he was being discharged in such abrupt fashion Thus, as between the two versions of the events surrounding the discharge, I am inclined to the belief that the recounting of Roberts is entitled to greater credence than that of Dartez I credit the testimony of Roberts, not only for this reason but also because Roberts, as noted above, impressed me as making an honest effort to recount his recollection of the events about which he testified, and also because, for the reasons set forth hereafter, I am unable to credit the COUCH ELECTRIC COMPANY 671 Respondent Couch testified that he made an evaluation of Roberts' work which showed that: (1) an undue number of corrections were required; (2) Roberts' per- formance was 25 to 50 percent slower than that of other journeymen; and (3) he was not familiar with the city and county electrical codes As a result, according to Respondent Couch's testimony, he determined to discharge Roberts and instructed Dartez to notify Roberts that he was being terminated.30 In support of his assertion that Roberts had been discharged for the reasons given, Respondent Couch proffered in evidence the original timecards of Roberts and no- tations of corrections which had been made on certain jobs Roberts had performed. The notations of corrections had been copied from reports of city or county electrical inspectors who had gone over the particular jobs in question. Respondent Couch testi- fied that the corrections are made out, when required, by the electrical inspector and that the girl in Respondent Couch's office called each morning and secured a list of corrections from the particular inspector assigned to each job. The copies of cor- rections, as they related to Roberts, had been made by Dispatcher Dartez upon in- structions from Respondent Couch.31 After a careful examination of these documents, I believe that the copies of cor- rections cannot be regarded as reliable evidence, either because they contain mis- takes apparent upon even cursory inspection or because they are contradicted by the original timecards or other probative evidence in the record. Thus, the first of these documents, dated February 15, 1962, notes certain corrections required on a job performed on "Cole St." in the city of Downey. The document, noting the correc- tions, states that the time allowed for the job was 8 hours, "4 hours each House" and that the time taken by Roberts was 12 hours. Roberts' timecard shows that on February 12 he worked for 8 hours and February 13 for 4 hours on Cole Street. But the address in each instance is the same . Since no other Cole Street address is shown on any of Roberts' timecards, it would appear that only one house, not two, was involved.32 The second of the copied corrections, dated February 19, 1962, purports to be based upon an inspection made on that date on a job located at 3155 8th Street, Los Angeles. Roberts' timecards show that he first worked on the job located at that address on Friday, February 16; that he did not work at all on Monday, Febru- ary 19; that he resumed work on the 8th Street job on Tuesday, February 20; and that he continued on that job but did not complete it until Thursday, February 22. asserted grounds assigned by Respondent Couch for the discharge of Roberts Dartez was instructed by Respondent Couch to discharge Roberts and was therefore acting as Couch's agent at the time, irrespective of any supervisory authority he may or may not have otherwise possessed. As such agent, Dartez was acting within the scope of his authority in the remarks he made to Roberts in connection with the discharge and such remarks are accordingly attributable to and binding upon Respondent Couch F G. & W. Com- panli, Inc, 129 NLRB 1105; see also Fiore Brothers Oil Co , Inc., 137 NLRB 191 3i The record does not show the time the evaluation was made, the time Respondent Couch arrived at his decision to terminate Roberts, or the time he instructed Dartez to notify Roberts that he was being discharged. a Counsel for Respondent Couch elicited testimony designed to show that Roberts did not know the answers to certain questions regarding the city and county electrical codes. I do not regard this testimony as probative of the asserted defense that one of the reasons for discharging Roberts was his unfamiliarity with the codes in question foi Respondent Couch testified that his evaluation of Roberts' work was based solely on the written corrections and not upon personal observation or what he had been told by others and that he had never spoken to Roberts about any matter after he had hired him Thus, only the written corrections may be relied upon by Respondent Couch to establish Roberts' knowledge of the provisions of the codes. 3' Where copies of the job corrections contradict the original timecards , I have relied upon the notations appearing on the latter since I am of the belief that they are more reliable because they are original records and not copies and therefore errors in tran- scription are lelss likely. Moreover, the probability of error with respect to the timecards is further reduced since they were made out by Roberts and also were checked by the pay- roll clerk in Respondent Couch's office and therefore were subjected to the scrutiny of two persons Further, since the notations on these cards constituted the record of all of Roberts ' work and the (basis on which he was paid, it is reasonable to assume that they were accurate, an assumption which Respondent Couch himself made during the course of his testimony. In addition, I believe that the timecards are entitled to credence since they are records which were kept in the normal course of business and not specially pre- pared for the purpose of this or any other litigation. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It seems apparent that the job was not inspected and corrections noted on February 19 since the work was not completed until February 22 33 The third of the copied corrections bears the date of May 23, 1962, an obvious error since Roberts was admittedly discharged on February 26. The job in question was located on Allgeyer Street or Avenue . Roberts' timecard for the week ending February 17, 1962, shows that he worked on a job on such a named street or avenue on February 13 and 14. It may reasonably be inferred , therefore , that the date of the inspection report was February 23 rather than May 23 . If that inference is cor- rect, Respondent Couch would not have known of the corrections until the morning of February 26, since he testified that the girl in his office calls the individual who has inspected a job on the morning of each day after the inspection has occurred. Roberts was terminated at 7:30 on the morning of February 26. Dispatcher Dartez testified that the termination occurred "before work" on that day . While it is doubtful that Respondent Couch was informed of the corrections in question before Roberts was actually discharged , it is possible that he was , and since there is no evidence in the record to show that he was not , the doubt must be resolved in his favor. How- ever, the notation in the document that the time taken to correct the work, including travel time, was 3 hours, was not a part of the inspector 's report and could not have been known by Couch before Roberts was discharged , for the reasons above noted, despite the implication to the contrary raised by including this notation in the document. In addition to the foregoing, the copies of each of the corrections note that substan- tially more time than estimated was taken to complete each job. For the Cole Street job, 12 hours was taken instead of an estimated 8; on the 8th Street job, 56 hours was required as against an estimate of 32; 34 and on the last job, 7 hours was estimated but 12 required . The time taken for each of these jobs was known to Respondent Couch when the work in each instance was performed since the time was recorded by Roberts on his timecards , was checked by the payroll clerk, and Roberts was paid on the basis of what his timecards showed. Despite this and despite the further fact that Roberts was being paid an hourly rate substantially more 35 than at least half the other employees at that time , nothing was said to Roberts about the matter. In- deed, Respondent Couch admitted that he had not at any time told Roberts that his work was not considered satisfactory for that or any other reason . Nor could he offer any explanation as to why he had not discussed with Roberts the need for corrections at the times he asserted they occurred. Although he testified that he believed from his general experience that the need for the corrections in question would not have arisen by reason of the work of any of his regular journeymen elec- tricians and therefore he knew the fault lay with Roberts, he admitted that it was possible that the mistakes had been made by others , and further admitted that when corrections were noted on jobs where Roberts had worked with other employees, no attempt was made to trace whether the errors were made by Roberts or by someone else. He also admitted that he had not made a similar listing of corrections covering the work of other electricians employed by him and that he did not know whether the corrections involving the work of Roberts were greater or less than those of other individual electricians in his employ. For the foregoing reasons, and on the basis of the record as a whole, I am con- vinced and find that the true reason for the discharge of Roberts was not that his work was unsatisfactory but that he refused to join District 50 and that his ter- mination under such circumstances constituted a violation of Section 8(a)(1) and (3) of the Act. 3' Roberts testified without contradiction that he had been instructed by Dartez on this job to install the wrong size wire and had so informed Dartez when he returned at the end of the day and that Dartez at the time acknowledged the error in the size of the wire but said that he was going to leave it there The copy of the corrections for this job, which had been prepared by Dartez , notes that the job was turned down by the inspector because the wrong size wire was used "The copy of the corrections shows that two other men besides Roberts worked on this job Of the 56 hours taken to perform the work, Roberts is noted as having worked 28 hours, another electrician 8 hours, and a helper 20 hours. The record does not show which of the three men involved took longer , and if so, how much longer for his proportionate share of the work than the estimates would indicate should have been taken 35 Roberts was paid $3 75 per hour, while 7 of the approximately 14 other employees were receiving hourly rates varying from $2.20 to $3 15 per hour. The record does not show what the remaining employees were being paid. ' COUCH ELECTRIC COMPANY 673 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of each of the Respondents, set forth in section III, above, occurring in connection with the operations of each of the Respondents, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents violated Section 8(a)(1), (2), and (3) of the Act by applying, maintaining, and enforcing agreements containing illegal union-security provisions, I will recommend that Respondents withdraw and withhold all recogni- tion from District 50 as the representative of their employees, unless and until said District 50 shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted election Nothing in this recommendation should be taken, however, to require Respondents to vary those wages, hours, and other sub- stantive features of their relations with the employees, if any, which have been established in the performance of their respective agreements or to prejudice the assertion by their employees of any such benefits they may have acquired under such agreements. See Pacific Maritime Association, 89 NLRB 894. As previously found, Respondents have given unlawful assistance and support to District 50. Moreover, by their union-security agreements implemented by initiation fees and dues checkoff arrangements in each instance, Respondents have unlawfully required the employees to maintain membership in District 50 as the price of em- ployment. In these circumstances, I find that it will effectuate the policies of the Act to order Respondents to refund to their employees all initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful union-security agree- ments,36 or any extensions, renewals, modifications, or supplements thereof, or any superseding agreements 37 As it has been found that Respondent Couch discharged Russell C. Roberts on February 26, 1962, in violation of Section 8(a) (1) and 8(a)(3) of the Act, I shall recommend that said Respondent offer Roberts immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount of wages he would have earned, but for the said discharge, between the date of his dismissal and the date of a proper offer of reinstatement to him as afore- said, together with interest thereon at the rate of 6 percent per annum; and that the said loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred 38 Upon the basis of the foregoing findings of fact, and upon the entire record in these proceedings, I make the following: CONCLUSIONS OF LAW 1. Respondents are, and have been at all times material to these proceedings, em- ployers within the meaning of Section 2(2) of the Act. 2 International Brotherhood of Electrical Workers, Local 11, AFL-CIO; and District 50, United Mme Workers of America are, and have been at all times ma- terial to these proceedings, labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating against Russell C. Roberts, as found above, Respondent Couch has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. ° Interest at the rate of 6 percent per annum shall be added to such initiation fees, dues, or other moneys so checked off, to be computed in the manner set forth in Isis Plumbing & Heating Co, Inc., 138 NLRB 716. See Quality Coal Corporation, et al, 139 NLRB 492 n Masters-Lake Success, Inc, 124 NLRB 580; Anderson Express Ltd, 126 NLRB 798 ^ In accordance with the Board's past interpretation, the expression "former, or sub- stantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position " The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 NLRB 827. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By agreeing to and maintaining the terms of the union-shop provisions of their contracts with District 50, and by checking off initiation fees and dues from the wages of their employees pursuant to the provisions of said contracts, as found above, Respondents have discriminated, and are discriminating, in regard to the hire, tenure, terms and conditions of employment of employees, thereby encouraging membership in District 50, United Mine Workers of America, and discouraging membership in other labor organizations, and have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 5. By contributing assistance and support to District 50, United Mine Workers of America, as found above, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 6 By interfering with, restraining, and coercing employees, as found above, in the exercise of rights guaranteed them in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in these proceedings, I recommend that: A. Respondent Henry Wallace Couch, individually and doing business as Couch Electric Company, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of his employees in any labor organization, by discriminating in any manner against any individual in regard to hire, tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (b) Assisting or contributing support to District 50, United Mine Workers of America, or any other labor organization. (c) Giving effect to his contract with District 50, United Mine Workers of Amer- ica, or to any renewal, extension, modification, or supplement thereof. (d) Recognizing District 50, United Mine Workers of America, as the exclusive representative of a bargaining unit of his employees at his South Gate, California, plant, for the purpose of collective bargaining, unless and until said labor organiza- tion has been certified as such by the National Labor Relations Board. (e) Entering into, maintaining, renewing, applying, or enforcing any agreement which requires employees or applicants for employment to be members of, join, or maintain membership in, District 50, United Mine Workers of America, or any other labor organization, unless such agreement conforms with the requirements of Section 8(a)(3) of the Act. (f) In any like or related manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization; to form, join, or assist labor organizations; to join or assist International Brotherhood of Electrical Workers, Local 11, AFL-CIO; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Withdraw and withhold recognition from District 50, United Mine Workers of America, as the collective-bargaining representative of any of his employees until such time as that labor organization may be certified as such representative by the Board. (b) Offer to Russell C. Roberts immediate and full reinstatement to his respective former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole in the manner and according to the method set forth in section V, above, entitled "The Remedy." (c) Reimburse his employees for any initiation fees, dues, or other moneys paid or checked off pursuant to the aforesaid agreement with District 50, United Mine Workers of America, or any extension, renewal, modification, or supplement thereof, or to any agreement superseding it, in the manner and according to the method set forth in section V, above, entitled "The Remedy." COUCH ELECTRIC COMPANY 675 (d) Preserve until compliance with any order for reinstatement, backpay, or reimbursement made by the National Labor Relations Board in these proceedings is effectuated, and, upon request, make available to the said Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant to a determina- tion of the amount of backpay due, and to reinstatement and related rights provided under the terms of any such order. (e) Post in conspicuous places, including places where notices to employees are customarily posted, at his principal place of business in South Gate, California, copies of the attached notice marked "Appendix A." 39 Copies of said notice, to be fur- nished by the Regional Director for the Twenty-first Region of the Board, shall, after being signed by Respondent Henry Wallace Couch, individually and doing business as Couch Electric Company, be posted by him immediately upon receipt thereof and maintained by him for a period of 60 consecutive days thereafter Reasonable steps shall be taken by him to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director, in writing, within 20 days from the receipt by Respondent Couch of a copy of this Intermediate Report and Recommended Order, what steps the said Respondent has taken to comply therewith.40 It is further recommended that, unless on or before 20 days from the date of his receipt of this Intermediate Report and Recommended Order, Respondent Couch notify the said Regional Director that he will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring said Re- spondent to take the action aforesaid. B. Respondent Sullivan Electric Company, its agents, successors, and assigns, shall. I Cease and desist from: (a) Discouraging membership of any of its employees in any labor organization, by in any manner discriminating against any individual in regard to his hire, tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (b) Assisting or contributing support to District 50, United Mine Workers of America, or any other labor organization. (c) Giving effect to its contract with District 50, United Mine Workers of America, or to any renewal, extension, modification, or supplement thereof. (d) Recognizing District 50, United Mine Workers of America, as the exclusive representative of a bargaining unit of its employees at its La Mirada, California, plant, for the purpose of collective bargaining, unless and until said labor organiza- tion has been certified as such by the National Labor Relations Board. (e) Entering into, maintaining, renewing, applying, or enforcing any agreement which requires employees or applicants for employment to be members of, join, or maintain membership in, District 50, United Mine Workers of America, or any other labor organization, unless such agreement conforms with the requirements of Section 8(a)(3) of the Act. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization; to form, join, or assist labor organizations; to join or assist International Brotherhood of Electrical Workers, Local 11, AFL-CIO; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities; except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: ^ In the event that this Recommended Order be adopted by the Board. the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." AU In the event that this Recommended Order be adopted by the Board, paragraph 2 (f) thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith." 717-672-64-vol. 143-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Withdraw and withhold recognition from District 50, United Mine Workers of America, as the collective-bargaining representative of any of its employees until such time as that labor organization may be certified as such representative by the Board. (b) Reimburse its employees for any initiation fees, dues , or other moneys paid or checked off pursuant to the aforesaid agreement with District 50, United Mine Workers of America, or any extension , renewal, modification , or supplement thereof, or to any agreement superseding it, in the manner and according to the method set forth in section V, above, entitled "The Remedy." (c) Preserve until compliance with any order for reimbursement made by the National Labor Relations Board in these proceedings is effectuated , and, upon request, make available to the said Board and its agents , for examination and copying, all payroll records, social security payment records , timecards, personnel records and reports, and all other records relevant to a determination of the amount due (d) Post in conspicuous places , including places where notices to employees are customarily posted , at its principal place of business in La Mirada , California , copies of the attached notice marked "Appendix B." 41 Copies of said notice, to be fur- nished by the Regional Director for the Twenty-first Region of the Board, shall, after being duly signed by Respondent Sullivan's representative , be posted by it im- mediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter . Reasonable steps shall be taken by said Respondent to insure that said notices are not altered , defaced, or covered by any other material (e) Notify the said Regional Director, in writing, within 20 days from the receipt by Respondent Sullivan of a copy of this Intermediate Report and Recommended Order, what steps the said Respondent has taken to comply therewith.42 It is further recommended that, unless on or before 20 days from the date of the receipt of this Intermediate Report and Recommended Order, Respondent Sullivan notify the said Regional Director that he will comply with the foregoing recom- mendations , the National Labor Relations Board issue an order requiring said Respondent to take the action aforesaid. 41 In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner " in the notice In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision and Order" 421n. the event that this Recommended Order be adopted by the Board, paragraph 2(e) thereof shall be modified to read: "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, I hereby notify my employees that: I WILL NOT contribute assistance or support to District 50, United Mine Workers of America , or any other labor organization. I WILL NOT give effect to my contract with the said District 50, United Mine Workers of America, or to any modification, extension , renewal, or supplement of said agreement. I WILL withdraw and withhold all recognition from District 50, United Mine Workers of America, as the collective-bargaining representative of my employees unless and until said labor organization has been certified as such by the Na- tional Labor Relations Board. I WILL NOT discourage or encourage membership by any of my employees or applicants for employment in any labor organization by discriminating in any manner in regard to hire or tenure of employment, or any other term or condi- tion of employment of employees. I WILL NOT enter into, maintain , renew, apply , or enforce any agreement which requires employees or applicants for employment to be members of, loin, or maintain membership in District 50, United Mine Workers of America, or any other labor organization , unless such agreement conforms with the requirements of Section 8(a)(3) of the National Labor Relations Act COUCH ELECTRIC COMPANY 677 I WILL NOT in any like or related manner interfere with, restrain, or coerce my employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to join or assist International Brotherhood of Electri- cal Workers, Local 11, AFL-CIO; to bargain collectively through representa- tives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities; except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act I WILL offer Russel C. Roberts immediate and full reinstatement to his former, or substantially equivalent, position, without prejudice to his seniority and other rights and privileges, and reimburse him for any loss of pay he may have suffered by reason of the discrimination against him. I WILL reimburse my employees for initiation fees, dues, or other moneys paid or checked off pursuant to the aforesaid agreement or any extension, re- newal, modification, or supplement thereof, or to any agreement superseding it. HENRY WALLACE COUCH, AN INDIVIDUAL DOING BUSINESS AS COUCH ELECTRIC COMPANY, Employer. Dated------------------- By---------- -------------------------- (Representative) (Title) NOTE.-I will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 849 South Broadway, Los Angeles, California, 90014, Telephone No Richmond 9-4711, Extension 1031. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT contribute assistance or support to District 50, United Mine Workers of America, or any other labor organization. WE WILL NOT give effect to our contract with the said District 50, United Mine Workers of America, or to any modification, extension, renewal, or supple- ment of said agreement. WE WILL withdraw and withhold all recognition from District 50, United Mine Workers of America, as the collective-bargaining representative of our employees, unless and until said labor organization has been certified as such by the National Labor Relations Board. . WE WILL NOT discourage or encourage membership by any of our employees or applicants for employment in any labor organization by discriminating in any manner in regard to hire or tenure of employment, or any other term or condition of employment of employees. WE WILL NOT enter into, maintain, renew, apply, or enforce any agreement which requires employees or applicants for employment to be members of, join, or maintain membership in District 50, United Mine Workers of America, or any other labor organization, unless such agreement conforms with the require- ments of Section 8(a) (3) of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization; to form, join, or assist labor organizations; to join or assist International Brotherhood of Elec- trical Workers, Local 11, AFL-CIO; to bargain collectively through representa- tives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities; except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a) (3) of the Act. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reimburse our employees for initiation fees, dues , or other moneys paid or checked off pursuant to the aforesaid agreement or any extension, re- newal, modification, or supplement thereof, or to any agreement superseding it. SULLIVAN ELECTRIC COMPANY, Employer. Dated-------- ----------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 839 South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Extension 1031. Brotherhood of Painters, Decorators and Paperhangers of America, Glaziers Local Union #1385, AFL-CIO and Asso- ciated Building Contractors of Evansville , Inc. Case No. 05- CB-496. July 18, 1963 DECISION AND ORDER On February 7, 1963, Trial Examiner Henry S. Salim issued his Intermediate Report in the above-entitled proceeding, recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. 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. The Board has considered the Intermedi- ate Report, the exceptions, the briefs, and the entire record in the case, and finds merit in the General Counsel's exceptions. Accordingly, the Board adopts the Trial Examiner's findings to the extent consistent with the following, but not his conclusions or recommendations. 1. The General Counsel alleged in his complaint that the Respond- ent Union had reached agreement with the Employers upon the terms of a collective-bargaining contract which would contain provisions re- lating to the Tri-State Construction Advancement Program (known as Tri-Scap), established for the purpose of promoting the glazing industry in the Evansville, Indiana, area. This program, among other things, provides for the Employers' contributions to a fund to be used for the industry's advancement. The Respondent Union's subsequent refusal to sign a written contract containing the Tri-Scap provisions is alleged by the General Counsel to constitute a refusal to bargain by the Respondent Union in violation of Section 8 (b) (3) of the Act. The Trial Examiner found that the parties had agreed to all the terms of a contract except as to the inclusion of Tri-Scap to which the Respondent objected. He found, therefore, that the Respondent's 143 NLRB No. 72.