Rainey Security Agency, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 269 Rainey Security Agency, Inc. and Joyce Haynes Force One, Inc. and Joyce Haynes Rainey Security Agency, Inc. and Force One, Inc. and International Union, United Plant Guard Workers of America (UPGWA) Independent Guards and Watchmen of America and Theresa M. Burch and Brian Cleary. Cases 7- CA-20131, 7-CA-20132, 7-CA-20436, 7-CB- 5370, and 7-CA-5415 25 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 16 August 1983 Administrative Law Judge Bernard Ries issued the attached decision. Re- spondents Rainey Security Agency, Inc. (Rainey) and Independent Guards and Watchmen of Amer- ica (Respondent Union) filed exceptions and sup- porting briefs' to which the General Counsel filed an answering brief The General Counsel also filed cross-exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,2 and conclusions as modified3 and to adopt the recommended Order as modified. Rainey and Respondent Union have excepted to the judge's findings that Respondent Union violat- ed Section 8(b)(1)(A) by failing to make reasonably available to Rainey's Michigan employees the in- formation, advice, and assistance to which they were entitled; by failing to make available to em- 1 Respondent Union has requested oral argument The request is denied as the iecord, exceptions, and briefs adequately present the issues and the positions of the parties 2 Respondents have excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 The judge found, and we agree, that Rainey violated Sec 8(a)(1), (2), and (3) of the Act by presenting to applicants for employment, and re- quiring them to sign, Respondent Union's dues-deduction forms, by rec- ognizing and entering into a collective-bargaining relationship with Re- spondent Union which did not represent an uncoerced majority of Michi- gan employees, and by agreeing to and thereafter enforcing a union-secu- rity clause in such circumstances We also agree with the judge's findings that Respondent Union violated Sec 8(a)(1)(A) and (2) by accepting rec- ognition from and entering into a collective-bargaining relationship with Rainey when Respondent Union did not represent an uncoerced majority of Michigan employees and by agreeing to and enforcing a union-security clause in these circumstances However, we find nothing so unusual about the facts of this case as to warrant the imposition of other than a traditional remedy with respect to the Respondents' liability regarding the reimbursement of initiation fees and membership dues Hermet, Inc , 222 NLRB 29 at fn 1 (1976) Thus, we hold Rainey and Respondent Union jointly and severally liable for the violations found above and shall modify the recommended Order accordingly ployees requested copies of the parties' collective- bargaining contract and the Union's constitution and bylaws; and by failing to process and arrange for the representation of grievances initiated by employees Don Mekoliavitch and Brian Cleary. We find merit in these exceptions. The facts are fully set forth in the judge's deci- sion. In summary, in February 1981 Rainey and Respondent Union entered into a collective-bar- gaining contract effective 1 January 1981-1 Janu- ary 1982 and automatically renewable thereafter. The contract contains a geographically unrestricted "Recognition" clause recognizing Respondent Union as the exclusive representative of all Rain- ey's security and investigative employees and a union-security clause requiring new employees to become union members within 30 days. On 24 Sep- tember 1981 the Chicago-based Rainey was award- ed a contract, effective 1 October 1981, to provide guard services for certain Michigan Federal facili- ties. On 1 October 1981 Rainey and Respondent Union executed an amendment to their existing contract providing for certain benefits and wage rates for Michigan employees, allegedly based on a receipt of cards from a majority of Michigan em- ployees authorizing IGWA to act as their exclusive representative. Following execution of this amend- ment, Respondent Union had little contact with these employees.4 Although some employees re- ceived membership cards showing Respondent Union's name and its Chicago address and tele- phone number, other employees had difficulty identifying who their union representative was and how to contact the Union, obtaining such informa- tion from other employees. Eventually, employees, confused or concerned about their union represen- tation, began telephoning union headquarters. Some employees spoke to Bradley directly. However, some who telephoned received no answer, while others reached an answering service and were told to leave a message.5 On 9 January 1982, in appar- ent response to the filing of several unfair labor practice charges against Rainey and Respondent Union, Bradley held a meeting in Detroit at which 4 In late October 1981 Respondent Union's president Bradley personal- ly approached Detroit-based employee Burch and asked her to become a union steward, a position Burch declined 5 Employee Mekohavitch, however, testified that in November and December 1981 he made at least three calls to Bradley and had no diffi- culty reaching him Employee Burch testified that Bradley returned an October telephone call with reasonable promptness, but then failed to return a December call Employee Henderson testified that she made three or four calls and reached an answering service, but left no mes- sages Employee McClusky, who testified he had difficulty reaching Bradley in an effort to discuss a day's suspension, nonetheless attributed his eventual receipt of a day's pay to union intervention Similarly, em- ployee Childress testified that he had sought Respondent Union' s assist- ance regarding a position for which he had applied and thereafter, having been informed by the Union that he had the job, obtained the position 274 NLRB No. 41 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a number of employees complained about the Union and working conditions. Although there were no specific or formal requests for the parties' contract or the Union's constitution and bylaws, employees generally indicated that they wanted to see these documents.6 Also at that meeting, em- ployee Haynes agreed to act as "the liaison person between Detroit and Chicago" and thereafter later received a copy of the collective-bargaining agree- ment . Several months later, again in apparent re- sponse to the filing of additional unfair labor prac- tice charges, Bradley held an employee meeting; however, apparently owing to an error regarding the date in notices sent to employees, only two em- ployees attended. One of these, Childress, agreed to act as union steward and notices of his appoint- ment were thereafter mailed to employees. During this time, two employees sought to file grievances with Respondent Union. In November and December, and again at the 9 January employ- ee meeting, employee Mekoliavitch spoke to Brad- ley concerning the fact that employees were not receiving paid lunch hours, as provided by the pre- vious contractor, and about Mekohavitch's own loss of 10 hours' pay resulting from hours spent off-duty at mandatory attendance at firing range practice. In December 1981 employee Cleary spoke to Bradley regarding his 14 December assignment to "permanent layoff' status. In a second conversa- tion in January with Cleary, Bradley told him that he was looking into the matter. Bradley finally took action in connection with Cleary's grievance in March or April 1982 when Bradley spoke to Rainey officials in Detroit.7 Cleary was reinstated in August 1982. Citing Respondent Union's dilatoriness in ap- pointing a union steward, the employees' confusion regarding the nature of their representation and frustration in attempting to contact the Union by phone, Respondent Union's failure to hold employ- ee meetings until January and March and until after unfair labor practice charges had been filed, and its failure to provide employees with requested governing documents, the judge found that Re- spondent Union had engaged in a "prolonged, con- scious and serious pattern of conduct" which was 6 Employee Doty testified that at the meeting he asked Bradley wheth- er he had "anything to show" employees and whether he had brought the Union's contract or bylaws with him On being told that these docu- ments were in Chicago , however, Doty did not ask Bradley to send him copies 7 By his own account, however, Cleary admitted that during the De- cember 1981 conversation Bradley told Cleary to send him a letter de- scribing the grievance In February 1982 Cleary mailed a letter which was returned to him a month later The letter was incorrectly addressed to Bradley as president of the "U P G W C " Additionally , Respondent Union had moved its offices, and Cleary himself had moved without indi- cating a forwarding address After contacting the Union, Cleary remailed the letter in March in itself a failure of the duty of fair representation in violation of Section 8(b)(1)(A). Further, noting that there was no showing that the employees' grievances described above were without merit and finding that the failure to give them serious consid- eration was inherently unfair, the judge concluded that Respondent Union's failure to process griev- ances filed by Mekoliavitch and Cleary violated Section 8(b)(1)(A). It is well settled that a union breaches its duty of fair representation when it engages in conduct af- fecting employees it represents which is arbitrary, discriminatory, or in bad faith." It is also well set- tled, however, that something more than mere neg- ligence or the exercise of poor judgment on the part of the Union must be shown in order to sup- port a finding of arbitrariness. Teamsters Local 692 (Great Western Unifreight), 209 NLRB 446 (1974). In reviewing the events following 1 October 1981, contrary to the judge, while we do not con- done Respondent Union's behavior, we do not find a pattern of conduct so egregious as to warrant a finding of a failure of its duty of fair representation. Rather, we find that Respondent Union's delay in appointing a union steward and its failure to main- tain reasonable contact with employees, including its failure to respond to phone messages and to keep employees properly informed of its address or meetings, suggest, in light of all the circumstances, including the absence of animus toward and dis- criminatory treatment of employees, an ineptitude or mismanagement on the Union's part which we cannot equate with action which is "arbitrary," "ir- relevant, invidious, or unfair." See Great Western Unifreight, supra.9 Similarly, we find the failure to attend to the complaints of Mekoliavitch and the delay in investigating the grievance of the elusive Cleary did not rise to the level of arbitrary con- duct.10 Accordingly, we shall dismiss all pertinent Vaca v Sipes, 386 U S 171 (1967) The judge found that Respondent Union violated Sec 8(b)(1)(A) by failing to provide requested copies of the collective- bargaining contract and the Union 's constitution and bylaws, relying on Law Enforcement & Security Officers Local 40B (South Jersey Detective), 260 NLRB 419 (1982) In so doing , the judge, although finding that no formal or specific request had been made, concluded that employees who attended the 9 January meeting effectively communicated their desire to see these documents However, as a copy of the collective-bargaining agreement was subse- quently sent to employee Haynes, who had agreed to act as information liaison, we find this case factually distinguishable from Law Enforcement & Security Officers Local 40B, supra, in which a union failed to honor re- peated requests for a copy of the collective-bargaining agreement from an employee who sought specific information regarding medical insur- ance benefits 10 In this respect, we note that Bradley's investigation into Cleary's grievance , arguably the result of February unfair labor practice charges, nonetheless also coincided with Cleary's second mailing of the letter con- taining a description of his grievance We also note that evidence that Bradley investigated the grievance and that Cleary was eventually rein- stated suggests that the Union , at least, secured consideration of his griev- ance RAINEY SECURITY AGENCY portions of the complaint alleging that Respondent Union failed in its duty of fair representation in violation of Section 8(b)(1)(A). AMENDED REMEDY Having found the Respondents have engaged in certain unfair labor practices within the meaning of the Act, we shall order that they cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Re- spondent Rainey and Respondent Union shall be required, jointly and severally, to reimburse all Michigan employees for dues and initiation fees paid since 1 October 1981, with interest as provid- ed in Florida Steel Corp., 231 NLRB 651 (1977).11 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4. "4. In September 1981 and thereafter, by accept- ing recognition and entering into a collective-bar- gaining relationship respecting Respondent Rain- ey's Michigan employees at a time when it did not represent an uncoerced majority of those employ- ees, and by agreeing to and enforcing a union-secu- rity contract clause in such circumstances, Re- spondent Union violated Section 8(b)(1)(A) and (2) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that Respond- ent Independent Guards and Watchmen of Amer- ica, Chicago, Illinois, its officers, agents, and repre- sentatives, and Respondent Rainey Security Agency, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph A,1(d). 2. Substitute the following for paragraph A,2(a). "(a) Jointly and severally with Rainey Security Agency, Inc., reimburse all Michigan employees of Rainey Security Agency, Inc. for all initiation fees and dues paid by such employees to IGWA pursu- ant to the collective-bargaining agreement amend- ment executed on 1 October 1981 by IGWA and Rainey, with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977)." 3. Substitute the following for paragraph B,2(a). "(a) Jointly and severally with IGWA, reimburse all Michigan employees of Rainey Security Agency, Inc. for all initiation fees and dues paid by " See generally Isis Plumbing Co, 138 NLRB 716 (1962) 271 them to IGWA as set out in the portion of this Order pertaining to Respondent IGWA." 4. Substitute the attached notices for those of the administrative law judge. MEMBER DENNIS concurring. I agree with my colleagues' disposition of this case, but I rely on the following reasons for dis- missing the allegations that Respondent Union breached its duty of fair representation to employ- ees Donald Mekoliavitch and Brian Cleary in par- ticular, and to employees generally, in violation of Section 8(b)(l)(A) of the Act. Mekoliavitch presented a grievance concerning failure to pay employees who worked at the court- house for lunchtime and failure to pay all employ- ees for firing range practice. The judge, however, acknowledged that the collective-bargaining agree- ment contained no provision entitling employees to paid lunch periods or to pay for firing range prac- tice. Under the circumstances, although Mekolia- vitch's complaints may not have been closely scru- tinized, I am unable to conclude that Respondent Union's conduct involved "something more than mere negligence" and thus was arbitrary. See Office Employees Local 2, 268 NLRB 1353, 1355 (1984); Teamsters Local 692 (Great Western Uni- freight), 209 NLRB 446, 447-448 (1974). Cleary complained on 17 December 1981 to Union President George Bradley about being placed on "permanent layoff." Cleary testified that Bradley told him he would look into the matter with Rainey the next day. Cleary also testified that Bradley, either in that conversation or in a second one in January, told him to "write down every- thing that happened and put it on paper and mail it to him." Cleary did not do so until about 12 Febru- ary 1982, when he mailed a letter to Bradley enti- tled "official grievance." The letter was returned due at least in part to an incorrect address. Cleary wrote another letter and mailed it in March. Cleary admitted he was "supposed to" contact Bradley, but did not do so for a month and a half after making the initial complaint. Cleary stated that, during a conversation with Bradley in January, prompted by other employees' filing unfair labor practice charges against Respondent Union, Brad- ley told him he "hadn't gotten anything back from Rainey yet," but was "still looking into it." Bradley talked to Rainey officials in April about Cleary's problem, and Cleary returned to work in August. The judge conceded that Cleary's reinstatement demonstrated Bradley had secured consideration of the grievance "in good faith and with due dili- gence," but nevertheless concluded Bradley's earli- er "inaction" justified finding a violation. I do not 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree. Much of the delay involved can be attrib- uted to Cleary's own failure to reduce his griev- ance to writing and mail it properly. In addition, it is far from clear that Bradley, rather than Rainey, was responsible for the further delay in resolving Cleary's complaint. On the whole, it appears that Respondent Union acted reasonably and effectively as concerns Cleary's grievance, and that the evi- dence fails to show a violation of Section 8(b)(1)(A). Finally, I would also dismiss the complaint alle- gation that Respondent Union failed generally in its duty of fair representation to unit employees. I have previously found Respondent Union did not act unlawfully regarding the Mekoliavitch and Cleary grievances, and successfully pursued Cleary's complaint. In addition, the evidence is that Respondent Union obtained 1 day's pay for a sus- pended employee after it lodged a complaint, and that Respondent Union intervened to get another employee a position for which he had applied. Thus, notwithstanding Respondent Union's short- comings detailed in the judge's decision, e.g., diffi- culty in reaching Union President Bradley by tele- phone and delay in appointing a steward, I find that Respondent Union's performance as bargaining representative had both positive and negative ele- ments, and did not rise to the level required to find an 8(b)(1)(A) violation. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT accept recognition from employ- ers, and execute and give effect to collective-bar- gaining agreements, at a time when we do not rep- resent an uncoerced majority of employees in an appropriate bargaining unit. WE WILL NOT agree to, maintain, or enforce a union-security clause requiring membership in our organization in the circumstances set out above. WE WILL NOT maintain our claim to recognition as the collective-bargaining representative of the Michigan employees of Rainey Security Agency, Inc. unless and until we have been certified as such by the National Labor Relations Board. WE WILL NOT in any other manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, jointly and severally with Rainey Se- curity Agency, Inc., reimburse all Michigan em- ployees of Rainey Security Agency, Inc. for all ini- tiation fees and dues paid by them to us since 1 Oc- tober 1981, with interest. INDEPENDENT GUARDS AND WATCH- MENT OF AMERICA APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT recognize and bargain with Inde- pendent Guards and Watchmen of America (IGWA) as the collective-bargaining representative of our Michigan employees unless or until IGWA has been certified by the National Labor Relations Board as the representative of such employees, and WE WILL NOT give effect to the contract executed on 1 October 1981 purporting to cover such em- ployees or any modification or current extension thereof. WE WILL NOT require applicants for employment to sign initiation fees or dues-deduction forms in favor of IGWA or any other labor organization; WE WILL NOT give effect to such forms executed by our Michigan employees since September 1981; and WE WILL NOT tell applicants for employment, at a time when no union is or can be lawfully rec- ognized, that they must join a union. WE WILL NOT recognize or bargain with IGWA or any other labor organization at a time when such labor organization does not truly represent a majority of the employees, and WE WILL NOT at such time require employees to pay fees and dues to a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, jointly and severally with IGWA, re- imburse our employees for the fees and dues paid by them to IGWA since 1 October 1981, with in- terest. RAINEY SECURITY AGENCY, INC. RAINEY SECURITY AGENCY DECISION BERNARD RIES, Administrative Law Judge This matter was heard in Detroit, Michigan, on February 1, 2, and 3 and March 28, 29, and 30, 1983. The first 3 days of hearing were conducted by Admin- istrative Law Judge Lowell M. Goerlich. On February 4, Judge Goerlich withdrew from the case and I was thereafter appointed to preside Upon resumption of the hearing on March 28, all parties stipulated that it would be unnecessary to conduct a hearing de novo and that was I authorized to decide the issues on the basis of the transcript of testimony and the exhibits already taken and such evidence as would be further adduced Briefs have been filed by the General Counsel, Re- spondent Rainey Security Agency, Inc. (Rainey),' Re- spondent Independent Guards and Watchmen of Amer- ica (IGWA), and Respondent Force One, Inc (Force One) 2 Having carefully reviewed the entire record3 and the briefs, and having considered the demeanor of those witnesses who appeared before me, I make the following FINDINGS OF FACT I THE COMPLAINT ALLEGATIONS At the heart of the complaint is the charge that Rainey and Force One, assertedly "joint employers," violated Section 8(a)(2) of the Act in or about September and Oc- tober 1981 when they granted recognition to and execut- ed a bargaining agreement with IGWA as the collective- bargaining representative of the Respondent Employers' Michigan employees, "notwithstanding the fact that at the time the Union did not represent and has not since represented an uncoerced majority" of such employees. Similarly, IGWA is alleged to have violated Section 8(b)(1)(A) by accepting recognition and entering into the bargaining agreement As a consequence of the asserted unlawfulness of the relationship, the inclusion of the union-security provision contained in the labor agree- ment is deemed to be violative of Section 8(a)(3) and Section 8(b)(2) The original complaint, which issued before IGWA was formally charged with violating the Act, also al- leged that the Respondent Employer had acted in other ways that violated Section 8(a)(1), (2), and (3) of the Act Paragraph 12 of the original complaint, after stating that the Respondent Employers had "rendered aid, assist- ance, and support to the Union by the following acts and conduct," referred to the fact that, in and around Sep- tember 1981, the Respondent employer had unlawfully conditioned employment "on the employees' signing dues authorization forms and becoming members of the i The actual name of Respondent Rainey appear-, to be "Rainey's Se- curity Agency, Inc " See G C Exh l(o) and Rainey Exh I1 However, there has been no motion to correct the caption, and I shall not do so sua sponte 2 In addition, Rainey has filed a "Brief in Reply to the Brief of the General Counsel" which the General Counsel has moved to strike As the General Counsel points out, the Board's Rules and Regulations make no provision for filing reply briefs, Respondent Rainey has not sought au- thority to file such a brief, and the matters briefed by the General Coun- sel were plainly raised by the complaint and in the litigation thereof The motion to strike is, accordingly, granted 3 Errors in the transcript have been noted and corrected 273 Union"; further asserted that, beginning in October, the Employers had improperly deducted initiation fees and dues from the wages of their employees, and alleged that on or about November 25, 1981, "Respondent, acting through Capt. Willie Halley, in a telephone conversation attempted to discourage an employee from seeking re- dress of a grievance by telling said employee that the Union could be of no help to him and that he was the only one the employee could talk to " Finally, in a departure from standard practice, the original complaint charged the Respondent Employers with having violated Section 8(a)(1), (2), and (3) as a result of the alleged failure of the Respondent Union to play its role properly, in the following respects. 12(d) Since in or about September, 1981, and continuing to date, the Union has failed to provide employees, despite their requests, with copies of the collective bargaining agreement in effect between the Union and the Employer, the Unions [sic] by- laws, or Constitution, has not been available for em- ployees to inform the Union of their grievances, or attempted to assist employees in redressing such grievances; has not returned employee telephone calls to the Union's Chicago telephone number; has maintained no Michigan officers or office; has met with Respondents' employees on only one occasion, Saturday, January 9, 1982, and has not communicat- ed in writing to any of Respondents' employees any information concerning the Union or their member- ship in the Union beyond sending employees mem- bership cards An 8(b) charge filed against the Union resulted in the issuance of a consolidated amended complaint. The new complaint charged IGWA, as indicated above, with vio- lation of Section 8(b)(1)(A) and (2) by accepting recogni- tion from and executing a union-shop bargaining agree- ment covering the Michigan employees. Thereafter, the complaint was again amended to add the following as separate violations by IGWA- 11(c) At all times material herein, the Union has failed to provide employees, despite their requests, with copies of the collective bargaining agreement in effect between the Union and Employer, has failed to provide employees with copies of the Unions [sic] constitution and by-laws, and has failed to be available or to respond to employee requests for information about the contractual grievance pro- cedure and how to file or process grievances 11(d) Because of the Union's conduct, as set forth in subpaiagraph 11(c) above, employees, including Charging Party Cleary, have been unable to obtain information or assistance in the resolution of griev- ances they have against their Employer and/or have been unable to file grievances or to attain as- sistance in the processing of their grievances As may be noted, subparagraph 11(c) is similar to, if less detailed than, the earlier subparagraph 12(d). 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. AN OUTLINE OF MATERIAL FACTS AND CONTENTIONS Rainey is a Chicago-based security agency which, at material times, provided guard services for various Fed- eral buildings in Chicago (and for other clients) On Feb- ruary 23, 1981, Rainey, by its president Mack Leonard, and IGWA, by its president George Bradley, executed (presumably in Chicago) a collective-bargaining agree- ment containing a geographically unrestricted "Recogni- tion" clause (in which Rainey "recognizes the Union as the sole and exclusive bargaining representative of all se- curity and investigative employees") The contract, which contained a union-security clause requiring new employees to become union members within 30 days, was made effective for the period January 1, 1981-Janu- ary 1, 1982, to be automatically renewed from year to year thereafter absent notice by either party of a desire to modify Respondent IGWA is also headquartered in Chicago. President Bradley testified that the Union has about 1000 members, who work for various security employers, but the Union's staff is small. Bradley's wife is the secretary- treasurer of the organization, there is an office secretary, and those two, together with Bradley, are the only paid employees According to Bradley, however, the Union also has two "business representatives" named Smith and Walls who work for security agencies and who perform "volunteer work" for the Union.4 The Union's initiation fee is $16 and dues are $5 per month. About September 24, 1981,5 Rainey was awarded a contract by the General Services Administration to pro- vide guard services at 15 Federal Government locations in the State of Michigan, apparently Rainey's first con- tract in that jurisdiction The award became operative on October 1 and covered eleven facilities in Detroit and one each in Pontiac, East Genessee, Saginaw, and Battle Creek As later detailed, Bradley testified that (presum- ably at some time between Thursday, September 24, and Thursday, October 1) Respondent IGWA (1) secured support and authorization from a majority of employees in this farflung group of Michigan employees, (2) sought and received recognition from Rainey as the bargaining representative of the Michigan employees; and (3) nego- tiated with, reached agreement with, and prepared and executed an amendment to the preexisting bargaining contract with, Respondent Rainey. Rainey's predecessor on the Michigan contract was a firm called Per-Mar Security and Research Corporation. Several Detroit-based employees testified that in late September, while still employed by Per-Mar, they and their coworkers were given application packets for em- ployment with Rainey by their Per-Mar supervisors (who, after September 30, were, with one exception, re- tained as their Rainey supervisors); some said that this occurred after work at the downtown Detroit Howard Johnson's Motel, and other witnesses received the pack- ages at their work stations. Included in the packets were 4 Membership cards used by the Union around November 1982, how- ever, fisted Walls and a B Davenport under the title of " Business Manag- er " 5 All dates hereaftei refer to 1981, unless otherwise indicated printed forms entitled "Request For Deduction of Union Dues," which authorized the employer to deduct from paychecks and forward to IGWA "such amounts as may be necessary to pay my Union dues each month"; a simi- lar authorization was made for initiation fees for new members. The witnesses for the most part testified that they were told by those who appeared to be in charge of the application process that the dues and fees checkoff forms had to be signed, or they at least indicated that such a requirement was implicit in the procedure. The document executed by Rainey's president Leon- ard and IGWA's president Bradley on October 1 is styled as an " [a]mendment" to the February 1981 master contract. A previous such amendment, dated June 1, added two sections to article VII ("Minimum Wage Schedule") of the February contract, thereby making provision for certain benefits for "[a]ll employees work- ing under the General Service [sic] Contract Act in Indi- ana"; although there is no testimony about this amend- ment, it must have followed the award to Rainey of an Indiana Federal security contract. The similar one-page document executed on October 1 added two more sec- tions to article VII for "All employees working under the General Service [sic] Contract Act in the State of Michigan (excluding Grand Rapids, Michigan)." The sections added on both occasions appear to do no more than reflect the requirements contained in an applicable GSA wage and benefits determination. Rainey had no license to operate a guard service in Michigan in the fall of 1981 It therefore entered into a written arrangement with Charles Brush, the president of a Detroit-based corporation called Force One Security and Investigations, Inc., to lease the corporate name and the use of "Force One" shoulder patches for a "period of six (6) months, effective October 1, 1981, until [Rainey] obtains state license, this period not to exceed one (1) year " Brush also became the "contract manager" of the Michigan operation, i e, the highest-ranking Rainey offi- cial located in Detroit The complaint alleges, as earlier indicated, that the relationship between Rainey and Force One constituted them "joint employers" of the Michigan employees, an issue to be further discussed below After Rainey commenced Michigan operations on Oc- tober 1, and executed the amendment to the bargaining agreement with IGWA that same day, there was very little contact between IGWA and the Michigan employ- ees Although the employees knew that initiation fees and dues were being deducted from their paychecks, and at least some of them received in the mail membership cards from the Union in around November,6 showing the name, Chicago address, and Chicago telephone num- bers of the Union, there is evidence that they were con- fused and disturbed about the evanescent nature of their collective-bargaining representative.They began placing c Generally speaking, the witnesses appeared to be no more certain of the dates of isolated events than most people would be Thus, on a sub- ject such as when- the employees received membership cards, I suspect that the month could have been October or December as well as Novem- ber On matters more related to other events, on the other hand, wit- nesses are likely to identify the time peiiod with more accuracy RAINEY SECURITY AGENCY 275 telephone calls to Chicago; some were successful in reaching the Bradleys, others were not On December 16, employee Joyce Haynes filed unfair labor practice charges against Rainey and Force One, accusing them of rendering unlawful assistance to IGWA by virtue of the recognition granted, and on January 7, 1982, employee Theresa Burch filed a charge against IGWA, alleging a violation of Section 8(b)(1)(A) by virtue of IGWA's fail- ure to respond to employee requests and other omissions. Perhaps in response to this flurry of activity, Bradley held a meeting of employees on January 9 at the Detroit Howard Johnson's Motel 7 It was a stormy affair, attend- ed by 15-30 employees, at which many questions 'about working conditions were raised, and it ended with Brad- ley saying that he would return to Detroit soon with Rainey official Dan Henderson to answer the employees' questions. He did not return for some 2 months. The complaint alleges, as shown above, that all the Respond- ents violated the Act as a result of IGWA's assertedly substandard handling of its representational duties, and it more specifically makes this assertion with respect to em- ployee Brian Cleary, who was discharged on December 14 and made an effort thereafter to enlist IGWA's sup- port in grieving that termination. III. THE JOINT EMPLOYER ISSUE The Board holds that when employers "share, or co- determine, those matters governing essential terms and conditions of employment," they may be considered "joint employers" of particular employees for purposes of the Act Greyhound Corp., 153 NLRB 1488, 1495 (1965), enfd. 368 F 2d 778 (5th Cir 1966), Manpower, Inc., 164 NLRB 287, 288 (1967) In my view, the evi- dence does not demonstrate that Rainey and Force One exercised the requisite joint control over the Michigan employees. Suzanne Nowicki testified that she and her brother Charles Brush started Force One in 1980 as a partner- ship, although she contributed the capital, he obtained the state license, since she was not qualified to receive one. In September 1981, the business was incorporated under the name "Force One Security and Investigations, Inc " The incorporation papers are signed only by Nowicki, show her as the only "incorporator," and list her as the "initial resident agent"; this is consistent with her testimony that although her brother Charles was named the president of the corporation and she the vice president, she really "ran" the show Nowicki seemed to be ignorant of the relationship between Force One and Rainey Charles Brush was deceased at the time of the hearing, but he had made an affidavit on December 28 for the General Counsel which was admitted in evidence at the hearing 8 The affidavit states, partly contrary to 7 Although employee Haynes testified that the meeting took place on January 8, other evidence leads me to believe that it was on January 9 8 The affidavit was received, over objection, as an admission by a party-opponent, pursuant to Fed R Evid , 801(d)(2) and the possible ap- plicability of Rule 804(b)(3) ("Statement against interest") was also noted The Board has approved the practice of receiving affidavits made by de- ceased persons See Ltmpco Mfg Inc, 225 NLRB 987 fn 1 (1976), Valley West Welding Co, 265 NLRB 1597 fn 3 (1982) Nowicki's testimony, that Brush was the "owner and president of Force One, a Michigan corporation " The affidavit further states that Dan Henderson, of Rainey, "asked me to manage the contract using our license " The written agreement executed by Rainey and "Force One Security and Investigations, Inc " effective October 1, as set out in part above, essentially provides that, for the sum of $2000, Force One would permit Rainey the use of its name and shoulder patches for a limited period of time on the GSA contract. While there are other, seemingly inapplicable, provisions in the agree- ment,9 the essential nature of the arrangement is reflect- ed in paragraph 7• The relationship between "LESSEE" and "LESSOR" is that of supplying the name "Force One" and necessary patches for a contract dated October 1, 1981, between General Service Adm [sic] of Michigan and Rainey's Security Agency, Inc., of Illinois, and except as otherwise specifically provided herein, nothing herein contained shall in any manner be construed as to make either party the agent of the other for any purpose whatsoever. The agreement makes no reference to Brush's services as "contract manager" or "technical contract manager," as he was known to the employees His affidavit is no more enlightening, saying simply that he "began working for Rainey about October 22, 1981." The testimony is that the guards wore "Force One" shoulder patches starting on October 1 and for perhaps 6 weeks thereafter, at which time they changed to "Rainey" patches. A li- cense certificate in evidence, issued January 8, 1982, shows that "Charles H Brush" was, in his own name, "licensed as a security guard agency", the "Agency Name" appears as "Rainey's Security Agency, Inc "; and the formal name and address is shown as Charles H. Brush Rainey's Security Agency, Inc. 8240 Warren Boulevard Center Line, Michigan 48015 Although the foregoing address is that of Respondent Force One, the license itself makes no reference to Force One The record does not show that, other than the shoul- der patches briefly worn, Force One played any visible part in the operation of the GSA contract. In applying for guard positions, the employees were furnished rule manuals bearing the name "Rainey's Security Agency, Inc." It is clear that the employees were paid, from Oc- tober 1 on, by Rainey checks. Employee Burch testified that, while working in the Rainey office in the Federal Courthouse in Detroit, she occasionally typed letters for Brush on Force One letterheads, but she agreed that they had nothing to do with "employee discipline or em- 9 For example, one clause provides that Rainey would maintain liabil- ity insurance coverages of "its said contract employees whose services are sold by this Agreement " But the contract nowhere else speaks of services being "sold" by it 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee disposition [sic] involving any Rainey employee," and she said that she understood that the Force One patches had been used "because Rainey wanted an agent or someone who lived in the State of Michigan with a license until they could transfer everything over to Michigan because they were Illinois." It would appear that the foregoing description aptly characterizes the relationship between Rainey and the corporate entity known as Force One Security and In- vestigations, Inc. Rainey needed a Michigan license and matching shoulder patches for a while; Force One made these available for $2000. There is no showing that Brush's separate agreement to manage the contract for Rainey (which surely was not encompassed in the $2000 lease) to any way implicated the Force One corporation There is no basis for concluding that the latter corpora- tion in any manner "share[d], or co-determine[d], those matters governing essential terms and conditions of em- ployment," Greyhound Corp, supra. I conclude, there- fore, that Force One was not a joint employer of the Rainey employees in Michigan. IV THE ACCRETION ISSUE As earlier noted and later developed, IGWA's presi- dent Bradley testified that prior to the execution of the October 1 bargaining agreement, the Union secured au- thorization cards from a majority of the unit employees. On brief, however, IGWA and Rainey refer to that testi- mony only fleetingly. Both briefs, rather, concentrate on the argument that the Michigan GSA contract employ- ees constituted an "accretion" to the existing employer- wide bargaining unit. That subject will be examined at this point In Lammert Industries v. NLRB, 578 F.2d 1223, 1225 fn. 3 (1978), the Court of Appeals for the Seventh Cir- cuit defined an accretion as follows: An accretion is simply the addition of a relatively small group of employees to an existing unit where these additional employees share a sufficient com- munity of interest with the unit employees and have no separate identity. The additional employees are then properly governed by the unit's choice of bar- gaining representative Understandably, whether a new group of employees may properly be folded into an existing bargaining unit turns on "the entire congeries of facts in each case," Great A & P Tea Co., 140 NLRB 1011, 1021 (1963). The Board has recently stated, however, that accretion is to be regarded as a "narrow exception" to the general rule against premature recognition, and that a valid accretion will be found "only when the additional employees have little or no separate group identity and thus cannot be con- sidered to be a separate appropriate unit and when the additional employees share an overwhelming community of interest with the preexisting unit to which they are ac- creted " Safeway Stores, 256 NLRB 918 (1981) (emphasis added) Viewed in the light of the emphatic Safeway language, the present record plainly will not permit the Michigan Rainey employees to be lumped in with the existing bar- gaining unit. It is true, as Respondents argue, that the Chicago office appears to exercise a certain amount of direct control over the Michigan operations, although that likelihood is based more on inference than on direct testimony . 'O But the arguments against agglomeration are insuperable. The considerable distances between Chicago, on the one hand, and Detroit, Saginaw, Pontiac, etc ., on the other, obviously weigh against accretion, as do the un- questionably different problems and needs of each geo- graphically separated group of employees." The record shows, as might well be assumed, that there is no history of temporary or permanent employee interchange be- tween the Chicago and Michigan facilities, and there is no other kind of operational integration between these locations. 12 It may well be that the sort of work done by the Chicago and Michigan employees is basically the same, but Respondents made no effort to prove that fact, and Union President Bradley did not help the contention, saying that security work differs "substantially" from one site to another with respect to "the performance and also pay " The authority possessed by Contract Manager Brush was meaningful. As the testimony of employees Cleary i a and Burch demonstrates, Brush possessed the authority and discretion to discharge employees, and he was in general charge of the day-to-day operations. Melbet Jew- elry Co., 180 NLRB 107, 109 (1969), and similar cases, make clear that in the present circumstances , even as- suming the existence of centralized managerial control, there is "that degree of autonomy in the day-to-day op- erations of this single [unit] which the Board has held in other cases under the same circumstances to warrant the finding that a single unit is appropriate and there is no accretion." Accord: Party Cookies, Inc., 237 NLRB 612, 615-616 (1978); Meijer's Thrifty Acres, 222 NLRB 18, 24- 25 (1976). That the recognition clause extends without limitation to all guard employees of Respondent Rainey is, under the holding of Melbet, of no consequence In that case, 10 The General Counsel's witness Haynes testified on cross-examina- tion that she was once told that the answer to her vacation pay problem "would have to come from Chicago," and she also agreed that the "pay- roll came from Chicago" Rainey chose not to present any witnesses other than a single Detroit supervisor , who appeared only briefly and did not touch on this subject Although Rainey and IGWA rely heavily on the arguable implications of an employee manual published by Rainey, such a publication , with no supporting testimony , cannot tell us very much about the real world i i Indeed , the benefits available to the GSA contract employees are, as the record establishes , surprisingly dissimilar Thus, the October 1 bar- gaining agreement amendment applicable to the Michigan employees pro- vided a minimum hourly rate of $7 50 per hour, 12 paid holidays a year, and 2 weeks' vacation after 1 year of service , while a similar amendment of December 1 made applicable to Chicago employees provided a mini- mum hourly rate of only $6 50 per hour, only 10 paid holidays a year, and only 1 week of vacation after 1 year of service It appears to be the case that such terms are dictated by the GSA awards. 12 Arizona Public Service Co, 256 NLRB 400, 401 (1981), relied on by Respondents IGWA and Rainey, was simply a better case for accretion It featured a high degree of operational integration , a long-established practice of accreting, substantial evidence of employee interplant transfer, and the public utility industry , in which "the optimum unit is a system- wide one " 13 See also G C Exh 15 RAINEY SECURITY AGENCY the Board rejected the claim that accretion is acceptable where both the larger and smaller proposed units would be appropriate and "an otherwise valid collective bar- gaining agreement requires the accretion ." The Board stated (at 110): "We will not, however, under the guise of accretion, compel a group of employees , who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the op- portunity of expressing their preference in a secret elec- tion or by some other evidence that they wish to author- ize the Union to represent them." On the foregoing analysis, I conclude that neither by force of the relevant factual circumstances nor by appli- cation of contract can the Michigan Rainey employees be unceremoniously amalgamated with the Chicago (and, apparently , Indiana) Rainey employees V. THE ALLEGED UNLAWFUL RECOGNITION Having rejected the "recognition -by-right" contention so strenuously advanced by Respondents , the next logi- cal step is to determine whether an overall unit would be appropriate here (I think it might be) and whether, as re- quired by Melbet, supra, there has been a showing by "some . . . evidence that [the employees] wish to author- ize the Union to represent them." I must say that the Re- spondents do not appear to approach the case that way, they seem to put all their chips on the pure accretion bet. Nonetheless, there is testimony relating to the procure- ment of authorization cards, as discussed below, and the General Counsel argues the case as if, in the alternative, a straight minority -union-assistance case must be proved There does seem to be something of a mix here, but the following discussion should dispose of both possible anal- yses. We first consider the testimony of IGWA President Bradley, called as an adverse witness by the General Counsel, that the Union obtained authorization cards from a majority of the Michigan employees prior to re- ceipt of recognition . I did not see Bradley testify, but I have carefully reviewed his testimony , and my impres- sion is that we do not have here a witness of thoughtful precision, keen recall , or dogged fidelity to truth. His testimony is pervaded by vagueness, improbability, and a surprisingly carefree disregard for the normal human in- clination toward consistency ; it is not easy to accept tes- timony from such a source. On the subject of authorization cards, Bradley testified that sometime in September 1981, he and a "volunteer" named John Barry came to Detroit and signed up Rainey employees "to become members of [his] union." The signing was purportedly done over a 2-3 day period at the local Howard Johnson's Motel and it included em- ployees from outside Detroit. Bradley "couldn't say" how the employees were notified to come to the motel for this purpose. When he was asked what kind of a meeting it was, Bradley replied , "Well, I-they would be talking to the company people, and then the union people would be there." When then asked what "company people" were present, he said , "Some of Rainey's people." He could not remember the names of the "Rainey people," but 277 "[t]hey was talking to the guards ." He could not be more specific about the activities of the Rainey people because "I don't be watching what Rainey's doing " After a tan- gent in the questioning, the subject was revisited, and Bradley was asked how it came about that "employees of Rainey were at the meeting you were at signing up guards." His response was, "They weren 't Rainey Secu- rity there That was prior to Rainey." Bradley could not at first recall exactly how many sig- natures he had personally obtained , but it was "more than five " When asked how many signatures were se- cured by him and Barry , Bradley said, "Oh, I'd say ap- proximately 40, 40, 45 Approximately. The majority." Bradley testified that the solicited employees signed both "applications for membership" and dues "checkoff cards" at the same time; while not entirely clear, it would appear that the "40 or 48" checkoff cards, rather than the membership applications, were presented to Rainey's president Leonard in support of the Union's re- quest for recognition . t 4 He did not make the presenta- tion personally , but rather the cards were carried to Leonard by one of Bradley's assistants Since the cards were obtained in "September ," Bradley said , the presen- tation "had to be around the 2nd or 3rd of October, somewhere in there." He thereafter stated, however, that the amendment to the bargaining agreement (which, as noted, bears an October 1 execution date) emerged "around the middle or the last part of October when we asked for a dollar raise for the people here " Not a single other witness in this 6-day proceeding made any reference to a meeting at which membership application cards were signed . Not one of the "40 or 48" who purportedly signed such cards was called to testify that any sort of solicitation effort as described by Brad- ley actually occurred . Mack Leonard did not appear at the hearing to testify that a substantiated demand for rec- ognition had been made upon him in the manner attested to by Bradley. Most tellingly, although the patently natu- ral inclination for a lawyer defending against a charge of unlawful recognition would be to produce any valid doc- umentation of support, not one of the three parties at risk in this proceeding made any effort to put the member- ship application cards into evidence or to explain why they could not do so IGWA's brief, as earlier noted, de- votes one sentence to Bradley's lengthy testimony about the cards, and Rainey's brief mentions it only in passing These facts make it difficult to believe that Bradley's ac- count of the solicitation of membership cards is anything but spurious Six employees testified on behalf of the General Coun- sel about the manner in which the transition from Per- Mar to Rainey employment occurred . A summary of their testimony follows. Donald Mekohavitch , no longer a Rainey employee, testified that in the "last of September" 15 he was told by 14 On the other hand, Bradley 's vague testimony may be read to say that the checkoff forms were not presented until a day or two after con- tract execution 15 This date was contained in a question put by counsel for the Gener- al Counsel Other employees testifying on the same subject either were Continued 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David Page, then his captain working for Per-Mar, to attend a meeting after work at the Howard Johnson Motel if he "wanted to continue working on the Federal contract."16 At the motel, Dan Henderson, Rainey's Chicago manager, handed Mekoliavitch a folder and told him to fill out the papers, one of which was the dues de- duction form When Mekoliavitch told Henderson that he had never joined a union before and did not want to do so now, Henderson replied that Mekoliavitch had to fill out everything "if you want to be employed " Meko- liavitch signed the form, which is in evidence. Hender- son did not testify I credit Mekoliavitch, who seemed a honest witness Theresa Burch was also told by Captain Page to go to Howard Johnson's When she arrived after working hours, she found a number of other Per-Mar employees present, as well as Dan Henderson and another repre- sentative of Rainey known as Mr. Brooks Page told her to pick up a package of documents from a table. Brooks told her and the other employees to fill out all the forms in their application packages Burch asked "what if we didn't want to be a part of the union," and Brooks "told us if we didn't be a part of the union, we wouldn't have a job." Burch thereupon complied 17 "Brooks" did not testify, and no one took the stand to deny his existence or representative status. Although I did not see Burch similarly directed to a September date and implicitly adopted it, or es- sayed some rough guess of their own as to when in September the events occurred There is no way to know the precise dates involved, and no reason to believe that the employees would recall them exactly I assume that the application process for Rainey employment occurred at some time after September 24, when the GSA award was rendered, and Octo- ber 1, when Rainey began to operate the contract 16 The complaint attributes to Rainey various statements by former Per-Mar supervisors who were still employed by Per-Mar at the time the statements were uttered (most of whom were thereafter employed by Rainey as supervisors) It is fair to hold Rainey responsible for such state- ments The testimony makes clear that both prior to October 1 and there- after, Rainey was using these supervisors as its agents for purposes of the application process As such, any declarations made by them with respect to that process must be regarded as having been made within the scope of their employment, whether or not they had actually been hired by Rainey as of the time the statements were made (a fact as to which the record is silent) Moreover, par 9 of the original complaint alleged that Captain David Page, Captain Willie Halley, Lieutenant Paul Laurencelle , Lieutenant Lori McCloskey, and Lieutenant Paul Howell, "[a]t all times material herein," were "supervisors of the Respondents , within the meaning of Section 2( 11) of the Act, and their agents " One of the "material times" given in the complaint was "in or about September 1981," when the five named supervisors allegedly "conditioned employment with Respondent on the employees' signing dues authorization forms and becoming mem- bers of the Union " IGWA filed an answer to this complaint (although it was then only a "party of interest") in which it admitted the pertinent portions of par 9 , and Rainey also filed an answer which admitted them, with the exception that "Dave Page does not now nor has he ever worked for Rainey's Security Agency, Inc " Only Force One, which throughout insisted that it had but a minor relationship to the whole busi- ness, entered a denial of par. 9. Subsequently , when Rainey filed an amended answer to the complaint , it did not amend its original response to par 9 17 There is a suggestion in the cross-examination that Burch 's affidavit is inconsistent with her testimony on this point While the affidavit, in evidence as Independent Guards' Exh I, does not mention that Brooks was the one who told Burch to fill out the forms, it does have her resist- ing membership in a union and Brooks replying , "You have to have a union Everyone has to be in a union with this company " That seems close enough testify, her testimony reads convincingly, and I therefore credit her. Arthur Doty, presently a sergeant and shift leader for Rainey, testified that in September, Per-Mar Lieutenant Howell (who thereafter worked for Rainey) gave him and other guards the application packages at the Internal Revenue Service Data Center where they worked When Doty, looking at the dues deduction form, asked if that "must . . be done," Howell said, "Yes, if you want to be considered for employment, you must fill the form out." Reluctant to do so, Doty took the form home and returned it signed the next day, having appended the fol- lowing condition. "I will gladly join the Independent Guards and Watchmen of America Union should I be hired and this Union is the recognized collective-bargain- ing agent. It is with that understanding that I have signed my name as requested above." Doty's testimony, given before I arrived on the scene, seems straightforward. Howell did not testify I credit Doty. Larry Childress gave some rather confused testimony He was under the impression that he had filled out sepa- rate sets of application papers for Force One and Rainey, although no one else corroborated that. He remembered that Captain Halley gave him application documents at the Internal Revenue Service Data Center and that he returned them to Halley, and further recalled that Halley told him that he "had to join a union in order to work." However, Childress was unsure of when Halley made the latter remark Halley, the only witness called by Respondents, testi- fied that he had been a sergeant with Per-Mar and was hired by Rainey as a sergeant after filling out an applica- tion package at Howard Johnson's. Effective October 27, when Laurencelle left, Halley was promoted to captain He denied having discussed "the preemployment pack- age or the forms in the package with any other applicant for Rainey Security " To the extent that Halley's limited testimony may be considered a denial of that given by Childress, I would credit the latter who, despite his testi- monial problems, was a more impressive witness than Halley. Logic suggests, and I have little doubt, that Halley, then a sergeant with Per-Mar, gave Childress the Rainey application forms prior to October 1 and told him, when Childress inquired about the dues-deduction form, that he would have to join in order to be em- ployed. Joyce Haynes testified that she had been ill the last week of September and, after she returned to work, Cap- tain Laurencelle gave her application forms during the first week in October. When she asked about the Union, Laurencelle told her that "the company had a union and that everyone would be part of the union." He also said that she "might as well sign the forms" because they "were going to take the union dues out anyway " 18 18 Haynes' testimony is not particularly helpful to the General Coun- sel's case since she filled out the forms subsequent to the purported exe- cution of the bargaining agreement on October 1 Whether or not most of Laurencelle 's statements to her were lawful at that time depends on whether the recognition earlier granted was itself lawful , except in one Continued RAINEY SECURITY AGENCY Finally, Sandra Henderson testified that she received her application from Laurencelle in September in the Federal building in which she worked When she saw the dues-checkoff form and inquired about it, Lauren- celle responded, "This company has a union . . To be employed, you have to join the union " Henderson an- swered, "I need a job, so I'll sign it " The difficulty with the testimony of Henderson, who did not appear before me, is that her pretrial affidavit is considerably less dramatic . I think it unnecessary to spell out the variances. Any reader of the record would agree, I believe, that the differences between Henderson's testi- mony and her affidavit require, even though Laurencelle did not testify, that Henderson not be credited on this point. However, the other evidence of record leads me to believe that, like the remaining witnesses , Henderson is to be credited insofar as she testified that a dues-de- duction form was included in the sheaf of application papers given her in September. There is other relevant evidence relating to the char- acter of the relationship between IGWA and Rainey. Burch testified that around the latter part of October, IGWA President Bradley and Rainey representative Brooks came to her post, where Brooks introduced Bradley to her. This was apparently the first contact be- tween IGWA and the Rainey Michigan employees since the October 1 grant of recognition. Bradley, out of Brooks ' immediate vicinity , told Burch that he wanted her to be the union steward in Detroit She said she would let him know. When the two moved toward Brooks, the latter indicated his understanding of Bradley's mission by saying that Isaac Jones, a "federal police officer" who was standing nearby, was himself a union steward and could show her the ropes. Thereafter, when Burch went to Rainey's office on the same day, one of the supervisors asked if she had "accept[ed] the job for being union steward" and ignored her question as to how he knew of the offer. The following workday, the supervisor asked again about her decision.'s Other evidence of the relationship between Rainey and IGWA appears in the record . Haynes testified that in December , while speaking to Manager Brush , she asked for information about the Union Brush said that he knew nothing about it, but Dan Henderson "was sup- posed to be bringing or sending the information from Chicago." Haynes inquired as to "[W]hy was the compa- ny sending us the union information? Who ran the union, the union or the company?" Captain Halley similarly told Haynes at one point that "someone from Chicago was supposed to be coming here so we could have a union meeting or hold an election." At the union meet- ing in early January 1982, discussed hereafter, Bradley put off the irate employees by saying that he would return soon with Dan Henderson to sort out the prob- lems, but it appears that Henderson was in fact in De- troit at the time and , further, was in contact with the respect It is never acceptable to coerce an employee to sign a dues-de- duction form, even though the employee may be required to pay dues under a valid union -security clause While technically violative , however, such a sin would seem venial in isolation 19 Burch turned down the offer in the belief that the steward should be elected and also because of her inexperience 279 Bradleys. Thus, Sandra Henderson testified (without ob- jection) that Burch had told her that Henderson was in Detroit (and wanted to "go out for dinner and dancing" with Henderson), and shortly thereafter a bellman en- tered the meeting room announcing a call from Dan Henderson Mrs Bradley quickly left the room in re- sponse. My findings above and hereafter as to the authoriza- tion cards preclude a conclusion that Respondents have, under Melbet, satisfactorily shown that they properly ac- creted the Michigan employees to the existing unit. And I reach the same result when I turn the coin over, as counsel for the General Counsel does, to see if she has made out an independent case of unlawful recognition (apart from the notion of Respondents ' failure to satisfy the Melbet requirement for incorporating after-acquired units). "The law has long been settled that a grant of exclu- sive recognition to a minority union constitutes unlawful support in violation of [Section 8(a)(2)] " Ladies Garment Workers (Bernhard-Altmann) v. NLRB, 366 U.S. 731, 738 (1961) A "minority union" for these purposes includes both a union which has simply failed to secure sufficient support in the unit for which it is recognized and a union which has obtained ostensible majority support that is tainted by coercion and therefore unreliable Distributive Workers District 65 (Hartz Mountain) v. NLRB, 593 F.2d 1155, 1162 (D.C. Cir 1978). The Board has repeatedly held that in cases alleging unlawful 8(a)(2) recognition, it is "the burden of proof of General Counsel to establish that the union accorded ex- clusive recognition was not the majority representative," Progressive Construction Corp., 218 NLRB 1368, 1370-71 (1975), Regency Gardens Co., 263 NLRB 1265 (1982); American Beef Packers, 187 NLRB 996, 997 (1971). In applying this principle, however, the Board has held that it is not always incumbent upon the General Counsel to affirmatively prove, with anything approach- ing mathematical precision, that a union did not repre- sent a majority at a critical time, if there is evidence in the record which reasonably tends to cast doubt upon the majority status claimed by the union . In Clement Bros. Co, 165 NLRB 698 (1967), the union had in its possession at the hearing about 129 authorization cards in a unit of approximately the same size The record showed, however, that prior to recognition a union rep- resentative had made remarks to six card signers about the necessity of signing a card in order to work, and an employer agent had made a similar comment to one em- ployee. The Board held that the General Counsel was not required to specifically prove that another 58 cards necessary to majority status had also been obtained in coercive circumstances: "[T]he character of the coercion should be more realistically measured in terms of its per- vasive effect." Id. at 699. Taking into account the seven instances of coercion which took place prior to the sign- ing of the contract, as well as "coercive tactics continu- ing after the contract was signed " deemed by the Board to "suggest" that "the coercion taking place before the contract was executed was substantially more wide- 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spread than appears"), the Board found the 8(a)(2) viola- ments recognizing Local 422 as such representative tion as alleged. in the absence of any showing or other evidence On petition to enforce, the Court of Appeals for the that that union represented a majority of the unit Fifth Circuit agreed with the Board's conclusion, saying employees was a clear violation of Section 8(a)(2) that the Board may use "specific instances of coercion as and (1) of the Act We so find. circumstantial evidence" of widespread undue influence and that the Board was "justif[ied]" in the inference drawn by it. 407 F.2d 1027, 1029.20 Accord- Amalgamat- ed Local Union 355 v. NLRB, 481 F.2d 996, 1002 fn 8 (2d Cir. 1973). In recent years, the Board has drawn such an infer- ence of the absence of an uncoerced majority in a varie- ty of ways. In Siro Security Service, 247 NLRB 1266, 1273 (1980), it adopted a "totality of the circumstances" approach proposed by Administrative Law Judge Frank. I base this conclusion [that the union did not rep- resent an uncoerced majority on the appropriate date] on the evidence adduced by the General Counsel, the logical inferences derived therefrom, the totality of circumstances (including the haste of Siro in recognizing Allied without an adequate card check), Siro's assistance to Allied in obtaining union cards from its employees both before and after rec- ognition of Allied, the failure of Siro and Allied to accord employees their statutory rights in the appli- cation of an otherwise lawful union-security clause, the requirement of Siro and Allied that employees execute check-off authorization cards as a condition of employment, the deduction of union initiation fees and dues without such authorization, the evi- dence that some cards upon which the Union relies in asserting its majority status were obtained fraudu- lently, and the absence of evidence sufficient to rebut the General Counsel's prima facie case In Bronxwood Home for Adults, 244 NLRB 905 (1979), it appears that the Board was willing to shift the burden of proof when the respondent union failed to prove the exist- ence of an organizing campaign or a majority of designa- tions and upon a single demonstration that the employer preferred the recognized union to another union: There is no evidence that Local 422 ever en- gaged in any organizing activity among Respond- ent's Bronxwood employees or that it had ever been designated as bargaining representative by any, much less a majority, of those employees.7 Indeed, the only evidence of Local 422 activity is its agents entering the Home with the permission or acquies- cence of the Scharfs who, in essence, contempora- neously barred entrance to Local 1115 agents, al- though they knew the latter had been actively orga- nizing their employees. Obviously, the Scharfs were seeking to choose the union to represent their em- ployees, and their subsequent execution of agree- 20 The court apparently did not find it necessary to rely on the postre- cognition conduct, stating merely that "[tlhe Board inferred from 7 proven instances of coercion that other unproven instances had oc- curred " It ventured, as well, "The Board might also have inferred that the coercion of the 7 had an indirect effect on others," id at 1030, al- though there appears to have been no showing of knowledge by the other employees of the seven instances ' No Local 422 authorization cards were introduced into evi- dence, and no agent of that union testified at the hearing The Scharfs' testimony relating to the issue-as was all their testimo- ny-was wholly discredited by the Administrative Law Judge Here, counsel for the General Counsel apparently seeks to apply the foregoing line of cases to the present facts in the following manner. Recognition, accomplished by threats which are in themselves violations, see Gold Standard Enterprises, Inc, 249 NLRB 356, 361, enforced 679 F.2d 673, 110 LRRM 2587 (7th Cir. 1982), resulted in the cards in evidence. Those cards are thus an unreli- able indicator of employee support. See Hollander Home Fashion Corp., 255 NLRB 1098, 1102; Air Central Products, Inc., 139 NLRB 607, 621, enforced 344 F.2d 902, 59 LRRM 2192 (5th Cir. 1965) Having shown that these cards were obtained by coercion, the burden shifts to the Respondents to demonstrate an untainted majority status. They were required to place in evidence, with proper au- thentication, cards which they could prove were properly obtained and signed. See Siro Security Serv- ice, Inc., 247 NLRB 1266, 1271. It is, however, not necessarily accurate to argue on this record that the "[r]ecognition [was] accomplished by threats which are in themselves violations " The "threats" referred to are evidently the statements to some employees made by Dan Henderson and other Rainey agents during the application process that they had to sign the dues-deduction forms and/or join the Union. Unquestionably, such statements made to appli- cants before the operation of the business has com- menced are violative of the Act Furthermore, if it were shown that such statements were made to prospective employees who then signed authorization cards or simi- lar manifestations of union support, it could be conclud- ed, when a respondent union or employer attempted to prove majority status by a proffer of such documents, both that the documents could not be relied upon and perhaps, under Clement Bros. Co., 165 NLRB 698 (1965), that the taint should be considered pervasive But while it is true that the few "cards in evidence" are "an unreli- able indicator of employee support," these particular "cards"-dues-deduction forms-have not been explicitly proposed by any party as a "reliable indicator of employ- ee support " It must be remembered that Bradley testified that he and an associate obtained signed membership applications and checkoff forms from a majority of the unit employ- ees and, apparently, presented the latter to Rainey. The four checkoff forms in evidence, as the authenticating witnesses testified, were signed by them during the appli- cation process, and none of them mentioned that Bradley was present at the time. Theoretically, these four forms, RAINEY SECURITY AGENCY and others signed by other employees in the application process, have nothing to do with the cards and forms which Bradley avers were obtained by him and used as the basis for recognition (although, as earlier indicated, at one point in his testimony Bradley gave the clear im- pression that he was obtaining signatures on checkoff forms at the same place at which "Rainey's people" were taking employees through the application process). Nonetheless, I agree that the forced signing of the checkoff forms in the application packages is a significant factor here. The theory underlying Clement Bros. and like cases seems to be that while a respondent in an 8(a)(2) case need not initially shoulder the burden of proving a majority, the law requires that there must in fact have been majority support at the time of recogni- tion. That fact of majority support will ordinarily be pre- sumed, as all actions such as recognition are normally as- sumed to be consistent with the law. But once there is some showing that any earlier-gathered majority, howev- er manifested,21 might have been obtained or maintained by improper influence, the Board may, in the exercise of its reasoned judgment, require the parties to divorce until properly wed. In the instant case, it can be fairly argued that even if a clear majority of employees had validly signed authori- zation cards and checkoff forms for IGWA prior to the application procedure, Rainey's incorporation of IGWA's checkoff forms into the hiring process compro- mised the propriety of the recognition extended on Octo- ber 1, the first day of hire. Under the law, IGWA could not legally be recognized as the official union until Octo- ber 1; but employees who saw (on, say, September 28) an IGWA checkoff form in the Rainey application packet would reasonably have felt constrained to support IGWA in order to work at the desired employment. This would mean that even employees who had legitimately signed authorization cards prior to September 28 would have felt reluctant to rescind their authorizations on Sep- tember 29 even if they had wanted to do so, since Rainey would have, by requiring that the forms be signed, given the Union its seal of approval. Moreover, the distinctly rank aura pervading this case compels one of two conclusions: (a) that IGWA never had any authorizations from any employees as of the contract date of October 1 or (b) that, if it did, chances are quite good that they were obtained in circumstances in which improper influence abounded. As to (a), I have noted that the GSA contract was not awarded until "on or about" Thursday, September 24;22 the very earliest time thereafter that Bradley would likely have been able to make contact with the would-be Rainey employees in both Detroit and elsewhere in Michigan, and then have gathered 40 or more of them together and come from Chicago for the meeting in De- troit at which the 40 or more cards were allegedly se- cured, would have been some time in the following mid- week. But Bradley testified that he not only accom- plished this feat, staying in Detroit for "two or three" 21 There is no requirement that majority support be memorialized in signed authorization cards, Regency Gardens Co, supra 22 As stipulated at the hearing 281 days, but also then obtained recognition and met with Mack Leonard "maybe once or twice" before executing the October 1 amendment I have elsewhere pointed out that not only was there no testimony from anyone other than Bradley about the authorization cards, but that also not one of the three Respondents attempted to put such cards in evidence or even to explain their absence;23 and, on brief, Respondent IGWA's lip service to Brad- ley's testimony is even more succinct than that given to it by Respondent Rainey. In these circumstances, it is hard to generate any faith that a majority showing ever existed.24 As for argument (b) above, if Bradley did gather any cards, that might well have been done, as shown by his earlier-quoted testimony, in the presence of Rainey offi- cials That circumstance would itself cast doubt upon the validity of any such cards, see Department Store Food Corp., 172 NLRB 1203, 1207-09 (1968). In addition, if authorization cards were collected, that was done in the same time period in late September in which employees were being told, in the application process, that they had to sign a dues-checkoff form and/or had to belong to a union. It seems most likely that the dues-deduction slips appeared in all the applica- tion packages given to prospective employees,25 and the record indicates that the packages were distributed at various times and places during the latter part of Septem- ber Because Bradley was quite unspecific as to when he purportedly secured signatures, and since no authoriza- tion cards have been brought forward, it is possible that any such cards were signed before the checkoff forms were presented. But even that fact, as discussed above, does not necessarily sanitize the cards with respect to those cardsigners who might have desired to change their minds and then felt restrained from doing so. On the other hand, there is a good chance that any employ- ees who signed such checkoff forms may have been ex- posed to them prior to having been offered authorization cards; that circumstance, I believe, would clearly nullify the reliability of any such cards as a free demonstration of employee sentiment. That "good chance" seems to be what Clement Bros., supra (407 F.2d 1027) is talking about as a sufficient basis for requiring the termination of the bargaining relation- ship. If 7 instances of coercive remarks are a proper foundation for doubting the reliability of at least 58 other authorization cards out of a total of 129 signed cards, then it also seems appropriate here to doubt that a valid majority was secured. In so concluding, I rely on "the totality of the circumstances" (Siro Security Service, supra, 247 NLRB 1266 (1980); see also Farmers Energy Corp., 266 NLRB 722 (1983), in which the Board very recently reaffirmed the Siro "totality of the circum- stances" approach), including the coercive implications 2a An adverse inference might well be in order in such circumstances, Auto Workers v NLRB, 459 F 2d 1329, 1335-36 (D C Cir 1972) 24 Nowhere in the record is there any firm indication, aside from Bradley's worthless testimony, of the number of Rainey employees in Michigan as of October 1 25 I recognize that Brian Cleary did not recall signing such a form, but he did know that initiation fees and dues were deducted from his pay As will later be seen, Cleary's memory is not exceptional 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the inclusion of the checkoff forms in the application process, the extremely unconvincing state of the record as to the authorization cards assertedly gathered by Bradley, and the indication , as in Bronxwood Home for Adults, supra, 244 NLRB 905 (1979), that the Rainey of- ficials "were seeking to choose the union to represent their employees."26 The court emphasized in Clement Bros, 407 F.2d at 1030: "In a system of labor relations in which a majority may become the exclusive bargaining agent of all work- ers in a unit, adequate protection of the minority requires that we permit the Board to exercise its full statutory powers to insure that those majorities are not coerced " In the present case, those "full statutory powers" encom- pass the authority to sever a bargaining relationship with as unstable a foundation as appears here, in order to afford the employees the "complete and unhampered freedom of choice which the Act contemplates," Ma- chinists Local 35 v. NLRB, 311 U S 72, 80 (1940) Accordingly, I conclude that by presenting applicants with dues-deduction forms in September 1981 and telling them that they had to join Respondent IGWA, Respond- ent Rainey violated Section 8(a)(3) and (1) of the Act. I further conclude that by entering into a collective-bar- gaining contract on October 1, 1981, Respondents Rainey and IGWA violated, respectively, Sections 8(a)(2) and 8(b)(1)(A). In addition, by including a union- security clause in that agreement and thereafter enforc- ing it, Respondents Rainey and IGWA violated, respec- tively, Sections 8(a)(3) and 8(b)(2). VI. THE REPRESENTATION AFFORDED TO EMPLOYEES BY RESPONDENT IGWA As discussed, the amended complaint asserts that both Respondents violated the Act by virtue of the inadequate representation provided employees by Respondent IGWA We turn first to the issue of IGWA's liability 27 As earlier set out, the complaint amalgamates a number of asserted defaults by IGWA into a single para- graph At the hearing, I inquired of counsel for the Gen- eral Counsel whether each of the acts recited were con- ceived to be a separate violation and was told that "with an 8(b)(1)(A) violation that is alleged, one tends to look more at a number of acts rather than at one act as consti- tuting the violation " Subsequently, however, I was also told that "the failure to provide employees with copies of the union's constitution and bylaws is per se a viola- tion of Section 8(b)(1)(A)." On brief, while modifying 26 The evidence of close collaboration is unmistakable The inclusion of checkoff forms in applications even before employees were hired and the operations begun , and thus at a time when the Respondents could not legally have engaged in bargaining and agreed to a contractual checkoff provision , and the execution of a contract , having the effect of barring campaigns by other unions, on the very day that Rainey began operating the Michigan GSA contract, are prime examples 27 Although there may be some surface tension in concluding both that a union was not entitled to represent a group of employees and that it also violated a statutory duty to represent them fairly, the Board has held, as counsel for the General Counsel notes, that a union found not to be a bona fide collective -bargaining representative violated Sec 8(b)(1)(A) by failing to represent certain employees Service Station Opera- tors (Urich Oil Co), 215 NLRB 811, 815 (1974) the last-quoted principle to some extent,28 the essential theory of the allegation is formulated as follows: "Rather than fulfill its duty to the employees, the IGWA pro- ceeded in every manner to display indifference to their needs and deference to those of the Employer " There is a distinction, unquestionably there but not easy to articulate, between the union which simply serv- ices its members poorly and one which performs so badly that it may be said to have violated its 8(b)(1)(A) duty of fair representation The present record does not show that IGWA totally neglected its representational duties, as will be discussed. Nonetheless, it does appear that, after acquiring its illegal status , IGWA was so un- mindful of the basic needs of the employees as to whom it was granted stewardship that it may be said to have been in statutory default There is an initial problem, addressed by none of the briefs, which presents some difficulty The master agree- ment made applicable to the Michigan employees on Oc- tober 1 contains the following provision- Article VIII PROBATIONARY PERIOD Any new employee, other than part-time employ- ees, who shall be hired by the Employer shall serve a sixty (60) day probationary period beginning with the date of his hiring prior to becoming eligible for Union membership and benefits under this Agree- ment. The Employer shall not be bound to pay the wage minimum as set out herein during this period. The Union shall not institute grievance procedures on behalf of any employee terminated prior to the expiration of his probationary period. The Employ- er's right to terminate probationary employees for whatever cause is vested and absolute Completion of the probationary period shall automatically bring the employee under the terms of this Agreement. It seems clear that all of the employees hired by Rainey on October 1 would have been "probationary employees" until November 30 for purposes of this pro- vision The question presented is whether the provision means that the parties intended that IGWA did not owe any duty of representation to these employees until on and after that date, and also whether that 60-day period can be discounted in assessing delays by the Union in un- dertaking its responsibilites in Michigan. I conclude that the provision is too ambiguous for a construction that the parties intended that the Union was not to represent the Michigan employees at all during the probationary period For one thing, neither Rainey nor IGWA has made such a contention, and that is an important factor in this context For another, such a con- struction is inconsistent in principle with Bradley' s claim that he secured a majority of cards prior to October 1, which would be a pointless exercise at that time if the 28 Counsel points out that the Board held in Law Enforcement & Secu- rity Officers, Local 40B (South Jersey Protection Agency), 260 NLRB 419, that a union violated the Act by failing to honor an employee's request for copies of the health and welfare plan and the collective-bargaining agree- ment RAINEY SECURITY AGENCY employees would not become eligible for representation (if they were still employed) until the end of the 60-day period Third, the undenied testimony is that Bradley at- tempted to appoint Burch as a steward in the latter part of October, at a time when she herself was still on proba- tion as were the other employees Fourth, employee Me- koliavitch insisted that he received a membership card from the Union "sometime in October," or prior to the expiration of the 60-day period; no one came forward to deny his testimony, although it was brought into ques- tion at the hearing The clause itself is internally contradictory or, at least, ambiguous. Does "Union Membership and benefits" mean only "Union Membership and Union benefits?" The sentence stating that the Union "shall not institute grievance procedure on behalf of any employee terminat- ed prior to the expiration of his probationary period" is quite specific, implying, under the doctrine of inclusto unius est exclusio alterius, that the grievance procedure is otherwise available to probationers during the 60-day period, the same argument may be made that the limited reference to the employer not being bound by the "wage minimum" implies that it is otherwise bound; and, it could be argued, the final sentence of the provision is simply meant to make all such grievances subject to the procedure once the probation has ended I therefore conclude, particularly in view of the si- lence of the Respondents on this matter, that the con- tract is not understood or applied by the parties to do anything other than allow the Employer to pay submini- mum wages to probationers and to discharge them with- out being subjected to a viable grievance 29 Returning to the issue of the Union's failure to proper- ly represent, we begin with the fact that the Bradleys made no effort at all to consult with the bargaining unit employees before they executed an agreement on their behalf on the very first day of their official representa- tion This is arrogant behavior, at odds with the notion of a labor organization being, as Section 2(5) of the Act defines it, an organization "in which employees partici- pate." Nothing in the statute specifically demands prior consultation before signing an agreement-a labor orga- nization is entitled to act on its own But seeking em- ployee involvement in such matters is so commonplace and so obvious that the failure to do so suggests a total lack of seriousness of purpose on the part of a union which fails to do so The next problem area was the Union's aloofness from the employees until they began to file charges with the Board. To the frustrated employee witnesses, the reality of the Union was manifested principally by the fact that dues were being withheld from their paychecks A major deficiency was IGWA's failure to assure that at least one official representative of the Union was immediately available to the employees for considering and process- ing their complaints, inquiries, and grievances 29 It should be noted that if the contracting parties in fact intended that the contract totally excluded probationary employees from its cover- age (putting aside the rejected accretion argument), the October 1 recog- nition would have been totally invalid, since the unit at that point would have consisted of zero "employees " 283 It is true, as earlier set out, that in the latter part of October, Bradley (with Rainey representative Brooks) asked employee Burch to be the "union steward for the Detroit area," but she declined the offer. Thereafter, it was not until the early January motel meeting (after the first unfair labor practice charge was filed) that another effort was made to select a local representative. At that time, Joyce Haynes testified, she agreed to become "the liaison person between Detroit and Chicago until we got Mr [Leonard] here." Although Haynes testified at one point that 2 or 3 weeks later, she received in the mail a copy of the bar- gaining agreement,30 she also testified that the only role she understood she would be playing was that of "con- tact person to get the information back to the people here " Contrary to Haynes, employee Mekoliavitch testi- fied that the word "steward" was used in connection with Haynes' appointment; nontheless, it seems clear that she knew little about such a function and received no education in it.31 It does not appear that the employees who did not attend the January 9 meeting were ever no- tified of Haynes' appointment, nor does it appear that Haynes handled any business for the Union after her ap- pointment. It was not until March that any further action to the end of appointing a real representative was taken. The record shows that, an unfair labor practice complaint having issued against IGWA on February 19, 1982, Bradley sent out a notice of a March meeting for the De- troit employees, but presumably because the day and the date given were not consistent, only two employees ap- peared At the meeting, Bradley asked one of the two, Larry Childress, to be "the representative for Rainey," and promised to pay him $50 per month for his efforts. Childress agreed and, on March 19, IGWA sent letters to the employees announcing that Childress was their representative, that he would "take all complaints," and that he could be reached at a given telephone number for 2 hours each day. Although Childress generally minimized his own per- formance thereafter, and the General Counsel argues that even the appointment of the untrained Childress was in- adequate action by IGWA, it can be contended from the somewhat fluctuating testimony of Childress that he per- formed not inappropriately thereafter.32 But any such 30 Subsequently, she testified that she also asked at the January meet- ing for a copy of the constitution and bylaws, and that she received them thereafter But later, she was not sure what was sent to her 3 i It seems doubtful that, at the January 9 meeting, Haynes understood herself to be agreeing to become a regular union agent, since at that very meeting she filed a written grievance with Bradley about Rainey's failure to properly reflect city taxes on W-2 forms , the letter referred to the fact that "the Union has taken our dues and we have had no representation up to this point " Haynes had also filed the original charge against Rainey on December 16 32 At one point , Childress said that he had never been given grievance forms or copies of the bargaining agreement and the union constitution, and at another that only one employee had approached him with a griev- ance Thereafter , he seemed to be saying that the Union did send him a copy of the bargaining agreement after he became the "representative," as well as a copy of Rainey 's contract with GSA, and he later spoke of other grievances, brought to his attention by employees who worked with him , which he discussed with Rainey management and also commu- Continued 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD improvement does not dispel the justifiable conclusion that the Chicago-based Union's failure for 5-1/2 months to clearly designate an official Michigan representative was a serious breach of what should have seemed a com- pelling duty. Having failed in the first several months of representa- tion to make such a local appointment, it logically be- hooved IGWA to bend every effort during that period to assure that employees were able to at least contact the Union's Chicago office by telephone. While the evidence on this aspect of the case is mixed, it appears to me that it was not as easy to reach out and touch the Union as it should have been. Two employees testified that they received member- ship cards from the Union, Mekoliavitch sometime in October and Henderson at some undetermined time. One can assume that the cards were sent out routinely to all or many of the members of the bargaining unit.33 The fact that the cards have Chicago telephone numbers and an address on them, however, seemed to have escaped the notice of some of the employees who testified, since a few spoke of having, to seek out the Union's phone number from others 34 Although the mailing of the cards may be viewed as an effort to permit the employees to contact IGWA, the record indicates that, overall, the Union did not do a very good job of responding to calls. Some employees had no problems on this score. Mekoliavitch made at least three calls to Bradley between November 1 and December 14, and had no trouble reaching him. Cleary could not remember any difficulty in contacting Bradley Burch said that a call to Bradley was returned with rea- sonable promptness in October, but a December call, an- swered by Mrs Bradley, was not returned by her hus- band. Doty testified that he and employee McCluskey at- tempted one November or December morning to call both Chicago numbers, but got only an answering serv- ice; the record does not expressly say whether their calls were returned, but apparently they were (see discussion of McCluskey grievance, below) Sandra Henderson tes- tified that in 1981, she tried to call the Union "three, four times, probably," but only reached an answering service; however, she left no messages. Childress said that he tried to call the Union "at least 10 times" in the first 2 weeks of November 1981 and got no answer at all. Although Childress was an otherwise confused witness, be seemed to be making an effort to be honest, and there is no reason to disbelieve him on this point. Joyce Haynes testified that she called IGWA "at least two or three times" before January and left messages on the re- ntcated to the Union's Chicago office It should be noted, however, that Childress also testified that he was never told which employees he was to represent and at what locations He says that he tried to contact employ- ees in Pontiac and Ann Arbor to see if they had any grievances, but was unable to reach them It might also be noted that Childress' maximum availability of 2 hours per day could not have been helpful to some of the employees 33 As I have similarly assumed that the checkoff forms were included in all or most of the application folders 34 Haynes testified that at a time of which she was not at all sure, but perhaps around November or December, the name and number of the Union was posted on the desk at the Internal Revenue Service Data Center cording machine, but was "never able to talk to anyone directly." Certainly, the law does not require that a qualified union business agent always be stationed at a telephone ready to make an instant response to an employee query or complaint , and there is nothing wrong with the use of answering machines. However, the system should oper- ate so that all calls are returned with reasonable prompt- ness by a responsible official , especially in a setting in which no capable local representative has been designat- ed. The unrebutted evidence indicates that Respondent IGWA did not measure up to this standard 35 Then there is the matter of requests by employees for copies of the bargaining agreement and the Union's con- stitution . Aside from whatever documents were received by Haynes and Childress , the principal testimony regard- ing such employee requests relates to the January 9 em- ployee meeting . After reviewing the testimony of those witnesses who attended that meeting, I cannot say that any of them made specific and formal requests for docu- ments. On the other hand, it can be stated with confi- dence ( 1) that the angry employees made clear to the Bradleys that they wanted to see the governing papers and (2) that George Bradley assured them that the docu- ments would be forthcoming . 36 Thus, Arthur Doty testi- fied that he asked Bradley if he had the contract or the bylaws with him "to show us" and was told that they were in Chicago; while Doty did not ask Bradley to send him copies, Bradley made that request unnecessary by preemptively "volunteer [ing]" that he "would be getting information to us." I infer that the employees at the January 9 meeting ef- fectively communicated the notion that they wanted to examine the relevant union and bargaining documents, and I conclude that such a generalized request was effec- tive to trigger the duty enunciated in Law Enforcement & Security Officers, Local 40B, supra I have earlier noted that the credit side of the Union's ledger is not blank . Doty testified that after he and McCluskey tried to call Bradley in November or Decem- ber to complain about a suspension given to McCluskey, "the Union . . got-I believe-the day's pay " for the latter .37 Childress testified that in early January 1982, he called the Union to see if anything could be done about getting him a position he had applied for. Some 2 weeks later, Mrs. Bradley called to say that he would be get- ting the position , and he did. It cannot, of course, be de- termined on this record the extent to which the unfair labor practice charges may have galvanized Respondents into a semblance of action, assuming that the Union played a role in obtaining the position for Childress. Nontheless, I am persuaded that the efforts put forth by this "Mom and Pop" Chicago-based Union to repre- 35 I should note that the Union moved its offices sometime in the first part of 1982 Bradley testified that he notified the Michigan employees of this change by letter There is no direct contradiction of this testimony as It is another example of Bradley's unconcern that he would attend his first meeting with Michigan employees, more than 3 months after rec- ognition and shortly after the filing of unfair labor charges, without even thinking to bring a copy of the bargaining agreement 31 The time at which this happened, and Doty's basis for believing that the Union contributed to the result, is unexplained RAINEY SECURITY AGENCY sent employees scattered throughout Michigan were in- adequate to the demands of Sections 9 and 8(b)(1)(A). A union is, inter alia, a service agency, these employees were being forced to pay for that service; and they were not getting their money's worth, at least, it may be argued, until around March or April 1982 I see no reason to believe that such a prolonged, conscious, and serious pattern of inadequacy may not itself be regarded as a violation of Section 8(b)(1)(A) I find, in substantial accordance with the complaint, that from October 1, 1981, until at least March or April 1982, Respondent IGWA violated Section (b)(1)(A) by failing to make reasonably available to Respondent Rain- ey's Michigan employees the information, advice, and as- sistance to which they were entitled and by failing to provide employees, on request, with copies of the gov- erning collective-bargaining agreement and the Union's constitution The employee witnesses testified to various complaints they had from the beginning of the Union's tenure, and the General Counsel now seeks a specific remedy for them.38 On brief, counsel mentions three items in this category: "Thus, those employees who were deprived of paid lunches should have that lost money repaid to them, as should employees qualifying at the range who thus lost pay Any employees who suffered loss as a result of a lack of health insurance should be made whole for those losses " As for the paid lunches, Mekoliavitch testified that as soon as Rainey took over the contract, "[t]hey started taking out our lunches We were getting paid ten hours prior to that for working ten hours Soon as Rainey took over we were getting paid nine and a half hours and in effect losing a half hour worth of time and a half pay which is forty-five minutes for our lunches." Apparently this change of practice applied only to guards who worked at the Federal Courthouse; employee Burch, who was stationed there, testified that at the January 9 meeting, "They got into discussions about the lunches at the courthouse. We were docked a half hour for lunch, and no one else is docked for lunch, at the other-at the different posts." Mekoliavitch testified that, as soon as this practice began, he spoke to Captain Halley, saying that he wanted to "grieve to my union since I had to join a union which we hadn't heard of but it was there." Halley (and subsequently Brush) told him that they did not know how to contact the Union, and that such an obligation was the employee's. Two weeks later, Meko- liavitch was angered by the fact that he lost "ten hours pay" when he was made to go to the range to qualify and he also complained to his superiors about that, with the same result. In November, Mekohavitch got the Union's number from Burch and called Bradley to tell him that he had problems and he did not "even have anybody to grieve to." Bradley replied that they were trying to "get down there"; that Mekohavitch had not "even been working 38 The amended complaint requests a remedy for " any losses [the em- ployees] may have suffered due to the employees' inability to file, process and/or adjust grievances " 285 here thirty days yet" and "we don't represent you for such-and-such a time"; and that Bradley would contact him when Bradley came to Detroit. Nothing further hap- pened, so far as the record shows, even though the issues were raised at the January 9 meeting A union violates its duty of fair representative when it engages in action, or fails to act, in a manner which may be characterized as "arbitrary, irrelevant, invidious, or unfair " Teamsters Local 692 (Great Western Unifreight System), 209 NLRB 446, 448 (1976). While IGWA's am- bient failure to provide service to the Michigan employ- ees might arguably be characterized as mere negligence, which the foregoing case holds not to be enough to es- tablish a violation, I am inclined, as earlier indicated, to think that such a clearcut pattern of behavior must be re- garded as inherently unfair Mekoliavitch's lack of awareness of the Union's identity and location effectively prevented him from filing a prompt grievance. When he finally tracked down Bradley, Mekoliavitch was put off and told that Bradley would speak to him about the matter when he came to Detroit However, although the subject was again raised when Bradley finally appeared at the January 9 meeting, the record gives no indication that any grievance was either pursued or rejected on the merits This sequence of events leads me to conclude that we are not dealing here with the kind of union inad- vertence which the Act tolerates. The only standard for measuring employee rights in the present situation is the bargaining agreement, and I see nothing there which suggests that the courthouse em- ployees were entitled to paid lunch periods. But there is nothing to the contrary, either, and the testimony that only the courthouse employees were not paid for lunch periods indicates that Mekoliavitch's complaint might have been supportable. The apparent merit of a griev- ance is only relevant to the issue of whether a union has given the grievance adequate consideration, see Henry J. Kaiser Co., 259 NLRB 1 (1981); Glass Bottle Blowers Local 106 (Owens-Illinois, Inc.), 240 NLRB 324 (1979). Here, there is no evidence to indicate that the grievance was ever subjected to reasoned scrutiny I reach the same conclusion about Mekoliavitch's com- plaint regarding payment for firing range practice. The bargaining agreement contains nothing specific on this point, but it seems clear that gun range time can be con- sidered worktime, and the testimony of Mekoliavitch and Doty is that Rainey did not pay them for such time, or at least did not pay them as much as Per-Mar had While confusion reigns as to the details, it is fairly clear that the employees experienced a loss of some kind, and I cannot say on this record that the Respondents have shown that a grievance would have been patently baseless Mekohavitch entertained a sincere grievance about this matter; he spoke to Captain Halley about it and was ig- nored; he finally talked to Bradley and was put off, and he brought it up at the January 9 meeting, with no ap- parent consequence. The same principles apply as with the paid lunch complaint 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I would not, however, grant remedial relief to employ- ees other than Mekoltavitch 39 He was the only employ- ee to display any interest in pursuing a grievance about these matters. Some employees, experience tells me, do not like to file grievances and might not have done so here even if the procedure had been readily available to them. Given the speculative nature of the outcome of any such grievances, I see no merit in further speculating that other employees might have grieved if they had had the opportunity. The claim for employees who "suffered loss as a result of a lack of health insurance" appears to be unfounded. While Mekoltavitch testified to an absence of information about that subject at the beginning of the Rainey-IGWA relationship, he further said that he eventually estab- lished that he was covered by insurance. That leaves for consideration the case of Brian Cleary, and a rather confusing one it is. Cleary testified that on Friday, December 11, he was told by Manager Brush that he was being temporarily laid off the following week. On Monday, Cleary went to Rainey's office and asked Captain Halley why he was not working. Halley told him that he could work the next day at the Data Center to replace a sick employee, but Cleary protested that he had been employed for "two and a half, three years" and wanted to know, in writing, why he had been effectively laid off. Halley said he could only offer him the temporary Data Center job. Cleary was then put on "permanent layoff' allegedly because he "refused day shift," as recorded in a person- nel action form signed by Brush . The form states that Cleary was offered a choice of two shifts (one from 7:45 a.m.-3:45 p.m. and the other from 3:45 p.m.-11:45 p.m.) and refused both, the second "because of his job at Hudson," a local department store. At the hearing, Cleary partially denied the contents of the personnel form, saying that while he did refuse work offered to him (for only a 3-week period) on the 3:45-11:45 p.m. shift because he had another job at Hudson's from 6-10 p.m.,40 he was never offered a permanent 7:45 a.m.-3:45 p.m. job, but rather only the opportunity to substitute for a single day, as described. On December 14, Mekoliavitch gave Cleary the Union's Chicago number. A telephone bill in evidence shows that Cleary placed a call to that number on Thursday, December 17. He "explained to [Bradley] what had happened and [Bradley] said that he would check into it with Rainey the next day." In Cleary's first account of this conversation, he men- tioned no other discussion, and he went on to say that the next he heard from Bradley was "April, I think," when he received a letter saying that Bradley had "heard that I had a grievance with Rainey Security and that he wanted me to write everything down on paper ." But on cross-examination , Cleary made the following statement: "I talked to Mr. Bradley on the 16th or 17th [of Decem- ber] and he told me to write down everything that hap- 39 The cutoff date would thus be June 1982, when Mekoliavitch left Rainey's employment 40 He wanted to retain the part-time Hudson's Job because it afforded medical and dental insurance coverage for his children pened and put it on paper and mail it to him." By that point in the testimony, Cleary had identified a letter dated February 12, 1982, which he said he had mailed to Bradley on or around that date. The letter described itself as "an official grievance" and sets out some facts about his December termination.4 t After Cleary had mentioned in his cross-examination that Bradley had, in December, asked him to "write down everything that happened . . . and mail it to him," he was asked why it had taken him until February to do so; his answer: "I didn't know actually what I was going to do, Your Honor I was working at Hudson's and I just didn't do it until then."42 He was then asked to confirm that he was "supposed to contact Bradley" and "didn't do it for a month and a half," and he answered, "Right " Moments later, he said that he "recollect[ed]" what had occasioned the delay: The reason I hadn't wrote down my grievance and everything to Mr. Bradley is because I tried to col- lect unemployment compensation. I had to keep going back to that, and back to that, and back to that. And they refused me unemployment so that's when I decided to write the letter to Mr. Bradley. Still later, on cross-examination by another Respondent's counsel, Cleary answered "Right" to the question wheth- er Bradley had told him in December to "put it in writ- ing and send it to him." On redirect, Cleary testified that he had given an affi- davit to the Board on January 13, 1982, in connection with the charges filed by others, and he thereafter, in the latter part of January, called Bradley and told him that he had "filed a grievance" with the Board (his term for the affidavit).43 At that time, Bradley told him, in regard to the termination complaint, that he "hadn't gotten any- thing back from Rainey yet," but he "was still looking into it." Bradley also told him to "write down my griev- ance and send it to him." Thereafter, when, in effect, asked by counsel for the General Counsel if he was really sure that it had been in December that Bradley had first asked him to write down the facts, Cleary evinced uncertainty as to whether that request had been made in the December call or the January one. Cleary's January 13 affidavit says only the following with respect to his December 17 phone conversation: [Bradley] asked what I wanted. I told him what had happened. He said he would check it out That is all I recall of the conversation. 41 Cleary testified that the certified letter was returned to him about a month or so after he mailed it in February The problems were manifold. the Union moved its offices around that time, the letter unhelpfully erred by addressing Bradley as "President U P G W U ," the name of a differ- ent union, which could have caused forwarding problems, and then, of all things, Cleary himself moved without leaving an address pnor to return of the letter Cleary said that he called Bradley when the letter was eventually returned and was told the new address of the Union, and he rewrote the letter and remailed it to Bradley in March 42 After being let go by Rainey, Hudson's raised Cleary's weekly hours from 24 to 32 43 Cleary did not file his own charge until March 1, 1982 RAINEY SECURITY AGENCY 287 When, at the hearing, Bradley was asked about the Cleary matter, he said, "The first contact that we had, Mr. Cleary called me, I believe in March. He had been discharged in December and he told me that he was dis- charged with no reason, lawful reason that he could think of. I asked Mr. Cleary to write me a letter explain- ing specifically why he was discharged " He further said that in April he came to Detroit and spoke to Captain Halley about the circumstances of the termination, and asked Halley to "give this man a job back." Thereafter Bradley stated, none too clearly, "He offered this man a job, which he was working, going to work that time at 8:00 a.m. in the morning. He offered him a job that he was supposed to go to work at 8:15 a.m. He refused the job, saying that he had a second job." In context, this seems to be a statement that Bradley persuaded Halley to offer Cleary another job, but it also can be read to relate to the original incident. Bradley stated that he under- stood Halley to be saying that Cleary could still have either of the jobs that had been offered to him in Decem- ber.44 Cleary finally returned to work for Rainey in August 1982.45 I analyze as follows the testimony of the two wit- nesses.46 I do not believe that Cleary's first call to Brad- ley was placed in March, as Bradley testified, given the evidence of Cleary's telephone bill and the fact that Cleary mentioned the call in his January affidavit. Con- flicting considerations make it impossible to decide with any confidence whether it was in the December or Janu- ary conversation that Bradley told Cleary to put in writ- ing the facts underlying his complaint. Bradley's almost total indifference to the employees prior to January sug- gests that it may first have been mentioned in the Janu- ary call, but Cleary's initial testimony that it was in De- cember must be given some weight. Still, whether or not Cleary failed to comply with a December request for written information, the fact is that, in that call, Cleary initiated a grievance and was told by Bradley that he "would check into it with Rainey the next day." The burden is on the General Counsel to demonstrate that Bradley failed to process the grievance properly and that his failure may be classified as arbitrary, invidious, or unfair. I think that the General Counsel has carried the burden. As indicated, Cleary testified that 5 or 6 weeks after the December call, he phoned Bradley to inquire into the progress of his grievance, and was told that Bradley "was still looking into it."47 But Bradley tells us that he 44 Bradley also said that before he came to Detroit, Cleary had agreed to meet him, but that he called Cleary's father upon arrival and Cleary never showed up Cleary conceded that Bradley had said he was coming, but he stated that he was working at the time that Bradley was in Detroit on a Saturday 41 While evidence on this point was originally excluded, it thereafter came in without objection 4e Cleary made an honest appearance, but his labile testimony cast doubt upon the strength of his powers of recollection While I had no opportunity to observe Bradley , his recorded testimony is, as earlier de- scribed, volatile, and it has an incautious and reckless quality 41 I credit Cleary's testimony on this score Reference to this call had been omitted from his direct examination , and he answered "No" on cross to a very specific question as to whether he had called Bradley back "in December, after you talked to him the first time " But when Cleary was asked by counsel for the General Counsel on redirect exami- did not hear from Cleary until March and did not begin to look into the matter until then. Since I believe that Cleary initiated the grievance on December 17, and since I see no reason to reject Bradley's testimony that he did nothing about it until March, despite Cleary's testimony that Bradley had told him in January that he was "still looking into it," I must conclude that the evidence indi- cates that Bradley consciously chose to neglect Cleary's complaint until prodded by Cleary's March 1 unfair labor practice charge. I think that the General Counsel makes a prima facie case by showing that Cleary filed the grievance in De- cember and was told that Bradley would look into it the following day, and that Cleary called again in January and was told that Bradley was still looking into it, when this is coupled with Bradley's testimony that he did noth- ing until March. Such inaction strongly smacks of more than "negligence alone," Teamsters Local 692, supra, 209 NLRB at 448 (1974), and on such a showing, the burden appropriately passes to the party accused of inaction, who clearly has the only real access to information about his efforts, to show that nothing more than simple negli- gence was involved In such a context, Cleary's delay in supplying IGWA with a written statement is irrele- vant .4 8 Thus, I would find that IGWA violated its duty of fair representation to Cleary after his December 14 termina- tion Furthermore, on the strength of the cases earlier cited, there is no particular reason to conclude that Cleary's grievance was so plainly without merit as to be not remediable.49 However, it does appear that an ad- justment should be made to the normal remedy. In Henry J. Kaiser Co., supra, 259 NLRB 1, 2 (1981), the Board ordered the respondent union to make the un- fairly represented employee whole for loss of earnings suffered from the date of his discharge until the earlier of three occurrences: "Respondent Union secures consider- ation of his grievance by [the employer] and thereafter pursues it in good faith and with due diligence, or Clen- denin is reinstated by [the employer] or obtains substan- nation whether he "also made a call to Mr Bradley in Chicago after you had given your affidavit here at the Board," Cleary without hesitation indicated that he had done so in the latter part of January , and later gave details I did not believe that he was fabricating this testimony 48 The Sixth Circuit held in Ruzicka v General Motors Corp, 649 F 2d 1207, 1211, that unexplained union inaction ' which substantially preju- dices a member's grievance could amount to the type of arbitrary con- duct which evidences unfair representation " 49 What Cleary was grieving was really two actions the "temporary layoff" on December I1 and the "permanent layoff" (or discharge) on December 14 Had it not been for the first action, the second would not have occurred The bargaining agreement provides for layoff by seniori- ty It would appear that as of December 11, most of the employees, like Cleary, would have had a Rainey seniority date of October 1 However, if there had been any employees hired after October 1 (and under Re- spondents' accretion view, anywhere throughout the organization), Cleary would have enjoyed primacy over them in the matter of layoff, the record is silent on this part As for the "permanent layoff," for purposes of evaluating the griev- ance, it seems doubtful that Cleary on December 14 refused an offer to work a permanent 7 45 a in -3 45 p in shift, since he had been working a similar shift, and the question for an arbitrator would have been whether Rainey was justified in discharging him for refusing a 1-day assignment on December 14 (which, apparently, management had not even intended to offer him until he showed up on that day soliciting work) 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tially equivalent employment." In this case, as indicated, Cleary has already been reinstated by Rainey, in August 1982. There is corroborated evidence that in March or April, Bradley came to Detroit and investigated the grievance by speaking to Captain Halley, and attempted at that time to discuss the grievances personally with Cleary. That Cleary was eventually reinstated obviously means that Bradley did "secure consideration of [Cleary's] grievance by [Rainey]" and, with the other evidence of investigation just noted, and his undoubted cognizance that IGWA was under the backpay gun at the time, it seems probable that Bradley did "pursue it in good faith and with due diligence." Given these events and inferences, and also considering that, even if IGWA had fully and timely discharged its duty of fair represen- tation, a certain amount of time would have elapsed before Cleary could have been reinstated, 511 some lesser backpay period than December 11 to August is in order. I will recommend that Cleary be made whole for back- pay lost from December 11 to May 15. Two more principal issues remain. One is the com- plaint allegation, earlier discussed, that Rainey may be held to have violated Section 8(a) by virtue of various union derelictions in failing to furnish adequate represen- tation. The only plausible basis for holding Rainey statu- torily liable would be a theory that Rainey conspired in installing IGWA as the collective-bargaining representa- tive, with full knowledge that it did not represent a ma- jority of the unit employees In such a case, Rainey could perhaps be held responsible under Section 8(a)(1) and (3) for the statutory violations committed by its co- conspirator or agent But while there is ground for a well-founded suspicion of such a knowing conspiracy, the evidence does not quite demonstrate it. I have found that there is sufficient evidence to war- rant an inference that the Union did not represent a ma- jority of the employees, either because it never obtained authorizations from a majority or because, if it did, those authorizations may have been infected and poisoned by the dues-deductions forms furnished by Rainey to appli- cants even before its operation had begun and accompa- nying statements made by Rainey's agents. But I cannot further infer from this that, when Rainey contracted with IGWA, it knew with certainty that IGWA did not represent an uncoerced majority.51 There is reason to believe, as discussed above, that Rainey desired IGWA to represent its Michigan employees. There is, however, an unbridged gap between that inference and the conclu- sion that Rainey knew that IGWA did not represent an employee majority.52 50 See Bowen v Postal Service, 103 S Ct 588 (1983) 5 1 The Supreme Court held in Ladies Garment W o r k e r s (Bernhard-Alt- mann) v NLRB, supra, 366 U S 731 (1961), that an employer may vio- late Sec 8(a)(2) even though there is no reason to suppose that its recog- nition of a minority union was in bad faith Thus, an employer recognizes a union at his peril, and may be held to violate the Act "without regard to whether management was aware of the conduct" which has tainted the union's asserted majority status Department Store Food Corp, supra, 172 NLRB at 1207-08 52 As a practical matter, parenthetically, one wonders how the tradi- tional cease-and-desist order and posted notices to employees would re- flect the requested conclusions something like, Rainey will cease and desist from "allowing unions which it has recognized and which it knows For the same reason, I find inadequate support for the General Counsel's related proposal that Rainey be held jointly and severally liable for remedying the 8 (b)(1)(A) violations found, Were there more evidence of scienter on Rainey's part, I would be otherwise inclined. I do be- lieve, however, that there is merit in the General Coun- sel's alternative contention that Rainey be held secondar- ily liable for losses suffered by the employees. The employees were the innocents here, and they in- curred losses as a result of the illegal recognition ex- tended by Rainey to IGWA• dues and initation fees, cer- tainly ; steady employment for Cleary, lunch period pay and firing range pay for Mekoliavitch, perhaps IGWA received the dues and fees and was principally responsi- ble for the failure to grieve the three matters properly, and it is appropriate that reparations should first be sought from that source . But in the event that IGWA is unable to make good on the amounts involved , the em- ployees should not be left uncompensated . Rather, they should be permitted recourse to Rainey , without whose unlawful (at best, careless) cooperation the Union would not have achieved representative status Rainey should thus be held secondarily liable for all such damages flow- ing from its illegal recognition . Cf. Alberici-Fruin-Colnon, 226 NLRB 1315, 1316 fn . 11 (1976) Finally, I am not in sympathy with the complaint alle- gation that Respondent violated Section 8(a)(1) in that, about November 25, Captain Halley "attempted to dis- courage an employee from seeking redress of a grievance by telling said employee that the Union could be of no help and that he was the only one the employee could talk to." Joyce Haynes testified that when she spoke to Captain Halley in late November about the possibility of filing a grievance regarding vacation allowance, he re- plied that "it wouldn 't do any good , we didn't have any representation ." The reply was truthful , as the General Counsel went to such efforts to establish here, and I cannot understand why the General Counsel has includ- ed an allegation so much at odds with the remainder of its case. I do not detect a violation of Section 7 rights when a supervisor tells an employee that it "wouldn't do any good" to file a grievance with a union which is not supported by the employees , which is not entitled in the first place to the recognition given to it, and which is not even attempting to act as a bargaining representative should (as the employee herself, a Charging Party here, fully understood). CONCLUSIONS OF LAW 1. Respondent Rainey is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent IGWA is a labor organization within the meaning of Section 2(5) of the Act. 3. In September and October 1981, by requiring appli- cants for employment to sign IGWA dues-deduction forms, by recognizing and entering into a collective-bar- do not represent a majority of employees in an appropriate bargaining unit from engaging in breaches of the duty of fair representation owed by such unions to such employees?" RAINEY SECURITY AGENCY gaining relationship with Respondent IGWA, which did not represent an uncoerced majority of its Michigan em- ployees, and by agreeing to and enforcing a union-securi- ty contract clause in such circumstances, Respondent Rainey violated Section 8(a)(1), (2), and (3) of the Act 4 In September 1981 and thereafter, by accepting rec- ognition and entering into a collective-bargaining rela- tionship respecting Respondent Rainey's Michigan em- ployees at a time when it did not represent an uncoerced majority of those employees, and by agreeing to and en- forcing a union-security contract clause in such circum- stances, Respondent IGWA violated Section 8(b)(1)(A) and (2) of the Act; and during such period, by its grossly negligent failure to make itself available to employees, to process their grievances and to arrange for their proper representation, and to satisfy their requests for relevant documents, Respondent IGWA violated Section 8(b)(1)(A) of the Act 5. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Force One Security and Investigations, Inc. is not a "joint employer" of Rainey's Michigan employees. 7 Except as found above, Respondents have not oth- erwise violated the Act as alleged in the complaint THE REMEDY The foregoing findings of fact and conclusions of law, of course, require the entry of appropriate remedial orders. Respondents should be ordered to cease and desist from engaging in the conduct found unlawful. In addi- tion, as discussed, Respondent IGWA should be required to reimburse all employees for dues and initiation fees paid since October 1, 1981, to compensate Brian Cleary with backpay for the period of employment earlier re- ferred to (December 11, 1981-May 15, 1982); to reim- burse Donald Mekoliavitch for his unpaid lunch periods on and after October 1, 1981, and to reimburse Mekolia- vitch for any change in the method of compensation for firing range duty after October 1, 1981 Respondent Rainey shall bear secondary liability for such payments. Interest shall be added to the aforesaid reimbursement and compensation in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977). 53 Finally, notices should be posted so that the employees may be made aware of these developments in the present cases. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed54 53 See generallylsis Plumbing Co, 138 NLRB 716 (1962) 54 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ORDER 289 A. Respondent Independent Guards and Watchmen of America, Chicago, Illinois, its officers, agents, and repre- sentatives, shall 1. Cease and desist from (a) Accepting recognition from employers, and,execut- ing and giving effect to collective-bargaining agreements, at a time when Respondent Independent Guards and Watchmen of America (IGWA) does not represent an uncoerced majority of employees in an appropriate bar- gaining unit. (b) Agreeing to, maintaining , and enforcing a union-se- curity clause requiring membership in IGWA in the cir- cumstances set out in subparagraph (a), above. ' (c) Maintaining its claim to recognition as the collec- tive-bargaining representative of Respondent Rainey's Michigan employees until it has been certified by the Na- tional Labor Relations Board as the exclusive representa- tive of any such employees (d) Failing to provide fair and adequate representation to employees whom it purports to represent by: (i) fail- ing to timely appoint or elect local representatives to assist employees in investigating complaints and griev- ances, or to otherwise make its services promptly avail- able to employees; (ii) failing to respond timely to em- ployee complaints, grievances, and requests, including, but not limited to, requests for relevant documents and information. (e) In any other manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Reimburse all Michigan employees of Rainey Secu- rity Agency, Inc., for all initiation fees and dues paid by such employees to IGWA pursuant to the collective-bar- gaining agreement amendment executed on October 1, 1981, by IGWA and Rainey, reimburse Donald Mekolia- vitch for any uncompensated lunch time and for any change in compensation for firing range duty since Octo- ber 1, 1981; make Brian Cleary whole for wages lost as a result of IGWA's failure to timely process his grievance, as provided in the section of this decision entitled "The Remedy"; and pay all of the foregoing with interest, as provided in the section of this decision entitled "The Remedy." (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix A "55 Copies of the notice, on forms provided by the Regional Direc- tor for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to s5 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ensure that the notices are not altered, defaced, or cov- ered by any other material (c) Furnish the Regional Director for Region 7 signed copies of the aforesaid notice, in the number designated by the Regional Director, for posting by Rainey Security Agency, Inc , at places where it customarily posts no- tices to' employees of its Michigan locations. (d) Preserve and make available to the Board or its agents all records necessary to the implementation of this Order. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. B. Respondent Rainey Security Agency, Inc., Chica- go, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Recognizing and bargaining with IGWA as the representative of its Michigan employees for purposes of collective bargaining unless and until IGWA has been certified by the National Labor Relations Board as the exclusive bargaining representative of any of such em- ployees. (b) Giving effect to the October 1, 1981 collective-bar- gaining contract amendment executed by Respondents Rainey and IGWA and any modification or current ex- tension thereof. (c) Requiring applicants for employment to sign initi- ation fees or dues-deduction forms in favor of IGWA or any other labor organization, whether or not any such labor organization is the lawfully recognized collective- bargaining representative of Respondent Rainey's em- ployees; and giving effect to all such forms executed by Respondent Rainey's Michigan employees since Septem- ber 1981; and telling applicants for employment that they must join a union at a time when no union is or can be lawfully recognized. (d) Recognizing and bargaining with IGWA or any other labor organization at a time at when such labor or- ganization does not represent an uncoerced majority of tended, and discriminating against employees and en- couraging membership in such labor organization by agreeing to and enforcing a union-security clause requir- ing membership in such a labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) If necessary, as a secondarily liable party, make whole the Michigan employees for the initiation fees and dues paid by them and also make whole Brian Cleary and Donald Mekoliavitch for the losses suffered by them, as set out in the portion of this Order pertaining to Respondent IGWA and in accordance with the section of this decision entitled "The Remedy." (b) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and compensation due under the terms of this Order. (c) Post at its Michigan locations, in places where such notices to employees are customarily posted, copies of the attached notice marked "Appendix B."56 Copies of said notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent, shall be posted immediately upon receipt and maintained for 60 consecutive days in conspicuous places. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other materials. (d) Post at the same places and under the same condi- tions as in the preceding subparagraph signed copies of Respondent IGWA's notice to members marked "Appen- dix A." (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. the employees in the unit as to which recognition is ex- 56 See fn 55 above