R.J.E. Leasing Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1982

262 N.L.R.B. 373 (N.L.R.B. 1982)

R. J. E. LEASING CORP.
R. J. E. Leasing Corp. and Richard Gaughran and
Local 814, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, Party in Interest. Case 22-CA-
9875
June 22, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On December 18, 1981, Administrative Law
Judge Winifred D. Morio issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the Party in Interest each filed exceptions and a
supporting brief; and the General Counsel filed
cross-exceptions and a brief in reply to the excep-
tions of Respondent and the Party in Interest.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt her recommended Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, R. J. E. Leas-
ing Corp., Malverne, New York, its officers,
agents, successors, and assigns, shall take the action
The Party in Interest also filed a request for oral argument. We
hereby deny this request as the record, the exceptions, and the briefs ade-
quately present the issues and positions of the parties.
2 Respondent and the Party in Interest have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing her findings.
3 In her remedy and recommended Order, the Administrative Law
Judge found that Respondent should be required to reimburse all present
and former employees for all initiation fees, dues, assessments, or any
other moneys which may have been paid in favor of Local 814, the Party
in Interest. In adopting the Administrative Law Judge's Decision, we
note that she found, and we agree, that prior to the existence of Respond-
ent's Liberty Park facility, and before any employees were hired to work
there, Respondent entered into an unlawful pre-hire contract which con-
tained a union-security provision, and which was subsequently applied to
the Liberty Park employees In these circumstances, we agree with the
Administrative Law Judge that an appropriate remedy and Order must
include the reimbursement provisions set forth in her Decision.
We note that the hearing was held in 1981, rather than 1980 as the Ad-
ministrative Law Judge inadvertently stated.
We will amend the notice to employees to accurately reflect the ad-
dress and telephone number of the Regional Office.
262 NLRB No. 49
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
August 30, 1982
ORDER GRANTING MOTION AND
MODIFYING DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On June 22, 1982, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding. Thereafter, on July 13, 1982,
Respondent R. J. E. Leasing Corp. filed a Motion
for Reconsideration and/or Clarification of the
Board's Order. By its motion, Respondent seeks
clarification of the remedial portion of the Admin-
istrative Law Judge's Decision, as adopted by the
Board. Thus, in the Remedy and in paragraph l(c)
of the Order, the Administrative Law Judge pro-
vided that Respondent shall cease giving effect to
its contract with Local 814 "provided, however,
that nothing in this Order shall authorize or require
the withdrawal or elimination of any wage increase
or other benefits . . . which may have been estab-
lished pursuant to" that agreement. Respondent
was further order to post a notice to employes,
stating in relevant part, "We will not alter any
wage increases or any other benefits put into effect
as the result of' the contract. Respondent contends
that these provisions in the Remedy, Order, and
notice go beyond the traditional and appropriate
remedy for violations of Section 8(a)(2), in which a
respondent employer, while not required to with-
draw wage increases or other benefits established
pursuant to the invalid contract, is not forbidden to
make such changes. 1
No objection to the motion having been re-
ceived, and the Board having duly considered the
matter,
It is hereby ordered that Respondent's motion
be, and it hereby is, granted.
IT IS FURTHER ORDERED that the Decision and
Order in this case be, and it hereby is, modified as
follows:
1. Strike from The Remedy section of the Ad-
ministrative Law Judge's Decision the words "au-
thorize or" appearing in the sentence "However,
nothing in this Order shall authorize or require the
withdrawal or elimination of any wage increases or
other benefits, terms and conditions of employment
Although neither Respondent nor any other party raised this issue in
exceptions to the Administrative Law Judge's Decision, matters of
remedy are traditionally within the Board's province, and may be ad-
dressed by the Board sua sponte.
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which may have established pursuant to such an
agreement."
2. Substitute the following for paragraph l(c) of
the Administrative Law Judge's recommended
Order:
"(c) Giving effect to its collective-bargaining
contract with said Local 814 or any renewal, ex-
tension, or modification thereof; provided, howev-
er, that nothing contained herein shall be construed
as requiring Respondent to abandon or vary any
wage, hour, seniority, or other substantive terms of
employment which it may have established in the
performance of said contract."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to
Local 814, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT give effect to our collective-
bargaining agreement with Local 814 or to
any extension, renewal, or modification there-
of; provided, however, that we are not re-
quired to abandon or vary any wage, hour, se-
niority, or other substantive terms of employ-
ment which we may have established in the
performance of said contract.
WE WILL NOT encourage membership in
Local 814 by requiring employees to join that
organization as a condition of obtaining or re-
taining employment with us.
WE WILL NOT recognize, negotiate, or enter
into any new agreement with Local 814 unless
and until that Union has been certified as the
representative of our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section
7 of the Act.
WE WILL withdraw and withhold all recog-
nition from Local 814, International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the collective-
bargaining representative of our employees,
unless and until said labor organization has
been certified by the National Labor Relations
Board.
WE WILL reimburse all employees, former
and present, for any dues and other moneys
unlawfully exacted from them under our con-
tracts with Local 814, International Brother-
hood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America.
DECISION
STATEMENT OF THE CASE
WINIFRED D. MoRIO, Administrative Law Judge: This
case was heard before me on January 19 and April 27-
29, 1980, in Newark, New Jersey, pursuant to a com-
plaint and notice of hearing which was issued on May
21, 1980, by the Regional Director for Region 22.1 The
complaint was based on charges filed by Richard Gaugh-
ran, an individual, on March 30, 1980, in Case 2-CA-
9875 against R.J.E. Leasing Corporation (herein called
Respondent)." In substance, the complaint alleges that
Respondent granted recognition to and maintained and
enforced a collective-bargaining agreement with Local
814, notwithstanding that Local 814 did not represent an
uncoerced majority of Respondent's warehouse employ-
ees at the time recognition was granted and the collec-
tive-bargaining agreement was executed. The complaint
further alleges that the aforesaid agreement contains a
union-security provision which provides that employees,
as a condition of enployment, shall become and remain
members in good standing of Local 814 and pay dues
and initiation fees to it. In addition the complaint alleges
that Respondent, by its supervisors, rendered aid and as-
sistance to Local 814 by urging its employees to sign
union membership application cards for Local 814 and
dues-check off authorizations; by collecting Local 814
initiation fees from its employees at the time of the em-
ployees' initial hire; by deducting Local 814 dues from
its employees' pay prior to the completion of the statu-
tory 30-day grace period during which no dues were
owed; and by collecting Local 814 initiation fees on the
work floor during worktime. The complaint alleges that
the above conduct violated Section 8(a)(1) and (2) of the
Act. The answer filed by Respondent denies the commis-
sion of the above-stated conduct.
During the hearing counsel for the General Counsel
moved to amend the complaint to allege an additional
theory under Section 8(a)(1) and (2) of the Act, in that
Respondent recognized Local 814 as the collective-bar-
gaining representative for certain of its employees and
maintained and enforced a collective-bargaining agree-
ment with Local 814 for these employees notwithstand-
ing that at the time it engaged in such conduct Respond-
ent did not employ a representative segment of its ulti-
mate employee complements The motion to amend was
granted over the objections of both Respondent and
Local 814. The objections were renewed in the briefs
filed by Respondent and Local 814. I find the objections
to be without merit. It is clear that the complaint, as
I Local 814, International Brotherhood of Teamsters, Chauffeurs, War-
ehouenmen and Helpers of America (herein Local 814 or the Union), was
listed as a party in interest.
· The charge, as filed, alleges violations of Sec. 8(aXI), (2), and (3) of
the Act. The 8(aXI) and (3) charge was withdrawn.
8 The General Counsel contended that the complaint was amended
after an examination of certain records not available prior to the hearing
and which were secured by subpoena enforcement in a Federal court.
374
R. J. E. LEASING CORP.
issued, initially attacked the recognition accorded to
Local 814 and the collective-bargaining agreement en-
tered into by Respondent with it. Thus, Respondent was
aware throughout that the recognition it accorded to
Local 814 and the collective-bargaining agreement it en-
tered into with it were under attack. The fact that Re-
spondent was not made aware of the additional theory
until the hearing was due to its conduct and that of
Local 814 in refusing to supply requested records. It was
their decision not to disclose the records until forced to
do so by the subpoena enforcement proceedings. Re-
spondent and Local 814 cannot now complain that they
have been prejudiced by their own actions. Furthermore,
the parties were offered the opportunity for additional
time to prepare their position on this theory and they
opted not to seek it. Finally the matter has been fully liti-
gated and briefed. In these circumstances, I do not con-
sider that I am precluded from considering this alterna-
tive theory. 4
All the parties were given a full opportunity to partici-
pate in the proceeding, to introduce all relevant evi-
dence, to cross-examine witnesses, to argue orally, and to
file briefs. Briefs were filed by all parties.
Upon the entire record in this case, my observation of
the witnesses, and after due consideration, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
R.J.E. Leasing Corp. has maintained its principal
office and place of business at 41 Horton Street, Mal-
verne, New York, and has maintained various ware-
houses in the States of New York and New Jersey, in-
cluding warehouses at 20 Statute of Liberty Drive,
Jersey City, New Jersey, herein called the Liberty Park
facility, and 59 Hook Road, Bayonne, New Jersey,
herein called the Bayonne facility, where it is and has
been engaged in providing and performing transportation
and related services. In the course and conduct of its op-
erations, Respondent, during the preceding 12 months,
said operations being representative of its operations at
all times material herein, transported clothing and other
goods and materials valued in excess of S50,000 of which
goods and materials valued in excess of $50,000 were
transported, pursuant to an arrangement it had with var-
ious customers including Gimbel Brothers, to its various
warehouses in interstate commerce directly from States
of the United States other than the State New York. The
parties admit and I find that Respondent is, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit and I find that Local 814 is a labor
organization within the meaning of Section 2(5) of the
Act.
Meilman Food Industries Inc, 234 NLRB 698 (1978); Alexander
Dawson. Inc. d/b/a Alexander's Restaurant and Lounge. 228 NLRB 290
(1977).
III. THE ALLEGED UNFAIR LABOP PRACTICES
A. Background
According to Vincent Bracco, president of Local 814,
the Union had contracts with Joseph Eletto Transfer
Company (herein called Eletto) and Venetia Trucking
(herein called Venetia) dating back several years.5 The
president of these companies is Joseph Eletto who, it ap-
pears, is also the principal officer of Respondent R.J.E.
Eletto did not testify. Richard Funk, a general manager
for the Eletto Company, testified that Respondent is a
subsidiary of Eletto and although he did not know the
details of its formation, he knew that Respondent com-
menced its operations at its Bayonne facility about No-
vember 1979 and began at the Liberty Park location
about December 17, 1979.6 The record establishes that
Respondent and Local 814 executed a recognition agree-
ment for the Bayonne facility on December 5, 1979, and
executed a collective-bargaining agreement for that loca-
tion sometime in December 1979.' The legality of the
recognition agreement and the collective-bargaining
agreement for the Bayonne facility is not an issue in this
case. 8
B. The Events Prior to January 11
For some years prior to December 1979, according to
the undisputed testimony, a trucking and warehousing
firm called Nelson Intermodel (herein called Nelson) oc-
cupied the premises at the Liberty Park facility and con-
ducted warehousing and trucking operations at that fa-
cility for its customer, Gimbel's. However, Gimbel's, ap-
parently dissatisfied with Nelson, terminated its business
relations, with Nelson, effective about the end of Decem-
ber 1979. Gimbel's entered into an agreement with Re-
spondent to provide distribution and trucking services
for it at the Liberty Park facility. According to Funk,
actual operations by Respondent at this location did not
start until December 17, 1979, although some preliminary
operations began about December 8, 1979. There is some
confusing testimony on the issue of the employees en-
gaged in these preliminary operations. However, an anal-
ysis of the testimony by Funk and the exhibits offered by
Local 814 establishes that five new employees were
hired for the Liberty Park facility and six employees al-
ready on the Bayonne payroll were assigned for over-
time work to assist in the startup operations. Funk, in re-
sponse to an inquiry by counsel for Local 814, identified
the employees listed on Local 814's Exhibit I as those
who were hired for the Liberty Park facility. 9 Funk fur-
Respondent's counsel refers to Eletto as set forth above although the
name appears in the transcnpt at times as Alito.
6 Funk, at the times material herein, was on the payroll of the Eletto
Company but acted in the capacity of general manager for that company
and for Respondent R.J.E. at both the Bayonne and the Liberty Park
facilities.
I G.C. Exhs. 7 and 8. The collective-barguaning agreement, on the face
of it, contains effective date of July 1979 ana a termination date of July
1982. This will be discussed below.
s There is no evidence that a charge was filed in connection with this
location.
Funk's testimonial:
Continued
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther testified that these five individuals were hired be-
tween the period of Monday through Friday, December
14, 1979, and were told specifically that they were hired
for the Liberty Park facility, although they actually
worked at the Bayonne facility due to the construction
work being done at Liberty Park.10 An examination of
this exhibit establishes that Mark McGee, Paul Staver,
and Gene Kreig were hired on December 12, 1979, for
the Liberty Park facility and Charles Carucci and James
McGrath were hired on December 14, 1979, for that lo-
cation. Funk identified the six individuals who were on
the Bayonne payroll and who were brought, on a tem-
poray basis, to the Liberty Park facility by examining
Local 814's Exhibit 2. This exhibit contains a column
"B," which column designates overtime. According to
Funk he determined which were the six individuals on
temporary assignment from the Bayonne location by
checking column "B" and noting which employees had
either 8 or 10 hours marked next to their name in the
overtime column. The exhibit discloses that the six indi-
viduals were Martin McMahon, Michael Vilardo, Ray-
mond Wilslon. Robert Harvin, Donald Sharp, and Joseph
Serpe. ll us accotrding to Funk, who was the only
person who testified with knowledge about the employ-
ees utilized in the preliminary operations, as of Decem-
ber 14, 1979, Respondent had hired five new employees
for its Liberty Park facility and had assigned, on a tem-
porary basis, six of its Bayonne employees to that loca-
tion.
On December 14, 1979, an agreement was entered into
between Respondent and Local 814."1 The agreement,
on its face, refers to Liberty Park. However, Vincent
Bracco testified that this document was entered into
solely to protect those Bayonne employees who were
transferred to work on a temporary basis at Liberty
Park. He stated, "people from Bayonne were going to
work at Liberty Park, another facility and it was the
people from Bayonne and I felt that Mr. Aleto was
Counsel: I show you Union's Exhibit I. Would you describe what
these individuals were hired for.
Funk: So we hired these five people, set them up in Bayonne in a
big room like this, tying thousands of knots for Liberty Park.
Judge: When did you hire these people?
Funk: We hired them Monday through Friday, the period ending
December 14.
Judge: Of December?
Funk: Correct, of '79.
Judge: And they were then put on the Liberty Park payroll or
were they put on the Bayonne payroll?
It was the first time that, I guess, we kept these names and I can
see by looking at this sheet they were separate, so it was like we
established a Liberty Park sheet, shall we say. But they were paid
over in the Bayonne facility.
Judge: Mr. Funk were the people told when they were hired that
they were working at Liberty Park?
Funk: These five people.
Judge: The five people you hired?
Funk: Yes.
Judge: For Liberty Park?
Funk: Yes, absolutely.
li Funk testified that the renovation work being done at Liberty Park
was extensive and that the newly hired employes could not work there
because of the condition of the premises.
II G.C. Exh. 6.
trying to avoid the contract that we had entered into."
At another point Bracco stated:
Well I was a little upset that I felt he was trying to
run away from us and open another facility after I
had gotten the stipulation and a contract for Bay-
onne, that he was putting our people there and I
thought he was going to bypass the Bayonne facili-
ty and go into Liberty Park and I demanded to pro-
tect those people with the Bayonne contract and
that he should exercise the contract at Bayonne for
them [sic] people that he was employing from Bay-
onne to Liberty Park.
The gist of these statements is that the purpose of the
agreement of December 14, 1979, was to ensure that the
Bayonne contract would be applied to Bayonne employ-
ees even though they were working at the Liberty Park
facility. Bracco did not claim to have secured authoriza-
tion cards from any of the newly hired employees, but
rested his authority to execute the December 14 agree-
ment on his representative status at Bayonne. An exami-
nation of the document establishes that it contains lan-
guage usually identified with a recognition agreement.
Thus the document, which refers solely to the Liberty
Park facility, states that Respondent had examined au-
thorization cards presented by Local 814, was satisfied
that Local 814 represented its employees at Liberty
Park, and recognized Local 814 as the collective-bargain-
ing representative of its employees. It is identical to the
language contained in the document which both Re-
spondent and Local 814 admit is a recognition agreement
executed on December 5 for the Bayonne facility.12 In
addition, although he subsequently changed his testimo-
ny, Funk testified that Joseph Eletto told him sometime
in mid-December that he had recognized Local 814. l 3
At the time the document in question was executed the
Respondent, as noted, had hired only five employees for
that location. It appears that of the five employees
McGrath and Carucci signed authorization cards for
Local 814 on December 14, Staver and Kreig signed au-
thorization cards on December 17, and McGee had initi-
ation fees deducted on December 17.14 It also appears
that at this point five of the six Bayonne employees who
were transferred on a temporary basis to the Liberty
Park facility had signed cards for the Bayonne facility on
December 4. 1, Local 814 therefore had secured authori-
zation cards from two of the five employees hired either
on or prior to December 14 for the Liberty Park facility
and had in its possession five authorization cards from
the Bayonne employees, which cards were obtained in
connection with the collective-bargaining agreement in
effect at the Bayonne facility. Respondent and Local 814
is G.C. Exh. 7.
13 Funk stated subsequently that it was mid-January when Eletto told
him that he had granted recognition to Local 814.
14 G.C. Exh. 19.
I' G.C. Exh. 19. According to this exhibit McMaho,n. Vilardo, Wilson,
Sharp, and Serpe all signed authorization cards on December 4. 1979.
The exhibit does not disclose the name of Robert Harvin. The exhibit
lists three Vilardos but only one Michael Vilardo and two Wilsons but
only one Raymond Wilson. It is Michael Vilardo and Raymond Wilson
who appear on Local 814's Exh. 2
376
R. J. E. LEASING CORP.
contend that the letters "RJF" at the top of the Union's
Exhibit I indicate that it is the payroll for the Liberty
Park facility. An examination of that exhibit, which is
the payroll record for the period ending December 14,
lists only the five newly hired employees. An examina-
tion of the payroll records for December 21 and 28, 1979
also reveals the letters "RJF" at the top of the exhibit.
These payroll records list the names of the five newly
hired employees but they do not contain the names of
any of the six temporarily transferred employees. The
payroll record for Liberty Park contains a total of 35
names of people hired for that facility in the week
ending December 21, 1979, and a total of 98 names for
people hired for that facility for the week ending De-
cember 29, 1979.
The parties were in disagreement concerning the use
of the words "department" and "classifications." The
collective-bargaining agreements alleged to be for the
Liberty Park facility list seven classifications. ' 6 Respond-
ent, however, apparently divided its work force into
some 16 departments, of which the employees in only 12
departments are included in the collective-bargaining
agreements.17 According to Funk, an employee in the
contract classification of warehouseman would be in de-
partment "1000"; in the contract classification of mainte-
nance man would be in department "D"; in the contract
classification of packer-marker would be in department
"7000"; in the contract classification of order-checker
would be in department "300"; in the contract classifica-
tion of platform-loader and receiving man would be in
department "1000"; and in the contract classification of
dock supervisor would be department "8000." The
record does not reveal what would be the department
for the contract classification of packing and mailing su-
pervisor apparently because there was no one in that po-
sition in either December 1979 or June 1980. An exami-
nation of the payroll of December 21 reveals that all five
employees hired in the week ending December 14 for
Liberty Park were in department "1000," which means
that they were either in the contract classification of
warehouseman or the contract classification of platform
loader or that there could have been employees in both
classifications.' 6 Thus, it appears that on December 14
Respondent had employees in either I or 2 of the 7 con-
tract classifications and apparently in only I of its 12 de-
partments. In the weeks of December 21 and December
29 Respondent had employees in 3 or 4 of the contract
classifications and in 7 of its 12 departments. By June
1980, Respondent had employees in 6 of the 7 contract
classifications and in 11 of its 12 departments.
C. The Testimony of Richard Gaughran
Richard Gaughran, previously employed by Nelson,
testified that he sought employment with Respondent in
t6 These classifications are warehouseman, maintenance man, packer-
marker, order-checker, platform loader and receiving man, packing and
mailing supervisor, and dock supervisor.
I" O.C. Exh. 18. The return to vendor employees, general office cleni-
cal employees, payroll department employees, and PBX employees are
not covered by the contract.
i" Funk did at one point testify that there were no warehousemen
hired in December 1979.
December. According to Gaughran, based on a recom-
mendation of a Jack Hill, he met with Funk on Decem-
ber 19, 1979.' 9At that meeting Funk gave him a work
history form to complete and made an appointment to
meet with him at the Bayonne facility on December 21.
When he arrived at the meeting, in addition to Funk he
met with Jim Vaughan, an assistant to Funk, and Charles
Agar, a Local 814 business representative. Funk,
Vaughan, and Agar did not testify about this meeting.
Gaughran testified that Funk told him he had the chance
to join Local 814 for $S10 instead of $200, questioned him
as to whether he had the $10, and then handed him a
Local 814 card to complete.2 0 When he completed the
card Funk told him Local 814 would be his local and he
was to start work on December 26. Gaughran testified
that at least one other employee was interviewed in the
same fashion. According to Gaughran at that point in
late December there were about 8 employees in his
section and a total of 90 employees working at the Liber-
ty Park facility.
Gaughran further testified that on January 3, 1980, he
was paged over a public address system at the Liberty
Park facility and told to report to the office. When he
arrived at the office Jim Vaughan handed him a receipt
for Local 814 initiation fees.2 ' Gaughran testified that he
heard other employees similarly paged to the office on
January 3, 1980, although he could name only a Howard
Olsen. Gaughran was paged again in late January over
the public address system and told to report to the office.
When he arrived at the office Vaughan handed him his
Local 814 membership card.2 2 Gaughran claimed that
several employees were paged to the office on that day
although only Olsen was present when Vaughan gave
Gaughran his membership card. Gaughran was paid on a
weekly basis. On January 22, 1980, Gaughran received
his paycheck.2 3 The paystub, which is dated January 25,
1980, shows that the sum of $12 was deducted from his
pay for dues to Local 814. In early February 1980,
Gaughran was paged a third time over the public ad-
dress system, along with others, and told to report to the
office. During this meeting Vaughan handed him a re-
ceipt for his payment of Local 814 dues.2 4 Gaughran
said that Howard Olsen and several other employees
were also paged on that day. Gaughran testified that
Olsen received his Local 814 dues receipt at the same
time he did in his presence.
D. The Collective-Bargaining Agreements
Bracco testified that sometime around January 11, 12,
or 13, 1980, he contacted Joseph Eletto to advise him
that he had secured authorization cards from a majority
of his employees and therefore they should begin negoti-
ations. At this point, Bracco claims he had about 135 au-
thorization cards in a unit consisting of about 200 em-
ployees. An examination of General Counsel's Exhibit 19
19 Hin had worked with Gaughran at Nelson.
2
o G.C Exh. II11.
sl G.C Exh. 12.
2 2
G C. Exh. 13.
2 3
G.C. Exh. 15.
24 G.C. Exh. 14.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discloses that 109 of these cards were signed either on
the day the individuals actually started to work or on the
day the individuals were hired. The remaining authoriza-
tion cards were signed on the day after the employees
actually started to work.2 5 On or about January 11
Bracco, according to his testimony, had a meeting with
Eletto at Local 814's office where he gave Eletto about
125 authorization cards for Local 814, told Eletto to
check them, and provided him with desk space to do so.
Later that day Eletto notified Bracco that he was satis-
fied that the people from whom Bracco had secured
cards were employed at the Liberty Park facility and
that Local 814 represented them. Negotiations then
began. Bracco, who was the only person to testify con-
cerning the negotiations, did not claim to have spoken to
the Liberty Park employees concerning their desires
either before he began negotiations or at any time during
the negotiations. Insofar as this record discloses Bracco
conducted these negotiations without input from the em-
ployees and approved the final offer without consultation
with the employees. Bracco claimed that the negotiations
extended over a 2-day period although he was hazy on
the details of the negotiations. A complete collective-bar-
gaining agreement was executed at the Local 814 office
during the week of January 12, 1980, according to
Bracco, although neither the original nor the corrected
copies of the collective-bargaining agreement contain the
date of execution . 2 Bracco testified that the standard
Local 814 contract does not contain the date of execu-
tion on the face of it; rather, he relies on the day Local
814 commences to collect dues to establish the day the
contract is signed. Within a few days of the execution of
this document, Eletto called Bracco to advise him that
there was a mistake in the rate for the packer-marker
classification. The rate as set forth was $4.50 per hour
rather than $3.80 per hour as agreed to by the parties.2 7
Bracco agreed with Eletto that an error had been made
and he thereafter sent an entirely new collective-bargain-
ing agreement containing the corrected wage to Eletto
for his signature. An examination of these two collective-
bargaining agreements establishes that the opening para-
graph in each states that the effective date of the con-
tract was July 1979. The closing paragraphs in both doc-
uments also state that the contract was to be effective
from the first day of July 1979 to June 30, 1982. Bracco,
when questioned as to whether Eletto had called his at-
tention to these serious errors, admitted that Eletto had
not mentioned these mistakes to him. Bracco also appar-
ently did not notice these errors. Bracco's explanation
for the July 1979 dates in both contracts is confusing. He
testified, "Our secretary, when she drafted up the docu-
'a These numbers were determined by examining G.C. Exh. 19 and
Local 814 Exhs. 3 and 4. Respondent and Local 814 take the position
that the employee's date of employment commences either on the day the
employee completes a W-2 form, although actual work may not be start-
ed until a few days thereafter or on the day the employee actually starts
working. There were 37 individuals who signed cards on the day they
signed their W-2 forms although they did not start work until a few days
thereafter. There were four employees who allegedly signed cards on the
day they signed their W-2 forms although the exact date they signed the
W-2 forms is not known.
a6 G.C. Exhs. 9 and 10.
s' G.C. Exh. 9.
ments, put them in. We had our next increase, the second
increase of this contract was July 1980 and she turned
around therefore and assumed they're year to year and
put July Ist of 79." It appears that Local 814's secretary
sets the contract dates. It should be noted that the con-
tract submitted as to the collective-bargaining agreement
for the Bayonne location also contains an effective date
of July 1979 both in the opening and the conclusionary
paragraphs. 2 s All the contracts show pay increases effec-
tive July 1, 1979, and July 1, 1980. A further'examination
of the three collective-bargaining agreements discloses
differences in the recognition clause. Thus the collective-
bargaining agreement for the Bayonne location states the
following:
"The Employer recognizes the Union as the exclu-
sive bargaining agent of the employees of the
above-named Employer within the unit of warehou-
semen, maintenance men, packers and markers;
order checkers, platform loaders and receiving new,
packing and mailing supervisors and dock supervi-
sors." 2 9
The two collective-bargaining agreements which pur-
portedly cover the Liberty Park location contain the fol-
lowing language:
The Employer recognizes the Union as the exclu-
sive collective-bargaining agent of the employees of
the above-named Employer, within the unit of
warehousemen, maintenance men, packers and
markers, order checkers, platform loaders, receiving
men, packing and mailing supervisors and dock su-
pervisors, working in Liberty Park and Bayonne,
New Jersey. [Emphasis supplied.]30
It does not appear that either Eletto or Bracco noticed
that the two collective-bargaining agreements allegedly
for Liberty Park also covered the Bayonne location or
that both referred to pay increases effective in July 1979.
Both collective-bargaining agreements contain union se-
curity, initiation fees, and dues-checkoff provisions.
Gaughran testified that on January 14, 1980, he saw an
announcement on the bulletin board of Respondent's
Liberty Park facility which stated that there would be a
Local 814 meeting for each department, one half hour
before the starting shift on January 16, 1980. Gaughran
attended the meeting, which was held near the main en-
trance in the Liberty Park facility. The meeting started
at or about 11:30 a.m. All of the approximately 24 ship-
ping department employees were present. There were
two Local 814 representatives present although Gaugh-
ran could only identify Charles Agar. The Local 814
representative distributed two leaflets, which were enti-
tled "Welfare and Pension Benefits and Contract High-
lights." l3 The employees and the Local 814 representa-
s CG.C. Exh. 8.
'a The employer named is R.J.E. Leasing Corp.
3' It should be noted that the Employer listed on G.C. Exhits. 9 and 10
is R.J.E. Leasing Corp. Funk testified, however, that after the Liberty
Park facility began, and certainly by December 21, 1979, the correct des-
ignation for the Liberty Park facility was R.J.F. G.C. Exhs. 21 and 22,
Local 814 Exh. 1.
s' G.C. Exits. 16 and 17.
378
R. J. E. LEASING CORP.
tive discussed the contract and the Local 814 representa-
tive said the wage rate would be the one in effect and all
other benefits would become effective in July 1980. It
does not appear from an examination of these documents
and Respondent's payroll that the employees were to re-
ceive any immediate benefits. This record fails to estab-
lish why the highlights of a collective-bargaining agree-
ment negotiated in January 1980 for the Liberty Park fa-
cility contains a section referring to a wage scale effec-
tive July 1979.
The evidence establishes that initiation fees were de-
ducted for Local 814 from on or about December 17,
1979, and dues were deducted from on or about January
19, 1980.32
E. Analysis
Respondent and Local 814 assert that the December
14 document covering the Liberty Park facility was not
a recognition agreement but was rather an agreement en-
tered into to ensure that Bayonne employees, on tempo-
rary assignment at Liberty Park, would be covered hy
the Bayonne collective-bargaining agreement. I do not
credit this assertion. The document, on its face, unambi-
guously states that Respondent recognizes Local 814 as
the collective-bargaining representative of its employees
at Liberty Park and it further states that this grant of
recognition was based on an examination of the authori-
zation cards submitted to Respondent by Local 814. Lan-
guage identical to that contained in the December 14
document is found in the document relating to the Bay-
onne facility, which document both Respondent and
Local 814 concede is a recognition agreement.33 More-
over, the December 14 document does not refer to the
Baycnne facility or the fact that the Bayonne collective-
bargaining agreement was to be applied to Bayonne em-
ployees. It is improbable that Local 814 representatives,
experienced as they are, would have drafted this type of
document if it was for the purpose testified to by Bracco.
It is also impossible to believe that any employer would
have agreed to execute this document which purportedly
related to the Bayonne employees when it contains no
reference to the Bayonne employees or the Bayonne col-
lective- bargaining agreement. Bracco's contention that it
related to the Bayonne employees is belied by the clear
language of the document. The Board has rejected parol
evidence to change a document when the language con-
tained in the document is clear and unambiguous.3 4 The
Board also has refused to accept parol evidence to estab-
lish a modification of a written agreement.35 According-
ly, I find that the document executed on December 14,
1979, was meant by the parties to be and is a recognition
agreement covering the Liberty Park facility. In view of
their position concerning the December 14 agreement,
i.e., that it is not a recognition agreement, Respondent
and Local 814 have not addressed the issue of the status
of Local 814 on December 14, 1979. Rather, they direct
s' G.C. Exh. 19.
$' G.C. Exh. 7.
4 Prestige Bedding Company. Inc, 212 NLRB 690, 700 (1974).
so P.C Foods Inc.. db/la Price Crusher Food Warehouse, 249 NLRB
433, 438 (1980); Schorr Stern Food Corp., 227 NLRB 1050, 1653-64
(1977).
attention to the status of Local 814 at the time of the ex-
ecution of the collective-bargaining agreement, which
they allege occurred sometime in January 1980. This
however begs the crucial issue, which is the status of
Local 814 on December 14, 1979. The credible evidence
establishes that by that day Respondent had hired five
employees for its Liberty Park facility and of these em-
ployees only two had executed authorization cards for
Local 814 prior to the execution of the recognition
agreement on December 14, 1979. Clearly Local 814 had
not gained an uncoerced majority status at the time rec-
ognition was extended by Respondent. The authorization
cards secured by Local 814 for another location cannot
be used in support of Local 814's majority status at this
location. A grant of recognition to a miniority union is a
clear abridgement of the Section 7 rights of employees
and a violation of Section 8(a)(l) and (2) of the Act.36
Moreover in the circumstances involved herein a viola-
tion would have occurred at the time of the grant of rec-
ognition on December 14, 1979, even assuming that
Local 814 had in fact secured valid authorization cards
from all five employees. This is so because at that time
on December 14, 1979, the five employees were not sub-
stantially representative of Respondent's anticipated
work force and Respondent was not in its normal oper-
ation. Thus, in the week following the execution of the
recognition agreement Respondent's work force in-
creased from 5 to 35 employees, in the week thereafter it
escalated to 93 employees, and at the time of the alleged
execution of the collective-bargaining agreement, about a
month thereafter, the total complement of employees
numbered in excess of 150 individuals. In addition to this
fact, the record reveals that at the time of the grant of
recognition there were at most only two of the seven
classifications set forth in the collective-bargaining agree-
ment in existence. Moreover, there is no dispute that Re-
spondent was not engaged in its normal operations at the
Liberty Park facility on December 14, 1979. As noted,
Funk testified that the five newly hired employees could
not actually work at that location because there was
such chaos. The entire area was being renovated to pro-
vide the necessary work area for the anticipated growth
in the work force. As stated in Cowles Communication,
Inc. and Supsun Co., Inc., 170 NLRB 1596, 1611 (1968):
Where an employer recognizes a union as the exclu-
sive bargaining representative of its employees on
the basis of a majority demonstrated by cards or a
petition, as here, such recognition is inappropriate
and unlawful if it is granted before the employer
has recruited a work force that can be considered
substantially representative of his anticipated com-
plement of employees.
The Board has found that the vice, in such a premature
grant of recognition, to be the employer's committing
the unhired great majority of the employees to a bargain-
3s International Ladies' Garment Workers Uniqn AFL-CIO [Bernhard-
Altmann Texas Corp.] v. .LR.B.. 366 U.S. 731, 738 (1961); Sanford
Home for Adults, 253 NLRB 1132 (1981); Gold Standard Enterpries Inc.,
et al., 249 NLRB 356, 361 (1980); Stro Security Service. Inc., 247 NLRB
1266 (1980).
379
'.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representative in whose selection they have had no
choice.3 7 The Board has held that such a grant of recog-
nition at a time when the union did not represent a sub-
stantially representative complement of the anticipated
work force and when the company was not in normal
operations to be violative of Section 8(a)(1) and (2) of
the Act. 3 8 The reliance by Respondent and Local 814 on
the holding in Hayes Coal Co., Inc., 197 NLRB 1162,
1163 (1972), and Milton Kline and Jacob Kline a Co-Part-
nership d/b/a Klein's Golden Manor, 214 NLRB 807
(1972), is misplaced. In Hayes, contrary to the situation
herein, the Board found that respondent met the test that
the job or job classifications were substantially filled and
that the employer was in normal or substantially normal
operation. Moreover, the Board noted in Hayes, supra at
1163 that even though the expectation of increasing was
realized, "the record shows that the addition of a second
shift was caused and justified by economic factors which
occurred subsequent to its recognition of the Union. The
uncertainty of those expectations was demonstrated
when economic factors shifted so rapidly that Respond-
ent was forced to cease operations by the year's end."
And in Klein's, supra at 815 the finding was made that
the employer had 18 employees when it commenced op-
erations and they constituted in number 90 percent of
Respondent's entire staff of employees during the first
week it was open for business, the same percentage of
Respondent's average number of employees (20) during
the next 3 months of its operations, and about 65 percent
of Respondent's average weekly complement (26) during
the balance of the year.
The factors present in Hayes and Klein's are not
present herein. This Respondent was not relying on some
future factor by virtue of which it expected to expand. It
already had secured the contract with Gimbel's and in
implementing that contract it was expanding. Further-
more the five employees certainly did not represent 90
percent of Respondent's work force even within a week
after the start of operations andd certainly they did not
represent 90 percent at the time of the alleged execution
of the collective-bargaining agreement.
Respondent and Local 814 contend however that even
if the recognition was granted prematurely such a grant
should not be considered a violation because the lack of
a union-security provision in the recognition agreement
establishes that the agreement was without coercive
effect. This argument, however, does not find support in
Board law. The Board has found that the very existence
of a collective-bargaining agreement with a minority
union, although not enforced, is sufficient to warrant
finding a violation because such a document can be as-
serted as a bar to a representation petition filed by an-
other labor organization. s3 In the circumstances herein
st Lianco Container Corporation, 173 NLRB 1444, 1448 (1969).
38 Price Crusher Food Warehouse, supra at 438 (1980); Baines Service
Systems. Inc., 248 NLRB 563, 567 (1980); Crown Cork & Seal Company
Inc., 182 NLRB 657, 662 (1970); Donald Leasure, Jr.. Harold Leasure and
Charles Bankasky d/b/a Leasure Coal Company, 182 NLRB 1011, 1013-
14(1970).
39 Margaret Anzalone, Inc., 242 NLRB 879, 887 (1979).
involved it must be assumed that Respondent and Local
814 did not engage in a meaningless act when they ex-
ecuted the December 14 document. It is clear that if the
need arose the document would have been used to pre-
vent another labor organization from legitimately repre-
senting these employees. In this situation, I am not per-
suaded that the recognition agreement is without coer-
cive effect. Nor do I find Board or court support for the
proposition that authorization cards secured from a ma-
jority of the employees prior to the execution of the col-
lective-bargaining agreement validate the earlier illegal
recognition. Assuming that valid authorization cards
were secured prior to the execution of the collective-bar-
gaining agreement, this would not cure the earlier illegal
conduct. To the contrary, the Supreme Court has found
that the initial illegal act tainted all that followed and the
fact that the Union might gain majority status prior to
the execution of the contract to be immaterial.4 0 This
opinion has been restated in a recent case. Thus in Hol-
lander Home Fashion Corp., 255 NLRB 1098, 1102
(1981), the following was stated:
Because, as was found above, Respondent's rela-
tionship with the Industrial Workers was illicit from
the outset, its subsequent course of dealings with
the Union was tainted as well. Thus, the relatively
expeditious execution of a contract which was ne-
gotiated without any involvement of the employees
or assessment of their interests and needs merely
represented another phase in Respondent's strategy
to superimpose a compliant union on its unwitting
workers.
A very similar situation exists herein, there is no evi-
dence that there was involvement by employees in the
negotiations nor is there evidence that there was an as-
sessment of their needs. It is no response to say that em-
ployee interest will not be served by finding a violation
or by stating that only one employee filed the charge. It
is questionable whether employee interests are served by
having a collective-bargaining agreement imposed on
them in which they have had no voice, and which ap-
pears to have given them no benefits but obligated them
to pay dues and initiation fees to Local 814. There can
be no question that the invalidity of the recognition
agreement taints the collective-bargaining agreement that
followed from it.4 '
Respondent and Local 814 did not address the issue of
Local 814's minority status on December 14, 1979, based
on the lack of sufficient authorization cards from the five
employees hired for Liberty Park. The thrust of their ar-
gument rather is directed toward the expansion issue and
in support of that argument they cite The Anaconda
Company, 225 NLRB 953 (1976). Once again their reli-
ance is misplaced. In the Anaconda case the union had
gained majority status in the then existing unit, albeit it
was in an expanding unit, prior to the grant of recogni-
tion. Thus in that case the union had secured 9 valid au-
40 International Ladies' Garment Workers Union v. N.LR.B., supra at
738.
o4 Gold Standard Enterprises, Inc., supra at 361; Margaret Anzalone
Inc., supra at 887; Canteen Corporation, 202 NLRB 767, 769, 770 (1973).
380
R. J. E. LEASING CORP.
thorization cards from a possible 11 authorization cards
at the time the employer recognized the union. In the in-
stant case, as stated above, the Union had secured only
two valid authorization cards at the time Respondent en-
tered into the recognition agreement. The Board in the
Anaconda case found that there was not a scintilla of evi-
dence indicating restraint, favoritism, coercion, or inter-
ference on the part of Respondent. Certainly this cannot
be said here when Respondent recognized the Union at
the point when it did not represent an uncoerced major-
ity of the five employees hired for Liberty Park. More-
over, in the Anaconda case the Board was faced with a
situation involving an expansion in the unit which was to
occur over several years. The Board was concerned with
the lack of representation for several years for the em-
ployees involved therein. In this case, the expansion took
place within approximately 3 weeks after Respondent
commenced operations. There would be no lengthy
period of time during which the employees would be
without representation, the problem with which the
Board was concerned in the Anaconda case. Moreover, it
does not appear that the third criteria set forth in the
Anaconda case exists in this one. It is questionable wheth-
er there was an arm's length bargaining, a fact which
will be discussed hereafter.
The General Counsel contends that the circumstances
surrounding the solicitation of Gaughran's authorization
card by Funk together with the fact that the bulk of the
authorization cards were signed by employees either on
the day they actually commenced work, or the day they
signed their W-2 forms warrants the inference that Re-
spondent aided I~ocal 814 by its supervisors soliciting
signed authorization cards from all prospective employ-
ees in the preemployment interviews. Although these cir-
cumstances do raise certain suspicions, these suspicions
are insufficient to warrant the inference sought by the
General Counsel. Nor do the cases cited by the General
Counsel support his proposition. In those cases there ex-
isted significant factual differences. Thus in one case su-
pervisors directly solicited several employees to sign au-
thorization cards for the assisted union, while in another
the employer permitted group solicitation of employees
by union representatives in their presence and in a third
case the supervisors threatened employees with dis-
charge if they refused to sign authorization cards for the
assisted union. These factors do not exist in the instant
case. Rather, there is one situation involving direct evi-
dence of Respondent's solicitation in a preemployment
interview from which the General Counsel seeks to es-
tablish that over 100 authorization cards were secured in
the same fashion because of the date on those cards. I am
not of the opinion that such a sweeping generalization is
warranted based on the above-cited factors.
There remains for consideration the contention by the
General Counsel that the collective-bargaining agree-
ment covering the Liberty Park facility was a prehire
agreement.4 2 Bracco testified that the collective-bargain-
ing agreement for Liberty Park was arrived at after 2
days of negotiations sometime in mid-January 1980. Not-
withstanding this testimony both collective-bargaining
42 G.C. Exh. 10
agreements, allegedly drafted in January 1980, contain an
effective date of July 1979.43 I do not credit Bracco's
testimony that this was due either to a clerical mistake or
to the fact that a standard contract was used and the
dates were not corrected to reflect the date the contract
actually was entered into by the parties. Both documents
not only reflect an effective date of July 1979 but also
provide for pay increases effective July 1979. Bracco's
explanation for this "error" is, to say the least, not con-
vincing. Moreover both documents, which were drafted
allegedly only for the Liberty Park facility, on their face
state that the unit includes all employees at both the Lib-
erty Park facility and the Bayonne facility. This is inter-
esting because an examination of the collective-bargain-
ing agreement purportedly for the Bayonne facility does
not refer to that facility at all.44 Further it is difficult to
accept Bracco's explanation for the existence of the two
documents for the Liberty Park facility. Bracco claims
that the two complete contracts were drafted to make
one small correction concerning one pay scale. Assuming
that such occurred, which is highly unlikely, it means
that both Joseph Eletto and Bracco had two opportuni-
ties to notice the more blatant errors relating to the ef-
fective date of the contract and the unit description and
both failed to notice these obvious mistakes I do not
credit Bracco's explanation for the existence of the two
contracts. Furthermore the documents drafted by Local
814 to highlight for the employees at Liberty Park the
benefits they were to receive also state that a wage in-
crease was effective July 1979. Why would a leaflet
drafted for employees at a Liberty Park reflect a wage
increase effective 6 months before the facility came into
being? Even if one were to accept Bracco's testimony
about the dates in the contracts there is no rational ex-
planation for this leaflet. In sum I do not credit that the
collective-bargaining agreement covering some 200 em-
ployees was negotiated in less than 2 days without any
participation by the employees or without at least con-
sultation with them prior to execution of that document
by the Union. Rather I find that the collective-bargaining
agreement was negotiated prior to the existence of the
Liberty Park facility and was thereafter applied to that
facility in January 1980 when the facility became oper-
ational. A prehire agreement has been permitted under
limited circumstances in the construction industry and in
some situations involving accretion. Neither of these cir-
cumstances exists herein. Nor is the argument by Re-
spondent and Local 814 persuasive that if the prehire
agreement was entered into in July 1979 the complaint
must be dismissed by reason of the bar of time since the
execution of the agreement occurred prior to the 10(b)
period. The actual date the parties entered into the pre-
hire agreement is not disclosed by the evidence in this
record. However, the record does disclose that the em-
ployees first became aware that there was a collective
bargaining agreement in effect at the Liberty Park facili-
ty in January 1980 which was within the 10(b) period.
As stated in Crown Cork & Seal Company. Inc., 255
NLRB 14, 22 (1981):
'4 G.C. Exhs. 9 and 10.
" G.C. Exh. 8.
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, with the agreement of reviewing United
States courts of appeal, has held that the 6-month
limitations period does not begin to run until the
party affected by unfair labor practices is on actual
or constructive notice of the material events giving
rise to a charge, thus effectively estopping a wrong-
doer who has engaged in fraudulent concealment of
his unlawful conduct from using such concealment
to permit a 10(b) defense.
This is clearly the situation in the instant case, the em-
ployees became aware of the illegal prehire agreement in
January 1980 when it was applied to them and thus 10(b)
is not a defense to the illegal prehire agreement.46
Based on all of the above, I conclude that Respondent
unlawfully assisted and supported Local 814 and violated
Section 8(aX)(1) and (2) of the Act when it unlawfully ex-
tended recognition to Local 814 at a time when Local
814 did not represent an uncoerced majority of Respond-
ent's employees and at a time when Respondent did not
employ a representative segment of its ultimate employee
complement. I further conclude that Respondent ren-
dered unlawful assistance and support to Local 814 and
violated Section 8(a)(l) and (2) of the Act by entering
into a prehire agreement with it and maintaining said
agreement in force and effect, which agreement contains
a union-security provision which requires membership as
a condition of employment and which requires Respond-
ent to deduct dues, initiation fees, and/or uniform assess-
ments. Finally, I conclude that Respondent has rendered
unlawful assistance and support to Local 814 by deduct-
ing dues, initiation fees, and/or uniform assessments for
Local 814 and by soliciting employees to sign authoriza-
tion cards for Local 814.
iv. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend an order direct-
ing it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
More particularly, having found that Respondent has
interfered with, restrained, and coerced its employees in
the exercise of their rights to freely select their own bar-
gaining representative in that Respondent unlawfully
supported, assisted, and recognized Local 814, the Order
I shall recommend will require Respondent to cease pro-
viding such unlawful support and assistance, and to with-
draw and withhold all recognition from Local 814 unless
and until Local 814 shall have been certified by the
Board as the exclusive bargaining representative of Re-
spondent's employees in question. The Order shall fur-
ther direct Respondent to cease giving effect to the con-
tract or agreement with Local 814, or to any renewal,
modification, or extension of such agreement. However,
nothing in this Order shall authorize or require the with-
drawal or elimination of any wage increase or other
benefits, terms, and conditions of employment which
may have been established pursuant to such an agree-
,' AMCAR Division. ACF Industries. Incorporated, 234 NLRB 1063
(1978).
ment. The Order shall also require Respondent to reim-
burse all present and former employees for all initiation
fees, dues, and other moneys which may have been ex-
acted from them by, or on behalf of, Local 814 pursuant
to the aforementioned collective bargaining agreements
together with interest as prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 814 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By recognizing as the exclusive bargaining repre-
sentative of its employees and by executing a contract
with Local 814 covering such employees at a time when
Local 814 did not represent an uncoerced majority of
such employees and when Respondent did not employ a
work force which was substantially representative of its
anticipated complement of employees, by maintaining
such contract in effect and by assisting Local 814 in ob-
taining union authorization cards from its employees, Re-
spondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(1) and (2) of
the Act.
4. By including in said contract provisions for union
security, initiation fees, and dues deduction, Respondent
has violated Section 8(aX1) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
ORDER4 6
The Respondent, R.J.E. Leasing Corp., Malverne,
New York, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Assisting Local 814 by soliciting authorization
cards from its employees.
(b) Recognizing and negotiating with Local 814 as the
exclusive representative of its employees for the purpose
of collective bargaining unless and until such labor orga-
nization is certified by the Board as the exclusive repre-
sentative of said employees pursuant to Section 9(c) of
the Act.
(c) Enforcing or giving effect to its collective-bargain-
ing agreement with Local 814 or any extension, renewal,
or modification thereof or any superseding agreement,
provided, however, that nothing in this Order shall au-
thorize or require the withdrawal or elimination of any
wage increase or other benefits or terms and conditions
of employment which may have been established pursu-
ant to such a contract.
"' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
382
R. J. E. LEASING CORP.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local
814 as the exclusive collective-bargaining representative
of its employees, unless and until said labor organization
has been duly certified by the Board as the exclusive rep-
resentative of such employees.
(b) Reimburse all present and former employees for all
initiation fees, dues, assessments, or any other moneys
which may have been paid in favor of Local 814.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of dues and any
other moneys to be repaid under the terms of this Order.
(d) Post at its warehouse and office copies of the at-
tached notice marked "Appendix."47 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by a representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and shall be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
4' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United Stites Court of Appeals Enforcing an
Order of the National Labor Relations Board."
383