Solari, C., & Sons, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Solari & Sons, Inc. and Wood, Wire and Metal Lathers' International Union, AFL-CIO, Local Union No. 208 of Reno, Nevada and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 971, Party in Interest. Case 32-CA-3375 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On February 3, 1982, Administrative Law Judge Jay R. Pollack issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an opposing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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,' as modified herein. Underlying the issues in this case is the merger of Wood, Wire and Metal Lathers' International Union, AFL-CIO, and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Carpenters Local Union No. 971 claims that, pur- suant to the mergers of the Internationals, Lathers Local Union No. 208 of Reno, Nevada, merged into Local 971 and that Local 971 is the surviving successor. Respondent recognized Local 971 as successor and continued to check off dues for Lathers employee-members (or former Lathers) pursuant to its agreement with Local 208.2 Howev- er, because the validity of the merger of the Locals was contested, Respondent paid the dues it with- held to the United States District Court for the District of Nevada by interpleader in a proceeding in which Lathers Local 208 and Carpenters Local 971 are claiming the checked-off funds. The General Counsel does not except to the Ad- ministrative Law Judge's dismissal of the 8(a)(1) al- legation concerning a threat of discharge or to his dismissal of the allegations concerning the dis- charge of Trimble, Rudy, and Dickson. The Gen- eral Counsel does not question the effectiveness or validity of the merger of the Locals, does not con- ' In accordanlcc swith his dissent in Olyrlpii Medk a/ Corporation. 25(0 NL.RB 146 (1980), Member Jenlkins sould ass iard interest on the backpay due based on the formula set forth therein Thie Lathers Local 20(8 contract provided for chcckoff: the Carpen- ters I ocal 971 contract did inol test Respondent's recognition of Local 971 as suc- cessor to Local 208, and does not challenge Re- spondent's application of Local 208 checkoff au- thorizations to Local 971. The General Counsel does contend that Respondent unlawfully withheld dues from certain Lathers employee-members but only on the grounds that Respondent did not have valid checkoff authorizations from those employ- ees. In his exceptions the General Counsel contends that the checkoff authorizations were valid for only a year. However, we agree with the Administrative Law Judge that the language on the authorizations, "To be renewed each yr.," was meant to provide for revocability within a year as required by Sec- tion 302(c)(4) of the Act. Accordingly, we find that the authorizations continued in effect until spe- cifically revoked. The General Counsel also contends that Re- spondent unlawfully deducted dues from Lathers employee-members who had never authorized such checkoffs. Although the parties stipulated that Re- spondent deducted dues from its Lathers employee- members, there is no showing in the record, with the exceptions below, that Respondent deducted dues for any employee from whom it did not have a valid authorization. The Administrative Law Judge found that Fred Rudy and Gordon Dickson were among the em- ployees for whom Respondent produced checkoff authorizations but that they were also among Lath- ers Local 208 members who had signed revoca- tions of checkoff. As Respondent continued to check off dues for Rudy and Dickson after their revocations. the Administrative Law Judge con- cluded that Respondent violated the Act. As the record is not clear from which employees Re- spondent deducted dues, 3 the Administrative Law Judge left to the compliance stage the determina- tion of whether any other employees are entitled to reimbursement. We further find that the record shows that Respondent also continued to deduct dues from Del Trimble 4 after he had signed a revo- cation of checkoff5 and until he was discharged. 3 Respondent produced 17 checkoff authorizations for its employees; there is no showing that these are the only authorizations Respondent may have had or that they were for employees working during the rele- vant time. The General Counsel introduced 11 checkoff revocations; there is no showing that they were for employees working during the rel- evant period and no conclusive evidence showing what Lathers employ- ee-members were working for Res iondent during the relevant time. As indicated, only Rudy and Dickson appeared on both lists. 4 Although Del Trimble's testimony was discredited in other respects. his testimony that dues continued to be deducted was not rebutted and is consistent with the parties' stipulation that Respondent checked-off dues from its Lathers employee-members. Trimble was a member of Lathers I.ocall 208 and worked for Respondent during the relevant time. s Unlike Rudy and Dickson. Trimble was not included in the checkoff authorizations produced by Respondent. liowever. there is no direct evi- delce that T rimble never authorized checkoff. 264 NLRB No. 53 282 C. SOLARI & SONS Accordingly, we find that Respondent unlawfully withheld dues from Trimble and shall amend the Administrative Law Judge's Decision to include Trimble with Rudy and Dickson. 6 As the recom- mended Order is written in general terms sufficient to include this modification, the recommended Order itself need not be amended. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, C. Solari & Sons, Inc., Reno, Nevada, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. I The Administrative Law Judge found that only the dues deductions of Dickson and Rudy were at issue, later referred to the deductions of Trimble and Rudy, and finally referred to the deductions of Dickson and Rudy. In view of our Decision herein, the three should be included in each reference; specifically fn 21 is amended to include Gordon Dickson, Fred Rudy, and Del trimble. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge: I heard this case at Reno, Nevada, on October 15 and 16, 1981.' Pursuant to a charge filed against C. Solari & Sons, Inc. (Respondent), on January 29 and amended on March 30, by Wood, Wire and Metal Lathers' International Union, AFL-CIO, Local Union No. 208 of Reno, Nevada (Local 208), the Regional Director for Region 32 of the National Labor Relations Board issued a complaint and notice of hearing on March 31, alleging in substance that Respondent engaged in certain violations of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 971 (Local 971), was named in the complaint as a Party in Interest and Unless otherwise stated, all dates hereafter refer to the year 1981 2 Local 971 filed an answer to the complaint and a post-trial brief but did not appear at the hearing. 3 Sec. 2(5) provides: The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances. labor disputes, wages, rates of pay, hours of employment, or condi- tions of work. was served with copies of the amended charge and com- plaint. THE ISSUES The principal questions presented for decision are: 1. Whether Respondent violated Section 8(a)(1), (2), and (3) of the Act by deducting dues from the wages of certain of its employees notwithstanding attempts by such employees to revoke their dues-checkoff authoriza- tions. 2. Whether Respondent violated Section 8(a)(1) of the Act by threatening an employee with termination be- cause of that employee's stated intention to file a com- plaint with a state agency concerning Respondent's de- duction of dues from the wages of certain of its employ- ees. 3. Whether Respondent violated Section 8(a)(l) and (3) of the Act by laying off employees Delbert Trimble and Fred Rudy on January 6. 4. Whether Respondent violated Section 8(a)(1) and (3) of the Act by requiring employee Gordon Dickson to obtain a job referral slip from Local 971's hiring hall on January 6 and not permitting Dickson to work thereafter in the absence of such a referral slip. All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs.2 Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent is a Nevada corporation with an office and place of business in Reno, Nevada, where it is en- gaged in the construction industry as a painting and drywall contractor. During the 12 months preceding the issuance of the complaint, Respondent purchased and re- ceived goods and services valued in excess of $50,000 di- rectly from suppliers located outside the State of Nevada. Accordingly, I find that, at all times material herein, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED There is no issue that Local 971 is a labor organization within the meaning of Section 2(5) of the Act.3 Howev- er, Respondent and Local 971 contend that Local 208 ceased to exist as of December i, 1980, and, therefore, 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Local 208 was not a labor organization at the times material herein.4 For many years, Respondent has had a series of sepa- rate collective-bargaining agreements with both Local 208 and Local 971. Its most recent agreement with Local 208 was effective, by its terms, from July 1, 1979, to July 1, 1982. Respondent's current agreement with Local 971 is effective, by its terms, from July 1, 1980, to July 1, 1983. In April 1979, the United Brotherhood of Carpenters and Joiners of America (Carpenters International) and Wood, Wire and Metal Lathers' International Union (Lathers' International) entered into an agreement pro- viding for the merger of the Lathers' International into the Carpenters International. The merger agreement became final in October 1980, after ratification by the Lathers' International. The agreement provided, inter alia, that certain local unions of the Lathers' Internation- al meeting certain criteria would be permitted to main- tain separate identities from locals of the Carpenters In- ternational in the same geographical areas, after the merger. Those locals not meeting such criteria would be permitted to operate separately for a period of time and, if at the end of that time they could not meet the criteria for independence, they would be merged into locals of the Carpenters International. After finalization of the merger agreement, representa- tives of Local 208 and Local 971 met to discuss the ef- fects of the merger. Apparently Local 208 did not meet the criteria for remaining an independent local after the merger. At a meeting in November 1980, Bud Bryant, a representative of the Carpenters International, informed Anthony Gaffke, business representative for Local 208, that Bryant was going to direct the immediate merger of Local 208 into Local 971 as of December 1, 1980. Bryant also told Gaffke that any collective-bargaining agree- ments that Local 208 had with any employer would no longer be in effect, that Bryant would so inform all Reno area contractors, and that, if Local 208 resisted the merger, Bryant would enforce the merger by restricting the type of work members of Local 208 could perform. Bryant further said that beginning on December 1, 1980, all employees peforming lather work would be dis- patched to jobs from Local 971's hiring hall rather than Local 208's hall. Thereafter, Local 208 filed suit in the Nevada state court to block the merger. The action was subsequently removed to the United States District Court for the Dis- trict of Nevada. On October 8, 1981, Local 971 filed a Motion for Permanent Injunction and Motion for Sum- mary Judgment. The court has not ruled on Local 971's motion, to date. Shortly before December 1, 1980, Respondent was in- formed by officials of Local 971 that Local 208 would be merged into Local 971, as of December 1, 1980. Re- spondent was further informed that it could continue em- ploying members of Local 208 as lathers after December I on any job then in progress, if those employees were dispatched from Local 971's hiring hall. However, if the 4 There is no issue that prior to December 1, 1980. Local 208 was a labor organization lcwithin the meaning of the Act. employees were not so dispatched, they would be re- stricted to performing only "traditional lathers' work." 5 On December 1, Gary Cavakis, Respondent's vice president, notified Gaffke that Respondent was taking the position that Local 208 merged into Local 971. Thereafter, Local 971 succeeded to Respondent's collec- tive-bargaining agreement with Local 208 and is current- ly enforcing that agreement as well as its own agreement with Respondent. The General Counsel does not attack the validity of the merger, Local 971's succession to Local 208's bar- gaining agreement, or Respondent's recognition of Local 971 as successor to Local 208. Rather, it is the General Counsel's position that, even if Local 208 is not a labor organization, Respondent violated the Act as alleged by unlawfully assisting Local 971 and by unlawfully dis- criminating against employees who refrained from join- ing Local 971. While Respondent recognized Local 971 as successor union to Local 208, not all other Reno area contractors did the same. One contractor, Ed Oueihle, filed a repre- sentation petition with the Board in Case 32-RM-190 seeking a Board determination of whether Local 208 or Local 971 represented his lather employees. Further, Gaffke testified that other contractors still have agree- ments with Local 208. According to Gaffke, Local 208 still has officers and approximately 30 employee-mem- bers. Thus, on the record before me it cannot be found that Local 208 has become defunct or ceased to be a labor organization within the meaning of the Act.' tit. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts As discussed above, on December 1, 1980, Respond- ent's vice president, Gary Cavakis, told Gaffke that Re- spondent was taking the same position as Local 971 re- garding the merger; i.e., that Local 208 had merged into Local 971. Cavakis told Gaffke that the dues deducted from lather employees would be remitted to Local 971 or put into an escrow account. After the above conversation with Cavakis, Gaffke prepared forms entitled "Cancellation of Dues Check-Off Authorization" for employees to sign. Eleven members of Local 208 who had allegedly previously signed dues- checkoff authorizations signed the cancellation forms. Gaffke then submitted the signed cancellation forms to Respondent in mid-December. Notwithstanding the can- cellation forms, Respondent deducted dues from all its lather employees for all of December 1980 and for the first pay period in January 1981. On February 24, Re- spondent deposited the dues deducted from its lather em- ployees' wages with the United States district court by interpleader in the lawsuit filed by Local 208 to enjoin the merger.7 s Prior to December I, there was a substantial amount of overlap in the work performed by carpenters and lathers in Respondent's employ. 6 Cf Awning Research Institute, 116 NLRB 505 (1956). The district court has not yet ruled on the matter. 284 C. SOLARI & SONS Respondent in its defense of the dues deductions pro- duced dues deduction authorization forms from 17 em- ployees. As discussed above, the General Counsel's evi- dence shows that 11 employees signed revocations of their dues authorization forms. However, only two of the employees, Gordon Dickson and Fred Rudy, were shown to have executed both forms. It is not clear from the record that Respondent made dues deductions from only the 17 employees represented by the checkoff forms in the record. Assuming that Respondent deducted dues from the wages of only the 17 employees represented by its forms, only the deductions from Dickson and Fred Rudy are at issue herein. However, if any other employ- ee of Respondent revoked his authorization and had dues deductions made nonetheless, his identity can be ascer- tained at the compliance stage of the proceeding, if nec- essary. On or about December 24, 1980, Fred Rudy, a lather employee of Respondent at its MGM Hotel jobsite, found a Local 971 referral slip and dues-checkoff author- ization attached to his paycheck. Having never seen such documents before, Rudy asked Phil Mulhilly, Respond- ent's job superintendent, what the documents were. Mul- hilly said the documents were for joining Local 971. Rudy said that he had been a member of the Lathers for over 25 years and "wasn't about that time to switch over to Carpenters." Mulhilly told Rudy to simply write "no" on the papers and that Mulhilly would return them to Respondent's office. Rudy gave the papers back to Mul- hilly who then wrote "no" on the papers. On the morning of January 5, Respondent's lather em- ployees complained to Delbert Trimble 8 that dues had been deducted retroactively for the month of December from their wages. Trimble went to Mulhilly and demand- ed that the dues which had been deducted for December be returned to him by noon, or Trimble would file a complaint with the State's labor commission. Mulhilly re- sponded that there was nothing he could do about it. Trimble also telephoned Gaffke and told Gaffke about the dues deductions. After receiving Trimble's call, Gaffke went to the MGM jobsite and met with Mulhilly. Thereafter, Mulhil- ly and Gaffke drove to Respondent's offices, where Gaffke spoke with Respondent's bookkeeper, known here only as Dan. Dan told Gaffke that he had been in- structed to deduct the dues by Cavakis and that he would not refund the dues without Cavakis' approval. Gaffke then telephoned Cavakis and asked Cavakis why 3 weeks' dues had been retroactively deducted from the lather employees' wages. Cavakis told Gaffke that the dues were deducted because of a demand by Local 971. Cavakis further stated that Respondent's attorney had approved such action. Finally, Cavakis said that Re- spondent was backing the position of Local 971 that L ocal 208 had been merged into Local 971. After talking to Cavakis, Gaffke returned to the MGM Hlotel jobsite and met with Trimble and several other of Respondent's lather employees. After this meeting, Trim- ble and Gaffke went to see Mulhilly. According to Trim- ' Trimble crtificd Ihat he ,as job stesward for Local 208 at Respond- cret' MGM Hotel jobsie Respondenl's officials denied any knowledge that Trimble s;as a union steward ble, he asked for the afternoon off in order to file a com- plaint with the state labor commission concerning the dues deductions. 9 Mulhilly then answered, "Go ahead. It'll be a couple of weeks before the 'old man'" finds out and fires you." Gaffke corroborated Trimble's testi- mony. Mulhilly, on the other hand, testified that Trimble asked for time off for personal business and made no mention of filing a complaint with the labor commission. According to Mulhilly, the alleged threat of discharge was not made. That same afternoon, Gaffke approached Albert Solari, Respondent's president, and Leroy Vanetti, Re- spondent's field superintendent, at the MGM jobsite. Ac- cording to Gaffke, he questioned Solari about the identi- ty of certain people on the job. Solari answered "that they were [Respondent's] people, and they were okay." Solari then said that he had enough of Gaffke's people on the job and that, if GaffIe continued to bother him he would use carpenters to do certain work on the jobsite. Gaffke then proceeded to ask two employees for their union cards. Solari then directed Vanetti to stop Gaffke from talking to the employees. Vanetti went over to Gaffke and told Gaffke that the two employees were members of the Laborers Union and that their job dis- patches were available in Respondent's office trailer. Gaffke left and went to the office trailer. On January 6, Trimble and Fred Rudy were laid off. The events of that date are the subject of conflicting tes- timony. According to Trimble, he and Rudy reported for work at approximately 6:55 a.m. on the morning of Janu- ary 6. When Trimble and Rudy signed in for work, Solari and Richard Rudy," foreman for Respondent, were present. Solari asked Trimble and Fred Rudy if they were carpenters or lathers. After Trimble and Rudy said they were lathers, Solari replied, "After today, I will have no more lathers working for me." Richard Rudy was engaged in a telephone conversation and did not participate in the conversation between Solari and the two employees. According to Fred Rudy, when he and Trimble walked into the trailer, Solari seemed upset and asked, "What time do you report to work?" Rudy answered that it was 5 minutes before 7 o'clock. Solari answered that he expected the men "to be up on their floor at their gang box at seven in the morning." Solari asked if Rudy was still a lather. Rudy answered yes and Solari said, "After today I won't have any more lathers working for me." Solari testified that Trimble and Fred Rudy came into the trailer at approximately 5 minutes after 7 o'clock on the morning of January 6. According to Solari, as Trim- ble and Rudy were leaving he asked if they usually came to work at that time. Rudy answered, "Well, it's only a few minutes late." Solari then said, "Well, you'd better get out of the trailer and get up on the job and get to work." Solari denied saying anything to the effect that he would not have any lathers on the job after that day. 9 There is no record that Trimble or Gaflke filed a complaint with the state agency. 'o The "old man" refers to Albert Solari. Respondent's president " Richard Rudy is the nephew of Fred Rudy 285 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richard Rudy testified that he arrived at the jobsite at 6:15 a.m. and observed Fred Rudy and Trimble sitting in Fred's car. Richard testified that he later saw Fred and Trimble as they signed in for work, shortly after 7 o'clock. Richard was on the telephone when Fred and Trimble came into the trailer to sign in for work. Rich- ard saw Solari look at his watch and then say, "What time do you boys start?" Fred answered, "it's just a few minutes." At approximately 11:30 that morning, Richard Rudy approached Fred Rudy and Trimble at their working area, and handed them their paychecks. According to Fred, Richard said, "I'm sorry, unc, but we have to let you go." Fred asked whether he and Trimble were being laid off or fired. Richard answered that they were being laid off. Fred answered that he considered himself fired because he was getting his check in the middle of the day while there was still plenty of work to be done. Richard Rudy did not respond. Trimble testified in sub- stantial accord with Fred Rudy. According to Trimble, when Richard handed the employees their paychecks, Trimble said, "Oh we lasted till now." Richard smiled but did not reply. Richard Rudy, on the other hand, testified that pursu- ant to instructions from Mulhilly he gave Fred and Trimble their paychecks. Richard told them that he was sorry that he had to lay them off. Fred said, "What took you so long, we expected the check before this." On or about January 6, Gordon Dickson and Rick Na- varro, an apprentice lather, were working together at Respondent's Truckee Meadows Community Hospital jobsite. According to Dickson, Vanetti approached Na- varro and Dickson and said he had to lay them off. 2 Vanetti said, "I hate to lose either one of you two guys because I think you're good workers." Vanetti further said that, after that date, he could only hire lathers for nailing chicken wire and, since there was not much of that type work, Dickson and Navarro had to be laid off. Vanetti said that if Dickson and Navarro joined Local 971 they could keep on working. Dickson answered that he needed more time to make up his mind. The next morning Dickson met Vanetti at Respondent's office and told Vanetti that he had not yet made up his mind. Van- etti said that Dickson could not continue working as a lather, because there was not any lather's work to do. Dickson did not work that day nor thereafter for Re- spondent. According to Dickson, up to that time he had been doing framing with tie-on studs, plus metal laths- "virtually everything as far as metal framing, lathing and drywall." Much of this work was not completed as of January 6, 1981. Vanetti also testified that on January 6 he spoke to Dickson and Navarro in Foreman Scatena's presence. According to Vanetti, he told the two employees that they would have to go to Local 971's hiring hall to get a job referral in order to continue their employment with Respondent. Dickson replied that he would have to think it over. Navarro asked what he would have to do to get a referral from Local 971. Vanetti answered that all Navarro would have to do is go to Local 971's hall 2 A foreman nameld Carl Scatena 'as also present. and sign his name. Dickson said he needed a day or two to think about the matter and Vanetti said, "Fine, think it over, Gordon." On the following morning, Dickson met Vanetti at Re- spondent's warehouse. Dickson told Vanetti that he had not made up his mind as to what he was going to do. Dickson then turned and walked out of the warehouse. At approximately 7 a.m., January 8, Dickson saw Vanetti at Respondent's office and told Vanetti that he (Dickson) was on his way to Local 971's hall. Vanetti told Dickson that the hall did not open until 8 a.m. Dickson left and Vanetti did not see Dickson again until the instant hear- ing. Navarro obtained a referral from Local 971 on Janu- ary 6 and continued to work for Respondent thereafter. B. Respondent's Defense to the Terminations 1. Delbert Trimble and Fred Rudy Solari testified that, after Trimble and Fred Rudy left the trailer on January 6, he asked Mulhilly and Richard Rudy what they thought about production on the job. Solari said that he felt Trimble and Fred Rudy were not producing enough work and that he did not like their at- titude. Mulhilly and Richard Rudy agreed with Solari and thus it was decided to lay off the two employees. Mulhilly testified in substantial accord with Solari. Ac- cording to Mulhilly, Solari said that Trimble and Fred Rudy were not producing enough work in comparison to the other men that were working in the same area. Mul- hilly and Richard Rudy agreed with Solari and it was decided to lay off the two employees. Mulhilly further testified that he was personally familiar with the output of Trimble and Rudy, and that the two employees were not in fact producing to their fullest capacity. Richard Rudy testified that, prior to the terminations of January 6, he spoke to Trimble and Fred Rudy about production on two separate occasions. On the first occa- sion, Richard asked all the employees to give him a daily account of the amount of yardage each employee pro- duced. The employees worked in teams of two and were to make such reports by team. Trimble and Fred worked as a team. Richard asked Fred to "help [him] out be- cause the production was falling down." Approximately I week before the terminations, Richard asked Fred and Trimble to help him out and "try to get the yardage jacked up." According to Richard, the team of Trimble and Fred was not producing up to their capabilities. He further testified that Trimble and Fred did not improve their production after he asked them to do so. Neither Trimble nor Rudy was replaced because Rich- ard Rudy and Mulhilly were able to complete the work with the employees then on the job. Solari, Mulhilly, and Richard Rudy all denied that union activities had any- thing to do with the layoffs of Trimble and Fred Rudy. 2. Gordon Dickson Respondent contends that Dickson was not discharged but rather voluntarily quit Respondent's employ rather than be referred through Local 971's hiring hall. It is Re- spondent's position that its field superintendent, Vanetfi, simply requested that Dickson go to Local 971's hiring 286 C. SOLARI & SONS hall and obtain a job referral slip. Respondent contends it was lawfully complying with its collective-bargaining agreement with Local 971 in making such a request of Dickson. As discussed above, Vanetti testified that he told Dick- son and Navarro to obtain referral slips from Local 971's hall if they wished to continue working at the hospital jobsite. I credit Vanetti's testimony that Dickson was never told that joining Local 971 was a requirement. Donald Alford, business representative and financial secretary of Local 971, testified that after December 1, 1980, Local 971 assumed the collective-bargaining agree- ments of Local 208. Thereafter, Local 971 serviced and enforced the agreements. According to Alford, Local 971 intended to enforce the separate agreements until ex- piration, when a single Local 971 agreement could be ne- gotiated for both trades. Alford further testified that em- ployee-members of Local 208 "automatically" became members of Local 971.13 Thus, Local 971 undertook to enforce Local 208's agreement with Respondent. It, therefore, required that all employees be referred out of its hiring hall either under the hiring hall provisions of the Local 971 agreement or the Local 208 agreement. Alford corroborated the testimony of Vanetti that lather employees were required to go to the hall for referral slips but that no requirement of joining or becoming a member was placed on any employee. Alford explained that Local 208 had not cooperated with Local 971 and, therefore, Local 971 did not know which employees had been referred to Respondent prior to Local 971's take- over of Local 208's agreement. As noted above, the General Counsel does not chal- lenge Local 971's succession to Local 208's agreement with Respondent nor Respondent's recognition of Local 971 as successor union to Local 208. C. Credibility Resolutions The resolution of credibility conflicts is critical to the issues herein. I was impressed by the testimony of Rich- ard Rudy. Richard was placed in the unenviable position of testifying in a dispute between his uncle and his em- ployer. I am convinced that Richard Rudy testified truthfully so as not to unduly incur the hostility of either his uncle or his employer. I believe under these circum- stances Rudy's testimony is unlikely to be false. I, there- fore, credit the testimony of Richard Rudy. I discredit the testimony of Delbert Trimble and Fred Rudy to the extent it differs from that of Richard Rudy. Similarly, I credit the testimony of Phil Mulhilly and Albert Solari which was consistent with that of Richard Rudy. Gordon Dickson's testimony that Vanetti said he could continue working if he "joined" Local 971 is not credited. It appeared to me that Dickson confused ob- taining a referral from Local 971 with joining that Union. I credit Vanetti's testimony that he told Navarro and Dickson to obtain a job referral slip and that Vanetti made no mention of joining Local 971. Further, I found Vanetti to be a more reliable witness than Dickson and I ':' D)ues deducted bh Respondent from the wages of members or Local 208 hake been credited to the emplo)ee-members' accounts hy Local 971 credit Vanetti over Dickson where there is a conflict in their testimony. D. Conclusions Regarding the Dues Deductions It is well settled that employees have a right under the Act to refrain from executing dues-checkoff authoriza- tions. American Screw Company, 122 NLRB 489 (1958): Luke Construction Company, Inc., 211 NLRB 602. 603 (1974). The Board has held that authorizations which do not provide for any limitation of their revocability are revocable at will. Trico Products Corporation, 238 NLRB 1306, 1309 (1978). Limits on revocability must be specifi- cally expressed in the authorization itself. See Cameron Iron Works, Inc., 235 NLRB 287 (1978); Trico Products Corporation, supra. However, an authorization shall not be irrevocable for a period of more than a year, or beyond the termination of the applicable collective agreement, whichever occurs sooner (Sec. 302(c)(4) of the Act). An examination of the authorization forms of the two employees whose revocations were not honored by Re- spondent reveals that the forms provided that the author- ization was irrevocable until the expiration of the con- tract. t4 However, prior to the execution of the checkoff authorizations, Gaffke wrote "to be renewed each yr." While that notation might otherwise appear ambiguous, in view of the restrictions of Section 302 of the Act, the handwritten remarks make the authorizations yearly. In any event, the restrictions on revocability cannot be for longer than a year. Accordingly, since both revocations at issue herein took place more than I year after the ex- ecution of the authorizations, the employees were free to revoke the authorizations at will. A fortiori, Respondent's failure to honor the revocations violated Section 8(a)(1), 4 The authorization forms prosided LATIIERS' LOCAL UNION EMPLO'ER'S AUTHIORIZATION TO DEDUCT FUNDS FROM EMP.OYEF'S WAGES 1, [emplosee's name]. the person whose name and signa- [sic] ap- pears below, hereby authorize and grant permission for my employer to withhold from my wages in each pay period, the sum of - cents for each and every hour worked by me. By the term "EMPLOYER" is meant, any "EMPLOYER" for which I perform services for wages within the territorial jurisdiction which is administered by Local Union #208 of the Lathers' Interna- tional Unjon [sic]. This authorization shall be irrevocable by me, until the date on which the current Agreement between my EMPLOYER and the Union is terminated Any Notice of Revocation by me shall be in writing and shall be sent U S. Certified Mail, to my EMPLOYER and the Union at least 20 days prior to the expiration date of any current Agreement in effect between the EMPLOYER and the Union Notice of Revoca- tion of this Aulhorization as aforesaid to the EMPLOYER and the Union shall not necessitate notification of all EMPLOYERS by me Unless a "Notice of Revocation" is executed in the manner and within the time called for herein, then, this Authorization by me. shall be automatically be renewed for successive periods of each suc- ceeding [sic] applicable Agreement between the EMPLOYER and the Unioni l7 he rentewed each yr [Italics denote handwritten addition placed at the end of the card by Gaffke, prior to execution of the forms by employe)s ] 287 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2), and (3) of the Act. See Trico Products Corporation, supra. As discussed above, if, in addition to Delbert Trimble and Fred Rudy, any employee had revoked his dues au- thorization form more than a year after executing the form and had dues deducted by Respondent, the identity of and amount due such employee can be ascertained at the compliance stage of the proceeding. E. Conclusions Regarding the Terminations In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980),'5 the Board announced the follow- ing causation test in all cases alleging violations of Sec- tion 8(a)(3) of the Act or violations of Section 8(a)(1) turning on motivation. First, the General Counsel must make a prima facie showing sufficient to support the in- ference that protected conduct was a "motivating factor" in the employer's decision. Upon such a showing the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. ' s The General Counsel contends that Trimble, Fred Rudy, and Dickson were terminated for maintaining their right not to join Local 971 and remain members of Local 208 in the face of Respondent's support for Local 971. 1. Trimble and Rudy In presenting his prima facie case of wrongful motive, the General Counsel offered evidence that Trimble ad- vised Mulhilly that he would file a claim with the state labor commission about the dues deductions and that Mulhilly threatened that Solari would terminate Trimble for doing so. However, I do not credit this testimony; rather I credit Mulhilly's testimony to the contrary. ? On December 24, Fred Rudy told Mulhilly that he would not join Local 971. Mulhilly told Rudy to write "no" on the forms for Local 971. When Rudy returned the forms in blank, Mulhilly wrote "no" across the forms. There is no evidence that Mulhilly attempted to force Fred Rudy to sign forms for or to join Local 971. The General Counsel further argues that Respondent exhibited animus against members of Local 208. Howev- er, I have not credited the testimony of Trimble and Fred Rudy that Solari stated that "after today I'll have no more lathers working for me." The evidence does in- dicate that Respondent determined to adopt the same po- sition as Local 971 regarding the merger, i.e., that Local 208 merged into Local 971 and that Local 971 represent- ed the lather employees after December 1. However, this evidence does not support a finding that Respondent's opposition to Local 208 or support of Local 971 was so strong as to impel it to violate the law. Under the cir- cumstances, I find that the General Counsel has failed to '5 Enfd. 662 F.2d 899 (Ist Cir. 1981). -' The Court of Appeals for the First Circuit in its Wright Line deci- sion stated that the employer's burden is to come forward with credible evidence to rebut or meet the prima facie case The ultimate burden of proof remains with the General Counsel. ' Accordingly, I shall recommend that the allegation of the complaint alleging that Mulhilly threatened Trimble with discharge in violation of Sec. 8(a)(l) he dismissed establish a prima facie case that the layoffs were for any reason other than that given by Respondent, i.e., that Trimble and Fred Rudy were late on January 6 and were not producing to their fullest capacity. Moreover, even if the General Counsel were deemed to have estab- lished a prima facie case, for the reasons summarized below, I find that the evidence establishes that Trimble and Rudy would have been discharged even in the ab- sence of their membership in and support of Local 208. Solari was displeased at Trimble's and Rudy's attitude in reporting late for work. He mentioned to Mulhilly and Richard Rudy that the two employees were not produc- ing and should be laid off. Mulhilly and Richard Rudy agreed. Trimble and Fred Rudy had not responded to Richard Rudy's prior requests to "jack up the yardage." Further, Mulhilly and Richard Rudy were able to com- plete the work without hiring replacements for Trimble and Rudy. Against these business reasons, the General Counsel has not established by credible evidence that the layoffs were for discriminatory reasons. Weighing all the evidence, even assuming that the General Counsel had established a prima facie case, Respondent has rebutted that prima facie case. Accordingly, I find that the Gener- al Counsel has failed to meet his burden of proof. 2. Gordon Dickson The General Counsel contends that Dickson was dis- charged because he refused to join or be referred by Local 971. The credible evidence establishes that Re- spondent conditioned Dickson's further employment on Dickson's obtaining a job referral slip from Local 971's hiring hall. Respondent contends that it lawfully required Dickson to obtain a referral slip based on the demand of Local 971, the collective-bargaining representative of its lather employees. According to the credited testimony of Vanetti and Alford the purpose of requiring lather employees to obtain a referral from Local 971 was for Local 971 to have a record of those employees working for Respond- ent under the contract which Local 971 had recently ac- quired. Local 208 had not cooperated with Local 971's succession to the collective-bargaining agreement. As stated earlier, the General Counsel has not attacked the validity of Local 971's succession to Local 208's collec- tive-bargaining agreement or to Respondent's recognition of Local 971 as successor union to Local 208. Thus, the requirement that employees obtain a referral slip appears justified in the context of the recent takeover of the con- tract by Local 971. The existence of an exclusive hiring hall, although it encourages union membership, is not unlawful absent evidence of discrimination. Local 357, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961). Thus, Respondent's deci- sion, after the merger, to utilize Local 971's hiring hall cannot be found to be violative of the Act, absent evi- dence of discrimination. Cf. John L. Klug Corporation, 245 NLRB 977 (1979). Here there is no contention of hiring hall discrimination. The evidence indicates that Dickson would have been referred had he simply regis- 288 C. SOLARI & SONS tered with the hiring hall. There is no evidence that Dickson would have been required to join Local 971.L 8 Accordingly, I find that the General Counsel has not es- tablished that Respondent violated Section 8(a)(3) and (I) of the Act in requiring Dickson to obtain a hiring hall referral slip or in refusing to employ Dickson in the absence of such a referral slip. CONCLUSIONS OF LAW 1. The Respondent, C. Solari & Sons, Inc., is an em- ployer within the meaning of Section 2(2) of the Act, en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 971, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. Wood, Wire and Metal Lathers' International Union, AFL-CIO, Local Union No. 208 of Reno, Nevada, is a labor organization within the meaning of Section 2(5) of the Act. 4. Respondent violated Section 8(a)(1), (2), and (3) of the Act by unlawfully deducting dues from the wages of employees after said employees had effectively revoked their dues-checkoff authorizations. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as set forth above, the General Counsel has not established that Respondent has violated the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Respondent will be required to reimburse those em- ployees whose dues were checked off after their authori- zations were effectively revoked. Interest on such moneys will be paid in accordance with the Board's for- mula in Florida Steel Corporation, 231 NLRB 651 (1977), and Olympic Medical Corporation, 250 NLRB 146 (1980). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 19 To facilitate the computation of the monies which may be due to employees by the terms of this Order, I will also recommend that Respondent preserve and, upon re- quest, make available to the Board or its agents, for ex- amination and copying, all payroll records, personnel records and reports, and all other records necessary to analyze and determine the identity of the employees in- volved and the amounts of moneys due each such em- ployee. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: '" It is noted that Nevada is a right-to-work State Further, according to Alford, Dickson was "automatically" a member of Local 971 after the merger 19 Although Respondent has deposited the moneys deducted with the United States district court. reimbursement to the employees is still neces- sary The district court pleadings allege that the sums are due either Local 971 or Local 208. The possibility of reimbursement to the employ- ees is not raised by the pleadings. ORDER2 0 The Respondent, C. Solari & Sons, Inc.. Reno, Nevada, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Failing to honor the revocations of employees' dues-checkoff authorizations and continuing to check off dues pursuant to those authorizations for which effective revocations were executed. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Reimburse those employees2 1 who revoked their dues-checkoff authorizations for those dues which were checked off after the revocations were executed, with in- terest. (b) Preserve, and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, personnel records and reports, and all other records necessary to analyze and determine the identity of the employees involved and the amount of moneys due each such employee. (c) Post at its Reno, Nevada, facilities copies of the at- tached notice marked "Appendix." 2 2 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found are hereby dismissed. 20 All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National L abor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 2i The record herein reveals that Gordon Dickson and Fred Rudy are entitled to reimbursement However, I leave to the compliance stage of this proceeding the determination of whether any other employees are entitled to reimbursement due to Respondent's violation of the Act found herein. 22 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 read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOrTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT refuse to honor revocations of em- ployees' dues-checkoff authorizations. WE WILL NOT continue to deduct dues pursuant to dues-checkoff authorizations which have been ef- fectively revoked. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their Section 7 rights. WE WILL reimburse employees for dues unlaw- fully withheld from their wages after the effective revocation of their dues-checkoff authorizations, plus interest. C. SOLARI & SONS, INC. 290