Mid-West Sanitary Service, Inc.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mid-West Sanitary Service, Inc. and Teamsters Local Union No 525 Chauffeurs, Teamsters, Warehousemen & Helpers Local Union 525, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and Gerald A. Kessler Cases 14-CA-16802 and 14-CB- 6024 28 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 14 May 1984 Administrative Law Judge Elbert D Gadsden issued the attached decision The Respondent Employer (Company) filed excep- tions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 1 and conclusions 2 as modified, and to adopt his recom- mended Order3 as modified The facts of the case are basically undisputed The Union informed the Company on 15 April 1983 of its desire to negotiate for a new contract to succeed the current agreement due to expire on 30 June On 27 May, the Company notified the Union by letter that it intended to subcontract all of the unit work and to terminate its current employees on expiration of the current contract Around 1 June, the Union left contract proposals with the Company's dispatcher and the parties agreed to meet on 17 June The meeting lasted only a few minutes, however, when the Union discovered that the Company was unwilling to discuss any matters other than severance pay and other effects of its decision to subcontract The Union was unwilling ' The judge erroneously stated that the parties collective bargaining agreement expired on 30 April 1983 and that they had a current contract The record discloses, however, that the parties have not entered into a contract subsquent to the expiration of the prior agreement which ceased to have effect on 30 June 1983 Additionally the judge implied that the Company entered into owner operator and lessee-operator contracts with unit employees before 30 June 1983 but the record shows that all such agreements were executed after that date 2 In the absence of exceptions filed by either the General Counsel or the Respondent Union, we affirm pro forma the judge s findings and con elusions, including his finding that the Union violated Sec 8(b)(1)(A) and that the Company did not violate Sec 8(a)(5) and (1) by failing to bar gain over the decision or the effects of the decision to subcontract unit work or by withdrawing recognition from the Union and that the Com pany did not violate Sec 8(a)(3) and (1) by terminating the employment of unit employees on the expiration of the collective bargaining agree ment s We have modified the judge s notice to conform with his recom mended Order to discuss anything other than its proposals for a new contract Additionally, by letter dated 17 June, the Union was informed by the Respondent's counsel that [E]quipment will be leased out to independent persons on the most economically advanta- geous terms obtainable by the Company Per- sons presently in the employ of the Company who wish to negotiate for such lease-out ar- rangements will be given a first opportunity to do so, before outside persons are considered [L]ease-out negotiations and agreements will be conducted and, if possible, signed beginning on June 22 If there is anything you or Local 525 wish to discuss, the Company has authorized me to act for it in any further dis- cussions with your Union On 22 June, the Company president gave several employees agreements to consider accepting as in- dependent contractors He discussed the contents of these agreements with them on 25 June and told them he needed to know whether they would accept the terms by 27 June As noted above, no exceptions were filed regard- ing the judge's findings that the Company did not violate Section 8(a)(5) and (1) or Section 8(a)(3) and (1) by failing to bargain about its decision or its impact and by terminating the unit employees The only substantive exceptions taken were to the judge's findings that the Company violated Section 8(a)(5) and (1) by dealing directly with employees when offering them jobs as independent contrac- tors The judge found that, even though the Union had waived its right to bargain over the Compa- ny's decision to subcontract and the decision's ef- fects, the Union retained its majonty status and the Company's direct offers to employees for subcon- tracting arrangements bypassed the Union in viola- tion of Section 8(a)(5) and (1) of the Act We find merit in the Company's exception to the judge's finding that the Company violated Section 8(a)(5) and (1) of the Act by dealing directly with unit employees and bypassing the Union when of- fering the employees owner-operator or lessee-op- erator contracts In the absence of exceptions, it is now undisputed that the Union's conduct described above waived its rights to bargain with respect to the Company's decision to subcontract its oper- ations and the effects of that decision Once the Union had waived the Company's obligation to bargain over the decision and its effects, the Com- pany had no further obligation to discuss with the Union the terms of the nonemployee, independent contractor agreements Furthermore, the Union spurned each opportunity to be involved in discus- 272 NLRB No 100 MID-WEST SANITARY SERVICE 625 sions of this nature. Therefore, the Company had no other means of communicating with employees with whom they wished to subcontract than to speak with them directly. Accordingly, we find that the Company did not violate Section 8(a)(5) and (1) by discussing subcontracting agreements di- rectly with its employees. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Union, Chauffeurs, Teamsters, Warehousmen & Helpers Local Union 525, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Alton, Illinois, its of- ficers, agents, and representatives, shall take the action set forth in the Order, except the attached notice is substituted for that of the administrative law judge. IT IS FURTHER ORDERED that the complaint against the Respondent Employer is dismissed. APPENDIX 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 fail or refuse to issue a withdraw- al card to unemployed members who are otherwise eligible and request a withdrawal card, simply be- cause they crossed a picket line at their former em- ployer's facility. , WE WILL NOT restrain and coerce our members by bringing union charges against them because they crossed a picket line at their former employ- er's facility, without having a withdrawal card which we wrongfully refused to issue to them. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL notify members Gerald Kessler and William Lauer that their request for a withdrawal card is granted, and issue to them a withdrawal card as requested on 30 June 1983. WE WILL rescind the notice informing Gerald Kessler and William Lauer of charges brought against them by us as well as any fines levied against them because they crossed the picket line; refund to each of them any money paid to us as a result of such fine; reimburse each of them for any expenses incurred as result of attempts to collect such fines, plus interest; and expunge from their records any reference to such fines. CHAUFFEURS, TEAMSTERS, WARE- HOUSEMEN & HELPERS LOCAL UNION No. 525, AFFILIATED WITH INTERNA- TIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. A charge and an amended charge of unfair labor practices were filed in Case 14-CA-16802 on June 23 and July 22, 1983, respectively, against Mid-West Sanitary Service, Inc. (the Respondent Employer). A charge of unfair labor practices was also filed on August 8, 1983, against Chauffeurs, Teamsters, Warehousemen & Helpers Local Union 525, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (Respondent Union). On behalf of the General Counsel, the Regional Director for Region 14 issued a complaint on August 31, 1983, against Respondent Em- ployer in Case 14-CA-16802, which complaint was amended July 22, 1983. On September 2, 1983, the Re- gional Director for Region 14, issued an order consoli- dating Case 14-CB-6024 with Case 14-CA-16802 and rescheduling hearing of November 14, 1983. The consolidated complaint alleges that Respondent Employer interfered with, coerced, and restrained its em- ployees in the exercise of their Section 7 rights, by an- nouncing during the term of the contract that it had de- cided to sell all of its equipment used by unit employees, terminate all unit employees, and subcontract all unit work, because unit employees joined, assisted, or sup- ported the Union, or engaged in other concerted activi- ties; that Respondent Employer failed and refused to bar- gain with the Union by implementing its decision with- °tit giving sufficient notice to the Union, and without affording the Union an opportunity to negotiate and bar- gain about its decision, in violation of Section 8(a)(5) of the Act; that Respondent further failed and refused to bargain with the Union by withdrawing recognition of the Union and bypassing the Union and dealing directly with unit employees, in violation of Section 8(a)(5) of the Act; and that Respondent Employer discriminatorily ter- minated the employment of all unit employees when it implemented its decision on June 30, 1983, in violation of Section 8(a)(3) of the Act; and that since about July 11, 1983, Respondent Union has restrained and coerced members of Respondent Union Employer in the exercise of Section 7 rights, by preferring and processing intraun- ion disciplinary charges against two union members after they had withdrawn from the Union, in violation of Sec- tion 8(b)(1)(A) of the Act. On August 9, 1983, Respondent Employer filed an answer denying that it engaged in any unfair labor prac- tices as set forth in the consolidated complaint. On Sep- 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tember 2, 1983, Respondent Union filed an answer deny- ing that it engaged in any unfair labor practices as al- leged in the consolidated complaint, as amended. A hearing in the above matter was held before me in St. Louis, Missouri, on November 14 and 15, 1983. Briefs have been received from counsel for the General Coun- sel, counsel for Respondent Union, and counsel for Re- spondent Employer, respectively, which have been care- fully considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION At all times material, Respondent Employer has main- tained an office and place of business in Wood River, Il- linois, and another place in the State of Missouri. At its Wood River facility, the Respondent is engaged in the rubbish or trash removal services for residences and busi- ness enterprises. During the year ending December 31, 1982, a repre- sentative period during all times material, Respondent, in the course and conduct of its business operations, per- formed services in the State of Illinois valued in excess of $50,000, of which services were furnished to enter- prises, each of which in the same period purchased goods, wares, and merchandise which were shipped di- rectly to them in the State of Illinois from suppliers in States other than State of Illinois. The complaint alleges, Respondent Employer admits, and I find that Respondent Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Chaufffeurs, Teamsters, Warehousemen & Helpers Local Union 525, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent Employer is engaged in the industrial, commercial, and residential hauling of trash at its Wood River, Illinois facility. Prior to April 30, 1983, Respondent Employer em- ployed the following classification of employees which constituted a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All utility men (swingmen), commercial drivers, res- idential drivers, and maintenance men, EXCLUD- ING office clerical employees, professional employ- ees, guards and supervisors as defined in the Act, and all other employees. For a number of years, Respondent Union has been designated the exclusive collective bargaining representa- tive of the above-described unit employees and has been recognized as such representative by Respondent Em- ployer. Respondent Employer and Respondent Union have been parties to four collective-bargaining agree- ments, the most recent of which expired on April 30, 1983.' B Events Which Occurred Between Respondent Employer and Respondent Union Prior to the Expiration of the Collective-Bargaining Agreement The record shows that the last collective-bargaining agreement between Respondent Employer and Respond- ent Union expired April 30, 1983 In a letter dated April 15, 1983, Respondent Union advised Respondent Em- ployer of its desire to open the current collective-bar- gaining agreement for negotiations, and requested to meet with Respondent Employer for the purpose of ne- gotiating a new agreement. In a letter dated May 27, 1983, Respondent Employer advised Respondent Union that it had decided to discontinue its hauling and trans- port work effective on the termination of the current collective-bargaining agreement April 30, 1983, at which time it will sell or lease all of its equipment for hauling and discontinue the employment of all utility, mainte- nance, and driver employees. It offered to meet with Re- spondent Union to discuss the effects of its decision on the unit employees. Respondent's business representative Marshall McDuffy admitted receipt of Respondent Employer's May 27 letter (G C. Exh. 5) and its June 17 letter (refer- ring to the same notice) but stated Respondent Union did not talk to the Company about the contents of either letter. On June 1 Christopher Zahn and Dave McFarland, business agents for Respondent Union, delivered a letter containing contract proposals (G.C. Exh. 4) to Jack McLain, dispatcher for Respondent Employer. About June 3 Gene Evans, president of Respondent Employer, informed employees there would be a change in its operations; that Respondent Employer had sent a letter to Respondent Union explaining the change; and that employees should contact the Union to learn about the change. Sometime after June 3, Union's business agent Zahn called Respondent Employer and requested it to meet with Respondent Union to discuss proposals for a new agreement. On June 17, Employer's president Evans and Employer's attorney Tockman met with Union Repre- sentatives Marshall McDuffy and Chris Zahn at the union hall. McDuffy asked the Company was it ready to commence negotiating contract proposals and Evans said the Company was not present to talk about a proposal, that they were to talk about severance pay, the effects of Employer's decision on unit employees, and that was all. McDuffy said, "Well if we are not here to talk about contract proposals, then we're really Just wasting our time" Tockman agreed, and the meeting ended. ' All dates herein refer to the year 1983 unless otherwise specified MID-WEST SANITARY SERVICE 627 In a letter dated June 17 (G C Exh 6), Tockman stated that the Company had assumed today's (June 17) meeting was scheduled in response to Employer's May 27 letter (G C Exh 5), notifying the Union of its deci- sion for a change in its trucking operation, and that Em- ployer met with the Union for the sole purpose of dis- cussing the effects of its decision McDuffy acknowl- edged that the Union received Respondent Employer's letter (G C Exh 5) about June 3 He further acknowl- edged that he read the letter, understood its contents, and had no questions about it Respondent Union did not respond to Employer's letter of June 17 (G C Exh 6) McDuffy acknowledged that the Union made a decision not to talk with Respondent Employer about the con- tents of its May 27 letter (G C Exh 5) On June 22, Respondent Employer (President Evans) distributed to several of its employees the four docu- ments accurately described by counsel for the General Counsel as follows "Agreement," "Lease-Purchase Agreement," "Con- venant Not To Compete," and a "Load Rate Trip Sheet" [G C Exhs 8a-8d ] In essence the agree- ment provides, inter aim, that Respondent-Employ- , er as contractor, contracts with the employees as owner-operators, that Employer is to provide and maintain trucks owned or leased by the operators, and that the owner-operators are to perform serv- ices for Employer Monday through Saturday They are to be dispatched by Employer and are to make a sales effort ,Employer agrees to supervise work performed in service areas and to provide a licensed special waste hourly permit number and placard Respondent Employer agreed to supply trucks in ac- cordance with the lease-purchase agreement Operators were to agree not to compete against Employer in ac- cordance with the convenant not to compete, and opera- tors were to be paid in accordance with the load-rate trip sheet President Evans asked the employees to exam- ine the documents and told them he would meet with them June 25 to discuss them Kenneth Cherry undisputedly testified that on June 25, Respondent Employer (President Evans) met with unit employees (Randolph Cherry, Larry Cunningham, and Ed Robinson) to discuss the owner-operator agreement he had given them to consider During the meeting Cherry said Evans told the employees there was going to be a change, that he "was going to do away with the Union because with the overtime and all he couldn't afford it, that this would be a better arrangement for himself and us both He said it would be better for him and we could make more money with this arrangement " Fellow employ- ee and union steward Edward Robinson's undisputed tes- timony corroborates, in part, Kenneth Cherry's testimo- ny in this regard, in that Robinson said that on June 22 Evans told them he "wasn't going to sign another con- tract with the Union" Robinson further testified, with- out dispute, that on June 25, the day Evans met with the drivers to discuss the owner-operator agreement, Evans told them he "would stand behind them on major ex- penses, such as an engine would blow or something like that, or that he didn't think he'd have any trouble with the Union," but they could be members of a union if they so desired Evans also offered to give the employees $1000 if they tried working as owner-operators for 90 days, and if they decided against the arrangement, the Company would return the $600 deposited to them Fi- nally, Evans told the employees he had to have their de- cision by June 27 2 Respondent Employer (Evans) met with the employ- ees again on June 27 at which time it informed them that the $1000 offer for a 90-day trial as owner-operators was withdrawn because it may sound like a bribe He asked them if they had made a decision and some employees informed him they had no choice, while others said they were not interested During a discussion about a grievance in an unrelated matter about June 28, Union Representative McDuffy asked President Evans why not stop playing around and negotiate a new agreement Evans said that might not be a bad idea, he would like that, but he would have to talk to his attorney first Later that afternoon, Evans called McDuffy and said his attorney advised him not to meet for contract negotiations Consequently, no further meet- ings were held between Respondent Union and Respond- ent Employer On June 30, Respondent Employer (President Evans) terminated the employment of all the union member em- ployees However, Respondent Employer continued its trash-hauling operation, using the same equipment, serv- icing the same customers, using essentially the same road routes for pickups, using persons, some of whom (Gerald Kessler and William Lauer) were formerly in its employ, as owner-operators pursuant to the aforedescribed agree- ment (G C Exhs 16a through 16d), and performing the same duties previously performed by unit employees of Respondent Employer Kessler and Lauer were members of Respondent Union prior to June 30 Nevertheless, sometime prior to June 30, the union membership voted to strike Respondent Employer commencing July 1 Article XXVIII, page 16 of the collective-bargaining agreement between the parties provides in relevant part as follows [T]he Company reserves and retains exclusively all of its normal and inherent rights with respect to the management of the business, whether exercised or not, including but not limited to its rights to deter- mine, and from time-to-time re-determined the number, location and types of its plants and oper- ations, and the methods, proceses and materials to be employed, to discontinue conduct of its business or operations in whole or in part, to select and direct the working forces in accordance with the requirements determined by management, to create, modify or discontinue job classifications [Emphasis added ] 2 I credit Cherry's undisputed and partially corroborated testimony not only because It is undisputed, but also because I was persuaded by the demeanor of Cherry and Robinson that they were testifying truthful ly 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A careful examination of the current collective-bar- gaining agreement between the parties does not reveal a work-preservation clause or any provision which prohib- its Respondent Employer from subcontracting unit work Employees Efforts to Obtain a Withdrawal Card Since Kessler and Lauer had decided to sign agree- ments with Respondent Employer, as owner-operators, or leasee-operators, and not to participate in the strike against Respondent Employer, they decided to rescind their membership with Respondent Union Thus, on June 30, Kessler and Lauer visited the Union's office and re- quested a withdrawal card, which they believed was the requisite procedure for discontinuing membership in the Union, since they had obtained a withdrawal card in the past on several occasions when unemployed or when they worked in other trades Kessler told the clerk he was going to work on his own and become self-em- ployed in Missouri On no past occasion were they ever instructed by the Union that they had to submit a letter of resignation The union clerk asked them where did they work and they told her Mid-West Sanitary Service She told them McDuffy was not there and she could not give them a withdrawal card, but she would give them a receipt for the card if they would pay 50 cents for the card and pay up their death benefits, which had to be paid up before a withdrawal card could be issued Kessler and Lauer paid up their death benefits for $5 each, and they paid 50 cents each for the withdrawal card, for which each was given a receipt for $5 50, with- out the card Kessler and Lauer undisputedly and credibly testified that they had originally planned to obtain employment in another Missouri garage facility owned by Respondent Employer, but they subsequently decided to sign an agreement and become owner-operators and perform services for Respondent Employer Having so decided, Kessler worked several days after June 30 showing owner-operators the driving routes to Company custom- ers Thereafter, he commenced repairing containers for Respondent Employer Since June 30, Lauer has been driving a truck for Respondent Employer On July 11, Kessler received a notice (G C Exh 10) from Respondent Union advising that his withdrawal card was denied, and if he had any questions to contact Chris Zahn Kessler testified that he called Chris Zahn and asked him why was he denied a withdrawal card Zahn said he (Kessler) was a "son-of-a-bitching scab" Kessler said he asked Zahn to repeat what he had said but Zahn refused to repeat it, and he (Kessler) ended the conversation by hanging up the telephone On July 19, Kessler received a letter from Respondent Union dated July 18 (G C Exh 11a) in which he was advised that charges were brought against him by mem- bers of Respondent Union, pursuant to article XIX of the International constitution and that a hearing was sched- uled for August 17 Accompanying the letter were copies of the Local bylaws and International constitution (G C Exhs 13a and 13b) Lauer also received a similar letter advising that charges were brought against him by the union membership, with accompanying copies of the bylaws and constitution, but he testified he misplaced the documents and could not produce them at the hearing Both Kessler and Lauer testified they did not know of another procedure to discontinue membership in the Union and neither appeared at the hearing on union charges Respondent Union returned the 50 cents which ■ Kessler and Lauer had paid for a withdrawal card Sub- sequently, both Kessler and Lauer resubmitted the 50 cents to Respondent Union but only Kessler's 50-cent fee was returned Kessler testified that the return of his 50- cent withdrawal card fee led him to believe that his withdrawal from the Union was not effectuated, so he sent a letter of resignation (R U Exh 1) to the Union on August 30 As of the date of the trial, Kessler had not received a response to his letter of resignation Analysis and Conclusions The first issue presented for determination is whether the Respondent Employer was under a legal duty to bar- gain with the Union about Respondent Employer's deci- sion to sell all equipment used by unit employees, termi- nate unit employees, and subcontract with owner-opera- tors to perform the work performed by unit employees In addressing this issue it is first noted that an exami- nation of the last and relevant collective-bargaining agreement between the parties reveals that it contains a management-rights clause which, among other things, re- serves unto the employer the right to discontinued con- duct of its business operations in whole or in part, to select and direct the working forces in accordance with the requirements determined by management, and to create, modify, or discontinue job classifications In contending that Respondent Employer is under a duty to bargain with the Union about its decision to sub- contract unit work and terminate unit employees, coun- sel for the General Counsel cites Ozark Trailers, 161 NLRB 561, 566 (1966), and Hardware Co, 265 NLRB 955 (1978), wherein the Board held that where a man- agement decision affects a change or the elimination of bargaining unit work, the employer must bargain with the union because such a change is cognizable under the parties bargaining relations Such a decision, the General Counsel argues, is analogous to relocating bargaining unit work Weltronic Seal Co, 173 NLRB 235 (1968), enfd 419 F 2d 1120 (6th Cir 1969) The obligation to bargain about such a decision evolves from the Supreme Court's decision in Wiley v Livingstone, 276 U S 543, 549 There, the Court said ( The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to ar- range their business and even eliminate them as em- ployers to be balanced by some protection to the employees from a sudden change in the employ- ment relationship Respondent Employer argues that its decision to sub- contract unit work, sell or lease its equipment, and termi- nate unit employees is not a mandatory subject of bar- gaining and, therefore, is not controlled by Section 8(d) of the Act MID-WEST SANITARY SERVICE 629 Section 8(d) of the Act provides, in part, that an em- ployer is required to bargain in good faith with respect to "wages, hours, and other terms and conditions of em- ployment" In support of its position, Respondent Employer cites the legislative history of the Act (H R 245, 80th Cong , 1st Sess 20 (1947)), where the House stated Just as the employer has no right to bargain about who the union's officers and representatives will be, what dues and assessments it shall impose, how it shall spend its money or otherwise conduct its internal affairs so long as they do not affect the employer's operations, so the union has no right to bargain with the employer about who his agents will be, what prices he will charge, what his profits shall be, or how he shall manage his business, so long as he does not violate the union's contract with him or ignore his obligation under the Labor Act Although conceding job security is a "condition of employment," and therefore, a mandatory subject of bar- gaining, Respondent Employer nevertheless argues that not every management decision which affects job securi- ty is a mandatory subject for bargaining Fibreboard Paper Products Corp v NLRB, 379 U S 203 (1964), Sea- farers Local 77 v NLRB, 603 F 2d 862 (D C Cir 1978), Kingwood Mining Co, 210 NLRB 844 (1974), Stanley Oil Co, 213 NLRB 219 (1974), General Motors Corp, 191 NLRB 951 (1971), and Summit Tooling Co, 195 NLRB 479 (1972) Respondent Employer also cites First National Mainte- nance Corp v NLRB, 452 US 666 (1981), where the Su- preme Court held that an employer is not obligated to bargain over its economically motivated decision to close a part of its operation, even though such decision may have a substantial impact upon continued availability of employment, and that the Board followed the same prin- ciple in Chippewa Motor Freight, 261 NLRB 455 (1982), and US Contractors, 257 NLRB 1180 (1981) However, it is particularly noted that the Surpreme Court expressly confined its decision to limited circumstances analogous to those in First National Maintenance Corp, supra There, the employer was providing housekeeping, clean- ing, maintenance and related services to commercial cus- tomers at different locations When the weekly fee for services at one customer location was substantially re- duced by the customer, rendering performance of the service nonprofitable for the employer, the employer, on notice to the customer, terminated the service and the employment of employees assigned to the customer loca- tion The Court held that the employer was not legally bound to bargain with the employees about its decision to discontinue service to the customer Although the em- ployer's decision had direct impact upon employment, having inexorably eliminated some 35 jobs, the Court said, citing its decision in Fibreboard Paper Products Corp, supra, the employer's decision was, nevertheless, a decision involving a "change in the scope and direction of the enterprise," akin to a decision whether to be in business at all The Court further noted that the dispute between the employer and the customer was about a fee for services to be paid by the customer over which the union had no control or authority It is therefore clear that the facts in the instant case are distinguishable from the circumstances to which the Court limited its decision in First National Maintenance, which is not controlling here The parties in the instant proceedings submitted their postheanng briefs to me in this matter on January 16, 1984 On January 23, 1984, the Board issued a Supple- mental Decision and Order in Milwaukee Spring Co, 268 NLRB 601 (1984), herein referred to as Milwaukee Spring II In analyzing the facts in the latter case with the facts before me, it is noted that the employer in Milwaukee Spring, transferred its assembly operations from its union- ized plant in Milwaukee, to its nonunionized McHenry plant, McHenry, Illinois Respondent Employer in the in- stant proceeding did not transfer its trucking operation from employees in one of its facilities, to its employees in another one of its facilities, but divested its ownership of trucks by selling and leasing them, terminating its unit employees, and subcontracting the work with owner-op- erators The employer in Milwaukee Spring, offered to bargain and, in fact, satisfied its bargaining obligation with the Union on its decision to transfer its assembly operations The union, nevertheless, refused to bargain further with the employer on the subject In the instant case, Respondent Employer did not offer or request bargaining on its economically motivated de- cision to change its trucking operation Nor did the Union, subsequent to its receipt of Respondent Employ- er's May 27 letter about June 3, request bargaining on the announced change The Union simply insisted on commencing negotiations for a new collective-bargaining agreement and the Respondent Employer repeatedly re- quested the Union to bargain on the effects of its deci- sion The Union repeatedly refused to bargain on the ef- fects of the decision and Respondent Employer refused to discuss negotiations for renewal of the agreement It is clear that, unlike the employer in Milwaukee Spring, Re- spondent Employer did not transfer work from employ- ees in one of its facilities to employees in another one of its facilities Instead, Respondent Employer in the instant case, simply sold or leased, with the option to purchase, all of its trucking equipment to individual truckdnvers (some of whom were unit employees), under a contract to continue collecting its trash and delivering it for dis- posal Respondent Employer did not sell or close a part of its business It merely changed its trucking arrange- ment by selling its equipment and recouping some of its initial investments In any event, as the Board pointed out in Milwaukee Spring II, the Board found a violation in Ozark Trailers, supra, because the employer there failed to bargain over its decision to close a part of its operation during the term of the collective-bargaining agreement, transferred equipment to another of its plants, and subcontracted work previously performed at its Ozark plant In holding that such conduct violated Section 8(a)(5) and (1) of the Act, the Board said 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the first place, however, as we have pointed out time-and-time again, an employer's obligation to bargain does not include the obligation to agree, but solely to engage in a full and frank discussion with the collective-bargaining representative in which a bona fide effort will be made to explore possible al- ternatives, if any, that may achieve a mutually satis- factory accomodation of the interest of both em- ployer and the employees If such efforts fail, the employer is wholly free to make and effectuate his decision [161 NLRB at 568 ] Thus, since it is clear that the collective-bargaining agreement between Respondent Employer and Respond- ent Union here, does not contain any "terms and condi- tions" with reference to the preservation or modification of Respondent Employer's trucking operation, Respond- ent Employer was legally obligated to bargain with Re- spondent Union about its decision to eliminate its truck- ing operation and subcontract unit work to owner-opera- tors Ozark Trailers, supra, and Milwaukee Spring II, supra Respondent Employer was only required to bar- gain in good faith to impasse with Respondent Union, before it could implement its decision to subcontract Oak Cliff-Goldman Baking Co, 207 NLRB 1063 (1973), enfd 505 F 2d 1302 (5th Cir 1974), cert denied 423 U S 826 (1975) However, on April 6, 1984, the Board issued its deci- sion in Otis Elevator Co, 269 NLRB 891 (1984) There, Otis Elevator Company closed its Parsippany facility, transferred its research and development operations in Parsippany and Mahwah, New Jersey, to East Hartford, and relocated approximately 30 Parisippany employees Otis then constructed a $3 million research center with which research and development operations were con- solidated to reduce overlapping and duplication, as well as substantial labor costs In concluding that Otis' deci- sion to transfer and consolidate certain bargaining unit work that was not a mandatory subject of bargaining, the Board relied on the Supreme Court's decision in First National Maintenance Corp, where the Court held the employer's change was a "fundamental change in the nature and direction of the business" and therefore, not a mandatory subject of bargaining The Board further held that "the critical factor to a determination whether the decision is subject to manda- tory bargaining is the essence of the decision itself, 1 e whether it turns upon a change in the nature or direction of the business, or turns upon labor costs, not its effect on employees nor a union's ability to offer alternatives" As the Court said in First National Maintenance, supra, the need for predictability, flexibility, speed, secrecy, and the need to operate profitably, are factors which are exempt from mandatory bargaining under Section 8(d) of the Act, all of which affect the nature, scope or direction of the business Such decisions, the Board said, "include, inter aha, decisions to sell a business or a part thereof to dispose of its assets, to restructure or to consolidate oper- ations, to subcontract, to invest in labor-saving machinery, to change the methods of finance or of sales, advertising, prod- uct design, and all other decisions akin to the foregoing" Otis Elevator Co , supra, fn 5 at 893 In view of the foregoing decision, Respondent Em- ployer Mid-West Sanitary Service's decision to subcon- tract its trucking operation constituted a basic change in the nature, scope, and direction of its business, and is not controlled by Section 8(d) of the Act Consequently, I find that Respondent Employer herein was not under a duty to bargain with the Union about its decision to sub- contract its trucking operation Otis Elevator Co, supra Assuming, arguendo, however, that Respondent Em- ployer is deemed under a duty to bargain on its decision, it also argues that the Union waived its right to bargain over Employer's decision to subcontract unit work to owner-operators when it agreed to the management rights clause in article XXVIII of the collective-bargain- ing agreement There, the Union agreed that the Compa- ny reserves, among other things, the right to discontinue conduct of its business or oper- ations in whole or in part, to select and direct the working forces in accordance with the requirements determined by management, to create, modify or discontinue job classifications [Emphasis added ] The Board has repeatedly held that a waiver by the Union of a right to be consulted on any change in "terms and conditions of employment," must be clear and unmis- takable See Pepsi Cola Co, 241 NLRB 869, 870 (1979), enfd 646 F 2d 1173 (1981) In holding that provisions and a collective-bargaining agreement between the em- ployer and the union did not constitute a waiver by the union, the Board said The law is settled that the right to be consulted concerning unilateral changes in terms of employ- ment is a right given by statute and not one ob- tained by contract and that, in order to establish a waiver of a statutory right, there must be a showing of a clear relinquishment of the right Whether there has been a clear relinquishment of the right is to be decided on the facts and circumstances surrounding the making of the contract Having considered all the circumstances herein, we conclude that there has been no showing that the Union relinquished its statutory right to bargain over the yearend bonus On the basis of the foregoing, we find that the Union has not clearly and unmistakably waived its right to be consulted with regard to any change in this condition of employment Inasmuch as a waiver is not lightly inferred, we conclude that, in the cir- cumstances herein, there was no waiver by the Union, and Respondent should have bargained with the Union prior to discontinuing its predecessor's established practice of paying the yearend bonus to its route salesmen [Emphasis added ] In Pepsi Cola Co, supra, the collective-bargaining agreement between a predecessor employer and the union contained the following provision MID-WEST SANITARY SERVICE 631 Art XXXI Miscellaneous Section 2 The Employer and the Union agree that all matters desired by either party have been pre- sented, discussed, and incorporated herein or reject- ed Accordingly, it is agreed that for the life of this Agreement each party voluntarily and unqualifiedly waives the right and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter, whether or not referred to in this Agreement In holding that the above language did not constitute a waiver by the Union of a "bonus practice" of the succes- sor employer's predecessor, the Board said For it to be concluded that a union has contractual- ly waived a right to bargain about a particular bar- gamable matter which the statute (Section 8(d)) in- dependenly provides that the union, the evidence must convincingly show the surrender of the statu- tory right The test of relinquishment has been var- iously stated over the years as one which should appear in "clear and unmistakable language" The Timken Roller Bearing Co v NLRB, 325 F 2d 746, 751 (6th Or 1963), cert denied 376 U S 971 (1964), NLRB v Perkins Machine Company, 326 F 2d 488 (1st Or 1964), NLRB v The Item Compa- ny, 220 F 2d 956, 958-959 (5th Cir 1955) Since the language in article XXVIII of the collective- bargaining agreement before me does not in any way provide that Respondent Employer also reserved the right to eliminate driver, maintenance, and utility (unit) employees, and subcontract their work to owner-opera- tors, the management-rights clause does not demonstrate in "clear and unmistakable" language, a relinquishment by unit employees, to bargain about the unilateral elimi- nation of their work under a subcontract arrangement Nor does the record show that the bargaining history be- tween the parties manifested a "clear and umistakable" intent by the employees to waive their right to bargain on such a decision by Respondent Employer Conse- quently, contrary to Respondent Employer's contention, I do not find in the agreement that the employees' (Union) waived their right to bargain about Respondent Employer's decision to subcontract their work to owner- operators Pepsi Cola Co, 241 NLRB 869, 877 (1978), Timkin Roller Bearing Co v NLRB, supra Repondent Employer argues that Respondent Union waived its right to bargain over the decision to subcon- tract the driver operation by failing to request bargain- ing, from the time it was notified of the decision about June 3, through June 30, when the contract expired Counsel for the General Counsel argues that, since the Company promised to meet with the Union on June 17 to discuss proposals for a new agreement, as the parties in fact did, the Union was thereby led to believe the Company was at least considering negotiating a new agreement, until the Company again made it unequivo- cally clear in the June 17 meeting, that it was going to implement its decision on June 30 In determining whether the Company's notice of its decision to the Union was timely, and whether the Union waived its right to bargain on the Company's unilateral decision by failing to demand bargaining on the decision, a review of the contract of both the Company and the Union is necessary It is well established on the record that on April 15 the Union requested the Company to bargain for a new collective-bargaining agreement to replace the agreement to expire June 30 Respondent Employer did not respond to the Union's request but, nearly 6 weeks later (May 27), mailed a letter advising the Union of its decision to discontinue its trucking operation and to subcontract unit work It is reasonable to conclude that the Union re- ceived the Company's May 27 letter about June 3, as union representatives testified The evidence of record shows that after June 3, the Union requested the Compa- ny to meet for the purpose of negotiating a new agree- ment and the Company agreed, and did, in fact, meet with the Union on June 17, but refused to discuss con- tract proposals It insisted on discussing only the effects of its decision on unit employees The Union insisted on discussing only proposals for a new agreement and it not only refused to discuss the effects of Respondent Em- ployer's decision, but at no time did it protest or demand bargaining on that decision Although the Union received the Company's May 27 letter about June 3, advising of its decision to subcon- tract its driving operation, the Union, nevertheless, failed to test the willingness of Respondent Employer to bar- gain on its decision at any time between June 3 and 30 Thus, it is clear that the Union had nearly 4 weeks within which to protest and demand bargaining on the Company's unilateral decision to subcontract its driver operation, and it elected not to do so upon advice of union officials Hence, I cannot find that Respondent Employer failed to give the Union sufficient notice and opportunity to bargain over its decision The Company's May 27 letter, as well as its June 17 letter to the Union, explicitly stated the Company's decision and the date (June 30) the Company intended to implement its deci- sion Consequently, since the Union knew on June 3 about Respondent Employer's decision to subcontract its driver ot,eration, I find the Union's failure to protest and demand bargaining over the decision before June 30, constituted a waiver by the Union of the right to bargain over Respondent Employer's decision City Hospital of East Liverpool, Ohio, 234 NLRB 58 (1978), Clarkwood Corp, 233 NLRB 1172 (1977), and Cherokee Culvert Co, 266 NLRB 290 (1983) Additionally, since the Union also knew since June 3 about Respondent Employer's offer to bargain about the effects of its decision and neglected to respond to the Company's offer from June 3 to June 17, when it refused and continued thereafter to refuse to bar- gain about the effects of the Company's decision, I find that the Union also waived its right to bargain about the effects of the Respondent Employer's decision Salem College, 261 NLRB 327 (1982) The Union having waived its right to bargain over Respondent Employer's unilateral decision, as well as the effects of that decision 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on unit employees, I find that Respondent Employer sat- isfied its obligation to bargain with the Union over the effects of its decision I further find that the Union having failed and refused to protest and demand bargain- ing on the decision itself, Respondent Employer did not violate Section 8(a)(1) and (5) of the Act, in either re- spect Since Respondent Employer was not prohibited by contract from unilaterally deciding to alter its driver op- eration by subcontracting it to owner-operators and, therefore, refused to bargain to negotiate a new agree- ment, I do not find that Respondent Employer's refusal constituted a withdrawal of recognition of the Union The decision to subcontract having been affirmatively made, bargaining by Respondent Employer would have been an exercise in futility Moreover, by failing to pro- test and demand bargaining on the decision, the Union thereby waived its right to bargain on the decision and it unqualifiedly refused to bargain about the effects of the decision Although there was some union testimony about Respondent Employer talking about the high cost of the Union with overtime, and its subcontracting to void higher cost, I find these vague and questionable statements insufficient to conclude that Respondent Em- ployer was subcontracting to get rid of the Union Rather, I was persuaded by Respondent Employer's tes- timony and subsequent action that its decision to subcon- tract was economically motivated Respondent Bypassed the Union and Bargained Directly with Employees Even though the Union has been found to have waived its right to bargain over Respondent Employer's decision and the effects of its decision to subcontract its driver operation, at no time did the Union withdraw or abandon its representative status with the Company Nor has Respondent Employer established that the Union had lost majority status, or that it had a reasonable basis for believing that the Union lost majority status before the Company implemented its decision on June 30 Given these circumstances however, the evidence is uncontro- verted that on June 25 Respondent Employer gave em- ployees owner-operator contracts and covenants not to compete, and it solicited the weekend consideration of the employees to contract with Mid-West, if only on a 90-day trial period, during which time Mid-West would give them $1000 When the Company met with the em- ployees on June 27, it rescinded its offer of $1000 for a trial period because it stated the offer might appear as a bribe The evidence estabished that at least two employ- ees signed contracts as owner-operators with Respondent Employer Since Respondent Employer made these offers directly to the employees, it bypassed the Union and dealt direct- ly with the employees, in violation of Section 8(a)(1) and (5) of the Act Ward Baking Co, 241 NLRB 1191, 1197 (1979) Efforts of Employees to Obtain Withdrawal Cards Respondent Union denies that it violated Section 8(b)(1)(A) of the Act by denying members Kessler and Lauer their right to discontinue their membership in the Union, and bring union charges against them With re- spect to the official procedure for discontinuing member- ship in the Union, article II, section 2 of the Union's International constitution, in essence, provides in part as follows Resignations submitted in writing to the secretary- treasurer shall become effective 30 days after the re- ceipt thereof, providing all dues, assessements, fines and other financial obligations have been paid Article XVIII, section 6 of the Union's International constitution (G C Exh 13-b) contains, in pertinent part, the function and effect of obtaining a withdrawal card, as follows (a) This is to certify that the bearer hereof has paid all dues and demands and has withdrawn in good standing from membership in Local Union No (b) This card entitles him to readmission to the Local Union from which this card was issued at any time, subject, however, to the provisions of subsec- tion (e) of this Section, and provided the bearer has obtained employment at the craft (c) Any member of a Local Union refusing full-time employment when offered or leaving employment within the jurisdiction or going to work at another craft or occupation outside its jurisdiction on other than a temporary or part-time basis shall be given an honorable withdrawal card and cannot remain a member (d) Any ex-member out on a withdrawal card, and de- siring to return to membership, must first deposit his withdrawal card with the Local Union by which it was issued, and upon the withdrawal card being ac- cepted, the member shall be subject to the rules and laws of the Local Union (e) The Local Union must not accept a withdrawal card if the ex-member has committed any offense while out on withdrawal card which would be injurious to union principles [Emphasis added ] The above provisions are also printed on the Union's withdrawal card It is well established by the evidence of record that neither Kessler nor Lauer knew about the above consti- tutional (art II, sec 2) procedure for resignation Both of them testified without dispute that they had never seen or had a copy of the constitution and they were not familiar with the above-described provision Both Kessler and Lauer had obtained a withdrawal card on several occasions in the past, and they understood the withdrawal card as being the proper procedure for dis- continuing membership in the Union Nevertheless, both Kessler and Lauer visited the Union's office after they were terminated by Respondent Employer on June 30 They informed the clerk behind the desk that they wanted a withdrawal card Since Kesler and Lauer were both unemployed at the time, they were, according to MID-WEST SANITARY SERVICE 633 the above-cited union constitutional provisions, entitled to a withdrawal card When they advised the clerk where they last worked, she told them she could not give them a withdrawal card because McDuffy was not there but, if they paid up their death benefit for $5 and paid 50 cents for a withdrawal card, she would give them a receipt Kessler and Lauer paid $5 50 each and received a receipt in return Both believed they were ter- minating their membership with the Union because they had utilized this procedure when they were unemployed or when they worked in other crafts, and neither knew or was conscious of any other required procedure to ter- minate their membership Nor were they advised by the Union of any alternative procedure to terminate member- ship The union steward testified he believed obtaining a withdrawal card was sufficient to effectuate resignation, and he was unaware of any other required procedure The evidence is clear that Respondent Union knew that Kessler's and Lauer's requests for a withdrawal card represented an effort on their part to terminate their membership in the Union This conclusion is inevitable, not only from the fact that Kessler and Lauer informed the Union they were unemployed and requested a with- drawal card, but also from letters from the Union deny- ing them a withdrawal card, as well as Union Represent- ative Zahn's response to Kessler's telephonic inquiry as to why his withdrawal card was denied At that time Representative Zahn called Kessler a "son-of-a-bitching scab," simply because Kessler asked him why was he (Kessler) denied a withdrawal card Although Kessler was angered by Zahn's unprovoked response and hung up the telephone, Respondent Union never did explain to him why his withdrawal card was denied Instead, Re- spondent Union return the 50-cent withdrawal card fees to Kessler and Lauer Both Kessler and Lauer returned the 50-cent withdrawal card fees to Respondent Union, but the Union again returned the 50-cent withdrawal card fee to Kessler on June 11 and, on June 18, sent a letter to Kessler and Lauer advising them the charges were brought against them by fellow members for cross- ing the picket line at Respondent Employer's facility, and notifying them that a hearing was scheduled for July 17 Accompanying each letter were copies of the Union's constitution and bylaws, without specific citations to any particular sections of the documents As counsel for the General Counsel argues, the two procedures outlined in the Union's constitution for resig- nation and withdrawal appear to overlap or suggest al- ternative procedures for discontinuing membership in the Union That is, while article II of the constitution pro- vides that resignations must be in writing to the secre- tary-treasurer of the local, and shall become effective 30 days therefafter, article XVIII, section 5 provides that withdrawal cards shall be issued upon (1) request of an unemployed member, (2) 6 months after unemployment, if no request is made, (3) where a member retires from the craft Under either procedure, however, the member must payup all outstanding financial obligations It is par- ticularly noted that the withdrawal card may be given retroactive effect for as much as 90 days, and the holder thereof may not vote, hold office or participate in meet- ings beyond what the Local permits, while in withdraw- al status Article XVIII, section 5, which is printed on the withdrawal card clearly states that the bearer of a card "has withdrawn in good standing from membership in Local Union No " It contains addition language such as the card bearer is entitiled to "readmission to the local ", that "Any ex-member out on a withdrawal card, and desiring to return to membership, must first de- posit his card with the Local union by which it was issued " and "upon the withdrawal card being accepted, the member shall be subject to the rules and laws of the local union Hence, it is clear that regardless of the intent of the Union, the language in both articles, as well as that print- ed on the withdrawal card, is explicit, and conveys by any literal reading, a connotation that either procedure may be pursued by a member to discontinue membership in the Union At least it is reasonable for members such as Kessler and Lauer, who were not aware and had not been informed of any specific procedure for resignation, to pursue the withdrawal procedure as a means of sever- ing their membership in the Union This is particularly true since the Board has held in Electrical Workers Local 1260 (KITV), 239 NLRB 923, 927 (1978), that employees unilaterally placed on withdrawal status by the Union were considered to have constructively resigned from the Union The Supreme Court held in NLRB v Allis-Chalmers Mfg Co, 388 U S 175 (1967) A union may, without violating the Act, impose fines on persons who, while retaining full member- ship rights in the Union, cross an unauthorized picket line and return to work during a strike in contravention of a union rule proscribing such con- duct The right to impose such fines, the Su- preme Court said, was "incidental to the contractual relationship between the union and its members" However, in NLRB v Textile Workers Local 1029, 409 U S 1213 (1972), the Supreme Court held that "Once the member lawfully resigns, the union's control over the former member ceases and any attempt to impose and collect a fine from that former member for engaging in conduct prohibited by a union rule violates Section 8(b)(1)(A) of the Act Accordingly, here, withdrawal status under the Union's constitution prohibited with- drawal card bearers from voting, holding office in the Union and permitted them to participate in union meet- ings only if permitted by the local executive board Since Kessler and Lauer were both unemployed on June 30 when they requested a withdrawal card, and since both of them paid up all financial obligations to the Union at that time, they had satisified union requirements for issu- ance of a withdrawal card This is especially so, since the constitution provides that a withdrawal card may be made retroactively effective up to 90 days It is therefore clear from the evidence that Respondent Union arbitrar- ily denied Kessler and Lauer a withdrawal card in an effort to frustrate the legitimacy of their withdrawal status, as a technical matter, with a view towards impos- ing union disciplinary sanctions against them for crossing the picket line at the facility of Respondent Employer 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such conduct by Respondent Union had a coercive and restraining effect on the protected rights of Kessler and Lauer to withdraw from the Union, in violation of Sec- tion 8(b)(1)(A) of the Act Textile Workers Local 1029, supra THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act Having found that Respondent Employer failed and refused to bargain with Respondent Union by bypassing Respondent Union, the duly designated representative of its employees, and dealt directly with unit employees, in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent Employer cease from deal- ing directly with unit employees and that it rescind any owner-operator or lease-operator agreements entered into with employees prior to, and through June 30, 1983 Having found that Respondent Union coerced and re- strained employees Kessler and Lauer, by denying them a withdrawal card and bringing union charges against them because they crossed a union picket line without a withdrawal card, in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist there- from, and that it issue a withdrawal card to employees Kessler and Lauer, and rescind the union charges brought against them by Respondent Union, that Re- spondent Union vacate any fines that may have been as- sessed against them, refund to them any money paid to Respondent Union as a result of the unlawful imposition of such fines, and reimburse them for any expenses in- curred by them as a result of Respondent Union's at- tempt to impose and collect such fines, with interest computed on all moneys due as provided in Florida Steel Corp, 231 NLRB 651 (1977) CONCLUSIONS OF LAW 1 Mid-West Sanitary Service, Inc is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 By bypassing Respondent Union and dealing direct- ly with employees with respect to becoming owner-oper- ators or lease-operators under contract with Respondent Employer, Respondent Employer has failed and refused to bargain collectively in good faith with Respondent Union, in violation of Section 8(a)(1) and (5) of the Act 3 Respondent Union Chauffeurs, Teamsters, Warehou- semen & Helpers Local Union 525, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act 4 By refusing to issue a withdrawal card to members Gerald Kessler and William Lauer, and subsequently bringing union charges against them because they crossed the picket line at Respondent Employer's facility without a union card or other evidence of discontinued membership in the Union, Respondent Union coerced and restrained members Kessler and Lauer in the exer- cise of their protected rights, in violation of Section 8(b)(1)(A) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Chauffeurs, Teamsters, Warehouse- men & Helpers Local Union 525, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, its officers, agents, and representatives, shall 1 Cease and desist from (a) Refusing to issue a withdrawal card to Gerald Kessler and William Lauer because they crossed the picket line at the Employer's facility without a with- drawal card or other evidence of discontinued member- ship in the Union, in violation of Section 8(b)(1)(A) of the Act (b) Bringing union disciplinary charges against Kessler and Lauer, or any other members, because they crossed the picket line at the Employer's facility without having a withdrawal card which it refused to issue to them (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Notify members Gerald Kessler and William Lauer that their request for a withdrawal card is granted, and issue to them a withdrawal card as requestd on June 30, 1983 (b) Rescind the notice informing Gerald Kessler and William Lauer of charges brought against them by the Union, as well as any fines levied against them because they crossed the picket line at the Employer's facility, refund to each of them any money paid to the Union as a result of such fine, reimburse each of them for any ex- pense incurred as a result of attempts to collect such fines, plus interest, and expunge from their records any reference to such fines (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix " Copies of the notice, on forms provided by the Regional Director for Region 14, 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 3 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 4 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 ' MID-WEST SANITARY SERVICE 635 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violation of the Act not found herein [Recommended Order as to Respondent Mid-West Sanitary Service, Inc omitted from publication ]