Halben Chemical Co., Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1959

124 N.L.R.B. 872 (N.L.R.B. 1959)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Intermountain Equipment Company v. N.L.R.B., 239 F. 2d 480, (C A. 9)
the court of appeals quoted the above passage in the Nash-Finch Company opinion,
in reaching a similar result
Recently the Board, in Speidel Corp., 120 NLRB 733, applied the reasoning of the
Nash-Finch and Intermountain Equipment cases, and found that an employer did
not violate the Act by paying an Easter bonus to its unrepresented employees and
withholding such bonus from employees represented by the union, since (1) such
disparate treatment of employees is not inherently unlawful; (2) there was no evi-
dence of antiunion conduct on the part of the employer; (3) pay of employees repre-
sented by the union was substantially higher than that of unrepresented employees
and the employer was concerned about the imbalance in the wage structure, and (4)
the employer had reasonable basis for believing that its employees and union con-
curred in the employer's position that payment of bonuses was solely a management
prerogative.
[Recommendations omitted from publication.]
Halben Chemical Co., Inc. and Local 284, Association of Process-
ing, Maintenance and Distributing Workers of America and
Local 14149 , Oil, Chemical and Atomic Workers International
Union , AFL-CIO, Party to the Contract . Cases Nos. 2-CA-
5751 and 2-CA-6203. September 4, 1959
DECISION AND ORDER
On June 4, 1959, Trial Examiner Robert E. Mullin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent Com-
pany and Local 14149, Party to the Contract, filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and the briefs, and the entire
record in the case, and hereby adops the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Halben Chemical
Co., Inc., its officers, agents, successors, and assigns, shall:
124 NLRB No. 116.
HALBEN CHEMICAL CO., INC. 873
1. Cease and desist from :
(a) Assisting or contributing support to Local 14149, or to any
other labor organization.
(b) Recognizing the above-named Union, or any successor thereto,
as the representative of its employees for the purposes of collective
bargaining, unless and until said labor organization shall have demon-
strated its exclusive majority representative status pursuant to a
Board-conducted election among such employees.
(c) Giving effect to the agreements with Local 14149, entered into
on December 11, 1957, and thereafter, unless and until said labor
organization shall have demonstrated its exclusive majority repre-
sentative status pursuant to a Board-conducted election among the
Company's employees.
(d) Encouraging membership in Local 14149, or in any other
labor organization of its employees, by conditioning the hire or tenure
of employment or any term or condition of employment upon mem-
bership in, affiliation with, or dues payments to such labor organi-
zation, except where such conditions shall have been lawfully
established by an agreement authorized by the Act.
(e) Interfering with, restraining, or coercing its employees in any
other manner, in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold recognition from Local 14149, or any
successor labor organization, as the collective-bargaining representa-
tive of any of its employees, unless and until said labor organization
shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election.
(b) Reimburse its employees and former employees for moneys
illegally exacted from them in the manner and to the extent set forth
in the section of the Intermediate Report entitled "The Remedy."
(c) Post at its plant in New York City, copies of the notice at-
tached hereto marked "Appendix." 1 Copies of said notice, to be fur-
nished by the Regional Director for the Second Region, shall, after
being signed by the Respondent's authorized representative, be posted
by it immediately upon receipt thereof and maintained for 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Second Region in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT maintain, enforce, or give effect to our contracts
with Local 14149, Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, unless and until such union demon-
strates its exclusive majority representative status pursuant to
a Board-conducted election among our employees.
WE WILL withdraw and withhold recognition from the above-
named Union, or any successor thereto, unless and until it shall
have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among our employees.
WE WILL. NOT contribute financial or other support to any labor
organization, or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their statutory rights.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exercise
of their rights under Section 7 of the National Labor Relations
Act, except as permitted by Section 8(a) (3) of the Act.
WE WILL refund to all our employees and former employees
the initiation fees or periodic dues or other moneys illegally
extracted from them which have been paid to Local 14149, Oil,
Chemical and Atomic Workers International Union, AFL-CIO.
]-IAL13EN CHEMICAL Co., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly desig-
nated Trial Examiner in New York City, on March 23, 1959, on complaint of the
General Counsel and answer of Halben Chemical Co., Inc., herein called Re-
spondent or Company. The issues litigated were whether the Respondent violated
Section 8(a)(1), (2), and (3) of the Act. At the close of the hearing, counsel and
representatives of the parties argued the merits of their respective positions orally.
No briefs were filed subsequent to the hearing.
HALBEN CHEMICAL CO., INC. 875
Upon the entire record , and from my observation of the witnesses , I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with its principal office and plant
located in New York City where it is engaged in the manufacture , sale, and dis-
tribution of moth repellents , deodorants , and related products. During a repre-
sentative 12-month period , the Respondent manufactured products valued at over
$200,000 of which products over $100 ,000 worth were shipped to customers outside
the State of New York. Upon the foregoing facts the Respondent concedes, and
I find, that Halben Chemical Co., Inc., is engaged in commerce within the meaning
of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 284, Association of Processing , Maintenance and Distributing Workers
of America and Local 14149 , Oil, Chemical and Atomic Workers International
Union , AFL-CIO, herein called Local 284 and Local 14149 , respectively, are labor
organizations within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
For some time prior to the fall of 1957 the Respondent had a collective -bargaining
agreement with Warehouse and Processing Workers Union , Local 284, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America ( herein called Local 284, Teamsters ).' On October 25, 1957, Jose
Godineaux , an employee of the Respondent , filed a decertification petition with the
Regional Office , alleging that Local 284, Teamsters , no longer represented the
Respondent 's employees . Subsequent to a hearing on this petition , the Board, on
February 4 , 1958, issued a Decision and Direction of Election , Halben Chemical
Co., Inc ., Case No. 2-RD-382 ( unpublished ) wherein it found that a question
concerning representation had arisen . Accordingly, it directed that an election
be held among the employees at the Respondent 's plant to determine whether they
desired to be represented by Local 284.2 In the meantime , on December 9, 1957,
the employees of the Company had gone out on strike . After the work stoppage
had lasted for 2 days , the Respondent signed a contract with Local 14149 3 and the
employees returned to their jobs.
Early in February 1958, Harry Reiss, secretary -treasurer of Local 284, tele-
phoned Abrams to ask that the Company abide by its contract with his organi-
zation and pay up an accumulated arrearage in dues .4 Abrams' only response was
that he had signed an agreement with another union. On about February 4, Reiss
telephoned Kimmel, counsel for the Respondent , to lodge a similar protest with
him against the Company 's having signed a contract with Local. 14149 when it still
had an agreement with Local 284 covering the same employees . Mr. Kimmel
testified that he told Reiss that the Company had no alternative but to sign up with
Local 14149 because the Company's limited resources would not permit it to
withstand the strike which was in progress at the time it executed the agreement.
By letter dated February 12, Reiss renewed his demand that the Company live up
'Local 284 , Association of Processing , Maintenance and Distributing Workers of
America (herein called Local 284 ) is the successor in interest of Local 284 , Teamsters.
The above - mentioned contract was executed between the Company and Local 284,
Teamsters.
'The Board ' s initial decision in Case No. 2-11,D-382 accorded a place on the ballot in
the decertification election to Local 284 , Teamsters . On March 11 , 1958, and after appro-
priate notice to all parties, the Board amended the Direction of Election by substituting
Local 284 , in the place of Local 284, Teamsters . As used hereinafter "Local 284" in-
cludes both the predecessor and the successor.
3 This was in the nature of an interim agreement . By its terms the Company accorded
recognition to Local 14149 and the latter agreed to end the strike . The parties further
agreed to engage forthwith in collective bargaining on a contract that would contain
clauses on seniority , arbitration , grievance procedure , union shop , and checkoff as well as
other conventional provisions . This interim arrangement also provided that any subse-
quent agreement on a wage increase would be retroactive to December 11, 1957.
4 The Company 's complete agreement with Local 284 was never offered in evidence.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to its agreement with his organization. Insofar as appears from the record he
received no answer to this communication. On February 24, 1958, Local 284
filed charges in Case No. 2-CA-5751, alleging that the Company had violated
Section 8(a)(1), (2), and (3) of the Act by its grant of recognition and a con-
tract to Local 14149, in the face of a pending decertification petition and an
existing agreement with Local 284.
During the months of December 1957 and January and February 1958, the
Respondent and Local 14149 were engaged in negotiations for a more complete
agreement than that which they had signed initially on December 11. Mr. Kimmel
testified that an accord was finally reached, that a formal contract was prepared,
that it was signed by the employer and then was forwarded to Local 14149 for
signature. At that point, however, the union officials stated that on advice of
counsel they would not sign the document until the pending decertification election
was held.5 In any event, about April 8, 1958, the Company started checking off
dues from the employees' wages.6 Mr. Abrams conceded that this was done despite
the fact the employees had never given the Company any authorization to make
such deductions from their pay. This continued for about 1 month. By letter
dated May 6 the Respondent notified Local 14149 that because of the pending
unfair labor practice charges it considered the union-security clause of the contract
null and void and that it would check off no further dues pursuant to that pro-
vision. In a notice which it posted on the plant bulletin board about May 8 the
Respondent likewise notified its employees to the same effect. Abrams testified
that since that date the Company has deducted no dues from the wages of its,
employees for Local 14149 or for any other union. This testimony was undenied.
On June 13, 1958, the Regional Director approved a settlement agreement, previ-
ously signed by representatives of the Company, Local 14149, Local 284, and the
General Counsel, which disposed of the issues in Case No. 2-CA-5751. Pursuant
to the terms of this settlement, the Company agreed to cease and desist from
giving effect to its contracts with Local 14149, or from executing any further
agreements with that organization or otherwise recognizing, assisting, or encouraging
membership in that union unless and until it was certified by the Board. The
Company further agreed that it would withdraw and withhold recognition of Local
14149, that it would reimburse its employees for all dues, assessments, and initiation
fees paid from the time the aforesaid contracts with Local 14149 became effective,
and that it would post the conventional notices. It was undenied that reimburse-
ment of dues, pursuant to the settlement agreement, was made to all of the affected
employees.
On October 9, 1958, Local 284 again filed charges against the Company and
alleged that it had violated Section 8(a)(1) and (3) of the Act by continuing to
recognize Local 14149 and by discriminatorily refusing to meet with Local 284
(Case No. 2-CA-6203). On February 27, 1959, the Regional Director withdrew
his approval of the settlement agreement and issued a consolidated complaint on
the charges in Cases Nos. 2-CA-5751 and 2-CA-6203.
B. The period *subsequent to the execution of the settlement stipulation
Mr. Abrams conceded that after May 1958 the Company, notwithstanding the
settlement agreement which it had signed, continued to recognize Local 14149 and
comply with all of the provisions of its contracts with that union except for those
clauses on union-security and a checkoff. This also appears evident from the nu-
merous incidents that are related in the testimony of this witness. Thus, in June
1958, George Roach, vice president of the latter organization, telephoned Abrams
to request that the Company adhere to the contract terms on retroactive pay and
the Company made the payment.? The Respondent likewise followed the contract
terms as to vacation and holiday pay. On the latter provision, a dispute arose in
November as to whether election day was to be a paid holiday. As a result, Roach
contacted Abrams and the employees received holiday pay as provided by the
contract.
s The contract bears no date other than "April 1958."
6 The contract had a union-security and checkoff provision.
T This was in connection with a pay increase which the contract provided and which
was to be retroactive to December 11, 1957. Mr. Kimmel testified that Roach and the
employer had made an informal agreement that the actual payment of the retroactive
portion of this increase could be withheld until the end of the production season at which
time the Company would be in a stronger financial position.
HALBEN CHEMICAL CO., INC. 877
After the settlement the Company continued to discuss grievances with representa-
tives of Local 14149 . Mr. Kimmel testified that on several occasions Roach con-
tacted him as to grievance issues over the interpretation of the contract. Mr.
Abrams conceded that since June 1958, Roach has been in the plant several times
to talk with Jose Godineaux, the shop steward for Local 14149. According to
Abrams, he continued to recognize Godineaux as the shop steward for all of the
production and maintenance employees in the plant , regardless of whether they be-
longed to Local 14149 . From the frank testimony of the company president, it is.
obvious that Godineaux was permitted a wide latitude in the factory and that Abrams
very plainly permitted him to arrogate some of the management 's own prerogatives.
Thus, according to Abrams , on one occasion , when a foreman had difficulty dis-
ciplining an employee , Godineaux informed him, "After this, when you have any-
thing to say, tell me and I will talk to the employee ." Abrams testified that since
that time he had adopted Godineaux 's suggestion . The latter also insisted that when-
ever a grievance arose it was to be discussed directly with him. Abrams conceded
that by its acquiescence in this demand , the Company had allowed Godineaux to
circumvent completely the shop foreman as to the processing of any grievances.
The General Counsel alleged that the Respondent had required employees and job
applicants to pay dues and initiation fees in Local 14149 as a condition of employ-
ment . The Respondent denied this allegation . On the other hand, there was evi-
dence that by maintaining its contract with Local 14149 the Company gave full
effect to the union -security provision of that agreement . Mr. Kimmel testified
that subsequent to May 1958 he told Roach that "as a legal matter we were not
recognizing the Union ." At the same time, counsel for the Company conceded, "as
a practical matter we dealt with the union, they represented our people , we had no
choice but to deal with them." At sometime during this period Roach complained
that the Company was dismissing new employees after only 28 or 29 days' work so
that they would not qualify under the union -security provisions of the contract. Mr.
Kimmel testified that he assured Roach that to the extent this practice had been fol-
lowed, it would not be continued . It must be inferred from this that thereafter when
the Company kept new employees on the payroll for more than 30 days Local
14149 could , and did , insist that they become members. Mr. Abrams explained that
he has continued to recognize Godineaux as shop steward for all of the employees
"because I don 't want any trouble ." As noted earlier , the latitute accorded this em-
ployee reached the point where he had supplanted the foreman as to disciplinary
matters and grievances . In this connection Abrams was also asked the following
questions and responded as appears below:
Q. You knew they [the employees] were paying dues to the Union , didn't
you?
A. I pretty well knew.
Q. And this was after the settlement agreement was executed , is that correct?
A. There was nothing I could do about it.
About seven new employees were hired by the Company after the settlement stipu-
lation. Abrams conceded that he was aware that all of these were contacted by the
shop steward . 'Abrams testified "no question he [Godineaux ] talks to them." It is
equally clear that the Company was very apprehensive of trouble with Godineaux's
union if any employee failed to remain a member after the settlement agreement.
Thus, Israel Alicia , a working foreman , had joined Local 14149 in April 1958. Alicia
had done so reluctantly and only after Godineaux had told him that if he did not
join "he better not come to work," and Abrams had advised him "not to look for any
trouble, to join the union." 8 Subsequent to the settlement stipulation , Alicia asked
Abrams whether he had to remain in the Union . Although Abrams testified that he
told Alicia it made no difference to him, he also stated "I didn 't tell him he had to
be a member of the Union but I said that the events that would follow would maybe
make it necessary for him to leave the job." In response to a question from the
General Counsel as to whether he knew if Alicia was then ( at the time of the hear-
ing) a member of Local 14149, Abrams answered "I am pretty certain he is because
there is peace there."
The recognition which the Company accorded Local 14149 , notwithstanding the
settlement , was in contrast with its treatment of Local 284. Abrams conceded that
he had denied access to the plant to representatives of the latter and testified that
when Dominic Santamaria , whom he knew to be an official of Local 284 , came to
see him "I told him that I had a contract with a different union , to leave me alone."
$ The quotations are from the undenied testimony of Abrams.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Concluding findings
From the foregoing facts, it is apparent , and I find, that despite the settlement
agreement , the Company continued to recognize Local 14149 as the exclusive bargain-
ing agent for its employee and, further , that it complied with the contracts which it
had with that union in all respects , except as to the checkoff provision . There is no
evidence that after May 8, 1958 , the Company deducted union dues from its
employees ' wages . On the other hand , the Company continued to recognize and bar-
gain with Local 14149, it maintained and enforced its contract and bargain with
that union in every other respect , and it recognized Godineaux as shop steward for
all the employees . Moreover , in this latter connection it permitted Godineaux to
supplant even the shop foreman as to disciplinary matters and to ignore the foreman
in the processing of grievances . Thus , it was through him that the employees were
compelled to voice their grievances and it was from him that they heard of any
disciplinary action that was to be taken. In view of this stature which the Re-
spondent accorded Godineaux in the factory , its commitment to Roach that new em-
ployees would be kept on the payroll for more than 30 days and its admitted com-
pliance with most of the terms of its agreement with Local 14149 , I conclude and
find that subsequent to the settlement , the Respondent unlawfully encouraged its
employees to join that union. Furthermore , it is equally clear that this conduct by
the Respondent inevitably compelled the employees to pay dues and assessments in
Local 14149 . In view of this manifest failure of the Respondent to abide by the
terms of the settlement agreement , the Regional Director had ample grounds for
setting it aside and issuing the consolidated complaint in this case . Accordingly, the
evidence as to the Respondent 's conduct both before and after the settlement must be
considered . The Wallace Corporation v. N.L.R .B., 323 U .S. 248 , 253-255.
On December 11, 1957, when the Respondent first granted exclusive recognition
to Local 14149, it had an outstanding collective -bargaining agreement with Local
284 and there was pending a decertification petition in Case No . 2-RD-382. In the
face of this question concerning representation , as well as its contract with another
union, it resolved these conflicting claims by granting recognition to Local 14149.
Some months thereafter it executed a new contract with the latter organization,
whereby it also granted Local 14149 a union-security clause. By granting recognition
to that union while a representation question was pending and then according it
a union-security agreement , the Respondent violated Section 8(a) (1), (2 ), and (3)
of the Act . Novak Logging Company, 119 NLRB 1573 , 1574-1576 ; The Wheland'
Company, 120 NLRB 814 , 817-818; Illinois Malleable Iron Company , 120 NLRB
451, 452; Pittsburgh Valve Company , 114 NLRB 193 , 194, 195; A. O. Smith Cor-
poration , 122 NLRB 321. I so find.9
It is also my conclusion that , notwithstanding the terms of the settlement which
the Regional Director approved on June 13 , 1958, the Respondent continued to.
recognize and bargain with Local 14149, pursuant to the aforementioned agree-
ments. Moreover , on the findings set forth above , it is my conclusion that the-
Respondent gave effect to the union -security provision of that contract during this.
latter period . Thus, the Respondent continued to engage in that same conduct,
° The Respondent contends that when it recognized Local 14149 in December 1957 that
union displayed authorization cards from all of the employees and that during this period
no representative of Local 284 actively pressed a claim under its current contract with
the Company. This argument , however, ignores the fact that on February 4, 1958, and
before the final negotiation of the Company's complete contract with Local 14149, the,
Board issued a Decision and Direction of Election in Halben Chemical Co., Inc ., Case No.
2-RD-382, wherein the Board found that there existed a question concerning representa-
tion among the employees at the Respondent ' s plant . In addition , at about this same,
time, Local 284 called upon the Company to adhere to its agreement with that organiza-
tion . Shortly thereafter, when this demand met with a negative response that union
filed the unfair labor practice charges in Case No. 2-CA-5751. Notwithstanding these
developments , the Respondent proceeded to finalize the terms of a union -security contract
with Local 1. 4149 . Under these circumstances, as the Board has stated in Novak Logging
Company, 119 NLRB 1573, at 1574, 1575:
. . . The Respondent could not assume to judge for itself upon a showing of
authorization cards which of the contending unions was the statutory representative
of the employees. A majority card holding by one of the rival unions in these cir-
cumstances could in no wise be construed under the Act as imposing on the Respond-
ent an obligation to bargain . As reasonably contemplated by the statute , the determi-
nation of the existing question concerning representation was exclusively one for-
the Board.
HALBEN CHEMICAL CO., INC. 879
violative of Section 8(a)(1), (2), and (3) of the Act, which it had agreed to
discontinue. For this reason, I conclude and find that the Respondent's action sub-
sequent to its execution of the settlement agreement constituted a further and con-
tinuing violation of the above sections of the Act. 10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with Respondent's operations described in section I, have a close, intimate,
and substantial relation to trade, traffic, and commerce in the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Since I have found that the Respondent Company, in violation of Section 8(a) (2)
of the Act , unlawfully assisted and contributed support to Local 14149 , the effects
of this interference , as well as the Company 's continued recognition of that union as
the bargaining representative of its employees , constitute a continuing obstacle to the
free exercise by its employees of their right to self -organization and to bargain
collectively through representatives of their own choosing . Further , having found
that the Company violated Section 8(a) (3) and ( 1) by executing , maintaining, and
enforcing an agreement containing unlawful security provisions , the terms of which
have frustrated self-organization and defeated genuine collective bargaining by the
employees, I will recommend that the Company withdraw recognition from Local
14149 as the representative of its employees and that the Company cease giving effect
to the agreement dated December 11, 1957, and all subsequent agreements with
Local 14149, unless and until that union shall have demonstrated its exclusive
majority representative status pursuant to a Board -conducted election among the
employees of the Company . Bowman Transportation , Inc., 120 NLRB 1147, 1151.
Nothing in this recommendation should be taken , however, to require the Company
to vary those wage, hour, and other substantive features of its relations with the
employees themselves, if any, which the latter has established in the performance of
this agreement.
At the hearing , the General Counsel requested that the Brown-Olds remedy
(United Association of Journeyman & Apprentices of Plumbing & Pipefitting
Industry , etc., Local 231 (J. S. Brown-E . F. Olds Plumbing & Heating Corporation),
115 NLRB 594) be applied here. This is resisted by both the Respondent and Local
14149. Although it is true that there is no evidence that the Company complied with
the checkoff provisions of its contract with Local 14149 subsequent to M'ay 8, 1958,
the Respondent, as found above , continued to comply with all other provisions of
its agreement with that organization , including the union -security requirement.
Here, as in American Dredging Company, 123 NLRB 139, "the record shows that
by the unlawful provisions of the contract . the Respondent has unlawfully
encouraged employees to join the Union . -thereby inevitably coercing the em-
ployees to pay dues and assessments to the Union ." See also: N.L .R.B. v. Broderick
Wood Products Company et al., 261 F. 2d 548 , 559-560 (C.A. 10); A. O. Smith
Corporation , 122 NLRB 321. Consequently , I shall recommend that the Respond-
ent refund to its employees sums equal to the initiation fees and dues paid by those
employees to Local 14149 . The Respondent 's liability shall extend .to all such
moneys collected by that union after December 11, 1957 , and not heretofore refunded.
Broderick Wood Products Company , supra; News Syndicate Company, Inc., 122
NLRB 818. Although those funds are, presumptively , in the control of Local 14149,
there is no charge or complaint herein against that union. For that reason I must
recommend that this -remedy be directed only to the Respondent . A. O. Smith
Corporation , supra; cf. Morrison -Knudsen Company , Inc., et al ., 123 NLRB 429.
10 In justification of the Company's submission to the demands of Local 14149 and its
tolerance of Godineaux's activities, President Abrams testified that he feared that any
other course would have precipitated a strike which the Respondent could not afford. The
position of a small company, such as the present Respondent with only S to 15 employees,
when confronted with these pressures may, indeed, be difficult. It is well settled, however,
that a plea of economic hardship will not permit an employer to solve his own problems,
by violating the rights which the Act guarantees to his employees. Star Publishing Co. v._
N.L.It.13., 97 F. 2d 465, 470 (C.A. 9).
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the nature of the unfair labor practices committed, I shall also recom-
mend that the Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Unions are labor organiza-
tions , within the meaning of the Act.
2. By contributing support to Local 14149, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (2) of the Act.
3. By discriminating with respect to terms and conditions of employment, the
Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
4. By the foregoing conduct, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
[Recommendations omitted from publication.]
Otarion Listener Corp., and its subsidiary Audio Electronics
Co. and Local 1783, International Brotherhood of Electrical
Workers, AFL-CIO, Petitioner . Case No. 2-RC-9924. Septem-
ber 4, 1959
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election
duly executed by the parties, an election by secret ballot was conducted
on May 21, 1959, under the direction and supervision of the Regional
Director for the Second Region among the employees in the stipulated
unit. At the conclusion of the election, the parties were furnished
with a tally of ballots which showed that, of approximately 75 eligible
voters, 74 cast valid ballots, of which 37 were for, and 36 were against,
the Petitioner, and 1 ballot was challenged. The challenged ballot was
sufficient to affect the results of the election.
Both the Petitioner and the Employer filed timely objections to
conduct affecting the results of the election. In accordance with the
Board's Rules and Regulations, the Regional Director conducted an
investigation of both the objections and the challenged ballot and on
June 24, 1959, issued and duly served upon the parties his report on
objections and challenges. In his report, the Regional Director recom-
mended that objections of the Employer and the Petitioner be over-
ruled and that the challenge to the ballot of Betty Moss be overruled
and her ballot be opened and counted. The Petitioner and the Em-
ployer filed exceptions to the Regional. Directors' report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Fanning].
124 NLRB No. 109.