Prospect Gardens of Norwalk, Inc.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prospect Gardens of Norwalk , Inc. and Local 1199, Drug and Hospital Employees Union , RWDSU, AFL-CIO and Local 225, Industrial Workers of Allied Trades, Party to the Contract. Case 2-CA-11608 June 27, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On February 20, 1969, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed exceptions, together with a brief in support thereof and in support of the Trial Examiner's Decision, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations= of the Trial Examiner, except as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Prospect Gardens of Norwalk, Inc., Norwalk, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: 1. At the end of paragraph 1(c), substitute a comma for the period and add: "provided that nothing herein shall require the Respondent to cancel or withdraw any benefit thereunder." 2. Insert the following after paragraph 1(c) and reletter paragraph 1(d) accordingly: "(d) Giving effect to any checkoff authorizations heretofore executed by its employees, authorizing the deduction of periodic dues, initiation fees, or other monies for remittance to Local 225." 3. In paragraph 1(e), delete from the first line the word "similar" and insert in its place "related." 4. Delete paragraph 2(a) and insert in its place the following: "(a) Withdraw and withhold recognition from Local 225, or any successor thereto, as the exclusive bargaining representative of its employees , unless and until said labor organization shall have been certified by the Board as the exclusive representative of such employees." 5. Insert the following sentence at the end of the first indented paragraph in the Appendix which begins with the words "WE WILL": However, we are not required to change any wage schedule or working conditions which exist at this time. 6. Insert the following paragraph in the Appendix immediately after the sentence which reads, "WE WILL NOT ask you to join or assist any union": WE WILL NOT honor any checkoff authorizations signed by our employees by deducting any money from wages for payment to Local 225. 'The Trial Examiner correctly found, inter alia, that the distribution of union authorization cards and solicitation of employee signatures thereto with the assistance of a management representative rendered them invalid for the purposes of establishing majority status. Scharr s activities in this regard are clearly established and are sufficient to support the conclusion Moreover, it is clear that both Buckner and Griffin were instructed by Scharf to solicit signatures on the cards, and both therefore acted as agents of the Respondent when they engaged in such activity . Riker Video Industries, Inc, 171 NLRB No. 2; Goodman Lumber Company, 166 NLRB No. 48. In view of this finding, it is unnecessary to consider whether, as the General Counsel contends, Buckner was a supervisor. 'We rind merit in the General Counsel's exceptions to the Trial Examiner's recommended direction of election , and shall not adopt that portion of the Trial Examiner's recommended remedy . In this connection, we do not adopt the statements in fn . 13 of his Decision and find it unnecessary to consider whether the Trial Examiner properly included part-time employees in the unit stipulated by the parties (fn. 14). We shall also modify his recommended remedy to provide that the Respondent shall cease giving effect to the dues deduction authorization cards which were obtained illegally, and to state that the Respondent need not cancel or withdraw any existing benefits. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: The charge in this proceeding was filed on July 16, 1968, by Local 1199, Drug & Hospital Employees Union, RWDSU, AFL-CIO, herein referred to sometimes as the Charging Party or Local 1199, and served by registered mail on Prospect Gardens of Norwalk , Inc., Respondent herein, on July 17, 1968. The first amended charge in this proceeding was filed by Local 1199 on July 24, 1968, and served by registered mail on the Respondent on or about July 25, 1968, and Local 225, Industrial Workers of Allied Trades (Party to the Contract), herein called Local 225, on or about July 30, 1968. A complaint was issued on September 30, 1968, alleging that the Respondent had engaged in unfair labor practices in violation of Section 177 NLRB No. 17 PROSPECT GARDENS OF NORWALK, INC. 8(a)(1) and (2) of the National Labor Relations Act, as amended , herein called the Act. The Respondent filed a timely answer denying that it had engaged in or was engaging in the unfair labor practices alleged . The case came on to be heard,' on December 9, 10, and 11, 1968, at Stamford, Connecticut. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses , to argue orally on the record, to propose findings of fact and conclusions of law , and to file briefs. All briefs have been reviewed and considered by me. The principal questions before me are: (1) whether the Respondent rendered unlawful assistance and support to Local 225 in violation of Section 8(a)(2) of the Act and (2) whether, by reason thereof, a purported contract executed on or about June 1 , 1968, between Local 225 and the Respondent should be set aside and held for naught. Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Connecticut . Its principal place of business is located on Prospect Avenue, Stamford, Connecticut, where it operates a nursing and convalescent center engaged in the care of the sick and infirmed. Almost all of the patients at Prospect Gardens are assigned to the center by the State Welfare Department. During the past year , which period is representative of its annual operations generally, Respondent in the course and conduct of its business operations performed services valued in excess of $100,000 and during the same period Respondent in the course and conduct of its business operations purchased materials valued in excess of $25,000 directly from firms located outside the State of Connecticut . I find, as is admitted by the Respondent, that at all times material herein the Respondent is, and has been, an employer as defined in Section 2(2) of the Act engaged in commerce and operations affecting commerce as defined in Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Local 1199 and Local 225 are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES First: Solomon Scharf is the president and administrator of the Respondent . In the latter part of February 1968, while attending a nursing home association meeting, he heard rumors that there was "going to be a drive to organize the Connecticut nursing homes as far as unions are concerned ." At or about the same time, Scharf was visited by a New York representative of Local 1115 who said that "he would like to start organizing the nursing homes in Connecticut." In that Scharf had a "very unpleasant experience" when he 'At the hearing an amendment to the complaint was allowed in which it was alleged that the Respondent had violated Sec. 8 (a)(3) of the Act. Respondent denied the allegations in the amendment. 'Briefs were not submitted to me by Local 225. 137 "fought an organizing drive by a union in another institution [he] was running," he became "very worried about it" and called a friend who operated a nursing home in New York. Scharf asked him if "he could find out anything about it." Thereafter, Abe Neider, president of Industrial Workers of Allied Trades, Local 225,' was contacted by a Mr. Stone, whom Neider had known for about 10 years. Stone told Neider that he had a "friend [Scharf] that said he might have trouble with an organizing drive that is going on." Stone asked Neider to help Scharf. A couple of days later Neider reached Scharf by telephone and informed him that his friend had asked him to call him. Thereafter Scharf and Neider met at a New York City restaurant. During the conversation which occurred, Neider confirmed that there was going to be an organizational drive in Connecticut. He asked Scharf whether Scharf would let him organize the Respondent's employees. He told Scharf that his union was a new local and that it would be "fair to the employees and employer." Scharf expressed disappointment "because [he] didn't call Mr. Neider to try to organize the nursing home" but to get information about the organizing drive. Scharf explained that almost all of the Respondent's patients were paid for by the State Welfare Department and its rates were "low" and it could not "afford any of the demands" of which he had heard . Neider countered that his union "would be reasonable to work with because they are new and they would not push for the kind of demands that the other established unions did in New York." He added that "he could come and try to organize the people with or without [Scharf's] consent." The discussion ended with Neider indicating that he would get in touch with Scharf. Second: A few days later Neider appeared at Scharf's office and requested permission to talk to some of the Respondent's employees. Scharf replied "You are here. Well, go ahead." Neider's visit occurred in the beginning of March. Neider contacted a few of the Respondent's employees and talked to them about union benefits. Union authorizations were not solicited. Later Neider returned to the Respondent's establishment and formed an employee committee. Of the four-member committee Neider designated two members (Anthony Cuomo and Carolyn Garrison) and Scharf designated two members (Eugene Buckner and Edward Griffin).' Neider met with the committee in a back office. He told the committee he had left union authorization cards' with the "office girl" and "as fast as they signed them up, that is as fast [as he] could get to negotiate a contract for them ." He told them that he "would work out conditions" and, if he obtained enough cards, he would "bring it back to them." 'Local 225 was affiliated with the Industrial Workers of Allied Trades, Washington, D.C. Local 225 had been issued a charter in January 1968. Membership in the Local was about 30. It had executed contracts with two small employers. Prior to the organization of Local 225 by Neider and several others, Neider had been a "worker in the colosseum" under Teamsters Local 814. Neider had not been "in the business of labor relations before:' 'Neider testified, ". . . we got a committee together." He was asked who "got this committee together." He answered, "I think I asked Mr. Scharf to get some and I picked some as I was going out. " Later Scharf named Griffin as a steward. Griffin served a week in this capacity. 'These cards contained an application for membership , a designation of the union for collective bargaining, and a dues-checkoff authorization. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 9, 1968,6 Gladys Russell, an admitted supervisor, asked certain employees if they would go to the "green room" as Scharf wanted to catch the day and night shift in order to talk to them about the Union; that "he was bringing a union " there . About 18 to 20 women appeared in the "green room." Scharf told these employees that "he was bringing a union in " and that he "would like for [the employees] to sign the cards for the union." He passed Local 225 authorization cards to the employees present. Some of the employees signed cards and returned them to Scharf. This was the first time any of these employees had heard of Local 225.' In addition to the meeting in the "green room" Scharf contacted personally other employees. Among these employees was Fannie Welfare, to whom Scharf gave a card saying, "that is the card for the Union." Except for the signature, the card was filled out when handed to Fannie Welfare. Scharf also gave a card to Daisy Welfare and told her to sign it, commenting that they were trying to bring a union in and "[w]e're bringing a union into Prospect Gardens." Joseph Patrick Rabbit received his card from Scharf in the kitchen. It was the first time he had heard about the Union. Scharf said to him "Would you sign this card, Joe. We are going to get a union in here." Scharf gave employee Cuomo his card in the office when he went in to pick up his pay. Scharf approached Mildred Posener and asked her to sign a card saying that he had "something good." She signed the card . Rigoberto Esquivel received his card from Scharf. Willie Addison testified credibly, "When I was in the office to pick up $10 and Mr. Scharf asked me did I sign the union card , so I said no. So he says, 'Well, you should sign it.' And I said, `Okay.' So he told Neomi to give me one, his secretary, and I signed it and [left] it on the desk." Jeanette Wilson was also asked to sign a card by Scharf. At the time the card was handed to her it was filled out except for the signature. Scharf admitted that he had engaged in the solicitation of signatures to cards.' Eugene Buckner, one of Scharf 's designees on the Local 225 committee , also distributed blank union authorization cards to several employees and told employee Martha Grant to go to the office to sign a card.' `The April 9, 1968, date is fixed by the date which appears on a union card signed by employee Mildred Purnell who , during the meeting held in the "green room," signed a card and entered thereon the date on which it was signed 'Mildred Purnell, one of the employees present at the meting, asked Scharf when a representative of Local 225 would "be out to talk" to the employees because the employees did not "know anything anyway." Scharf replied that someone from the Union would be out to talk to them 'Scharf explained. "Well, see, many employees don't speak any English. We have, as you noticed here, we have some - I speak French and I am practically the only ones we [sic] can talk to , and they had questions on the union which they heard, so those are the people I handed the cards and told them what they are all about and I said 'If you want to you can sign and return it to the girl in the office,' so I must have distributed to most of these or gave to some and they were given to the others and a lot of them picked up the cards in the office, some of them the receptionist or other employees distributed They were there She typed them up and they were there." 'Scharf referred to Buckner as a "floating porter." Porters were engaged in mopping floors, washing bathrooms, bathtubs, and walls, and cleaning in general. Porters, together with maids, were assigned to the housekeeping department Buckner spent about 6-1/2 hours out of a day's work engaged in porters' duties, when other porters were absent , he filled in for them. Other porters were assigned to one of the five sections of the Employer's premises. Buckner had no such assignment . Buckner's wage was higher than that of other porters Additionally Buckner gave supplies to all the maids and porters for the Third: Some time in the forepart of May, Neider again visited Scharf, at which time he presented Scharf with approximately 35 union authorization cards which he had picked up from the "office girl." Attached to each was an authorization for the deduction of "such amounts including initiation fees and dues" from the employee's wages "as may be established by the Union." Scharf had already viewed the cards. In fact he had counted the cards, checked the payroll, and verified the signatures thereon with the W-2 forms in the Respondent's possession. He was aware that out of a unit of 45 or 50 employees, the 35 card signers constituted a majority. Neider, claiming that he represented "a majority of full-time non-professional employees," demanded recognition for Local 225. Neider noted that there were "two ways that this thing could go"; one was "to go to election" and the other one was "to sit down and recognize" the Union. Scharf "saw no point in going to election." Thus he "decided to recognize" it. Thereafter, in the "second half" of May, Scharf met with Neider at the office of the Respondent's attorney in New York City, together with Respondent's attorney Burnstein, and the Union's secretary-treasurer. Neider presented the Respondent with a contract and negotiations commenced. Certain modifications favorable to the Respondent were negotiated and the contract was settled after about 5 hours of discussion. However, it was not executed at such time because Neider had "to go back to his people to see whether the contract [was] agreeable." Neider commented that "he would take the contract with him, have it retyped, corrected and [he would] go up and talk to his people and [he would] be in touch with [Scharf] if it's acceptable." On the next Monday Neider met with the committee at which time he gave them the contract to read. The committee "went over" the contract and asked questions. They were "satisfied" with the contract. Neider called Scharf and informed him that they were ready to sign the contract. The committee was never shown a copy of the Union's original proposals. Employee signers of the contract were Anthony Cuomo, Eugene Buckner, Carolyn Garrison, and Edward L. Griff]n." The contract provided for sick leave, holiday pay, mourning time, and overtime pay after 45 hours, none of which had been previously enjoyed by the employees. It also included increased wages and vacations . The contract further provided that the Employer recognize the Union as "the sole collective bargaining Agent for all full-time employees in its employ, excluding executives, day and at the end of the day he gathered the supplies or gave out supplies for the next day. Together with Scharf he made inspections of the five sections to determine what was to be done for the next day . According to Scharf a typical statement made to Buckner during such an inspection was "Tomorrow, Eugene, when you give out your supplies you ask certain employees to wash - " Employee Buckley, a maid, referred to Buckner as her boss to whom she reported and who told her what to do Employee Martha Grant, a maid, also referred to Buckner as her foreman. She testified that Scharf had told her before she went to work that Buckner "would be [her] boss" She testified that if she wanted to leave early she asked permission of Buckner , and that if she had trouble on her job she contacted him. She also said that in the event of illness she notified Buckner. "After notification by Scharf, Griffin, a chef, appeared for the signing of the contract. Sometime after he signed the contract Griffin executed a union authorization card. Upon the request of Scharf, he solicited several union card signers Scharf told Griffin that there were "some people that he wanted [to sign] before they went home." As instructed by Scharf, Griffin told the employees that it was "important for them to sign" the card and "get it back to the office as soon as possible " PROSPECT GARDENS OF NORWALK, INC. administrators and office employees." The contract contained a union -security clause as follows: All full-time employees , shall, as a condition of continued employment, become and remain members of the Union in good standing after they have completed thirty (30) days of employment or thirty (30) days after execution of this Agreement, whichever is later, provided, however , that no employee shall be removed from his employment under this paragraph so long as he continues to tender uniform dues and initiation fees to the Union after such thirty (30) day period. Any employee who fails to maintain his membership to the extent of not paying uniform dues and initiation fees after such thirty (30) day period, shall be discharged by the Employer one week after notification from the Union in person or in writing, unless such employee pays such dues and initiation fees within such seven (7) days. Aditionally the contract included a checkoff article providing that upon the employee 's written assignment the "Employer shall deduct uniform membership dues and initiation fees from the employees' salaries, and make such deductions from the first payroll in each month." Pursuant to the checkoff provision and the employees' written assignments the Respondent deducted sums of money for Local 225 dues from the wages of employees who had executed such assignments. The Respondent also deducted money for Local 225 dues from the wages of some employees who had not executed written assignments for such purpose. Fourth : Local 225 was a favored union with whom the Respondent joined hands in order to achieve a majority status for Local 225 and bring it "into Prospect Gardens." Toward this end the Respondent allowed Local 225's president free access to its premises, participated in the distribution of union authorization cards to its employees during working hours, and encouraged its employees to apply for membership in Local 225 , designate it as their bargaining representative, and execute dues-checkoff authorizations for it." Twenty-four of the executed cards which were relied on by Local 225 to support its bargaining demands contained information typed thereon by Respondent; i.e., name, date, address, place of employment, department employed, rate of pay, and social security number . Many of these cards were handed to the employees with the typed material already appearing on the card. The Act contemplates that the employees, in the selection of their bargaining representative, shall have "complete and unfettered freedom of choice," N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 588. N.L.R.B. v. Keller Ladders Southern, Inc., 405 F.2d 663 (C.A. 5). This right of "complete and unfettered freedom of choice" springs from ". . a clear legislative policy to free the collective bargaining process from all taint of an employer' s compulsion, domination , or influence." International Association of Machinists , Tool and Die Makers Lodge No. 35 (Serrick Corp.] v. N.L. R.B., 311 U.S. 72. The collective-bargaining process which was initiated here was contaminated by the Employer's efforts in promoting, fostering, and supporting both its own "The cards which the Respondent proffered to its employees contained a dues-checkoff authorization and this language, "I hereby apply for membership in the Industrial Workers of Allied Trades Local 225 Aff N.F I U , and authorize and designate this Union to represent me for collective bargaining with my employer." 139 aspirations for a union of its choice and the organizational objectives of Local 225. The Union recognized by the Respondent was a union chosen by the Respondent rather than a union designated by its employees as their uncoerced choice for a bargaining representative. "The participation of management and employees in the solicitation of signed cards on company time and property, deprived the authorizations of voluntariness, which the law requires." Hughes and Hatcher, Inc. v. N.L.R.B., 393 F.2d 557 (C.A. 6). By its assistance and support of Local 225 as above detailed the Respondent violated Section 8(a)(1) and (2) of the Act.12 Fifth: It is well settled that union designation cards obtained, as here, with the direct and open assistance of a management representative are invalid for the purpose of establishing a union's majority. A. T. I. Warehouse, Inc., 169 NLRB No. 75; see also Insular Chemical Corporation, 128 NLRB 93, 98, 99. In that there is no credible proof that Local 225 possessed any cards which were not tainted by the Respondent's unlawful acts when it made its demand for recognition, Local 225 could not have been, at such time, lawfully designated as the collective-bargaining representative of the majority of the employees in any appropriate unit. Hence, its claim of majority status was erroneous. Under these circumstances the Respondent's recognition of Local 225 was of a minority union and unlawful. The Supreme Court has said in International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731, that "[t]here could be no clearer abridgement of Sec. 7 of the Act, assuring employees the right `to bargain collectively through representatives of their own choosing' or `to refrain from' such activity" than where an employer has "granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority." The Supreme Court further opines that "Section 8(a)(2) of the Act makes it an unfair labor practice for an employer to `contribute ... support' to a labor organization. The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given `a marked advantage over any other in securing the adherence of employees.' " Accordingly, by recognizing and entering into a collective-bargaining agreement with Local 225, a minority Union, the Respondent aided and contributed assistance and support to Local 225 in violation of Section 8(a)(1) and (2) of the Act and thereby violated Section 8(a)(1) and (2) of the Act. Sixth: A contract which is obtained under an erroneous claim of majority representation must fail in its entirety. International Ladies' Garment Workers' Union, AFL-CIO v. N.L.R.B., supra. Thus the limitations on union activity, as well as the right to refrain from union activity, imposed by the maintenance of membership provisions of the contract, and the support to Local 225 provided thereby, are at odds with the requirements of Section 8(a)(1), (2), and (3) of the Act. By reason of the execution and maintenance of such provisions the Respondent violated Section 8(a)(1), (2), and (3) of the Act. Fiore Brothers Oil Co., Inc., 137 NLRB 191, 208, "Sec. 8(aX2) of the Act provides, "It shall be an unfair labor practice for an employer - to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . " See also N.L.R.B v. Fiore Brothers Oil Co. Inc, 317 F.2d 710 (C A. 2). 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enfd. N.L.R.B. v. Fiore Brothers Oil Co., supra. Mr. Wicke Ltd. Co., 172 NLRB No. 181; Carlson Furniture Industries, Inc., 153 NLRB 162. Furthermore the Respondent's honoring of the dues-checkoff authorizations obtained by the Respondent's unlawful assistance and its deduction of dues pursuant to a contract executed with a minority union constituted a contribution of support to Local 225 and thereby the Respondent violated Section 8(a)(2) of the Act. Further, the deduction of union dues from employees' wages without the employees' authorizations constituted financial assistance within the meaning of Section 8(a)(2) of the Act and discrimination within the meaning of 8(a)(3) of the Act. See Lunardi-Central Distributing Co., Inc., 161 NLRB 1443, 1445, 1451. By such misconduct the Respondent violated Section 8 (a)(2) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship 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. RECOMMENDED REMEDY Since the Respondent has engaged in unfair labor practices, I recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act and restore as nearly as possible the conditions which existed prior to commission of the unfair labor practices. I have found that the Respondent rendered and is rendering unlawful assistance and support to Local 225, Industrial Workers of Allied Trades, and thereby engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(2) of the Act. In order to remedy this unlawful condition I recommend that the Respondent withdraw all recognition from Local 225 as an organization representative of the Respondent's employees for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. I have further found that limitations imposed by the contract executed with a minority union interfered with , restrained, and coerced the Respondent's employees in the exercise of their rights to self-organization and collective bargaining and were executed and placed in effect in violation of the provisions of the Act. Such contract, therefore, is necessarily null and void and has no effect as contrary to the provisions of the Act. Thus the contract, the fruit of the Respondent's unfair labor practices, is a continuing means of thwarting the policies of the Act. Cf. National Licorice Company v . N.L.R.B., 309 U.S. 350. I recommend that the Respondent must cease to give effect to the contract. In that dues deductions were in violation of the Act's express requirements and were induced , obtained, and retained in violation of the Act and, in order that the status quo ante may be effected, I recommend that the Respondent be required to restore to all employees whose dues were deducted from their wages under the contract or otherwise the amount of the dues deducted together with interest at the rate of 6 percent per annum from the date of the deductions until fully paid. Citing Purolator Products, Inc., 160 NLRB 80, Local 1199 urges that I recommend that the Board order an immediate representation election. The following language from such case is controlling here. As Respondent, by its unfair labor practices detailed herein, has arrogated to itself the selection of a bargaining representative for its Newbury Park employees and has denied such employees a voice in the matter, we shall, in addition to the usual provisions requiring Respondent to cease recognizing the Association as such representative, provide for a remedial election, pursuant to Section 10(c) of the Act, in order to resolve the question concerning representation that exists at Newbury Park. To insure that the effects of Respondent' s unfair labor practices are fully dissipated and that all parties to the election will have full and equal opportunity to inform all eligible voters of the issues involved, thereby enabling the employees to make a free and reasoned choice, we shall apply the rule of Excelsior Underwear, Inc., 156 NLRB 1236, relating to the furnishing of eligibility lists to the remedial election directed herein. For the same reason I recommend that a remedial election be ordered." The rule in Excelsior Underwear, Inc., supra, shall be adhered to. The recommended election shall be conducted among employees in the following unit, which I find upon the entire record to be appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees employed by Prospect Gardens of Norwalk, Inc., at its Norwalk, Connecticut, establishment, including regular part-time employees, but excluding all licensed registered and practical nurses, office clerical employees, professional and technical employees, executives and administrators, guards, and supervisors as defined in the Act." It is further recommended that the Board order the Regional Director, Region 2, to direct and supervise the conduct of an election (1) when compliance with the Recommended Order herein is voluntarily achieved, after the posting period has elapsed and at such time as the Regional Director determines that a free election can be held; or (2) should Respondent fail to comply with the Recommended Order and further proceedings are necessary, upon the full compliance with any subsequent order or decree; or (3) in the event of noncompliance, at such time as Local 1199, or any other union (first having satisfied the employee interest requirements of the Board, see Statements of Procedure Section 101.18) indicates that it is, nevertheless, willing to proceed to an election. In the election the employees shall determine whether they wish to be represented for collective-bargaining "The General Counsel complains that to recommend an election in this case is to deny Respondent's employees "the right to have a labor organization of their own choice represent them on the basis of a voluntary grant of recognition." A purpose of the remedy in this case is to assure a complete and unfettered freedom of choice for employees . To encourage a voluntary grant of recognition would involve the unnecessary risk of exposing employees to the same abuses which gave rise to this action. Thus, in the light of the record here, an election, with its safeguards, as an alternate, is a more reliable means of guarding the employees' complete and unfettered choice of bargaining representative and will to some extent foreclose a repetition of the Respondent's misconduct. "Except for the inclusion of regular part-time employees, which the Board normally includes in the appropriate unit (H W. Elson Bottling Co., 155 NLRB 714, 724), the above unit is the unit described in the contract. Scharf testified that licensed registered and practical nurses had been excluded from the contract's coverage. PROSPECT GARDENS OF NORWALK, INC. 141 purposes by Local 1199, Drug & Hospital Employees Union, RWDSU, AFL-CIO; by Local 225, Industrial Workers of Allied Trades; or by neither. Either union, upon timely request, may withdraw from participation in the election. Other unions, which the Regional Director finds satisfy the Board's requirements for participation in the election, may intervene and also appear on the ballot. CONCLUSIONS OF LAW 1. Local 1199, Drug & Hospital Employees Union, RWDSU, AFL-CIO, and Local 225, Industrial Workers of Allied Trades are labor organizations within the meaning of Section 2(5) of the Act. 2. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for the Board to exercise jurisdiction herein. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By recognizing Local 225, a minority union, as the sole collective-bargaining agent for employees in its employ and otherwise supporting and assisting Local 225 by allowing Local 225's president free access to its premises, by participating in the distribution of union authorization cards to its employees during working hours, and by encouraging its employees to apply for membership in Local 225, designate it as their bargaining representative, and execute a dues-checkoff authorization for it, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 5. By entering into a collective-bargaining agreement with Local 225, a minority union, containing a provision requiring membership in Local 225, and by deducting sums of money from the wages of its employees for union dues to Local 225 pursuant to the union-security provision of the agreement or pursuant to dues deduction authorization cards unlawfully obtained, and by making dues deductions to Local 225 for various employees without dues deduction authorization from such employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 6. All employees employed by Prospect Gardens of Norwalk, Inc., at its Norwalk, Connecticut, establishment, including all regular part-time employees, but excluding licensed registered and practical nurses, office clerical employees, professional and technical employees, executives and administrators, guards, and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices 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 the entire record in this case, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Rendering unlawful assistance and support to Local 225 or any other labor organization. (b) Recognizing Local 225 as the representative of any of its employees for the purpose of collective bargaining concerning grievances, rates of pay, wages, hours of employment, or other conditions of employment. (c) Giving effect to the contract between the Respondent and Local 225 dated June 1, 1968, or to any modification, extension, renewal, or supplement thereto. (d) In any like or similar manner interfering with, restraining , or coercing its employees in the exercise of their rights to self-organization to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which is found will effectuate the policies of the Act: (a) Withdraw and withhold recognition from Local 225 as representative of any of its employees for the purpose of collective bargaining with the Respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment and inform Local 225 and each of its employees that the contract between Local 225 and Respondent has been found to constitute a violation of the National Labor Relations Act, as amended, and that the Respondent is therefore obligated to discontinue such contract as a term or condition of employment and that the employees are released from its obligations and that the Respondent will no longer demand its performance. (b) Reimburse each of its present or former employees for the amount of money deducted from their wages as dues or initiation fees for Local 225 with interest at the rate of 6 percent, commencing from the date of each deduction and continuing until full reimbursement is made. (c) Post at its Norwalk, Connecticut, establishment copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than found in this Decision. "In the event that this Recommended Order is 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." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD A Trial Examiner for the National Labor Relations Board has found that we have violated the National Labor Relations Act, as amended, among other things by recognizing and bargaining collectively with Local 225, Industrial Workers of Allied Trades and executing a contract with it dated June 1, 1968, and by unlawfully assisting and supporting Local 225. The Trial Examiner has further found that our employees shall be released from the obligations of the contract and that we may no longer demand its performance from our employees or deduct any dues for Local 225. WE WILL therefore immediately withdraw all recognition from Local 225 and discontinue the contract as a binding obligation upon our employees. WE WILL also reimburse our employees for any moneys which we have deducted as dues from their wages for Local 225. The Act gives all employees these rights: To engage in self-organization To form, help, or join unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any or all of these things Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with the rights listed above. WE WILL NOT assist or support Local 225, Industrial Workers of Allied Trades. WE WILL NOT try to persuade you i n any way to support one union rather than another. WE WILL NOT ask you to join or assist any union. WE WILL NOT assist or interfere with any labor organization which you may choose as your collective-bargaining representative. All of you are free to become or remain or refrain from becoming or remaining members of any labor organization. Dated By PROSPECT GARDENS OF NORWALK, INC. (Employer) (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. If employees have any question concerning this notice or compliance with its porvisions, they may communicate directly with the Board's Regional Office, 36th Floor, Federal Building, 26 Federal Plaza , New York, New York 10007, Telephone 212-264-0306.