The Grand Union Co.

National Labor Relations Board - Board Decisions

Dec 19, 1958

122 N.L.R.B. 589 (N.L.R.B. 1958)

THE GRAND UNION COMPANY 589
neyman Engineer 's Temporary Permit shall have been issued to him as herein-
after provided . If and when his clearance card is accepted , he shall be governed
by the wage scale rules and by-laws of said Local Union.
Article XV, Section 3 (a).
Members of one Local Union shall not seek employment , be employed, or
remain at work at the craft within the territorial jurisdiction of another Local
Union without the consent of such other Local Union , which consent may be
evidenced by its acceptance of the clearance card presented to it by the member
involved, as provided in the constitution or by the issuance of the temporary
permit hereinafter described . If the member involved does not present a clear-
ance card to such other Local Union, or the Local Union to which the clearance
card is presented fails to act thereon, or the Local Union to which the clearance
card is presented acts thereon and refuses to affiliate such member, and the Busi-
ness Representative of such other Local Union , in such cases, shall thereupon
consent to the issuance of the temporary permit (described herein) then the
member involved shall be entitled to receive and required to secure successively,
during the period within which said consent be granted and his work continue,
such number of weekly journeymen engineers ' temporary permits if he is a
stationary engineer , as shall be issued to him by the said Business Representative
under the regulations established by the General Excutive Board. Such permits
shall, for the period issued, allow the holder thereof to seek, accept, and hold
employment within the territorial jurisdiction of such other Local Union out of
which said temporary permits shall be issued, but subject always to such regula-
tions as shall be imposed thereon by the General Executive Board.
Article XV, Section 3 (c).
No member of this organization shall be permitted to remain at work at the
craft in the territorial jurisdiction of any other Local Union than the one to
which he shall belong for a longer period of time than that covered by the
temporary permit issued to him , nor shall any such member working under the
authority conferred by a temporary permit be removed from said work or
replaced by a member of the Local Union issuing the said temporary permit
until the expiration of the period for which the said temporary permit was issued,
unless such removal be for a good and sufficient cause.
Article XV, Section 3 (h).
... No temporary permit as described in this article shall be issued to or used
by any person who is not , at the time, either a member of the International
Union of Operating Engineers or an applicant for membership therein.
Article XXIII, Subdivision 3, Section (a).
Members of Local Unions shall conform to and abide by the Constitution,
Laws, Rules, Obligation and Ritual , and the decisions , rulings, orders and direc-
tions of any authority of the International Union empowered by this Constitu-
tion to make them. Each member shall keep the Recording-Corresponding
Secretary properly and promptly notified of his residence and any change thereof.
Each member shall hire none but those in good standing with a Union having
jurisdiction over the work to be done nor purchase commodities without the
union label thereon when otherwise possible.
The Grand Union Company and Robert E. Gray
Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Robert E. Gray.
Cases Nos. 2-CA-5225 and P-CB-1872. December 19, 1958
DECISION AND ORDER
On July 8, 1958, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above consolidated proceeding, finding
that the Respondent Employer had engaged in and was engaging
in certain unfair labor practices in violation of Section 8(a) (1)
122 NLRB No. 68.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (3) of the Act, and that the Respondent Union had engaged in
and was engaging in certain unfair labor practices in violation of
Section 8(b) (1) (A) and (2) of the Act, and recommending that
they cease and desist therefrom and take certain affirmative action,,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter the Respondents and the General Counsel filed exceptions
to the Intermediate Report and briefs in support.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Members Rodgers, Jenkins,.
and Fanning] .
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 this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except as indicated below.
We find merit in the exceptions of the General Counsel to the
Trial Examiner's ruling that the union authorization cards signed
by employees Edward Conn, Sidney Jansen, Bernard Westcott,
Shirley Westcott, and Timothy Fitzgerald in the fall of 1955, during
an earlier organizing campaign of the Respondent Union more than
a year before the campaign and the events in question here, were
properly counted in ascertaining majority status. On the facts of
this case we would not presume, as did the Trial Examiner, that the
1955 cards continued effective.' We note that the 1955 campaign in
which the cards were secured was unsuccessful and resulted in no
bargaining, and that all five employees testified that they did not
wish the Union to represent them in the 1956 campaign and had
signed no cards authorizing the Union to represent them until at ter
December 18, 1956, when the contract with its union-security clause
was executed. Accordingly, we find that the General Counsel has.
proved that 64 (rather than 59) out of a total of 101 employees in
the contractual unit had not designated the Respondent Union as.
their collective-bargaining agent when the December 18, 1956, agree-
ment was executed.
THE REMEDY
For the reasons stated by the Trial Examiner and in conformity
with the established policy of the Board, we find that it would not
effectuate the policies of the Act to permit the retention of payments.
1 Compare Knickerbocker Plastic Co ., Inc., 104 NLRB 514, 529-530, enfd. 218 F. 2d
917 (C.A. 9), where the cards from the previous year were found to have been signed
during the same organizational campaign which had been interrupted by the employer's
unfair labor practices ; see Safeway Stores, Incorporated, 99 NLRB 48, footnote 3, p. 49,.
where the current majority of the union did not depend upon cards from an earlier cam-
paign, and the Board simply noted that three out of five employees who had signed the
year before had affirmed their original designations.
THE GRAND UNION COMPANY 591
of union dues and other moneys which have been unlawfully ex-
acted from employees of Respondent Company as the price of
their employment. Accordingly, in order to expunge the coercive
effects of such illegal exaction, we adopt the remedy recommended
by the Trial Examiner, which requires the Respondents jointly and
severally to reimburse the employees of the Respondent Company
for dues checked off pursuant to the Respondents' unlawful agree-
ment, extending it to include any other moneys unlawfully exacted
under such agreement .2
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 :
A. Respondent, The Grand Union Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing any labor organization as the exclusive repre-
sentative for the purpose of collective bargaining of the employees
in a unit appropriate for such purposes unless such representative
shall have been freely designated or selected by a majority of the
employees in the unit.
(b) Entering into, maintaining, or enforcing any agreement with
a labor organization which requires its employees to join, or to
maintain membership in, such labor organization as a condition of
employment, unless such labor organization is the representative of
the employees as provided in Section 9(a) of the Act and the
agreement in all other respects conforms to the requirements of
Section 8(a) (3) of the Act.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in 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) Jointly and severally with Local 294, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
2N.L.R .B. v. Broderick Wood Products Company, 261 F. 2d 548 ( C.A. 10 ) ; Lakeland
Bus Lines, Incorporated, 122 NLRB 281 ; Los Angeles -Seattle Motor Express, Incorpo-
rated, 121 NLRB 1629.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America reimburse its employees and its former employees whose
dues in the Respondent Union were checked off pursuant to the
Respondents' agreement of December 18, 1956, for the amounts so
deducted from their earnings and for any fees, assessments, or other
moneys unlawfully exacted under said agreement.
(b) Post at its warehouse in Waterford, N. Y., copies of the notice
attached hereto marked "Appendix A."3 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by a representative of the Company, be
posted by the Company immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Company
to insure that the notices are not altered, defaced, or covered by any
other material.
(c) Post at the same places and under the same conditions as
set forth in (b) above, and as soon as they are forwarded by the
Regional Director, copies of the Respondent Union's notice herein
marked "Appendix B."
(d) Notify the Regional Director for the Second Region in
writing, within ten (10) days from the date of this Order, what
steps have been taken in compliance.
B. Respondent, Local 294, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, its officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, maintaining, or enforcing any agreement with
The Grand Union Company which requires employees to join, or
maintain membership in, Local 294 as a condition of employment,
unless the Union is the representative of the employees as provided
in Section 9(a) of the Act and the agreement in all other respects
conforms to the requirements of Section 8(a) (3) of the Act.
(b) In any like or related manner restraining or coercing em-
ployees of The Grand Union Company in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take.the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Jointly and severally with The Grand Union Company
reimburse the employees and former employees of the Company
whose dues in the Respondent Union were checked off pursuant
to the Respondents' agreement of December 18, 1956, for the amounts
so deducted from the employees' earnings, and for any fees, assess
3 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."
THE GRAND UNION COMPANY 593
ments, or other moneys unlawfully exacted under the said agreement.
(b) Post at its business offices copies of the notice attached hereto
marked "Appendix B."4 Copies of said notice, to be furnished by
the Regional Director for the Second Region, shall, after being
duly signed by an authorized representative of the Respondent
Union, be posted by it immediately upon receipt thereof and be
maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Mail to the Regional Director for the Second Region signed
copies of the notice marked "Appendix B" for posting for a period
of sixty (60) consecutive days, at the Company's Waterford, N. Y.,
warehouse in places where notices to employees are customarily
posted.
(d) Notify the Regional Director for the Second Region in
writing, within ten (10) days from the date of this Order, what
steps have been taken in compliance.
* Footnote 3 applies here also.
APPENDIX A
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, as amended, we hereby notify our employees that:
WE WILL NOT recognize any labor organization as the exclusive
representative for the purposes of collective bargaining unless
such labor organization shall have been freely designated or
selected by a majority of our employees in an appropriate
collective-bargaining unit.
WE WILL NOT enter into, maintain, or enforce any agreement
with a labor organization which requires our employees to join,
or to maintain membership in, such labor organization as a con-
dition of employment, unless such labor organization is the
representative of the employees as provided in Section 9(a) of
the Act and the agreement in all other respects conforms to the
requirements of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
505395-59-vol. 122-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a) (3) of the Act.
WE WILL reimburse our employees and former employees
whose dues in Local 294, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America were
checked off pursuant to our agreement of December 18, 1956,
with the said Union, for the amounts so deducted from their
earnings, and for any fees, assessments, or other moneys un-
lawfully exacted under the said agreement.
All our employees are free to become, remain, or refrain from
becoming, members of any labor organization except to the extent
that this right may be affected by an agreement in conformity with
Section 8(a) (3) of the National Labor Relations Act, as amended.
THE GRAND UNION COMPANY,
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.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 294, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA
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, as amended, we hereby notify you that :
WE WILL NOT enter into, maintain, or enforce any agreement
with The Grand Union Company which requires employees to
join, or maintain membership in, Local 294 as a condition of
employment, unless we shall have become the representative of
the employees as provided in Section 9 (a) of the National Labor
Relations Act and the agreement in all other respects conforms
to the requirements of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of The Grand Union Company in the exercise of their
right to self-organization, to form, join, or assist labor organ-
izations, to bargain collectively through. representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other, mutual aid or
protection, or to refrain from any or all such activities, except
THE GRAND UNION COMPANY 595
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL reimburse the employees and the former employees
of The Grand Union Company whose dues in Local 294 were
checked off pursuant to our agreement of December 18, 1956,
with the Company for the amounts so deducted from their
earnings, and for any fees, assessments, or other moneys un-
lawfully exacted under the said agreement.
LOCAL 294, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Robert E. Gray, an individual, the General Counsel of the
National Labor Relations Board, by the Regional Director for the Second Region
(New York, N.Y.), on July 18, 1957, issued an order consolidating the above-
captioned cases and a consolidated complaint against the Respondents, The Grand
Union Company, herein referred to as the Company, and Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
herein referred to as the Union or Local 294, alleging that they had engaged in and
were engaging in unfair labor practices affecting commerce within the meaning of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. Thereafter, on
October 15, 1957, an order amending the complaint was issued. Copies of the
charges, the order of consolidation, the consolidated complaint, the order amending
the complaint, and the notices of hearing were served upon the parties. The Com-
pany and the Union entered answers to the complaint and to the amendment to the
complaint in which they denied the commission of any unfair labor practices. In
addition, the Union pleaded as an affirmative defense, in substance, that the Charging
Party was assisted by the Company in his attempt to represent the latter's employees
and to become their collective-bargaining agent and, therefore, is disqualified from
filing the charges herein.
With respect to the unfair labor practices, the amended complaint, in substance,
alleges that on December 18, 1956, the Company and the Union executed a collective-
bargaining agreement which recognized the Union as the exclusive representative of
the employees in a described bargaining unit at the Company's Waterford, N.Y.,
warehouse and which required the said employees to become and to remain members
in good standing of the Union as a condition of employment. The amended com-
plaint further alleges that at all times material to this proceeding the Union was not
the representative of the aforesaid employees within the meaning of Section 9(a) of
the Act, but nevertheless the parties entered into, maintained in effect, and enforced
the said agreement and, since December 18, 1956, employees have paid to the Union
dues and other moneys pursuant to its terms. By reason of the foregoing it is alleged
that the said collective-bargaining agreement is invalid and in violation of the Act
and that by entering into, maintaining , and enforcing such agreement the Company
has violated Section 8(a)(1) and (3) of the Act and the Union has violated Sec-
tion 8(b)(1) (A) and (2) of the Act.
Pursuant to notice, a hearing was held on various days between October 29 and
December 10, 1957, in Albany, Waterford, and Troy, N.Y., before Herbert Silber-
man, the duly. designated Trial Examiner. All parties were represented at the hearing
by counsel and were afforded full opportunity to be heard, to examine and cross-
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examine witnesses, to introduce evidence pertinent to the issues, and to engage in
oral argument at the close of the hearing. At the opening of the hearing the General
Counsel and the Charging Party moved to dismiss the affirmative defense set forth
by the Union in its answer. This motion was granted. A further motion by the
Charging Party to strike the answers of the Company and the Union on the ground
that copies thereof had not been served upon the Charging Party was denied. Each
of the Respondents and the Charging Party submitted briefs to the Trial Examiner
which have been carefully considered.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Grand Union Company, a Delaware corporation with its principal office and
place of business in East Paterson, N.J., is engaged in the operation of warehouses
and retail food and grocery outlets in various States of the United States. During
the calendar year 1956 the Company purchased and caused .to be delivered to its
Waterford, N.Y., warehouse, the establishment involved in this proceeding, groceries,
meats, and other products valued at an amount in 'e'xcess of $1,000,000. These
products were transported to the said warehouse in interstate commerce directly from
States of the United States other than the State of New York. The parties admit, and
I find, that the Company is, and has been at all times material hereto, engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
On December 18, 1956, the Company and the Union entered into a collective-
bargaining agreement which recognized the Union as the exclusive bargaining agency
for all employees at the Company's Waterford, N.Y., warehouse excluding office
employees, watchmen, permanent salaried supervisors, bakery employees, trucking
department employees, and inspectors, which required that as a condition of employ-
ment all employees covered by the agreement shall within the statutory grace period
become members of the Union and remain members in good standing during the
term of the contract, and which also contained a checkoff provision. The complaint
alleges that the Union did not represent a majority of the employees in the described
bargaining unit when the agreement was executed. The single issue of fact in this
proceeding is whether on December 18, 1956, the Union was the representative of the
employees covered by the contract within the meaning of Section 9(a) of the Act.
In the fall of 1956 the Union renewed a campaign, which it had pursued inter-
mittently since 1954, to organize the employees at the Company's Waterford, N.Y.,
warehouse. In late November it sought recognition as the representative of these
employees and threatened the Company with a strike and picketing unless the Com-
pany entered into a collective-bargaining agreement with it. On December 5, 1956, a
meeting was held in Albany attended by various representatives of the Company and
the Union, including Bernard A. Lubeck, who is in charge of labor relations for the
Company, Robert L. Hood, the Company's counsel, Nicholas M. Robilotto, president
of Local 294, and Harry Pozefsky, the Union's counsel. The Union's representatives
indicated that they had in their possession designation cards signed by a majority of
the Company's employees and agreed to produce them for inspection. The meeting
was thereupon adjourned to the Union's offices where the Company's representatives
were shown a typewritten sheet listing the employees who had signed cards for the
Union as well as the cards themselves.' A total of 45 cards was produced which the
Company's representatives checked against its payroll records. Four of the cards
were found to have been signed by persons no longer in the Company's employ and
three by persons who were working in classifications not included within the proposed
bargaining unit. With respect to the remaining cards, the Company's representatives
were uncertain as to the authenticity of the signatures on three and were unable to
make a comparison of the signatures on two others because they did not have speci-
I The list having been destroyed or mislaid was not available at the hearing.
THE GRAND UNION COMPANY 597
men signatures of these employees with them. In addition, the Company's represen-
tatives questioned the validity of eight cards which bore dates more than 12 months
old. Thus, including all doubtful cards, the Union had 38 authorizations from
employees who were working in the classifications for which it was seeking recogni-
tion. At the time there were 101 employees in the proposed bargaining unit.2 The
Company's representatives therefore informed Robilotto that the Union did not
represent a majority and that the Company would negotiate with the Union when it
succeeded in obtaining designations from a sufficient number of employees 3 The
Union's representatives indicated that it would be a matter of only a few days before
they would have more designation cards. No one representing the Company at this
meeting made a list of the names of the employees whose designation cards had been
shown to them.
During the following 2 weeks Lubeck had many telephone conversations and several
meetings with the Union's representatives. On one of these occasions, according to
Lubeck, Robilotto said, "He thought that he had enough representation for us to
negotiate, and he thought that we should sit down and negotiate a contract; otherwise
he would have to take drastic action." In these conversations and meetings Lubeck
discussed with the Union some of the terms and conditions which might be included
in a contract between the parties.
Another meeting was held at the Company's headquarters in East Paterson, N.J.,
on December 14, 1956, which was attended, among others, by Lubeck and Hood for
the Company, Robilotto and Pozefsky for the Union, T. Ciampi of Teamsters Local
563, the bargaining agent for the employees of the contract carrier which moved
merchandise in and out of the Company's Carlstadt, N. J., warehouse, and Sasso and
Phil Blum of Teamsters Local 863, the representative of the employees at the Carlstadt
warehouse. At the opening of the meeting Robilotto accused Lubeck of double-
crossing him by failing to negotiate a contract with Local 294, and stated that the
Union had signed up a majority of the employees. The Company's representatives
replied that Local 294 had not exhibited cards signed by a majority of the employees.
Robilotto responded that "if we [the Company] didn't get busy soon, why, they would
have picketing at Carlstadt and Waterford." Ciampi said that the carrier's drivers
would not cross a picket line and Sasso voiced the opinion that, despite a no-strike
pledge, the Carlstadt warehouse employees would likewise refuse to cross a picket
line. Hood asked Robilotto to produce the additional cards he had received since
December 5, but Robilotto replied that he did not have the cards with him. Hood
then inquired whether he would be willing to have the question of the Union' s majority
determined by a National Labor Relations Board election. Robilotto answered, "No,
that that certainly wasn't necessary, that he had already displayed sufficient interest,
and [the Company] could take his word that he had sufficient cards to warrant our
recognizing Local 294 as a proper bargaining agent for the Waterford Warehouse
employees." Robilotto said that the Company could check the cards at a later date
in Albany. At one point during the meeting three or four union people walked out
of the room after threatening that the Company would be faced with a strike and
picketing. However, they were brought back to the meeting and the Company's
representatives promised that they would recommend to their superiors that the Com-
pany sit down and discuss with the Union the terms and conditions of a contract
which would be contingent upon the Union's obtaining a sufficient number of signa-
tures from the employees.
The Company thereupon engaged an Albany attorney, Sol Rubenstein, in connec-
tion with the labor problem at its Waterford warehouse. Rubenstein testified that
his assignment was to see how many new designation cards the Union had obtained
after December 5, in order that he might be able to advise the Company as to whether
the Union represented a majority.
On Monday, December 17, 1956, Rubenstein met with Robilotto at the Union's
office. Rubenstein was shown between 16 and 19 cards which purportedly had been
signed after December 5. Rubenstein's testimony was vague and self-contradictory
as to the number of these cards which bore dates between December 5 and 17 .4
Rubenstein compared these cards with a list handed to him by Robilotto, which the
2 The Company's representatives believed that there were 103 employees in the proposed
bargaining unit. However, for reasons stated below, I find that there were only 101
employees in the unit.
3 About December 11 Lubeck again informed the Union's representatives that if they
produced cards signed by a majority of the employees in the proposed bargaining unit the
Company would recognize the Union and negotiate a contract with it.
4 There are only two cards in evidence, signed by Joseph John Jolicoeur and Joseph L.
Slupski, which are dated between December 5 and 17, 1956.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter represented as being the names of the employees whose cards had been shown
to Lubeck and Hood previously,5 to determine whether there were any duplications,
and he found none. However, Rubenstein had no payroll or other relevant company
records with him at this meeting. Consequently, he had no way of knowing whether
the cards he inspected bore genuine signatures , whether the persons whose names
appeared on these cards were employed by the Company, or whether these persons if
employed by the Company were working in classifications covered by the proposed
bargaining unit. Thus, instead of independently investigating the genuineness of the
cards, Rubenstein accepted the assurance of the Union's representatives that the cards
were authentic and had been signed after December 5. Rubenstein also testified that
he made no record of the names of the persons whose cards were shown to him.
Nevertheless, upon the basis of the cards he inspected plus the list with the names of
the employees whose cards had previously been shown to Hood and Lubeck, Ruben-
stein concluded that the Union represented more than 50 percent of the employees in
the proposed bargaining unit.
After his meeting with Robilotto, Rubenstein telephoned Lubeck at the Company's
headquarters in East Paterson, N.J., and informed Lubeck that he saw a sufficient
number of cards in addition to those which had been produced for the Company's
inspection on December 5 to demonstrate that the Union represented a majority of
the employees in the proposed bargaining unit and advised Lubeck to recognize the
Union as the representative of those employees. A meeting of various company
officials was held that same afternoon, December 17, to consider what action should
be taken in the matter. Attending the meeting, in addition to Lubeck, were: Mr.
Shield, president, Mr. Davern, senior vice president, William Dempsey, vice president
in charge of store operations, and Robert L. Hood, attorney. The persons present at
the meeting discussed what economic effect a strike and picketing would have upon
the Company's business. The Company then was at its busiest period of the year.
The operation of its stores depended upon the movement of merchandise by trucks
to and from its warehouses in Carlstadt and Waterford. The consensus of opinion
was that the stores would be unable to operate longer than 2 weeks without trucking
service and this would affect the jobs of 6,000 employees. Shield inquired whether
it was possible for the Company to petition for an election among the employees at
its Waterford warehouse. It was explained that such an election was a long, involved
process and by the time an election could be held the holiday season would be over
and the Company's stores probably would be closed. Hood stated that based upon a
conversation with Rubenstein and the designation cards he had seen on December 5
it was his advice that the Company immediately recognize and attempt to negotiate
a contract with Local 294. Neither then nor at any time thereafter was the Company
given the names of employees who purportedly had signed designation cards for the
Union between December 5 and 17, 1956. Shield decided to accept Hood's advice.
However, he stated that before entering into negotiations with the Union he first
wanted to talk to the employees at the Waterford warehouse and explain the circum-
stances to them. That evening Lubeck, Davern, and Shield drove to Waterford.
The same night there was a meeting at the Ten Eyck Hotel in Albany, N. Y., be-
tween company representatives, including Lubeck and Rubenstein, and the Charging
Party in this case, Robert E. Gray. At this meeting, Gray advised the Company that
he was there as the legal representative of a substantial percentage of all the warehouse
employees and mentioned a figure of approximately 85 employees. Before the meet-
ing was concluded Gray said that he would send a confirmatory telegram to Mr. Shield
in which he would put the Company on notice that he represented these employees.
At the time of the meeting with Gray the Company had decided that it would recog-
nize Local 294 and Gray was told this. However, the Company had not yet advised
the Union of its decision, but this fact was not communicated to Gray.
At 10 o'clock the next morning, December 18, President Shield spoke to about 75
employees in the Waterford warehouse.6 Shield told the employees that the Com-
pany's attorneys, Hood and Rubenstein, had advised him that Local 294 held a
sufficient number of designation cards to make it necessary for the Company to
recognize the Union and that it was the intention of the Company, immediately after
5 Rubenstein testified that he did not know who had prepared the list. With respect to
this list and the cards which had been inspected previously by Hood and Lubeck, Ruben-
stein testified, "I think I did look at the cards while I was there, and checked 'them with
the list that Nick [Robilottol had written out, and the names corresponded."
9I credit Lubeck's testimony as to what took place at this meeting. Lubeck demon-
strated a good recollection of the events about which he testified at the hearing and
impressed me as sincerely striving to answer the questions asked him fully, accurately,
and without distortion.
THE GRAND UNION COMPANY 599
the meeting, to go to Albany and negotiate a contract with the Union. In response
to a question, he said that in all probability the agreement would contain a union-shop
clause requiring the employees to join Local 294 within 30 days. He further stated
that he had received information that a majority of the employees had also designated
Mr. Gray and the logical conclusion was that a great many employees had signed for
both the Union and Mr. Gray. However, he said, because Local 294 had obtained
their designation cards first the Company had to negotiate with the Union despite the
sentiment among the employees in favor of Mr. Gray. At this meeting there was an
expression of substantial opposition to the Union. An employee asked those who
opposed Local 294 to raise their hands, and all except about six of the employees did
so. At the close of the meeting, another employee said he realized the predicament
the Company was in, he felt Mr. Shield was in a tough spot, he had confidence in
Mr. Shield, and then turned to the others and suggested a rising vote of confidence
in Mr. Shield. Everybody arose and applauded and the meeting ended.
After the contract had been executed, Lubeck asked Attorney Hood what the
Company would be required to do, upon the expiration of the 30 days' grace
period, if any of the employees refused to sign cards for the Union and pay their
monthly dues. Hood later advised Lubeck that on behalf of the Company he had
made arrangements with the Union to waive enforcement of the union-shop clause.
This fact was never communicated to the employees. All the employees signed
checkoff cards and the question of discharging anyone for nonpayment of dues
never arose.
The contract between the Company and the Union, although for a term in
excess of 2 years, was enforced by the parties from its execution only until about
August 3, 1957. During this period union dues were deducted from the employees'
wages and paid to Local 294 pursuant to the checkoff provision of the agreement.
On August 9, 1957, a representation election was conducted by the National Labor
Relations Board among the employees at the Company's Waterford warehouse in
a voting unit which included all the employees covered by the contract with the
Union plus the bakery department employees.? The employees were given the
choice of voting for the Union, Robert E. Gray, or neither. A majority of the
votes was cast for Robert E. Gray and on August 19, 1957, a certification of repre-
sentatives was issued. Thereafter, on September 23, 1957, the Company and
Robert E. Gray entered into a collective-bargaining agreement effective until
February 27, 1961, which specifically recognizes the latter as the exclusive repre-
sentative of the employees in the certified unit.'
B. The Union's lack of majority
The fact that Local 294 was unsuccessful in the election held on August 9, 1957,
does not resolve the issue of whether the Union represented a majority of the
employees covered by its contract with the Company when the agreement was
executed on December 18, 1956. The parties disagree as to the number of em-
ployees who were in the contractual unit on December 18, 1956. For the week
ending December 22, 1956, which includes the day in question, the Company's
payroll lists 104 employees in the job classifications covered by the contract. Four
of these employees, namely, Wilson Terry, Mary Durivage, Frederick Knipple,
and Christine Timm, were absent from work the entire week and never thereafter
returned. It was stipulated that Wilson Terry was not in the unit on the critical
day, but there is a dispute with respect to the other three. Arthur N. Hennineson,
superintendent of the Waterford warehouse, testified that by December 18, 1956,
Frederick Knipple had been absent for a considerable length of time without leave
of the Company and Mary Durivage had been absent because of illness for a
period of approximately 1 month. Neither one returned to work. In these cir-
cumstances, I infer that Knipple and Durivage voluntarily quit their employ with
the Company on the respective days they first absented themselves from work and
find that they should not be included in the contractual unit as of December 18,
1956. Christine Timm was an extra girl in the egg room who worked whenever
she was needed. When she was not working the Company considered her status
to be that of a temporarily laid-off employee. She did not work during the week
in question and subsequently moved from the Waterford, N.Y., area. Although
there is no evidence as to when this move took place, she signed an application
for membership in the Union on January 15, 1957, in which she gave as her res-
idence a Waterford, N.Y., address and stated that she was employed by The
Grand Union Company. This demonstrates that she had not then quit her employ
7 See Grand Union Co., 118 NLRB 685.
8 See The Grand Union Company, 123 NLRB No. 191.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Company. I shall, therefore, include her in the contractual unit as of
December 18, 1956. Accordingly, I find that 101 employees were in the unit on
December 18, 1956.
Considerable evidence was adduced at the hearing as to which of these 101 em-
ployees the Union did or did not represent when it entered into its agreement
with the Company. Forty-seven employees testified without contradiction that on
or before December 18, 1956, they had not signed any card designating the Union
as their bargaining agent and had not otherwise selected the Union to represent
them. These employees were:
Alfred F. Arciello John Kane
Antonetta Ascenzi Clarence Keeler
Beverly Bame John Keller
Vernon Baucus Frances Kelts
Thomas Bayly Eva Kessler
Anna Burns Joseph Kokernak
John Warren Carter, Jr. Albert LaMarre
John Warren Carter, Sr. Stephen LeMay
Frederick Demarest Robert Lester
Irving Francis De Voe Philip Mabb
Shirley De Voe (Kessler) Betty Ann Mattoon
Peter Drewecki Josephine Mazula
Raymond Gaudreau William McConnell
Kathleen Gendron 9 Douglas Murray
Elizabeth Gilchrist Mary Perretta
Robert Gordon John Emmett Russell
George Guthier Joseph Schultz
Raymond Heller Hugh George Smith
Garrett Holt Henry Soucy
Harold Hotaling Ronald Edward Soucy
Elizabeth Hull Thomas Taylor
Winfield Hull John Tiro
Martin Johns Peter Worhach
Francis Patrick Kane
There are five employees, who were in the contractual unit at the time in ques-
tion, who did not testify at the hearing and who the General Counsel contends
should be counted with those who had not designated the Union as their repre-
sentative on or before December 18, 1956. These employees are: Christine Timm,
Harry Williams, Frank Lawyer, Elsie M. McCullen, and Rufus Sweet. An ap-
plication for membership in the Union dated either January 14, 15, or 16, 1957,
was introduced in evidence for each. The testimony of the Union's business agent,
Howard Bennett, shows that the Union has no card or other record indicating that
any of these employees had designated the Union as his or her collective-bargaining
representative on or before December 18, 1956. It is the Union's position that this
evidence alone is insufficient proof that these five employees had not selected the
Union as their bargaining agent before the execution of the contract because the
employees might have made such designations orally. The Union is correct in
its assertion that the Act does not require the selection of a representative for the
purposes of Section 9(a) to be made in writing. "The . Act requires no
specific form of authority to bargain collectively. . . . Authority may be given by
action as well as in words. . . . Not form, but intent, is the essential thing. The
intent required is merely that the union or other organization or person act as
the employees' representative in collective bargaining. . It is only necessary
that it be manifested in some manner capable of proof, whether by behaviour or
language. Oral authority is not invalid. It is merely, as always, more difficult
to prove." Lebanon Steel Foundry v. N.L.R.B., 130 F. 2d 404, 407 (C.A., D.C.),
cert. denied, 317 U.S. 659. See also N.L.R.B. v. Premo Pharmaceutical Lab-
oratories, Inc., 136 F. 2d 85, 86 (C.A. 2). Although the burden of proving that
the Union did not represent a majority of the employees in the contractual unit
on December 18, 1956, rests upon the General Counsel, it may be sustained by
evidence other than the testimony of the individual employees concerned that they
had not selected the Union as their bargaining agent. Howard Bennett testified
that it is the ordinary custom of the Union when it engages in a membership
drive to obtain signed applications from the employees. There is no evidence
that the Union departed from its customary practice in this instance. More than
9 Line 18 on page 249 of the transcript is corrected by changing the number "56"
to "57."
THE GRAND UNION COMPANY 601
50 employees in the contractual unit were witnesses at the hearing and, although
many of these witnesses were interrogated at length by the Union's counsel about
possible oral designations, not one testified that he had made any oral designation
of the Union as his bargaining representative, or had been asked to do so.
Furthermore, the testimony of Bernard A. Lubeck and Sol Rubenstein shows
that in attempting to demonstrate its majority status to the Company, the Union
relied exclusively upon cards signed by the employees. From all these circum-
stances, I infer that the Union neither solicited nor obtained any effective oral
designations from employees in the contractual unit. I find, therefore, that
Christine Timm, Harry Williams, Frank Lawyer, Elsie M. McCullen, and Rufus
Sweet had not either orally or in writing designated the Union as their collective-
bargaining representative on or before December 18, 1956.
Applications for membership in the Union dated either January or November
1956 were produced for George Seguin, William O'Leary, James E. Brady, and
Anna Bourgeois , each of whom testified that he or she had not signed the card
on the date indicated and had not designated the Union as his or her representative
on or before December 18, 1956. 'George Seguin denied that the figures "1/15/56"
alongside the date on the card which he signed is in his handwriting and testified
that he signed the card in January 1957. 1 credit this testimony. James E. Brady
and William O'Leary both testified that they did not sign any cards until after
December 18, 1956, and that they did not insert any date on the cards which they
signed. I credit their testimony and find that the cards dated "11/27,/56" bearing
their signatures were not signed on that day but were signed after December 18,
1956. Anna Bourgeois similarly denied that the date "11/27./56" on her card is
correct. She testified that she signed the card on January 16, 1957, and the card
was dated when she signed it. The date on her card is in a different handwriting
than the balance of the written information and was written in pencil while the
rest of the card was filled out in ink. Although the appearance of the card does
not indicate any erasure of date, I nevertheless credit Anna Bourgeois' testimony
that she signed the card on January 16, 1957. Accordingly, I find that George
Seguin, James E. Brady, William O'Leary, and Anna Bourgeois had not designated
the Union as their collective -bargaining representative on or before December 18,
1956.
An issue is raised with respect to three employees who had applied for member-
ship in or had been members of the Union or a sister local before beginning their
employment with the Company but who testified that they had not voluntarily
designated the Union as their representative while they were working for the
Company. James Fluewelling testified that he had signed an application for mem-
bership in the Union in 1953 or 1954, when employed by another concern. How-
ever, the Union lost a representation election the same year and thereafter
Fluewelling had no further connection with the Union. Chester Hotaling was a
member of the Union in 1941. Upon his subsequent discharge from military
service he refused to pay to the Union a reinstatement fee of $50 and his mem-
bership lapsed. Thus, neither Fluewelling nor Hotaling were members of the
Union when they began working for the Company and neither had evinced any
current desire to be represented by the Union when the contract in question was
executed. The third employee, Warren Hedden, prior to his employment with
the Company on June 9, 1956, was a member of Teamsters Local 787. After the
contract was entered into between the Company and the Union, Hedden requested
and was given a transfer card to Local 294. Hedden's transfer of membership
from Local 787 to Local 294 after December 18, 1956, does not contradict his
testimony that he had not designated the Union as his representative prior thereto.
I therefore find that on December 18, 1956, the Union did not represent James
Fluewelling, Chester Hotaling, or Warren Hedden.lo
The final question as to designations relates to five employees who signed ap-
plications for membership in the Union during the fall of 1955. The General
Counsel and the Charging Party contend that these cards were ineffective as
evidence of a current representative interest more than a year later when the
contract was executed. The arguments advanced are: First, that the Board does
not accept cards older than a year to support a petitioner's showing of interest in
a representation proceeding; and, second, that the Union told various employees
during its 1956 organizational campaign that those who had signed cards in 1955
would be required to sign new cards if they still desired the Union's representation.
10 Since the Union did not have cards from Fluewelling, Hotaling, or Hedden prior to
December 18, 1956, when it attempted to demonstrate its majority to the Company's
representatives, it could not have relied upon designations from any of these three
employees.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither of these arguments is meritorious. The Board's policies with respect to
processing petitions under Section 9(c) of the Act are purely administrative and
have no applicability to the present case. As to the second argument, the fact
that the Union sought to obtain more recent designations during its 1956 organ-
izational campaign does not of itself render prior designations invalid. The five
employees who signed the cards in question are Edward Coon, Sidney Jansen,
Bernard Westcott, Shirley Westcott, and Timothy Fitzgerald." These employees
testified that they did not desire the Union to represent them in 1956, and did
not sign any designation cards in that year prior to the execution of the contract
on December 18. However, none of these employees had taken any effective
action to revoke their prior designations.12 In two early cases alleging violations
of Section 8(5) of the Act, Luckenbach Steamship Company, Inc., 12 NLRB
1330, and Surpass Leather Company, 21 NLRB 1258, the Board held that cards
dated approximately 1 year before the unions' requests for recognition and bar-
gaining were unacceptable as evidence of the unions' majority status. However,
my attention has been directed to no other unfair labor practice proceeding in
which there was a similar decision. On the Other hand, in N.L.R.B. v. Piqua
Munising Wood Products Co., 109 F. 2d 552, 554 (C.A. 6), the court rejected
the argument that designation cards dated 2 years before the union's demand for
collective bargaining may not be counted in determining the union's majority.
In so ruling the court stated, "Respondent's contention that some of the cards lack
probative value because dated in 1935 and 1936 is without merit. It is a well-
established rule of evidence that when the existence of a personal relationship or
state of things is once established by proof, the law presumes its continuance until
the contrary is shown or until a different presumption arises from the nature of
the subject matter." This appears to reflect the Board's current rule. Thus, in
two relatively recent cases, the Board counted as proof of a current representative„
status designation cards signed by employees more than a year before the union's
demand upon the employer to engage in collective bargaining. Safeway Stores,
Incorporated, 99 NLRB 48, 49, and 56; Knickerbocker Plastic Co., Inc., 104
NLRB 514, 529, enfd. 218 F. 2d 917 (C.A. 9). Accordingly, I find that Coon,
Jansen, Bernard Westcott, Shirley Westcott, and Timothy Fitzgerald should not be
counted with the other employees whom the Union did not represent on Decem-
ber 18, 1956.
Since the General Counsel has proved that 59 employees out of a total of
101 employees in the contractual unit had not designated or selected the Union
as their collective-bargaining agent when the agreement between the Union and
the Company was executed on December 18, 1956, I find that the Union on that
date did not represent a majority of the employees covered by the agreement.
C. Conclusions
The Union argues that its status as the majority representative of the employees
in the contractual unit was established not only by the number of designation
cards received by it before December 18, 1956, but also by an alleged vote of
approbation by the employees at the meeting in the morning of December 18
when they were addressed by Company President Shield. At the conclusion of the
meeting, after Shield earlier had informed the employees that he had been advised
that the Union had received cards signed by a majority of the employees and
that the Company was going to negotiate a contract with the Union, the employees
present gave him a rising vote of confidence. According to the Union, by this
action and by the failure of any employee to contradict Shield's statement that
the Union had cards from a majority, the employees "ratified his actions and
affirmed their support of Local 294. They likewise adopted the Company's action
as their own." I find no merit to this argument. The employees were not asked
whether they desired the Union to represent them and their vote of confidence in
Shield, in the circumstances, was not an affirmation by those present who had not
previously designated the Union that they were now doing so. On the other hand,
all but six of the employees who attended the meeting raised their hands when
a show of hands by those who opposed the Union was called for. Thus, al-
"I find that the General Counsel has failed to establish by a preponderance of the
evidence that the card bearing the signature of Timothy Fitzgerald and dated October 19,
1955, is a forgery.
la Jansen testified that he asked someone whom he does not know but thinks may have
been an employee of the Union for return of his card and was told the card was no longer
good. Coon testified that he wrote the Union a letter of resignation but no competent
evidence was adduced that the letter was mailed.
THE GRAND UNION COMPANY 603
though the employees did not engage in any debate with Shield as to whether he
was correctly informed that a majority had signed cards for Local 294, the sense
of the meeting was that the overwhelming majority of the employees present did
not desire the Union to be their representative. Their rising vote at the end of
the meeting was not an expression of support for the Union but merely an
indication of their loyalty to and confidence in their Company's president. Thus,
contrary to the Union's contention, the transactions at the meeting do not lend
themselves to the interpretation that the employees then and there indicated a
desire to be presented by the Union.
The Company in defense of its actions advances the argument that "having
acted in good faith in its reliance upon the cards exhibited to it and having relied
upon the opinion of its counsel, and not having knowledge of the alleged illegality
or inadequacy of the cards, cannot be charged jointly with the Union as being
guilty of any unfair labor practice." It argues further that since the Union
declined to petition the Board for an election and had threatened to picket the
Company's warehouses unless a contract was entered into forthwith, despite the
Company's unwillingness to recognize and bargain with Local 294, it was com-
pelled to do so; its only alternatives were "either to risk a serious strike disastrous
to its business, throwing thousands of people out of work, or to accept [the des-
ignation] cards at its face value." Thus, in part, the Company's defense is that
if it acted unlawfully it did so reluctantly under pressure of union coercion. How-
ever, threats of a strike or other economic exigencies do not excuse or justify
action proscribed by the Act. An employer has a duty to resist the demands of a
union when to yield to those demands would violate his employees' statutory
rights.13 The Company's argument that it acted in good faith in reliance upon
the cards exhibited to it and in reliance upon the opinion of its counsel likewise
is deficient in merit. Absence of an intention to violate the Act does not excuse
unlawful infringements upon the rights guaranteed employees by Section 7. Further-
more, the requirement, set forth in Section 8(a)(3) of the Act, that a "labor
organization is the representative of the employees as provided in section 9(a), in
the appropriate collective-bargaining unit" before an employer may enter into
an agreement containing a union-security provision is absolute.14 The section
contains no mitigating qualification which pardons an employer who enters into
such an agreement under the mistaken, although good-faith, belief that the labor
organization was the majority representative of the employees covered thereby."
In any event, upon the evidence, I find that the Company did not have a sincere,
good-faith belief that the Union on December 18, 1956, represented a majority of
the employees in the proposed bargaining unit. The perfunctory manner in which
the Company investigated the Union' s claim of majority,16 and the circumstances
13 N.L.R.B. v. Pappas and Company et at ., 203 F. 2d 569 (C.A. 9) ; N.L.R.B. v. Goodyear
Tire & Rubber Company, 129 F. 2d 661, 664 (C.A. 5). See N.L.R.B. v. Bell Aircraft
Corporation, 206 F. 2d 235, 237 (C.A. 2), wherein the court stated:
It was a reluctant violator of Section 8 (a) (1) and possibly had to choose between
doing so and suffering the consequences of another strike. But compliance with the
statute was possible and union coercion which induced the employer to violate it
is not relevant.
14 Bryan Manufacturing Company, 119 NLRB 502, section G of .the Intermediate Report ;
Adam D. Goettl et at. d/b /e International Metal Products Company, 104 NLRB 1076,
footnote 1.
15Note that the further proviso of Section 8(a)(3) of the Act (with respect to the
enforcement of a union-security provision by an employer) excuses what would otherwise
be unlawful discrimination against an employee if the employer has no reasonable grounds
for believing that the employee's membership in a labor organization was denied for
unlawful reasons. This contrast between the first and second proviso of Section 8(a)(3)
of the Act indicates a congressional intent that good faith should not exonerate an
employer who enters into a union-security agreement with a labor organization which is
not the majority representative.
16 According to testimony adduced on behalf of the Company, it purportedly satisfied
itself as to the Union's majority after inspecting two groups of designation cards. With
respect to the first group, which was checked by Hood and Lubeck, out of 45 cards pro-
duced, 7 were rejected outright because they were signed by persons not included within
the proposed bargaining unit and the Company's representatives questioned the validity
of 13 others. Despite this experience, when Rubenstein, about 2 weeks later, checked the
second group of cards, other than ascertaining that there were no duplications between
the two groups, he accepted the Union's representations as to their validity. Thus, in
effect, the Company acceded to Robilotto's demand that the Company should "take his
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which prompted it to recognize and hastily to enter into a contract with the Union,
despite the information it received on the night of December 17 indicating that a
majority of the employees possibly had designated Robert E. Gray as their repre-
sentative, show that the Company was motivated by an anxiety to avoid a costly
strike rather than by any honest conviction, prudently reached, that the Union,
in fact, legitimately represented a majority of the employees in an appropriate
collective-bargaining unit.
I have found that the Company and the Union entered into a contract on
December 18, 1956, which recognized the Union as the exclusive bargaining agent
for the employees covered by its terms and which required the employees to
become members of the Union within a defined period of grace, notwithstanding
the fact that the Union was not then the representative of the employees within
the meaning of Section 9(a) of the Act. This was an unlawful trespass upon the
employees' right to select a collective-bargaining representative of their own
choosing. The Company thereby violated Section 8(a)(1) of the Act and the
Union by accepting the benefits of such unlawful recognition violated Section 8(b)
(1) (A) thereof. These infringements upon the rights guaranteed employees by
Section 7 of the Act were aggravated by the inclusion of a clause in the agreement
granting recognition which required the employees covered thereby as a condition
of employment to become members of the Union. In the circumstances, such
union-shop provision created discriminatory conditions of employment encouraging
membership in the Union. Therefore, by entering into, maintaining in effect, and
enforcing the December 18, 1956, contract, the Company also violated Section
8(a)(3) of the Act. Similarly, the Union as a party to the execution and en-
forcement of the agreement was engaged in an unlawful attempt to cause the
Company to create conditions which would result in discrimination prohibited by
Section 8(a)(3) of the Act, and thereby violated Section 8(b)(2) of the Act.
That the parties to the contract may have had a supplementary, parol under-
standing that the union-shop clause would not be enforced is not a mitigating
circumstance because the purported modification of the contract was never com-
municated to the employees. Furthermore, as none of the employees risked dis-
charge by refusing to become members of the Union, the intention of the parties
to adhere to the oral understanding was never tested.17 Accordingly, as alleged
in the complaint, I find that, by their conduct described above, the Employer has
violated Section 8(a)(1) and (3) and the Union has violated Section 8 (b) (1) (A)
and (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in
connection with the operations of the Respondent Company, described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among 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 the Respondents hate engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and that they
take affirmative action designed to effectuate the policies of the Act.
. Following a representation election, which the Union lost, the Company withdrew
recognition from Local 294 as the bargaining agent for its Waterford warehouse
employees and ceased enforcing its contract with the Union. Consequently, an
order directed towards the accomplishment of such objectives would be superfluous
and, because the complaint does not allege any violation of Section 8(a)(2) of
the Act, inappropriate. Foundation Company, 120 NLRB 1453.
The evidence shows that all the employees covered by the December 18, 1956,
agreement signed cards authorizing the Company for the benefit of the Union to
deduct union dues from their earnings and that, pursuant to these authorizations
and the terms of the contract, the Company made such deductions from about
December 18, 1956, through August 3, 1957. The General Counsel and the
word that he had sufficient cards to warrant [the Company] recognizing Local 294 as a
proper bargaining agent for the Waterford Warehouse employees." The cursoriness with
which the second group of designation cards was checked does not suggest that the
Company was genuinely seeking to discover whether the Union represented a majority of
its employees in the proposed bargaining unit, but indicates only a feeble gesture toward
compliance with its responsibilities under the Act.
17 County Electric Co., Inc., et al., 116 NLRB 1080, 1081-1082; Red Star Express Lines
of Auburn, Inc. v. N.L.R.B., '196 F. 2d 78, 81 (C.A, 2).
THE GRAND UNION COMPANY 605
Charging Party request that my recommendations include a direction that the
Respondents reimburse each affected employee for dues checked off by the Com-
pany and remitted to the Union under the terms of the agreement. The propriety
of such recommendation is indicated by the decision in United Association of
Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States
and Canada, etc. (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115
NLRB 594, where, under analogous circumstances,18 the Board ordered reimburse-
ment for dues and assessments paid to a labor organization, explaining its reasons
as follows:
... Here, the dues and the assessments were required and collected pursuant
to a contract which clearly contravened the public policy of the Act. Dues
and assessments here collected constituted the price these employees paid in
order to retain their jobs. We therefore conclude that the remedy of reim-
bursement of all such monies is appropriate and necessary to expunge the
illegal effects of the unfair labor practices found here.
* *
It is our view that, where payment of dues is required under a closed-shop
contract, as where assessments are required under an otherwise valid agree-
ment, reimbursement of such monies actually collected will best effectuate
the policies of the Act. Otherwise the very fruits of the unfair labor practice
itself will remain in the hands of the respondent.
In several recent cases the Board, without explanation, failed to include in its
orders provisions for reimbursement of dues and other moneys paid under the
compulsion of unlawful union-security agreements, although such remedy would
appear to have been appropriate.19 However, I do not construe such unexplained
omissions as a reversal by the Board of its remedial policies expressed in the
Brown-Olds case. Accordingly, I shall recommend that the Respondent Company
and the Respondent Union jointly and severally reimburse the employees covered
by their contract of December 18, 1956, for all dues deducted by the Company
pursuant to checkoff authorizations for the benefit of the Union.
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. By entering into, maintaining , and enforcing an agreement which required the
employees covered thereby as a condition of employment to become and to
remain members of the Union, although the Union was not the representative of
the aforesaid employees within the meaning of Section 9(a) of the Act, the
Respondent Company has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act and the Respondent Union has engaged
in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
's Cases such as Hibbard Dowel Co., 113 NLRB 28; The Englander Company, Inc., 114
NLRB 1034; Broderick Wood Products Company, 118 NLRB 38; Bryan Manufacturing
Company, 119 NLRB 502; and Coast Aluminum Company, 120 NLRB 1326, are dis-
tinguishable because, unlike the Instant proceeding, in each a violation of Section 8(a) (2)
of the Act was alleged in the complaint and was found by the Board. But see : The
Englander Company, Inc., 118 NLRB 707; Imperial Wire Company, Inc., 118 NLRB 775;
Morse Brothers, et at ., 118 NLRB 1312.
1D Booth and Flinn Company, 120 NLRB 545; Kalof Pulp & Paper Corp., 120 NLRB
714; Joe K. Miller, d/b/a K.M. & M. Construction Co., 120 NLRB 1062; and Foundation
Company, 120 NLRB 1453. With respect to the K.M. & M. Construction Co. case, where
the Board omitted to order the respondents to reimburse employees for moneys, dues,
fees, and assessments paid to the respondent union under the terms of an agreement
containing an unlawful union-security provision, despite the Trial Examiner's finding that
such remedy will effectuate the policies of the Act and recommendation that the order in
the case should Include such remedy, the opinion has been expressed that "the Board
apparently is going along with the `reprieve' granted by NLRB General Counsel Jerome
Fenton. who has given construction employers and unions until September 1 to bring
their hiring practices into conformity with the law. Thereafter, he has warned, the
Brown-Olds penalty will be Invoked." L.R.R., Summary of Developments, June 2, 1958,
p. 4. See also address by Jerome D. Fenton, NLRB General Counsel, 42 LRR 249, 251.