Herman Brothers, Inc.

HERMAN BROTHERS, INC. Herman Brothers, Inc. and Patrick R. Hanes Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO and Patrick R. Hanes. Cases 6-CA-14147 and 6-CB-5272 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On October 27, 1981, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent Herman Brothers, Inc. (HBI), and Respondent Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL- CIO (BRAC), each filed exceptions and supporting briefs. The General Counsel filed limited excep- tions and a supporting 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 only to the extent consistent herewith. 1. HBI operates a trucking service engaged in the transportation of liquid gases for clients on a con- tract basis. On July 29, 1980,1 HBI signed a con- tract with M. G. Burdett Enterprises (Burdett) to make deliveries of liquified gas products from Bur- dett's new St. Mary's, Pennsylvania, facility. The St. Mary's facility is one of seven plants operated by Burdett. The St. Mary's plant was not sched- uled to "come on line," i.e., to produce liquid gas, until November 19. Prior to that time, from ap- proximately Mid-October until November 19, HBI drivers hauled liquid products purchased by Bur- dett from other companies in order to service Bur- dett's customers and to charge up the St. Mary's facility. HBI first hired drivers on October 13. As of Oc- tober 15, HBI employed five drivers. On October 18, the five drivers attended a safety meeting con- ducted by HBI. At the conclusion of that meeting, HBI officials introduced BRAC Representative Steve Milone. Milone spoke with four of the driv- ers about BRAC, and subsequently each of the four drivers signed membership application and authori- All dates hereinafter are in 1980, unless otherwise indicated. 264 NLRB No. 64 zation cards. Based on these cards, BRAC, on Oc- tober 20, demanded recognition as the exclusive representative of HBI's drivers. On October 24, HBI extended recognition to BRAC. 2 On Novem- ber 25, HBI and BRAC entered into a collective- bargaining agreement covering the driver unit. Under the terms of its contract with Burdett, HBI was responsible for providing drivers to serv- ice the St. Mary's facility. Subsequent to the sign- ing of the service contract between HBI and Bur- dett, and unknown to HBI, Burdett decided to close its Hopewell, Virginia, plant for renovations. Thus, from November 5 until December 26, HBI was required to transport products from St. Mary's to Hopewell, so that Hopewell could continue to service its customers. On November 25, the date HBI and BRAC executed their contract, HBI em- ployed 12 drivers. The number of drivers em- ployed by HBI from that time forward fluctuated between 12 and 16. II. The Administrative Law Judge concluded that HBI violated Section 8(a)(2) and (1) of the Act by recognizing BRAC as the exclusive representative of its drivers. He also found that BRAC violated Section 8(b)(l)(A) of the Act by accepting recogni- tion and executing the contract between it and HBI. We cannot agree. In analyzing this issue, and assessing the validity of Respondent's defenses, the Administrative Law Judge first focused on the Oc- tober 18 meeting at which BRAC official Milone succeeded in obtaining authorization cards from a majority of the currently hired drivers. The Ad- ministrative Law Judge viewed this October 18 meeting as a "direct picture of assistance." Howev- er, the October 18 meeting was never considered to be an issue in this case. At the hearing, the fol- lowing colloquy took place between the Adminis- trative Law Judge and the General Counsel: [Administrative Law Judge] As I understand the case, the company made a perfectly proper contract with the Union but didn't have enough people on the payroll so that there was not a representative group of employees to justify exclusive recognition; that's what the complaint says. Isn't that correct? [The General Counsel] That's correct. [Em- phasis supplied.] Indeed, the General Counsel alleged in the com- plaint other acts of assistance by HBI to BRAC, 2 On October 22. one of the five drivers had terminated his employ- ment. Thus, on the date HBI recognized BRAC, it employed four driv- ers. three of whom had signed authorization cards 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but these all date from October 27 and thereafter. The General Counsel pointedly refrained from challenging the legality of the October 18 meeting. Had the General Counsel been able to prove 8(a)(2) and 8(b)(l)(A) violations through illegal as- sistance rendered BRAC by HBI, the disposition here would have been much simpler: the relation- ship between the two would have been unlawful from its inception without regard to how many drivers HBI intended to employ. However, the General Counsel did not proceed on that theory. The General Counsel's position was that HBI did not employ a representative complement of em- ployees on October 24, and that it was not engaged in its normal operations on that date, and for those reasons recognition was unlawfully extended and accepted. We agree with HBI and BRAC that the Administrative Law Judge's findings on the Octo- ber 18 meeting, and his reliance on those findings, were improper. With this in mind, we turn to a consideration of the real issues in the case.3 Ill. As noted above, HBI and Burdett entered into a contract on July 29, under which HBI was to pro- vide transportation services to Burdett on a 24- hour, 365-day basis, at Burdett's St. Mary's facility. On October 24, the date recognition was executed, HBI employed four drivers. The St. Mary's plant became operational on November 19, and, as of November 25, the date HBI and BRAC executed their collective-bargaining agreement, HBI em- ployed 12 drivers. HBI's service contract with Bur- dett stated that the average trip for HBI drivers would be 325 miles but, as stated, unknown to HBI, Burdett closed its Hopewell, Virginia, facility and HBI was required to service the Hopewell plant from November 5 to December 26. As a result, the average mileage increased to 442.4 The Administrative Law Judge concluded the number of employees at the time of recognition- four-was not representative of the number later employed--"12 men or more." He did so by dis- crediting an official from Burdett, Leonard Orze- 3 We do not disagree with the Administrative Law Judge's comment at fn. 2 of his Decision that the issues must be analyzed in light of all of the facts of a case. What we hold is that where, as here, the General Counsel specifically limits the scope of the allegations, and specifically agrees that certain facts or theories are not at issue in the case, and an administrative law judge agrees at the hearing that the facts and theories are so limited, it is error for an administrative law judge to find violations or rely on those facts or theories in reaching a decision. In the circum- stances of this case, any issues surrounding the October 18 meeting were not litigated. 4 The General Counsel conceded in her brief to the Administrative Law Judge, which is submitted in support of her limited exceptions, that the Hopewell closing was not anticipated by either Burdett or HBI on July 26, and that HBI did not know of the closing until shortly before servicing Hopewell on November 5. chowski, a witness called by the General Counsel to testify, inter alia, about the contract between Burdett and HBI. The Administrative Law Judge concluded, contrary to Orzechowski's testimony, that the timing of the Hopewell closing was not unexpected, that the contract was not limited to the St. Mary's facility and that, consequently, Bur- dett and HBI knew that HBI's work force would expand rapidly beyond its initial complement. The General Counsel proceeded on a different tack in her brief to the Administrative Law Judge. Although maintaining that the employee comple- ment was not representative, the General Counsel argued that HBI needed 14 to 16 drivers to service St. Mary's under its contract with Burdett. As noted above, the General Counsel, contrary to the findings of the Administrative Law Judge, recog- nized that HBI was unaware of Burdett's need for more drivers because of the Hopewell closing. However, the General Counsel argued that the HBI-Burdett contract itself contemplated the use of many drivers. Indeed, the General Counsel relied on Orzechowski's testimony to rebut HBI's conten- tion that HBI needed only seven drivers during its first year of service at the St. Mary's plant. The General Counsel also relied on testimony that em- ployees, when hired, were told by HBI personnel that 15 or 16 drivers would be needed for HBI's operations. In a slightly different vein, the General Counsel also argued that the contract between HBI and Burdett established that HBI's normal oper- ation was the delivery of products from the St. Mary's plant. It was the General Counsel's further contention, based on the contract, that HBI was not engaged in normal operations at St. Mary's prior to the November 19 opening of that plant, and therefore that recognition was improperly ex- tended on that basis, also. We agree with neither the Adminis'rative Law Judge nor the General Counsel. The test for determining whether recognition has been lawfully extended is twofold: (1) at the time recognition is extended, the jobs or job classifica- tions designated for the operation involved must be substantially filled, and (2) the operation involved must be in normal production.5 The Board has not established a per se rule for determining whether there has been premature recognition, but has eval- uated the facts to determine whether employees re- alistically have had an opportunity to select a bar- gaining representative.6 Although not determina- 5 See, e.g., British Industries Company. Lyra Systems. Divisions of Aunel. Inc., 218 NLRB 1127 (1975); Hayes Coal Co.. Inc., 197 NLRB 1162 (1972). 6 See, e.g., Allied Products Corporation and its subsidiary, Kraus Manu- faciuring & Equipment Co.. Inc, 220 NLRB 732 (1975). Scotrex Corpora- tion, 200 NL.RB 446 (1972). 440 HERMAN BROTHERS, INC. tive, the Board has looked to the test set forth in General Extrusion7 to determine whether recogni- tion is lawful. 8 As in the contract-bar area, the Board, in deciding whether recognition has been improperly extended, has attempted to protect the rights of employees who are working,9 as well as those who are to work in the future. Our starting point is that initially HBI neither coerced employees nor assisted BRAC in the sign- ing of authorization cards.10 And the General Counsel concedes as much. Thus, on October 24, when recognition was extended, BRAC represent- ed an uncoerced majority of HBI's employees. We also find that on October 24, HBI's drivers were engaged in the activities they were to perform at St. Mary's when it became operational. That is, HBI drivers were to deliver products from St. Mary's to Burdett's customers in the St. Mary's area. Prior to St. Mary's coming on line, HBI driv- ers serviced St. Mary's customers by picking up products at competitors' plants and delivering to the customer. Orzechowski testified this method was the usual manner in which Burdett developed a market in an area. Also at this time Burdett closed its Hopewell plant and HBI was required to make deliveries to Virginia. As noted earlier, these deliveries were outside the original area contemplated by the par- ties. However, the contract obligated HBI to make deliveries for Burdett. Contrary to the Administra- tive Law Judge, we find no basis for discrediting Orzechowski's testimony that HBI was unaware of this closing until just before Burdett informed HBI of the fact. Even if Burdett knew it would close Hopewell, this does not mean HBI was privy to the decision." Orzechowski was called as a wit- ness for the General Counsel, and was not exam- ined as a "hostile witness" under Rule 61 I(c) of the Federal Rules of Evidence. Then, Orzechowski was cross-examined by counsel for HBI. His testi- mony was not contradicted in material respects. Thus, it is clear Orzechowski was not Respondent's witness, and that he was not a spokesperson or an agent of HBI. We agree with Respondents that the 7 General Extrusion Company. Inc., 121 NLRB 1165 (1958). In that case, the Board held, inter alia, that a contract signed when an employer employed 30 percent of its employee complement in 50 percent of its job classifications would constitute a bar to a representation petition. 8 British Industries. supra. Milton Kline and Jacob Kline a co-partnership. d/b/a Klein's Golden Manor. 214 NLRB 807 (1974): Prince Pontiac. Inc.. 174 NLRB 919 (1969). 9 The Anaconda Company, 225 NLRB 953 (1976). 10 The Anaconda Company. supra, 225 NLRB at 954. 1 As noted, the General Counsel on brief agreed that HBI did not contemplate servicing Hopewell. Indeed, as noted above, the average trip for drivers, factoring in Hopewell, was 442 miles, over 100 miles more than the contemplated average trip of 325 miles stated in the contract If the parties thought the contract encompassed Hopewell deliveries, surely the mileage figure would have been different in the contract. Administrative Law Judge's blanket discrediting of Orzechowski was in error. 12 Orzechowski stated that Burdett's St. Mary's op- eration would be similar to its Reading, Pennsylva- nia, facility, and therefore would require 15 em- ployees. However, Orzechowski also stated five drivers would be needed initially. More important- ly, Orzechowski indicated at hearing that a plant like St. Mary's could take as long as 2 years to become fully operational.' The Hopewell situa- tion, clearly unforseen, required HBI to increase its driver complement. In addition, Orzechowski indi- cated that, after the Hopewell facility became oper- ational again in late December, Burdett requested HBI to keep its extra drivers at St. Mary's because 12 As noted above, the Administrative Las Judge erred in appraising the "credibility" of Respondents' defense to the alleged unfair labor prac- tices in light of the October 18 meeting, heretofore described His dis- crediting of Orzechowski, based on his interpretation of the HBI-Burdett contract and inferences he drew from the evidence, is equally erroneous. The Administrative Law Judge concluded that the HBI-Burdett contract was not limited to St. Mary's plant deliveries. He questioned, if the con- tract were limited to St. Mary's, why were drivers hired hS HBI in Octo- ber. prior to the November 19 opening date planned for St. Mary's The Administrative Law Judge also wondered whiy the contract was signed in July, approximately 4 months prior to St Mary's opening, and why drivers would want to know how many employees would eventually be hired by HBI at St. Mary's. In answering these questions, the Administra- tive Law Judge posited that HBI and Burdett knew HBI would be making deliveries "all over the lot," and that the contract was not limited to St Mary's deliveries. He therefore declared that Orzechowski's testi- mony was not worthy of crediting. However, the Administrative Law Judge's resolution of credibility is not based on demeanor, but upon the facts and the inferences drawn from those facts by the Administrative Law Judge This is a task which we are as capable of performing as the Administrative Law Judge (see, e.g., JN. Ceazan Company, 246 NLRB 637, 638, fn. 6 (1979); Garrett Railroad Cart Equipment. Inc., 244 NLRB 842. fn 1 (1979)); as argued by HBI and BRAC. we agree that the Ad- ministrative Law Judge made illogical inferences and erroneous conclu- sions We note first that the HBI-Burdett contract, in its opening para- graph, states that it is a service agreement "relative to Burdetl's St Marys [sic]" facility. The agreement also indicates that HHI would pro- vide supervision and dispatchers at St. Mary's, and states what the rates for service "at St. Mary[']s" would be. Contrary to the Administrative Law Judge, we do not believe it has been demonstrated that the contract was not limited to St. Mary's. The General Counsel never argued other- wise, and we think the contract language and the testimony at the hear- ing was clear on the subject. Equally clear is the reason why drivers were hired in October; HBI planned to train drivers, which required time due to the nature of the materials handled, and Burdett intended to start its St. Mary's facility by trucking in products to St. Mary's and making deliveries to its first customers with products purchased elsewhere and delivered by HBI drivers. As to why the contract was signed in July, we think it unwise for this Board or an administrative law judge to substitute their judgment for business decisions made by employers. However, here we note that Burdett's securing of a delivery service contract 4 months prior to the opening of a plant hardly seems suspect. The only trouble- some issue is why drivers were told by HBI that there would "eventual- ly" be a need for 16 drivers. However, as HBI points out, employees may indeed be interested in knowing how large an operation there eventually would be and what type of operation an employer eventually contemplat- ed. In sum, we agree with HBI and BRAC that the Administrative Law Judge's rhetorical questions and answers are of little value in assessing Orzechowski's credibility, and we do not rely on his finding in that regard. Accordingly. we will rely on Orzechowski's uncontradicted testi- mony in reaching our result here. 13 Although it appears Orzechowski did not tell HBI representatives when the full 15 drivers would be needed, this fact does not mean that HBI had no idea of how many drivers it would need over the life of the contract 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the cost of training them and because Burdett would expand its arc of distribution to utilize their services. Considering all of the above circumstances, we cannot conclude that the extension of recognition by HBI to BRAC violated the Act. Assuming as argued by HBI that it contemplated the use of only seven drivers initially to service Burdett, we would find four drivers to be a representative comple- ment. Even assuming that HBI would eventually need from 14 to 16 drivers to fulfill the stated con- tract terms, we still would not find a violation here.14 Since there was no illegal assistance or other unlawful prerecognition conduct, and since the evidence reveals a high state of flux not antici- pated by HBI, we find that HBI's October 24 rec- ognition of BRAC as the collective-bargaining rep- resentative of the drivers did not violate Section 8(a)(2) and (1) of the Act. Nor did BRAC violate Section 8(b)(l)(A) by accepting recognition. Ac- cordingly, the collective-bargaining agreement en- tered into by HBI and BRAC did not violate the Act and thus neither the existence of, nor the en- forcement of, the union-security provision violated the Act. We therefore will dismiss those allegations of the complaint. The Administrative Law Judge also concluded that HBI violated Section 8(a)(1) of the Act be- cause its supervisors urged employees to sign union membership cards and to execute dues-checkoff au- thorization cards. He also found that HBI violated the Act by threatening to withhold work assign- ments from employees who failed to sign such cards. In addition, the Administrative Law Judge determined that HBI violated Section 8(a)(3) and (1) of the Act by refusing to dispatch employee Charles Lecker because Lecker had not joined BRAC, and had not signed a dues-checkoff author- ization card. The General Counsel also alleged that BRAC violated Section 8(b)(l)(A) by accepting dues remitted by HBI. We agree that HBI and BRAC violated the Act in each of the above in- stances, but do so only for the following reasons. It is established that "the Act guarantees to each employee the right to determine for himself, free from coercion, whether he shall sign a checkoff au- thorization or not."'5 As described by the Admin- istrative Law Judge, HBI's supervisors routinely told employees to sign dues-checkoff authorization cards or face the threat of withheld assignments. 14 Cf. The Anaconda Company, supra. There were 12 drivers in HBl's employ at the time of the signing of the contract, and we would find that HBI employed a representative complement of employees if that number were used as the base. 15 Boggett Industrial Constructors Incorporated, 219 NLRB 171, 172 (1975); Hope Industries, Inc., 198 NLRB 853, 856 (1972); Moeschl-Edwards Company, Inc., 237 NLRB 1029, 1201 (1978); IBEC Housing Corporation, 245 NLRB 1282, 1283 (1979). Such conduct clearly is proscribed by the Act. As a corollary to this violation, we also find that BRAC violated Section 8(b)(1)(A) by accepting money deducted pursuant to the coercively ob- tained authorizations. 16 Furthermore, HBI denied employee Lecker a day's dispatch because he had not joined BRAC and had not signed a dues-check- off authorization card. This denial of the dispatch, which HBI had previously threatened would occur if Lecker refused to fill out the cards, violated Sec- tion 8(a)(3) and (1) of the Act.lI AMENDED CONCLUSIONS OF LAW i. By urging employees to sign dues-checkoff au- thorization cards and by threatening to discharge employees if they failed to join the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL- CIO, and failed to sign dues-checkoff authorization cards, and by deducting and remitting money de- ducted thereto, Herman Brothers, Inc., violated Section 8(a)(l) and (2) of the Act. 2. By denying employment to employee Charles Lecker because he failed to join the above-men- tioned Union and to sign a dues-checkoff authoriza- tion card in favor of BRAC, HBI violated Section 8(a)(3) and (1) of the Act. 3. By accepting and retaining money deducted pursuant to coercively obtained dues-checkoff au- thorization cards, BRAC violated Section 8(b)(1)(A) of the Act. 16 IBEC Housing, supra, 245 NLRB at 1282. In this regard, the record reflects that HBI Terminal Manager Johnston approached union stewards and told them to perform their duties; i.e., obtain authorization cards and dues-deduction cards. Thus, it is inferable that BRAC was aware of HBI's unlawful conduct. 1: Iope Industries, supra, 198 NLRB at 856. HBI contends that it did not violate the Act as found above. It argues that it was simply comply- ing with the terms of the lawful contract HBI entered into with BRAC. Specifically, HBI argues that since the collective-bargaining agreement contained a lawful union-security clause. HBI was privileged to inform its employees to adhere to the contract We agree that an employer ordi- narily may inform employees of their obligations and duties under a valid union-security provision. See, e.g., IBEC Housing, supra. However, HBI did more here than merely apply the union-security clause. It threatened employees with discharge if they failed to execute dues-checkoff authori- zation cards. Moreover, although art. 11, sec. 1. of the collective-bargain- ing agreement required employees to become members of BRAC within 31 days of date of hire, it did not mention what, if any, penalties attached for failure to join BRAC. Even under a union-security provision, employ- ees are subject to discharge only for failure to tender periodic dues and initiation fees, and they are entitled to notice of such deficiencies and an opportunity to correct them. See, e.g., Philadelphia Sheraton Corporation, 136 NLRB 888 (1962), enfd. 320 F 2d 251 (3d Cir. 1963). There is no evi- dence here that BRAC ever requested that HBI enforce the union-secu- rity clause against Lecker or any other employee. Finally, it is clear that Lecker was denied dispatch because he failed to sign both a dues-mem- bership card and a dues-checkoff authorization card. Johnston testified that he stated to Lecker that, in order to be dispatched, Lecker had to be "a good member in standing." Johnston admitted giving both authoriza- tion and dues-checkoff authorization cards to employees. Lecker testified that it was not until he brought in proof of his checkoff authorization that HBI dispatched him. Thus, we reject HBI's contention that it did not violate the Act in the above respects. 442 HERMAN BROTHERS, INC. 4. In all other respects, Respondents have not violated the Act. AMENDED REMEDY Having found that Respondents engaged in unfair labor practices, we shall order that they take specific action, as set forth below, designed to ef- fectuate the policies of the Act. Having found that Respondent HBI urged employees to sign dues- checkoff authorization cards, threatened employees with discharge if they failed to join Respondent BRAC and to sign dues-checkoff authorization cards, and remitted money deducted pursuant thereto, we shall order HBI to cease and desist from such conduct. Having found that BRAC accepted and retained money pursuant to coercively obtained dues-check- off authorization cards, we shall order it to cease and desist from accepting and retaining such money. Having found that HBI refused to employ Charles Lecker in violation of Section 8(a)(3) and (1) of the Act, we shall order HBI to make Lecker whole for any loss of pay suffered by him as a result of the discrimination against him, as pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). However, we shall not order Respondents to re- imburse the employees for any money deducted pursuant to coercively obtained dues-checkoff au- thorization cards. A reimbursement order is unnec- essary in the circumstances of this case since the af- fected employees were subject to a lawful union-se- curity provision obligating them to pay to BRAC the sums deducted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Herman Brothers, Inc., St. Mary's, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Urging its employees to sign dues-checkoff authorization cards, threatening to discharge em- ployees for failure to join the Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO, and to sign dues-checkoff authorization cards for that Union, and deducting and remitting money pursuant thereto. (b) Denying employment to employees for fail- ure to join the above-mentioned Union and to sign a dues-checkoff authorization card for that Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make employee Charles Lecker whole for any loss of earnings in the manner set forth in the section of this Decision and Order entitled "Amended Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, 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. (c) Post at its place of business in St. Mary's, Pennsylvania, copies of the attached notice marked "Appendix A."L8 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representa- tive, shall be posted by Respondent 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. (d) Notify the Regional Director for Region 6, in w riting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. Respondent Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Accepting and retaining money deducted from employees of Herman Brothers, Inc., or any other employer where such deductions are pursu- ant to coercively obtained dues-checkoff authoriza- tion cards. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. I' 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 L.abor Relations Board " 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post in conspicuous places in the Respondent Union's business office and other places where no- tices to its members are customarily posted, copies of the attached notice marked "Appendix B." 1 9 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by an authorized representative of Respond- ent Union, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to ensure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 6, signed copies of the attached noticed marked "Appendix B" in sufficient numbers to be posted by Respondent HBI in places where its notices to employees are customarily posted, if it is so will- ing. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent Union taken to comply herewith. l0 See fn. 18 above. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT urge our employees to sign dues-checkoff authorization cards, threaten to discharge employees for failure to join the Brotherhood of Railway, Airline and Steam- ship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, and to sign dues-checkoff authorization cards for that Union, or deduct and remit money pursuant thereto. WE WILL NOT deny employment to employ- ees who fail to join the above-mentioned Union and to sign a dues-checkoff authoriza- tion card for that Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL make employee Charles Lecker whole for any loss of earnings suffered as a result of our discrimination against him, with interest. HERMAN BROTHERS, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT accept and retain money de- ducted from employees of Herman Brothers, Inc., or any other employer, where such de- ductions are pursuant to coercively obtained dues-checkoff authorization cards. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDL ERS, Ex- PRESS AND STATION EMPI OYEES, AFL-CIO DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hear- ing in this proceeding was held at Ridgeway, Pennsylva- nia, on September 1, 1981, upon a complaint issued by the General Counsel against two Respondents, Herman Brothers, Inc., herein called the Company or the Em- ployer Respondent, and Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, herein called the Union or the Union Respondent. The complaint issued on Feb- ruary 27, 1981, based on separate charges filed by Pat- rick R. Hanes, an individual in Case 6-CA-14147 on De- cember 31, 1980, and in Case 6-CB-5272 also on Decem- ber 31, 1980. The issue presented is whether the two Re- spondents established the Union as collective-bargaining agent among the Company's employees at a time when a representative group of employees to be covered by that contract had not yet been hired, and thereby violated Sections 8(a)(2) and 8(b)(1)(A). Briefs were filed after the close of the hearing by all three parties. Upon the entire record and from my observation of the witnesses, I make the following:' I A motion by the General Counsel to correct certain typographical errors in the transcript, unopposed. is hereby granted. 444 HERMAN BROTHERS, INC FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Herman Brothers, Inc., a corporation with its offices and principal place of business located in Omaha, Ne- braska, is engaged in the nonretail transportation of liquid gas and dry products. During the calendar year 1980, in the course of its operations so described, it pro- vided services valued in excess of $50,000 in various States other than the State of Pennsylvania. I find that the Company is engaged in commerce within the mean- ing of the Act. II. THE LABOR ORGANIZATION RESPONDENT I find that the Respondent Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Case in Brief This case involves a bargaining unit of drivers, their employer, Herman Brothers, Inc., a Respondent here, having contracted to make truck deliveries, with its own trucks, for a producer of gas and flammable liquids called Burdett Enterprises. The contract with Burdett to make these deliveries was signed on July 29, 1980. The first employees to do this work were hired by Herman Brothers on October 13. On October 24 Herman signed a formal recognition agreement with the Union, also a Re- spondent here, granting it exclusive representative status as a bargaining agent for all employees in the bargaining unit. It then proceeded immediately to negotiate with that Union. On that day-October 24-Herman had only four employees hired or working in the unit. After bar- gaining with the Union, Herman and the Union signed a comprehensive collective-bargaining agreement on No- vember 25. By November 25 there were 12 drivers at work. The number increased slightly from time to time as the months went on. The complaint alleges that by establishing the Union as exclusive representative of all these employees at a time when the Employer did not yet have a representa- tive segment of its ultimate employment complement, the Company and the Union trenched upon the statutory right of the employees themselves to select a union of their own choice, and therefore violated Sections 8(a)(2) and 8(b)(1)(A) of the Act, respectively. On the face of it-as you look at the clear numerical facts and the timing-there appears a clear unfair labor practice by both Respondents: 4 employees when the Union is made the bargaining agent, 12 a month later, all doing the same kind of work, all covered by the same contract be- tween Herman and Burdett, and all covered by a single collective-bargaining agreement. See Scotrtex Corporation, 200 NLRB 446 (1972), Baines Service Systems, Inc., 248 NLRB 563 (1980). The only question to be decided is whether the Re- spondents have come forth with a satisfactory affirmative defense against the prima facie case. The Union called no witnesses in defense and offered no evidence at all. The Company contends it only intended, on October 24, to have four or five employees at most for perhaps as long as 2 or even 3 years, to fulfill its contract with Burdett. It asserts the need to hire so many more drivers so sud- denly came as a complete surprise. that it was occa- sioned by forces beyond its control and completely un- predictable. And, of course, its essential position is that it never intended unilaterally, i.e.. apart from the desires of its employees, to force a union upon them other than one of their own choice. B. The Evidence The decisive word here is "assistance." Section 8(aX)(1) and (2) of the Act speak of interference by an employer with the formation or establishment of a bargaining agent, but what this means is any form of assistance to a union becoming the bargaining agent, apart from the de- sires of the employees themselves. Does the record here show that the Respondent Company did assist the Re- spondent Union? The story starts in the beginning. On October 18, in a motel, because some employees were hired from distant locations and the new chemical plant was not yet completed, Dick Frazier, terminal manager, and Richard Papai, safety director, both ad- mitted supervisors of the Company, gathered the first five drivers hired and held a safety meeting. When they were through talking about how the delivery trucks should correctly and safely be operated, they called the Union's business representative, Steve Milone, into the room to talk to the employees. Milone discoursed about the Union, and about the better wages and benefits it would bring the employees. He asked the employees to sign formal authorization cards in favor of the Union and four of them did so. The entire meeting in that room lasted 2 or 2-1/2 hours, and the men were paid for the time. It was on the basis of these four authorization cards so obtained that the Union, 2 days later, demanded rec- ognition as bargaining agent. If there is one principle this statute has stood for over the years it is that the employees, alone, decide whether or not they wish to be represented by a union, and that the employer must keep its hands off that decision-nei- ther interfering with the employees' desire nor assisting the union to become established. The concept hardly needs citation, but see Plastics Plant, Plumbing Fixtures Division, Norris Industries, 214 NLRB 629 (1974), and Rollins-Purle. Inc., 194 NLRB 709 (1971). A more direct picture of assistance than this on October 18 could hardly be shown-arranging for the union agent to sell the idea to the employees and paying them to listen to his solicitation. One employee, Brown, walked out of the room when Milone came in, because, as the sole witness who testified about that meeting said, "he didn't want to hear it." Brown was promoted to supervisory status 4 months later. But as to the rest, it was a ticklish moment. Employees who have just been hired, still in training, are not likely to scoff at the employer's invitation that they listen to the blandishments of the particular union official the employer chooses to bring in, nor, indeed, to refuse 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to sign a membership card that that agent would like to have. 2 The picture of such assistance, by the supervisors, con- tinued on as the weeks progressed. Johnston, the next terminal manager, put membership and dues-deduction cards in the dispatch envelopes where the drivers find their route instructions for the day before starting out. A number of times he even handed out those cards person- ally, with reminders to the employees that they should sign them quickly. When the two drivers who, succes- sively, were selected to be union stewards, did nothing about trying to have anyone become union members or sign dues-deduction cards, Johnston spoke to them, told them of their duties in that respect, and urged them to get busy and bring employees into the Union. The contract with the Union was signed on November 25; it contains a union-security clause making union membership a condition of employment after 30 days on the job. Long before the 30 days were over, in later No- vember and early December, Johnston a number of times told this or that driver he would not be dispatched if he did not join up and sign the necessary forms with the Union. He did not stop there. On November 28, the very first day, one of the drivers, Lecker, went over the 30- day period, the manager, as he himself admitted, did not dispatch him for the reason that he was not a member of the Union. Lecker ran quickly and joined up; as soon as Johnston learned the driver had done so, he started send- ing him out again. There is no need to detail here the testimony as to re- peated such activity by the supervisors, for all these facts are not disputed, indeed are conceded, by the Respond- ents. To offset the obvious reality that by all this he was acting as the sole organizer for the Union of his choice, Johnston said he did what he did for fear that the Union might later demand the discharge of his drivers, who might be difficult to replace. But the fact is no one on behalf of the Union-not the stewards, not Business Rep- resentative Milone, not any other official-ever came near him or said a word about enforcing the union-secu- rity clause in the contract. 3 Moreover, there is not a scintilla of evidence that anyone on the part of the Union ever even asked a single driver to join or pay union 2 In their briefs both Respondents would wash this October 18 activity out of the case because there ,was no specific allegation calling it a sepa- rate unfair labor practice in itself. But the heart of the case is not wheth- er, by each of the separate steps it took to achieve a statutorily prohibited objective, the Company violated the law. It is, instead, whether it know- ingly imposed the Union upon Its planned total complement of employees without giving the bargaining unit as a whole an opportunity to decide for themselves. Where inteat is the issue, every activity bearing a rela- tionship to the final question must be considered. 3 From the manager's testimony: "I dispatched Mr. Lecker to run to Baltimore. At the time he departed I reminded him again upon return he would then be employed with the Company in excess of 30 days and unless he was a member in good standing I would have no choice but to fill my obligations to contract and would hold dispatch until which time he was a good member in standing . . He took the dispatch to Balti- more, returned, went on break, and .... He took his required DOT break to make him eligible to drive. I had no further contract with him nor with anybody else in regard whether he now was or was not. I had no record of it and I continued operating on the information that was last available to me. And therefore did not dispatch him on the following day." dues. And, oddly, although an attorney appeared at the hearing to represent the Union as a Respondent, he of- fered no evidence whatever to disprove the essential alle- gation of improper recognition extended by the employ- er. The credibility of the Respondent's entire defense to this complaint is best appraised by going back to the be- ginning, when the continuing pattern of assistance to the Union first started. There was no contract on October 18, certainly no reason to fear a loss of employees were the hirees to be indifferent towards collective bargaining. Why did the then terminal manager arrange to assure that the first group succumbed to the appeal of Milone? When that first step is viewed together with all that came later, the answer has to be a planned program to assure that the Respondent Union would be the bargain- ing agent at this location, never mind what the first, or later-to-be- hired drivers, might themselves prefer. Patrick Hanes was interviewed on November 12 by Papai, the safety director, and a conceded supervisor. Hanes testified, without contradiction by Papai who tes- tified for the Respondent later, that on November 12 Papai told him "the company was negotiating with the Union . . . a contract . . . was being drawn up . . . he told me the wages they were going to pay until the union contract was negotiated and then we would get re- imbursed backpay for the difference." Hanes also testi- fied, again without contradiction, that "from the second week or so in December" (this was before the 30-day period in the union contract had run) Johnston put mem- bership and dues-checkoff cards in the drivers' dispatch envelopes. More, the witness also said that before Christ- mas he resisted the manager's repeated requests to sign up with the Union, but when he did so Johnston told him "to shut up," and, when he, Hanes, continued to make excuses for stalling, Johnston repeatedly told him "that we wouldn't be dispatched if we didn't have our checkoff cards filled in ... ." At the hearing the Respondent made much of the fact that later Hanes was made a union steward, and paid $25 per month by the Union. This was after Hanes individ- ually had filed both charges with the Board in the pro- ceeding, against the Company and against the Union. If the Company's theory here is that Hanes' status some- how cast a doubt upon his reliability as a witness now, the reality points the other way. Could it not be instead that the Union gave him that favored position as steward to shut him up? Given the fact that, apart from Business Representative Milone's talk to the original four employ- ees with the connivance of the then terminal manager, there is no indication of the Union ever appealing to any of these employees, for any reason whatever, until after the contract was signed, the latter inference is far more reasonable. C. Representative Number of Employees, or Not? When the Union was established as the exclusive agent, on October 24, there were only four drivers hired: 446 HERMAN BROTHERS, INC. Brown, Durnell, Carr, and Potter.' I find without merit an argument by the General Counsel, at the hearing, that because one or two of the four men were still being trained in how safely to run and operate the trucks they may not be counted as having actually been at work by October 24. It is a normal procedure in the business to be sure, after a number of trial runs, that the drivers are not injured and that the public is not endangered. These men were paid while learning, and the Company does this all the time. When the union contract was signed 30 days later, there were 12 drivers at work. There is no need to list their names, for again, the fact is admitted in the Compa- ny's brief. All these men-the original 4 as well as the 12 on No- vember 25-do the same kind of work; they drive trucks, they fill up their trucks with chemical liquids, they deliv- er to customer purchasers of the Burdett Company, they go hundreds of miles, and at times they sleep out over- night because of the great distances involved. They are all paid the same. And, most important, they are all doing precisely the work which the Company contracted to do for the Burdett Company; i.e., deliver fluids to the latter's customers. All this is, of course, the reason why all the drivers are correctly joined in a single bargaining unit and covered by a single union contract. The defense witnesses say that as of October 24 they did not expect the number of employees to increase sig- nificantly at all, and that that is why Herman Brothers had a right to extend recognition to the Union that day. I do not believe them, and the facts persuasively prove otherwise. The decisive day is October 24. What were the company people thinking, or what must they of ne- cessity have had in mind then? When the Burdett Company contracted, on July 29, for Herman Brothers to deliver chemicals for it, it was in the process of building an additional chemical producing plant at a place called St. Mary's, and the contract for deliveries refers to that place. When the Company recog- nized the Union, St. Mary's was not yet completed or operational. Driver Potter was hired on October 13; he testified that, when he was first hired, the safety director, Papai, told him that there would be "six conventional trucks . . . and two or three cab-overs that would have teams on them," and that the Company intended to hire "Between sixteen and twenty-two. I'm not sure.... It was going to be a 24 hours a day, seven days a week op- eration." Hanes. another driver, was also called by Papai to come in for an interview; he came on November 12. That day, as Hanes testified, Papai told him: "They were expecting to have around eighteen employees." Papai was the last witness called by the Company in defense; he did not contradict either Potter or Hanes. The following is the totality of his testimony: Q. Did you interview the original drivers that were hired by Herman Brothers at St. Mary's? A. Yes, I did. 4 One of the four men who had signed authorization cards on October 18, Nelson, had been terminated on October 22 All the data here report- ed is based on a written stipulation placed into the evidence by the par- ties. Q. Did you make any statement about the number of drivers that the Company would be using? A. Yes, I did. Q. Would you please relate to us what you told them? A. I said that there would be eventually fifteen or sixteen drivers. This was the Company's man talking. When he spoke of "the original" drivers he was talking of the first ones hired. On October 24, when the Union was established, there were exactly four men. Papai had to be talking about what he said to them. If the later hires came as a surprise to the Company, how can one explain away his completely opposite statement before October 24? If this record showed nothing else, the complaint allegation that the Company recognized the Union and started bargain- ing with it, when it expected, and knew it was going to have, the larger number of employees is proved beyond question. Burdett also produces similar chemicals at other loca- tions, one of them, of which the Burdett and Herman agents spoke at length at the hearing, called Hopewell. Beginning in mid-October, i.e., at the very time Herman started hiring drivers and before it recognized the Union, its drivers were delivering chemicals for Burdett's plants to its customers. They continued to do that regularly, in increasing amounts, into the latter part of October and right through the entire month of November and De- cember. The St. Mary's plant first produced in any prod- ucts on November 19, and from that day on the drivers filled up there as well as at the other production plants. One side of the Company's defense is that it can take as much as 2 years for a new plant like St. Mary's to op- erate 100 percent on a continuing basis, meaning, as its witnesses then belatedly tried to specify, before it can sell its entire product to new customers of Burdett spe- cifically acquired for that particular plant. Therefore, it is said, when Papai told the men in October there would "eventually" be as many as 16 drivers or more, what he meant was 2 or 3 years later. Why would an employer tell its new hires about such distant hopes, or expecta- tions? Of what concern could such future predictions possibly be to today's truckdriver? This part of the de- fense suffers from more than one fatal weakness. If the entire service contract was tied to the St. Mary's plant, why did Herman start using drivers before the middle of October? There is no evidence, indeed it is not even claimed, that the November 19 opening date of that plant was unexpectedly delayed. But more revealing still, if in truth in the minds of the two parties their contract was originally intended to apply only to St. Mary's, why did they make the contract almost 4 months earlier, on July 29? There had to be, and there was, another reason. The Herman-Burdett contract is not limited to St. Mary's plant deliveries only. From the Company's brief: "Under the July 29 contract, HBI had an obligation to deliver whatever Burdett produced." For a long time the Burdett Company was having problems filling the mounting orders of its customers, particularly those pur- chasing from the Hopewell plant, somewhere in Virginia. 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hopewell had to be expanded, doubled in capacity. Leonard Orzechowski, an official of Burdett, said he had long been planning this, and that to do so Hopewell would have to be closed down. "We had delays, con- tinuing delays and actually the plant was supposed to shut down on a continuing basis, it seemed like every two weeks it was going to be two weeks away and it never materialized. We were in a position to shut the plant down then in the end of October. At the end of October we made a decision." While things were thus hanging, Herman was being used to service Burdett's customers from other plants. Finally, on November 5, Hopewell was shut down, with Herman continuing to service its customers, and the plant was reopened with greater capacity on December 26. Orzechowski called all this part of the "unexpected" developments which caused Herman to have to hire drivers "by surprise." His final statement was that the Herman Company knew nothing about this entire Hope- well problem until the day the plant vas closed on No- vember 5. Given the related facts-contract obliging Herman to make all deliveries 3 months before, Herman hiring drivers during October, Papai telling the men there would be its nmans a<; 16 drivers needede, plus Orze- chowski's admission that liopewell was a pressing prob- lem to him while all these things were happening -I do not credit him as a s ilness in this hearing. I find hc knew Burdett needed deliveries entirely apart from the future output of St. Mary's, that he contracted with Herman to meet that demand, and that Ilerman Bros. very well expected to make the deliveries it then pro- ceeded in fact to make, beginning with foul men on Oc- tober 20 and regularly adding to the group until it reached about 12 on November 25 In ;sum, the Respond- ent Company kneew at the time of recognition of the Union that a definite and rapid cxpansion of the work force made tile coniplement of the moment insubstantial and not a rcpre'sclltnalivc linc. Orzecho\ski's flurtlwr te,,tilnony as to why lert ian continued to make dcli',eries from plants other than St. Mars,'s ics en after IHlopevwell s as reopened does not serve to enlhalince his i crcibilit. Tic said he gave Herman rnore work aflter I)cceliber 29 oinlly because he did not want it to lose its dive, rs, w.ho s, oulld "centually" be needed at St. Maty)'s What he cii\tx.enientlv ignored is the fact that his contract with i lerilan called for such delivery scr',- ices all alonil. It will not do for a businessman to sav he contracted to ha'Ce cetain worlk donec, but that vhen it \was perfirnriud as ccgreed, Ithe l caln for hi:ving it per- formed horb. ilt, rlattionsl I ito the contract. I W h}ile itie I-rllon tdfl, tl -iihllb' ;,l th,' }ltling. it, brief st'ls .tll The same intlC. lisitellt alld :all t il- l rircrl .retrlt 'ltll a.Idvanced bv bolh [-ler rlm inll{I Ih llrdell F[il i l t " . chitred lilt ;t coInllrito With ilur til ... pit) i tllviA .Iruklkltg scx.ites it nliecdcd for ith, lattcr'r S,. Malts s fat ilt I. 1I Sl 1 M.ars plant wehiclh was the ,uhject if ilt tl 1 ?" .gT-r lt 'iL I AttiA tic bit, f sayt: "llermai. bt g.ati *p r- a tiolls In mitd ()t. !ohc plt t i E t aptqpilst ttf 13 itdlit', St Mar; i . pilan (n November I'" i Ihl it iLa It vl-1 limittcd iot St. Mary "- ard thiet loire would not ncic d 16 dlivi - lotr i ts fulfiltlitcti until 2 it ::ts later- tAbil was Hcrle all d{lill. I l;llkilng delivevIIC fklr ItlllrotCt as el; s as () 1() bel ?l'h c ah ls r 11iL hi' thl it 1*s ha1.d inol Ci, k 1n , J111ll. as l.- make d Ilver ., 1, I lirIc t Cllxltomer% [IJ} O\.n hi e lat i lla I thia that is why tlhu c'(~ltl-,t I-V, tlulad v hvitn It v."as mafia Four is not a sufficiently representative complement of an expected total of at least 12 men or more. Herman knew it was about to hire the greater number. I con- clude, all things considered, that by recognizing the Union on October 20, 1980, and by executing its collec- tive-bargaining agreement with the Union on November 25, as exclusive bargaining agent of all employees to be hired in fulfillment of its delivery contract with Burdett, the Respondent Company violated Section 8(a)(l) and (2) of the Act. I also conclude that the Respondent Union, by accepting recognition as the sole bargaining agent of Herman's employees and by executing the No- vember 25 contract, violated Section 8(b)(1)(A) of the Act. With the entire collective-bargaining agreement being illegal from its inception, it follows as a matter of course that any enforcement of its terms constituted continuing prohibited restraint and coercion upon the employees. The major one, in this case, was the union-security clause, making union membership a condition of employ- ment. By its very presence in the contract, as agreed by the two Respondents, both the Company and the Union v iolated Sections 8(a)( ) and 8(b)( )(A), respectively. And when Terminal Manager Johnston, on November 28, deprived driver Lecker of his scheduled day's work because he had failed to comply with the unlawful con- dition so imposed upon him, the Company committed a direct and substantial violation of Section 8(a)(3). It was also a series of unfair labor practices, all in vio- lation of Section 8(a)(l), for Manager Johnston to keep urging the drivers to sign union membership cards, to tell them to execute dues-deduction authorizations, and to threaten them with discharge-withholding work as- signments is no different from temporary discharge. All this was part and parcel of the total picture of illegal as- sistance by the Company to the Union. One of the clear unfair labor practices, of course, was to have deducted union dues from the earnings of the employees and for- warding the money to the Union. I find that by doing that the Company also violated Section 8(a)(2). The Re- spondents must reimburse the employees for that money. But no useful purpose will be served by detailing every incident of misconduct. It is conceded in the Company's brief. it must all stop, and the contract must be canceled in all respects. IV. t it REMLI)Y Both Respondents must be ordered to cease giving effect to their November 25, 1980, collective-bargaining agreement and to cancel it entirely. Each of them must also be ordered to cease and desist from committing both the kind of unfair labor practices which have here been found and any other unfair labor practice under this stat- ute. They must also be ordered to reimburse every em- ployee from whose pay the Respondent Company has deducted any moneys whatever, either for union dues or for union initiation fees. 448 HERMAN BROTHERS, INC. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, oc- curring in connection with the operations of the Re- spondent Company as described in section I, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. By recognizing Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, as the exclusive repre- sentative of the Company's employees at St. Mary's plant of the Burdett Company, for the purpose of collective bargaining, the Respondent Company has violated and is violating Section 8(a)(2) of the Act. 2. By the foregoing conduct, by urging its employees to sign union membership cards and dues-deduction au- thorization cards, by threatening to discharge them if they did not sign such cards, by urging stewards of the Respondent Union to solicit membership in that union, and by deducting union dues from the earnings of its em- ployees for forwarding to the Union, the Respondent Company has violated and is violating Section 8(a)(1) of the Act. 3. By denying employment to employee Lecker in en- forcement of the union-security clause in its contract with the Union, the Respondent Company has violated and is violating Section 8(a)(3) of the Act. 4. By accepting recognition on October 20, 1980, and by executing its contract with the Respondent Company on November 25, 1980, as the exclusive representative of the employees of the Respondent Company in the unit hereinabove described, the Respondent Union has re- strained and coerced and is continuing to restrain and coerce employees of the Respondent in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 449