Sweater Bee by Banff, Ltd.

SWEATER BEE BY BANFF, LTD. Sweater Bee by Banff, Ltd. and Allen Goldberg and Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC, Party to the Contract Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC and Allen Goldberg and Sweater Bee by Banff, Ltd., Party to the Contract. Cases 29-CA-2338 and 29-CB-955 June 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 19, 1971, Trial Examiner Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only insofar as consistent with this Decision. 1. Noting the absence of any exceptions thereto, we adopt the Trial Examiner's finding that the Respondent Employer violated Section 8(a)(3) and (1) by discharging employee Goldberg for refusing to sign an authorization card for the Respondent Union, and for assisting a rival labor organization. 2. We do not agree with the Trial Examiner's further finding that the Respondent Employer did not violate Section 8(a)(2) and (1) by illegal assist- ance to the Respondent Union. The record shows that for most of the 6-month period before the filing of the original charge in this case, the Respondent Employer paid the union dues of its employees every month out of its own funds, and not by deducting such dues from the employees' paychecks. There is evidence that said sums were forwarded to the Respondent Union without em- ployee authorization. The Trial Examiner apparently reasoned that dues payments were required as a condition of employment in the contract of March 1, 1968, the validity of which was not questioned; and i See also Aacon Contracting Company, Inc, 127 NLRB 1250, 1272, Superior Derrick Corporation, 126 NLRB 188, ABC Machine and Welding Service, 122 NLRB 944, Dixie Bedding Manufacturing Company, 121 NLRB 189, 195, Boss Overall Cleaners, 100 NLRB 1210, 1237 2 Merchants Fast Motor Lines, 171 NLRB 1444, Penn Cork & Closures, Inc, 156 NLRB 411, enfd 376 F 2d 52 (C A 2, 1967). 805 that while the payments actually made by the Respondent Employer might involve criminal viola- tions under Section 302, Section 302 was not intended to create a new unfair labor practice under Section 8 where none otherwise existed, and did not present any unfair labor practice question to be considered by the Board. The Trial Examiner did not, however, consider cases such as Western Auto Associate Store, 143 NLRB 703, where the Board found an employer in violation of Section 8(a)(2) and (1) by making similar payments to a union under a similar contract.' The claim that such payments were inadvertent is without merit.2 Accordingly, we find that the Respondent Employer violated Section 8(a)(2) and (1) of the Act. 3. The record also shows that after this unlawful assistance the Respondent Employer and the Re- spondent Union entered into a new contract, contain- ing a union-security agreement, on March 1, 1971. Any presumption arising from the 1968 contract that the Respondent Union represented an uncoerced majority on the date of the new agreement is beclouded by record evidence that the Union, within 6 months before the charge was filed, had become completely dormant with respect to representing the employees in the unit and that the employees did not participate in and were not, in fact, aware of the negotiation of the 1971 agreement. We also note that there were no employees in the unit represented by the Union when it and the Employer negotiated their first collective-bargaining agreement on February 28, 1968.3 Against this background, it also appears that within the 10(b) period Respondent Employer unlawfully assisted the incumbent union by continu- ing to pay dues without deduction from pay or employee authorization. Furthermore, only a week before signing that agreement, the Employer discrim- inatorily discharged an employee because of his activities on behalf of a rival union. In these circumstances, the representative base of Respon- dent Union was, as a natural consequence of the Employer's unfair labor practices, subject to coercive influence, and the presumption that the incumbent union continued to represent an uncoerced majority on execution of the new agreement was, we believe, rebutted. As said Union did not represent an uncoerced majority on March 1, 1971, we find that by executing and giving effect to the new collective- bargaining agreement, including a union-security clause, Respondent Employer violated Section 3 This event is used only as background for the purpose of throwing light on events which fell within the period specified by Section 10(b) of the Act, in accordance with Local Lodge No 1424, International Association of Machinists [Bryan Manufacturing Co ] v. NLRB, 362 U.S 411 The original charge in this case was filed March 31, 1971 197 NLRB No. 66 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1), (2), and (3) of the Act, and Respondent Union violated 8(b)(1)(A) and 8(b)(2) of the Act.4 4. We find no merit in General Counsel's conten- tion that Respondent Union violated Section 8(b)(2) or (1)(A) by causing or attempting to cause employee Goldberg's discharge. The affidavit of the Employ- er's representative, Belsky, on which General Coun- sel relies, is admissible against the Employer as an admission, but is hearsay and incompetent as evidence to show a violation by Respondent Union. THE REMEDY In order to effectuate the purposes and policies of the Act, we shall order the Respondent Employer to withdraw recognition from the Respondent Union, and the Respondent Union to cease representing the employees, and both Respondents to cease giving effect to the contract of March 1, 1971, or to any modification, extension, supplement, or renewal thereof, unless and until the Respondent Union shall have been certified by the Board. Nothing in our order, however, shall be deemed to require Respon- dent Employer to vary or abandon those wage, hour, seniority, or other substantive features of its relations with employees established in the performance of said contract, or to prejudice the assertion by the employees of any rights they may have thereunder.5 Furthermore, the Respondents will be jointly and severally required to reimburse the employees for dues deducted from their wages and paid to, or held for, Respondent Union Local 413 after March 1, 1971.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: 1. Respondent Employer, Sweater Bee By Banff, Ltd., Inwood, New York, its officers, agents, succes- sors, and assigns, shall: a. Cease and desist from: (1) Recognizing Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC, or any successor thereto, as the representative of any of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union or its successor shall have been certified by the National Labor Relations Board. (2) Performing or giving effect to its contract of 4 International Ladies ' Garment Workers Union [Bernhard-Altmann Texas Corp J, 366 US 731 (1961), Hunter Outdoor Products, Inc, 176 NLRB No 58, enfd 440 F 2d 876 (C A 1, 1971), Quality Coal Corporation, 139 NLRB March 1 , 1971, with Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC, or to any modification, extension, supplement, or renewal thereof , to any union checkoff cards executed pursuant thereto, or to any other contract, agreement, or understanding entered into with said Union , or its successor, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union , or its successor, shall have been certified by the National Labor Relations Board. (3) Discouraging membership in or activities on behalf of Local 295 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, or encouraging membership in or activi- ties on behalf of Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC, or any other labor organization of its employees, by discharging or otherwise discrimi- nating in regard to the hire or tenure of employment or any term or condition of employment of its employees, except to the extent authorized by Section 8(a)(3) of the Act. (4) In any other manner interfering with , restrain- ing, or coercing its employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , 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 as guaranteed by Section 7 of the Act , or to refrain from any or all such activities. b. Take the following affirmative action designed to effectuate the policies of the Act: (1) Withdraw and withhold all recognition from Local 413, affiliated with Office and Professional Employees International Union , AFL-CIO, CLC, as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, 'rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have been certified by the National Labor Relations Board. (2) Offer Allen Goldberg immediate and full reinstatement to his former job or, if it no longer exists, to a substantially eq iivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned 492 5 Julius Resnick, Inc, 86 NLRB 38, 40-41 6 Hunter Outdoor Products, Inc, supra SWEATER BEE BY BANFF, LTD. as wages from the date of his discharge to the date of his offer of reinstatement, in the manner set forth in that section of the Trial Examiner's Decision entitled "The Remedy." (3) Notify immediately the above-named individu- al, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (4) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (5) Jointly and severally with said Respondent Local 413, OPEIU, reimburse all present and former employees for any dues deducted from their earnings and paid to, or being retained for, Respondent Local 413 after March 1, 1971, by paying to each of them a sum of money equal to the total of such dues deducted from their earnings, together with interest at the rate of 6 percent per annum. (6) Post at its establishment in Inwood, New York, copies of the attached notice marked "Appendix A." 7 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative, shall be posted by Respondent Employer 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (7) Post at the same places and under the same conditions as set forth in (6), above, as they are forwarded by the Regional Director, copies of the Respondent Union's notice marked "Appendix B." (8) Mail signed copies of the attached notice marked "Appendix A" to the Regional Director for posting at the Respondent Union's offices and meeting halls. (9) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2. Respondent Union, Local 413, affiliated with Office and Professional Employees International 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 807 Union, AFL-CIO, CLC, its officers, agents, and representatives, shall: a. Cease and desist from: (1) Performing or giving effect to its contract of March 1, 1971, with Sweater Bee By Banff, Ltd., or to any modification, extension, supplement, or renewal thereof, or to any union checkoff cards executed pursuant thereto, or any other contract, agreement, or understanding entered into with said Employer, or its successor, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until it shall have been certified by the National Labor Relations Board. (2) Acting or purporting to act as the collective- bargaining representative of any employees of Sweater Bee By Banff, Ltd., for the purpose of dealing with said Employer concerning wages, rates of pay, hours of employment, or other terms and conditions of employment unless and until it shall have been certified by the National Labor Relations Board. (3) In any other manner restraining or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organiza- tions, 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 as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. b. Take the following affirmative action designed to effectuate the policies of the Act: (1) Jointly and severally with said Respondent Employer, reimburse all present and former employ- ees for any dues deducted from their earnings and paid to, or being retained for, Respondent Local 413 after March 1, 1971, by paying to each of them a sum of money equal to the total of such dues deducted from their earnings, together with interest at the rate of 6 percent per annum. (2) Post at its offices and meeting halls copies of the attached notice marked "Appendix B.-8 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative, shall be posted by Re- spondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insure that said notices are not altered , defaced, or covered by any other material. (3) Post at the same places and under the same conditions as set forth in (2), above, as they are forwarded by the Regional Director , copies of Respondent Employer's notice marked "Appendix A." (4) Mail signed copies of the attached notice marked "Appendix B" to the Regional Director for posting at Respondent Employer 's establishment at Inwood, New York. (5) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Sweater Bee By Banff, Ltd., violated the National Labor Relations Act, and has ordered us tc post this notice. We intend to carry out the Order of the Board, the judgment of any court, and abide by the following: Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a repre- sentative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. As the Board has found that we violated the law when we discharged Allen Goldberg, WE WILL offer him his old job back if the same exists or, if not, a substantially equivalent job, and WE WILL make up to him the pay he lost, together with 6 percent interest. WE WILL withdraw and withhold all recogni- tion from Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until that organization shall have been certified by the National Labor Relations Board. WE WILL, jointly with Local 413, reimburse our employees for any dues deducted from their earnings and paid to, or being retained for, Local 413, after March 1, 1971, by paying to each of them a sum of money equal to the total of such dues deducted from his or her earnings, with 6 percent interest on that money. WE WILL NOT discourage membership in or activities on behalf of Local 295, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization of our employees, or encour- age membership in or activities on behalf of Local 413 affiliated with Office and Professional Em- ployees International Union, AFL-CIO, CLC, or any other labor organization of our employees, by discharging or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL NOT recognize Local 413, affiliated with Office and Professional Employees Interna- tional Union, AFL-CIO, CLC, or any successor thereto, as the representative of any of our employees for the purposes of dealing with grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that organization shall have been certified by the National Labor Relations Board. Dated By SWEATER BEE BY BANFF, LTD. (Employer) (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the SWEATER BEE BY BANFF, LTD. Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Local 413, affiliated with Office and Professional Employees International Union, AFL-CIO, CLC, violated the National Labor Relations Act, and has ordered us to post this notice. We intend to carry out the Order of the Board, the judgment of any court, and abide by the following: Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help a union To bargain as a group through a repre- sentative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL, jointly with Sweater Bee By Banff, Ltd., Inwood, New York, reimburse all present and former employees of said Employer for any dues deducted from their earnings and paid to, or being retained for, this organization after March 1, 1971, by paying to each of them a sum of money equal to the total of such dues deducted from their earnings, with 6 percent interest on that money. WE WILL NOT give any effect to our union- security contract of March 1, 1971, with Sweater Bee By Banff, Ltd., covering the employees at its establishment in Inwood, New York, or make any other contract or agreement with said Employer. WE WILL NOT act or claim to act as the collective-bargaining representative of the em- ployees of Sweater Bee By Banff, Ltd. unless and until we have been certified by the National Labor Relations Board. You are free to retain your membership in this Local or to join Local 295, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, 809 and by majority choice, to select any union to represent you in bargaining with your Employer. LOCAL 413, affiliated with OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC (Labor Organization) Dated By ,(Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I . NACHMAN, Trial Examiner: This proceeding, tried by me at Brooklyn, New York, on September 13 and 30,1 with all parties present and represented by counsel, involves a consolidated complaint 2 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), alleging that Sweater Bee by Banff, Ltd. (herein Sweater Bee or Respondent-Company), violated Section 8(a)(2) and (3), and derivatively Section 8(a)(1), by (1) entering into a collective-bargaining agreement with Local 413, affiliated with Office and Professional Employ- ees International Union, AFL-CIO, CLC (herein Local 413 or Respondent Union), on March 1, 1971, when Local 413 did not represent a majority of its employees; (2) remitting dues on behalf of its employees to Local 413 without deducting the same from the wages of its employees ; and (3) discharging its employee Allen Gold- berg, the charging party herein , because he refused to sign an application for membership in Local 413; and that Local 413 violated Section 8(b)(1)(A) by entering into the aforesaid contract with Sweater Bee at a time when it did not represent a majority of the latter's employees. For reasons hereafter stated I find and conclude that Respon- dent-Employer violated Section 8(a)(3) and (1) by dis- charging Cohen because of his refusal to sign an applica- tion for membership in Local 413 but that the General Counsel failed to establish by a preponderance of the evidence that Respondent-Union did not in fact represent a majority of the employees of Respondent-Employer when the 1971 contract was executed, or that Respondent- I This and all dates herein are 1971 , unless otherwise indicated. 2 Issued May 28, on charges filed March 31 and May 10 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer in any way assisted Respondent-Union within the meaning of Section 8(a)(2), and hence the 8 (b)(1)(A) and 8(a)(2) allegations of the complaint must be dismissed. At the trial all parties were afforded full opportunity to introduce relevant evidence, to examine and cross examine witnesses, to argue orally on the record , and to submit briefs. All parties waived oral argument. Briefs submitted by the General Counsel and Respondent-Employer, respectively, have been duly considered . Respondent- Union, though stating that it would file a brief , did not do so. Upon the pleadings, stipulations of counsel , evidence,3 including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACTO 1. THE UNFAIR LABOR PRACTICES ALLEGED A. Background Respondent-Employer began business early in 1968 and immediately entered into a contract with Respondent- Union, recognizing the latter as the collective-bargaining representative of its warehouse employees.5 The contract, for a term of 3 years from March 1, 1968, contains union security and dues checkoff provisions the validity of which are not questioned. With the expiration of this contract, Respondent-Employer and Respondent-Union entered into a renewal contract for the same unit, for a term of 3 years from March 1, 1971, and containing the same union- security and checkoff provisions as in the prior contract. There is no claim that these provisions are invalid on their face. The parties stipulated that on March 1 there were 12 employees in the unit.6 There are in evidence checkoff cards signed by eight of the employees referred to.7 The General Counsel offered no testimony to establish that the signatures on these cards were not genuine, or that they had been coerced.8 Of the eight checkoff cards above referred to, one is undated, one is dated June 1970, one is dated January 1971, four are dated March 1971, and one is dated June 1971. Robert Belsky, the chief executive officer of Respondent- Company, testified that beginning about March 1970, and continuing for about a year, Respondent-Company paid to Respondent-Union the union dues for all employees in the unit, including Allen Goldberg for the period that he worked for Respondent-Company, but did not deduct the 3 The transcript is hereby corrected 9 No issue of commerce or labor organization is presented The complaint alleges and the separate answers of Respondent admit facts which establish the jurisdictional elements referred to I find those facts to be as pleaded 5 The contract describes the unit as all employees in the classification of "Shipping clerks, packers, stock clerks, office help and chauffeurs Supervisors and department heads excluded " 6 This does not include Allen Goldberg, the charging party, who was allegedly discharged on February 22, in violation of Section 8(a)(3) of the Act 7 A total of nine checkoff cards were received in evidence, including one signed by Cora Oguna, whose name does not appear on the list of 12 stipulated to be the employee force on March 1. The parties specifically refrained from stipulating as to whether Oguna was or was not an employee on March I, and no testimony was offered to clarify that matter I deem it unnecessary to consider the question because, either way, I reach the same amount of such dues from the wages of the several employees .9 B. The Termination of Goldberg Goldberg began his employment with Respondent-Com- pany in late September 1970, as a truckdriver. i° Bernard Yunu, I find, was Goldberg's supervisor.ii There is no contradiction of Goldberg's testimony that prior to about February 20, he was unaware of any contractual relation between Local 413 and Respondent-Company, or that he had any obligation to Local 413. At no time did Goldberg sign any application for membership in Local 413 or a checkoff authorization in favor of that Local. Feeling that he needed union representation, Goldberg, on or about February 13, visited the office of Teamster's Local 295 (herein Local 295), talking to one Costa, an official of that Umon, and at that time signed a card for Local 295. Costa then telephoned Belsky and told the latter that Local 295 represented his driver (giving Belsky the name of Sweetree as the employee it represented), and that Local 295 would be in touch with him later, cautioning that in the meantime Belsky should take no action. As Respondent-Company had no employee by the name of Sweetree, Belsky conducted an investigation and learned from Supervisor Yumi that it was Goldberg that signed the card for Local 295. On or about February 19, Belsky, who normally would be found in his office in Manhattan, went to the warehouse in Lynbrook where he admittedly had a conversation with Goldberg. On this occasion Belsky gave Goldberg a pencil and a Local 413 card, and asked Goldberg to sign it. Belsky also told Goldberg that Local 413 was the Union in the plant, and that Goldberg had to sign the card if he "wanted to keep things going." Goldberg told Belsky that he was represented by Local 295 and asked why he had never heard of Local 413 in the nearly 5 months he had worked for Respondent-Employer. Belsky replied that he paid all the dues and benefits for the employees and added that if Goldberg did not sign the Local 413 card he was through. Goldberg stated that before he did anything he would call Local 295, and shortly thereafter officials of the latter came to the warehouse and had a conversation with Belsky, the details of which are of no relevance here. On Monday, February 22, Goldberg reported for work as usual and, seeing no truck on the premises, asked Supervisor Yumi where it was. Yumi replied that the truck conclusion with respect to the majority status of Respondent -Union on March 1 8 Indeed, the General Counsel stated that he did not intend offering such testimony 9 Belsky also testified this practice began through inadvertence and that it continued without his knowledge, but as soon as the fact came to his attention about mid February 1971 he required that the practice cease to Respondent contends that Goldberg's duties included assisting in the warehouse when he did not have driving duties Goldberg denied this I find it unnecessary to resolve the conflict 11 The complaint alleges, and by its answer Respondent-Company admitted, Yumi's supervisory status . Respondent-Union, however, denied that fact As I make no finding of liability against the Union, I consider it unnecessary to set forth the evidence adduced by the General Counsel to establish Yumi's authority, and instead rely on the admission of Respon- dent-Company in that regard SWEATER BEE BY BANFF, LTD had been turned back to the rental agency and added "that means you are fired." Goldberg thereupon left the warehouse and has not worked there since.12 II. CONTENTIONS AND CONCLUSIONS The General Counsel's primary contention is that on March 1, when the renewal contract was executed, the Union did not represent a majority of the employees and that Respondent-Union was by reason of that fact, and the fact that the Company checked off and remitted to Respondent-Union dues for all the employees, an assisted union within the meaning of Section 8(b)(2) of the Act. I find and conclude that the General Counsel has wholly failed to sustain this allegation of his complaint. In considering the forementioned contention of the General Counsel, the starting points is that the initial contract executed March 1, 1968, is not subject to attack by the General Counsel because of the 6-month limitation provision in Section 10(b) of the Act. By that contract Respondent-Company extended to Respondent-Union exclusive recognition as the majority representative of the employees in the unit therein described. As legal rather than illegal conduct is to be presumed (see Shamrock Dairy, Inc., 119 NLRB 998, 1002), it must be assumed, in the absence of affirmative evidence to the contrary, which the General Counsel failed to show, that on March 1, 1968, Respondent-Union was the majority representative of the employees in the unit. Moreover, such majority status having been once established, it is, after the lapse of one year, presumed to continue until the contrary is shown. Frich Company, 175 NLRB No. 39, enfd. 423 F.2d 1327 (C.A. 3); Master Touch Dental Laboratories, Inc, 165 NLRB 585, 587, enfd. 405 F.2d 80, 82 (C.A. 2). And the rule is the same whether the initial recognition is by contract, or by reason of a Board certification. Frich Company, supra; Master Touch Dental Laboratories, Inc, supra. The burden of showing that in the instant case Respondent-Union lost its majority status prior to March 1, 1971, rests with the General Counsel, as it is he who asserts that such majority status did not in fact then exist. To rebut the presumption it was incumbent on the General Counsel to "show by objective facts that [there is] a reasonable basis for believing that the Union has lost its majority status since [recognition was accorded it]." United States Gypsum Company, 157 NLRB 652, 655; Rish Equipment Company, 173 NLRB 943, 944. In the instant case the General Counsel has wholly failed to make any 12 Goldberg initially testified that this conversation with Yumi was on February 29, then said it was on February 22, and finally fixed it as being on a Monday following his conversation with Belsky on the preceding Friday As Belsky fixed the time of his conversation with Goldberg as February 19, which was on Friday, I find February 22, to be the date of Goldberg's discharge Except in the foregoing respects, the findings in this section are based on the credited testimony of Goldberg Belsky admitted he had a conversation with Goldberg about Local 413 on February 19, but that he had no recollection of Goldberg asking him why he had never heard of Local 413, that while he did ask Goldberg to sign with Local 413, he had no recollection of giving him a card to sign, but would not deny that he did so Belsky did deny telling Goldberg that if the latter refused to sign a Local 413 card, he could no longer work for Respondent-Company Yumi denied that he discharged Goldberg, claiming that when the latter asked where the truck was, he merely replied that because business had gotten slow it had been returned to the rental agency, but that there was work for Goldberg in 811 showing of objective facts from which it might be reasonably concluded that the Union lost its majority before it entered into the renewal contract on March 1, 1971.13 Accordingly, the allegations of the complaints, that Respondent-Company violated Section 8(a)(1) and (2) of the Act by entering into the March 1, 1971, contract and that Respondent-Union by entering into said contract violated Section 8(b)(1)(A) of the Act, must be dismissed.14 The General Counsel next contends that, even if it be held that Respondent-Union was the majority representa- tive of the employees involved on March 1, 1971, by paying to Respondent-Union the dues of all employees in the unit without deducting same from the earnings of the employees and when it only had checkoff authorizations from a portion of the employees, Respondent-Employer "contributed financial or other support to" Respondent- Union, in violation of Section 8(a)(2) of the Act, and that hence the latter was an assisted Union not then entitled to recognition. I am unable to agree with this contention. It is true that Section 302, which came into the Act by the 1947 amendments, prohibits an employer from paying to a union anything of value except the dues of its employees, deducted from the wages of his employee pursuant to a valid authorization signed by the employee, but the Board has held that Section 302 was "intended neither to create a new unfair labor practice, nor even to be considered in determining whether checkoff violates Section 8 of the Act"; that it was the "intent of Congress ... to leave undisturbed the application by the Board to checkoff . . . its preexisting criteria for determining whether such conduct as is engaged in constitutes a violation of the broad proscriptions of Section 8"; and that the only remedy for violations of Section 302 is "criminal sanctions . . . and [a] petition for injunction by the Attorney General." Salant & Salant, Inc, 88 NLRB 816, 817-818. With respect to its holding prior to the 1947 amendments to the Act, the Board pointed out in Salant & Salant, supra, 818, that "there is nothing in the nature of a checkoff agreement which is per se illegal under any of the provisions of Section 8," and that under the decided case such an agreement is violative of the Act " only in those situations where it was made with an organization that was company dominated, or which for some other reason did not represent an uncoerced majority." [Emphasis supplied.] See also Alaska Salmon Industries, Inc, 122 NLRB 1552, 1581. Pantlind Hotel Company 175 NLRB 815, 823; and cf. Eastern Missouri Contractors Association, 180 NLRB No. the warehouse, and that Goldberg thereupon left the warehouse and never returned I do not credit Yumi in this regard because Belsky in a pretrial affidavit he gave the Board , and which was received in evidence as an admission against interest, stated that after his conversation with officials of Local 295 on February 19, he telephoned an official of Local 413, and at the latter's suggestion he directed Yumi to return the truck to the rental agency, "and lay Goldberg off on February 22 " To the extent that the testimony of Belsky or Yumi is in conflict with that of Goldberg, I credit the latter. 13 The checkoff cards introduced by Respondent-Union , even consider- ing the ambiguity in their dates, do not clearly establish that the Union has lost its majonty by March 1, 1971 Moreover, it was not incumbant on the Union or the Employer to show majority but rather on the General Counsel to establish the lack thereof, and the evidence referred to, which was the only thing shown, does not meet that burden 14 As this is the only violation charged to Respondent-Union, it follows that as to it the entire complaint must be dismissed 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 83. I find no evidence in this record-indeed the General Counsel does not contend-that Respondent-Union was in any way dominated by Respondent-Company, nor, as I have found, is there any evidence that the Union's majority status, on March 1, was in any respect coerced. Accordingly, I find and conclude that Respondent- Company, by paying to the Union the dues of its employees without deducting same from the wages of said employees and without having in its possession an authorization for such deduction from some employees, did not contribute financial or other assistance to Respon- dent-Union of the nature proscribed by Section 8(a)(2) of the Act. The General Counsel's final contention is that Respon- dent-Company violated Section 8(a)(3) and (1) by dis- charging Goldberg on February 22. With this contention I agree. As heretofore found, Belsky, after ascertaining that Goldberg was assisting Local 295, and after Goldberg refused his request to sign a card for Local 413, told Goldberg that he could not work for Respondent-Compa- ny if he did not sign such a card, and after discussing the situation with an official of Local 413, directed Supervisor Yumi to return the truck which Goldberg drove, to the rental agency and lay Goldberg off. This was plainly discrimination against Goldberg because of his activity on behalf of Local 295, which discouraged membership in that Union, and encouraged membership in Respondent Local 413, and hence violated Section 8(a)(3) and (1) of the Act The fact that there were valid union security and checkoff provisions in the contract between Respondent-Company and Respondent-Union does not bung the discharge within the proviso to Section 8(a)(3) for the very simple reason that Goldberg's obligations to Local 413, assuming that such existed, were not in default, his dues having been paid by the Company, nor did Respondent-Employer predicate its discharge of Goldberg on that ground. Rather, the evidence shows, as I have found, that Respondent discharged Goldberg because he refused to sign a card for Local 413, and because he assisted Local 295. Upon the foregoing findings of fact and the entire record in the case, I state the following: CONCLUSIONS OF LAW 1. Respondent, Sweater Bee by Banff, Ltd., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Local 413, and Local 295, are each labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging Goldberg on February 22, because he refused to sign a card for Local 413, and because he assisted Local 295, Respondent discriminated against him in regard to his hire or tenure of employment, encouraging membership in Local 413 and discouraging membership in Local 295, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except to the extent above found, the General Counsel has failed to establish that Respondent-Employer or Respondent-Union engaged in any unfair labor practice alleged in the consolidated complaint , and such allegations should be dismissed. THE REMEDY Having found that Respondent-Employer has engaged in, and is engaging in unfair labor practices affecting commerce, it will be recommended that it be required to cease and desist therefrom and take certain affirmative action found necessary and designed to effectuate the policies of the Act. Having found that Respondent-Employer discriminato- nly discharged Goldberg, a violation which goes to the very heart of the Act, an order requiring it to cease and desist from in any manner infringing on the exercise of employee rights is warranted. N.L R. B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. Affirmatively, I shall recommend that Respondent-Employer be required to offer Goldberg immediate, full, and unconditional reinstatement to his former position or, if that is not available, to a substantially equivalent one, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of earnings suffered by reason of his discharge, by paying to him a sum of money equal to the amount he would have earned as wages from February 22, 1971, to the date Respondent-Employer offers reinstate- ment as aforesaid , less any amounts he may have earned during said period. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Hearing Co., 138 NLRB 716. It will also be recommended that Respondent-Employer be required to preserve, and on request make available to authorized agents of the Board, all records necessary or useful in determining compliance with the Board's order, or in computing the amount of backpay due. [Recommended Order omitted from publication.]