Teamsters Health & Welfare Fund I

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Health & Welfare Fund I and Sandra McMurray. Cases 9-CA-10029 and 9-CA-10689 November 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 28, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Respondent filed a brief in support of the Administrative Law Judge's Decision, but did not file exceptions. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order 2 except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). : 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Teamsters Health & Welfare Fund I, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as modified below. 1. Substitute "paid to" for "deducted from their wages" in paragraph 2(b). 2. Substitute the attached notice for that of the Administrative Law Judge. The General Counsel has excepted to certain credibility Findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The General Counsel argues that reimbursement to the employees should include dues, initiation tees, and other moneys paid to Teamsters Local 100, regardless of the manner of payment, and not just those moneys deducted from the employees' wages. We agree and shall amend the Administrative Law Judge's recommended Orde- and notice accordingly and further amend the notice to conlbrm with the recommended Order. I See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 233 NLRB No. 119 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit employees to withdraw unfair labor practice charges. WE WILL NOT encourage membership in Truck- drivers, Chauffeurs, and Helpers Local Union No. 100, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by requiring membership in the above-named Union as a condition of employ- ment and by deducting and withholding dues and other fees from the wages of our employees on behalf of said Union where it is not the collective- bargaining representative of our employees or not qualified to be so and where there is no collective- bargaining agreement containing a valid union- security provision. WE WILL NOT render assistance to and contrib- ute financial support to the above-named Union, or any other labor organization, by requiring membership in the above-named Union as a condition of employment and deducting dues and other fees from their wages on behalf of said Union, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. You are not required to become members of or pay dues to Local Union No. 100 and WE WILL NOT recognize Local Union No. 100 as your bargaining representative or enter into a collec- tive-bargaining agreement with it. WE WILL reimburse all our former and present employees all fees, dues, and other moneys paid to Local Union No. 100 since August 9, 1975, together with interest. WE WILL bargain collectively with any other labor organization upon request if it is chosen by a majority of the employees to serve as their representative. All employees are free to join or refrain from joining any other labor organization. TEAMSTERS HEALTH & WELFARE FUND I DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This consolidated proceeding involves allegations in Case 9- 814 TEAMSTERS HEALTH & WELFARE FUND I CA-10029 that Teamsters Health & Welfare Fund I, herein called Respondent, violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, by requiring its employees to become members of Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Local 100) where Local 100 had not been lawfully recognized as the collective-bargaining representa- tive of the employees and there was no collective-bargain- ing agreement covering such employees, and allegations in Case 9-CA-10689 that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging its employee Joan Davis and Section 8(aXl), (3), and (4) of the Act by discharging its employee Sandra McMurray. The proceeding was initiated by the charge in Case 9- CA-10029 filed by McMurray on February 9, 1976.1 Pursuant thereto, complaint issued October 29. On October 4, McMurray filed the charge in Case 9-CA-10689, and complaint thereon issued on November 30. On the same date, an order consolidating cases was issued. On February 14 and 15, 1977, hearing was held in Cincinnati, Ohio. Upon the entire record, including my observation of the witnesses, and upon consideration of the briefs filed by the parties, I hereby make the following: FINDINGS OF FACT I. THE FACTS Respondent is an employer engaged in the purchase and maintenance of life, health, accident, and related insurance policies and benefits for employees of employers covered by collective-bargaining agreements between Local 100 and various employers engaged in business operations in the State of Ohio.2 Respondent was created by agreement and declaration of trust of Local 100 and the employers in contractual relationship with Local 100 and it is jointly administered by employer and union trustees. Gerald Kiser,3 president of Local 100, is chairman of the board of trustees. June Baxter is plan administrator and the supervisor in charge of Respondent's office. The complaint alleges, and Respondent admits, that at no time material herein has Local 100 been lawfully recognized as the collective-bargaining representative of its employees and that at no time material herein have the employees of Respondent been covered by any collective- bargaining agreement between Respondent and Local 100. Nevertheless, it was stipulated that at all times relevant herein employees were told upon being hired that member- ship in the Union was a condition of employment and pursuant to such instructions the employees became members of the Union and executed dues checkoff authorization cards. Sandra McMurray was employed by Respondent in November 1975. Her duties at first consisted in answering telephone requests of individuals covered by the various I Unless otherwise indicated, all dates are in 1976. 2 Jurisdiction is not in issue. Respondent admits it is an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act and that it meets the Board's staldards for the assertion ofjurisdiction. insurance programs for claim forms or for assistance with regard thereto. McMurray was off work because of illness from August to September 1974. On her return, she did some telephone work, but also she filled requests of covered individuals for insurance claim forms. In February 1976, McMurray's job was to fill requests for forms. On an average day, she would fill from two to three hundred requests. In early February, McMurray was on sick leave. On February 9, McMurray spoke to Owens at the union hall, Owens had some capacity with Local 100 not defined in the record. McMurray asked him if the employees of Respondent were covered by a contract. He told her no, and when she asked why not he told her there had never been any feeling of a need for one. McMurray said if there was no contract why did she have to pay dues. He told her that was required to hold her job. That same day, McMurray had a similar conversation with Gerald Kiser, and that same day she filed the charge in Case 9-CA- 10029. 4 On February 23, McMurray returned to work. On February 24, the employees held a meeting at the office in which Elaine Kehrer, secretary to June Baxter, polled the employees regarding their desire for a contract. Only McMurray and Joan Davis favored a contract. McMurray and Kehrer exchanged words at the meeting and after the meeting, outside the office, McMurray threatened Kehrer with bodily harm. That same day, Kiser came to the office with attorney Jonas Katz. Snapping his fingers before McMurray's nose, he told her she would not threaten anyone in that office, that he was Baxter's boss and he ran that office. The employees were gathered together and both Kiser and Katz spoke to them. Katz explained that Local 100 had no objection to a contract, but there was a question whether it was permissible. Kiser said if the employees wanted a contract they could have 12 contracts, he did not care, but he did not want any fighting. He said if there was a problem, why did they not come to him. McMurray asked if he wanted her to drop the charge and he told her no, to file more if she liked. The following day, Kiser came to the office and advised the employees that Baxter was resigning, that she would only stay until he found a replacement. He said the office would have to close because it could not operate without her. That afternoon McMurray had a conversation with Kiser in which she told him she wanted a job for the girls, that it was not fair to fire the girls for something she had done. Earlier, Kiser had made a remark casting doubt on McMurray's right to vacation pay and she raised the issue and he said she would get it. O'Banion, business agent of Local 100, was present in this conversation and he told McMurray that attorney Katz wanted to know if she would consider dropping the charge. She said she would. Shortly thereafter, she was called to the telephone to speak to Katz. He asked her to come to his office to sign a withdrawal form. She refused. I The record is hereby corrected to reflect this spelling of Kiser's name. 4 Part of McMurray's reason for inquiring about a contract was her resentment over a job reassignment when she returned from sick leave. 815 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He offered to mail a form to the office, but she told him to mail it to her home. On Friday, February 27, Baxter held a meeting of the employees in which she said, according to McMurray, that any girl involved in a discussion of the charge in the office would be discharged.5 On Monday, March 3, Batsche came to the office, identified himself as a business agent of Local 100 assigned to that office, and said he was planning a meeting at the union hall to discuss a contract. The day before, some employees had met and selected McMurray as their spokesperson and she told Batsche this. He said she could not be spokesperson until there was a contract. On March 26, McMurray went on a 2-week vacation from which she did not return until August 30 because of illness. According to McMurray, on the day of her return, Baxter asked her if she had heard anything about the charge and McMurray told her no, that it had been sent to Washington. Baxter asked her if she planned to continue with it and McMurray said yes.6 McMurray was not reassigned to requests, Baxter explaining someone else was on it and she would assign odds and ends to McMurray to work her back in gradually. On September 1, Joan Davis was discharged. Davis had been filling requests for forms and Baxter told McMurray she was being assigned to that job. She told her she was putting her on it for 4 weeks and if at the end of that time she could not handle it she would have to let her go. McMurray worked on that job between September 1 and September 21. During that period, there were many complaints from claimants about the forms they were receiving and McMurray changed her procedure to remedy the problem (without conceding she was the source of the problem).7 According to McMurray, on the morning of September 21, Baxter told her the problem was too bad and if things did not improve by noon she would have to her her go.8 McMurray told her she understood, but that she did not understand why the problem existed because she had changed her procedure every day. After lunch, Baxter told McMurray she was letting her go because there were too many problems. As to Joan Davis, she was hired on August 8, 1975. Davis did a variety of clerical jobs. She testified that she filled requests in June and early July 1976, but was assigned to typing form letters in July, a job she performed until she went on sick leave in early August. When she returned to work on August 15, she was reassigned to filling requests. After 1 week on the job, she became aware through overhearing the girls answering the telephones that there were many complaints from members. Davis changed her procedure, but to no avail. Baxter asked Davis if she was checking her work and if she knew of the problem. Davis told her yes, but she could not see where she was at fault. On the last Wednesday or Thursday of August, Baxter told her if it did not get any better she would have to let her go. The next day, August 30, Baxter called her into the office I The complaint does not allege any unlawful threats of discharge. Baxter denied any threat and I credit her. The threat did not appear in McMurray's prehearing statement and I am not disposed to credit McMurray's uncorroborated version of the meeting. s Baxter denied saying anything to McMurray about her charge. She testified she spoke to McMurray and adverted to the matter of a contract. I credit her. in the afternoon and told her she was not getting any better and she would have to let her go. II. ANALYSIS AND CONCLUSIONS A. The Discharges The central disputed issue in this case is Respondent's motive for the discharge of Joan Davis and Sandra McMurray. General Counsel, in a well written brief, argues that the record as a whole supports a finding that the discharges of McMurray and Davis were unlawfully motivated. There is no direct evidence of unlawful motivation, but General Counsel argues that "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence." Corrie Corporation of Charleston v. N.LR.B., 375 F.2d 149, 152 (C.A. 4, 1967). As General Counsel observes, it is hard to imagine an employer with a greater degree of sophistica- tion in such matters than Respondent, an employer whose administration is to all appearances determined by union president Kiser. Be that as it may, the record must contain evidence, albeit circumstantial, of unlawful motivation, and not mere suspicion. In my judgment, General Coun- sel's proof does not rise above the level of suspicion. The controlling circumstance in reaching this conclusion is the fact that individuals serviced by Respondent were complaining in large numbers, either that they were not receiving the claim forms they had requested or they were receiving the wrong forms. As to this aspect of the case, General Counsel concedes that there were complaints. He contends, however, that they were not attributable to Davis' and McMurray's work performance, but rather that the complaints were part of a larger plan, camouflaging the true motivation behind the discharges. There is no direct evidence of a plan, but General Counsel would have me infer one from all the circumstanc- es, such as the fact that, assertedly, for the first time the job of filling request forms was made a one-employee task, that the request mail was kept separate and the envelopes left unsealed upon specific instructions, and the fact that records of complaints were kept. There is an element of piling inference on inference to such an argument, but the argument has other failings. General Counsel's argument assumes that the cases of McMurray and Davis are of a piece when in fact they are not. Thus, if keeping records of complaints was part of the plan to effect a pretextuous discharge, that part was not carried out in Davis' case. If the assignment of one employee to the job is part of the plan, it was not followed in Davis' case who, according to her own testimony, during the period of McMurray's absence because of illness, did other types of work than filling requests and was not solely assigned to fill requests until August 15. As to the assertion 7 Respondent administers a variety of insurance programs requiring the use of a vanety of forms dependent on the identity of the insurer and type of claim (e.g., medical, dental, or vision). 8 Baxter could not recall making such a statement and it is difficult to understand why she would. Whether or not she did is immaterial. 816 TEAMSTERS HEALTH & WELFARE FUND I that specific instructions were issued not to seal the envelopes, Davis did not so testify and McMurray's testimony supports the assertion only by innuendo. In short, the factual support for General Counsel's assertion that there existed a plan to assign blame to Davis and McMurray for complaints regarding claim forms is simply lacking. Even without a plan on Respondent's part there is always the possibility that coemployees of Davis and McMurray "framed" them to cause their discharge because they had created dissension in the office by wanting a contract and by McMurray's filing the charge in Case 9-CA-10029, and given the fact that the work in question was simple, Respondent should have known that this was happening. General Counsel suggests such a basis for finding a violation. The simple answer to such a suggestion is that it lacks evidentiary support. It is true that the job of filling requests was a simple one well within the capabilities of McMurray and Davis and one can wonder not only why there were so many complaints, but also one can wonder at Baxter's lack of imagination in ferreting out the problem, such as her failure to check the procedure for handling requests after McMurray or Davis had done their jobs. Baxter asserted she called the post office, but she never said she checked her own mailroom. Not until after McMurray was discharged were the unnailed envelopes checked, a rather obvious means of checking whether McMurray was at fault that could have been used earlier. But to wonder about these circumstances is not sufficient basis for inferring an unlawful motive. If the case involved only the discharge of McMurray, one might find that the circumstances as a whole warranted an inference of unlawful motivation, but the case involves the discharge of Davis as to whom there is no evidence of a motive to discriminate. Her inquiry in November 1974 about a contract is too remote in time to believe it had any bearing on her termination in 1976, and her activity in 1976 consisted only in indicating she favored a contract in the poll taken by Baxter's secretary on February 24. The evidence indicates that Respondent was not opposed to a contract, at least not with Local 100. It might well have been strenuously opposed to a contract with a union such as the Office and Professional Employees International Union or one of its locals, but nothing said by Davis or McMurray suggested they entertained any notion of seeking such union support. In the circumstances, a finding that Respondent was unlawfully motivated in discharging Davis is not warranted. But if the discharge of Davis cannot be shown to be unlawfully motivated, it must also be concluded that the evidence is insufficient to support a finding that McMurray was unlawfully discharged, because the complaints about filling requests continued after Davis was discharged. In McMurray's case, I am persuaded that Respondent entertained animus against her because of her filing of the charge in Case 9-CA-10029. Kiser's conduct on February 24 and Baxter's "resignation" support a finding of animus. But a finding of animus, without more, is insufficient to sustain a finding of a violation where the record indicates probable cause for discharge. Finally, adverting briefly to the notes kept of complaints about forms, I am not persuaded that they support a finding of discriminatory motive. Although I have reserva- tions in the matter, I credit the testimony of Peno and Rust that keeping records was their idea. In my judgment, had it been Baxter's idea and had the purpose been to build a case against McMurray, the records would have been kept in better form than notations on a calendar. It is evident that Peno and Rust did not need the records for their protection, but it is equally evident that they were hostile to McMurray and were motivated by their hostility. This might be significant if there was any question whether complaints were being received, but this is not disputed. In summary, while there are unanswered questions in the case, in light of the undisputed existence of a problem respecting filling requests and the fact that Davis was discharged for this reason with no evidence of a motive to discriminate against her, the conclusion that McMurray's discharge was discriminatorily motivated may not be found to be supported by a preponderance of the evidence. B. Solicitation To Withdraw the Charge At the hearing, General Counsel amended the complaint to allege that on or about February 25, Respondent solicited the withdrawal of the charge in Case 9-CA-10029. The evidence relative to the allegation is the uncontradict- ed testimony of McMurray described earlier that on February 25 she had a conversation with Kiser and O'Banion in which O'Banion told McMurray that attorney Katz wanted to know if she would consider dropping the charge, she said she would and shortly thereafter spoke to Katz and he asked her to come to his office to sign a withdrawal form. She refused, but pursuant to her suggestion he mailed the form to her home. Respondent contends that McMurray's testimony is insufficient to establish a violation, but that if a violation is found it was, at most, technical and does not warrant a remedial order. I do not agree. In that same conversation with O'Banion, McMurray had a conversation with Kiser about what it was she wanted and she had told him that she wanted a job for the girls, that it was not fair to fire the girls for something she had done. (McMurray had made the statement because she interpreted the resignation of Baxter and Kiser's announcement that the office would close as actions attributable to her having filed the charge.) Earlier, Kiser had made a remark casting doubt on McMurray's right to vacation pay and when she raised the issue in this conversation he assured her she would get it. In light of these references to possible closing and McMurray's vacation pay, a request that an employee withdraw a pending unfair labor practice charge would clearly tend to coerce the employee to forego rights guaranteed by Section 7 of the Act. Accordingly, I find that Respondent thereby violated Section 8(aX 1) of the Act. C. The Unlawful Assistance The complaint in Case 9-CA-10029 alleges that Respon- dent unlawfully assisted Local 100 in violation of Section 8(aXl) and (2) of the Act and discriminated against employees in violation of Section 8(aX1) and (3) of the Act by requiring membership in Local 100 as a condition of employment, soliciting employees to become members of 817 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 100, and deducting dues, fees, and assessments from wages of employees on behalf of Local 100 without valid authorization. There is no evidence that employees were "solicited" to become members of Local 100 and I shall therefore recommend dismissal of that allegation. As to the remaining allegations of assistance and discrimination, Respondent stipulated that there had never been at any time relevant a collective-bargaining agree- ment covering the employees of Respondent and that employees were told upon being hired that membership in Local 100 was a condition of employment and pursuant to such instructions they executed dues checkoff authoriza- tions. It is patently clear, and I find, that Respondent violated Section 8(a)(1), (2), and (3) of the Act by requiring membership in Local 100 as a condition of employment in the absence of a valid union-security agreement, and by deducting dues and other fees from their wages on behalf of Local 100. Tonkin Corp., of California d/b/a Seven-Up Bottling Co., of Sacramento, 165 NLRB 607, 614 (1967). III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with its operations described therein, 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. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. General Counsel contends that an appropriate remedy for the unlawful deduction of dues and other fees from the wages of employees is an order requiring Respondent to reimburse employees for such dues and fees. I agree. Respondent does not dispute that it is appropriate to reimburse employees for dues and other fees unlawfully deducted from their wages but contends that such reimbursement should apply only to those employees who became employees during the 6-month period preceding the filing of the charge in Case 9-CA-10029 and thereafter to date.9 According to Respondent, as the dues checkoff authorization cards of the remaining employees were executed prior to the 10(b) date and as they are valid on their face, an order of reimbursement would be improper under Local Lodge No. 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Company] v. N.LR.B., 362 U.S. 411. 9 Of 12 employees employed by Respondent from the beginning of the 10(b) period to the date of the hearing, only 3 (Gail M. (last name unknown), Sandra Ventre, and Ellen Volk) executed dues-checkoff authorization cards during the 10(b) period. 10 Counsel for Respondent stated at the hearing that after complaint Respondent's contention is lacking in merit for at least two reasons. First as noted earlier, it was stipulated that during the 10(b) period Respondent required membership in Local 100 as a condition of employment, and the record indicates that during that period three employees executed dues checkoff authorizations. Given the small size of Respondent's work force, it is a reasonable inference that all other employees who had executed dues checkoff authorizations prior to the 10(b) date knew of the continuing existence of the unlawful condition during the 10(b) period and were thereby coerced into maintaining in effect their dues checkoff authorizations. Second, Local 100 is not competent to represent Respondent's employees. Oregon Teamsters' Security Plan Office, 119 NLRB 207 (1957). For this reason, if for no other, in deducting dues from the wages of its employees on behalf of Local 100, Respondent was rendering financial assistance to Local 100 in violation of Section 8(a)(1) and (2) of the Act. Respondent asserts, in effect, that where a labor organization is not the bargaining representative of employees, the employees may voluntarily and lawfully authorize disbursement of part of their wages to such labor organization in the same way that they authorize deduc- tions for United Fund or deposits in savings institutions and the like. I doubt the validity of such an assertion, but need not dispose of it. The fact of the matter is that Local 100 purported to act as bargaining representative of the employees as shown by the appointment of its agent Batsche to service the unit and to meet with employees to discuss a possible contract with Respondent. Local 100 was not a recipient of funds in the way suggested by Respondent. For the foregoing reasons, I shall recommend that Respondent be required to reimburse all dues and fees deducted from the wages of all former and present employees who were employed by Respondent for the period preceding 6 months from the filing of the charge in Case 9-CA-10029 to such time as Respondent ceased making such deductions.' 0 General Counsel asserts that an appropriate remedy in this case should include a requirement that the employees should be advised of their Section 7 rights. The record clearly indicates the necessity of such notification and it shall be recommended. Teamsters Local Union No. 688, 215 NLRB 852 (1974). CONCLUSIONS OF LAW 1. Teamsters Health & Welfare Fund I, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. issued herein Respondent ceased requiring membership in Local 100 as a condition of employment and ceased deducting dues. General Counsel offered no objection to the statement, but as it was not stipulated to, nor offered as evidence, I make no findings with regard thereto and leave the matter for compliance. 818 TEAMSTERS HEALTH & WELFARE FUND I 3. By requiring membership in Local 100 as a condition of employment and deducting and withholding dues and other fees from the wages of its employees on behalf of Local 100, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(1), (2), and (3) and 2(6) and (7) of the Act. 4. By soliciting Sandra McMurray to withdraw the charge filed in Case 9-CA-10029, Respondent has engaged in, is engaging in, unfair labor practices within the meaning of Sections 8(a)( ) and 2(6) and (7) of the Act. 5. General Counsel has not established by a preponder- ance of the evidence that the discharges of Sandra McMurray and Joan Davis were violative of Section 8(a)(l), (3), and/or (4) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER l Respondent Teamsters Health & Welfare Fund I, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Soliciting employees to withdraw unfair labor practice charges. (b) Encouraging membership in Truck Drivers, Chauff- eurs, and Helpers Local Union No. 100, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by requiring membership in said labor organization as a condition of employment and by deducting and withholding dues and other fees from the wages of its employees on behalf of said labor organization, where said labor organization is not the collective-bargain- ing representative of its employees or not qualified to be so, and where there is no collective-bargaining agreement containing a valid union-security provision. (c) Rendering assistance to and contributing financial support to Truck Drivers, Chauffeurs, and Helpers Local Union No. 100 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by requiring membership in said labor organization as a condition of employment and deducting dues and other fees from their wages on behalf of said labor organization, where said labor organization is not the collective-bargaining repre- sentative of its employees or not qualified to be so, and I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. where there is no collective-bargaining agreement contain- ing a valid union-security provision. (d) In any other manner interfering with, restraining, 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. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Advise the employees that they are not required to become members of, or pay dues to, Truck Drivers, Chauffeurs, and Helpers Local No. 100, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, that Respondent will not recognize said labor organization as the bargaining representative of the employees or enter into a collective- bargaining agreement with it; that all employees are free to join or refrain from joining any other labor organization; and that Respondent will bargain collectively with such other labor organization, upon request, if the latter is chosen as their representative by a majority of the employees. (b) Reimburse each of its former and present employees all fees, dues, and other monies deducted from their wages on behalf of Local 100 since August 9, 1975, together with interest at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board and its agents all payroll and other records necessary in determining the amount due as reimburse- ments. (d) Post at Respondent's office in Cincinnati, Ohio, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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 ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint found not to have been sustained by a preponderance of all the evidence be dismissed. 12 In the event that the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 819