Hibbard Dowel Co., 28 (1962)

work on the eligibility payroll date, we find, in accord with the Regional Director, that she was ineligible to vote. Accordingly, the challenge to her ballot was properly sustained.

As no exception was taken to the remaining findings and recommendations of the Regional Director affecting 17 ballots, we shall direct that those ballots be opened and counted.

[The Board directed that the Regional Director for the First Region shall, within ten (10) days from the date of this direction, open and count the ballots of Edward Arnold, Janet Baldasaro, George Bennett, John Boyle, Paul Clifford, Douglas Collins, Cecil Crowther,

Thomas Gannon, George Kenney, Michael Margareci, Alton Moore,

Robert Morrison, Robert Ranney, George Luscombe, George Connolly,

Jerry Greenblatt, and the ballot identified as number (18), and shall thereafter serve upon the parties a supplemental tally of ballots.] Harold Hibbard and Ben R. Stein, Individually and as a Partnership, d/b/a Hibbard Dowel Co. and Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers of America, C.I.O.

Local 189, Building Service Employees Union, A.F.L. and Local 18-B, Furniture and Bedding Workers Union , United Furniture Workers of America, C.F.O. Cases Nos. 13-CA-1703 and 13-CB-3?8. July 7,1955 DECISION AND ORDER

On February 28, 1955, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices 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 Respondent Union and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.

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 with the exception noted in the margin.' The Board has considered the Intermediate Report, the I The Trial Examiner excluded a certain contract between the Respondents, which the General Counsel offered in evidence, because the parties conceded its execution However, as this document is involved in the issues here presented , we find that the Trial Examiner erred in his ruling. Accordingly, we hereby reverse the Trial Examiner 's ruling and receive this document in evidence as General Counsel's Exhibit No. 15.

113 NLRB No. 4.

HIBBARD DOWEL CO. 29 exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and additions indicated below.

  1. We agree with the Trial Examiner that the Respondent Company and the Respondent Union respectively violated Section 8 (a) (1), (2), and (3) and Section 8 (b) (1) (A) and (2) of the Act by entering into and maintaining in full force and effect a union-security agreement, although the Respondent Union did not represent a majority of the employes in the appropriate unit when the parties executed the agreement. We do so, however, not on the basis of the Trial Examiner's computation of the number of employees in the appropriate unit, but rather on all the facts and circumstances surrounding the execution of the agreement in question which reveal that the Respondent Union did not enjoy majority status at that time.

    The record discloses the following undisputed facts : In January 1954 Local 18-B, the Charging Union, began organizing the Respondent Company's employees. While the drive was on, the Respondent Union sent a letter to the Respondent Company on March 15, claiming to represent a majority of the Company's employees and requesting recognition. Shortly thereafter, on March 20, the Respondents met and signed a union-security agreement which required membership in the Respondent Union as a condition of employment. Although the Respondent Union purported to have exhibited to the Company 'a stack of cards' at that time, the Company did not examine them but immediately granted recognition, despite the fact that it was aware of Local 18-B's organizational campaign.2 Moreover, the 20 employees who appeared at the hearing credibly testified without contradiction that they had never heard of the Respondent Union until March 25, 5 days after the Respondents had executed their agreement. Indeed, the Respondent Union put in evidence membership application and checkoff authorization cards which, according to the undisputed testimony of the signatory employees, were signed on March 25.3 It is significant, that, although the Respondent Union's counsel stated at the hearing when he offered these cards in evidence that he would prove that they were executed before March 20, he did not produce such evidence. In the circumstances, it seems to us that if the Respondent Union had sufficient valid designations on the day 'Local 18-B's International representative, Angilello, who was organizing the Company's plant, credibly testified without contradiction that occasionally he passed out campaign leaflets to the Company's two partners and that the partners had seen him distributing such leaflets to employees.

    3 These consisted of membeiship application cards and checkoff authorizations signed by 8 employees ; only a membership application card signed by 1 employee ; and only a checkoff authorization card signed by another employee. All cards were undated except one which was dated March 25, 1954.

    the contract was executed, it would have produced them instead of the later cards.4

    On the basis of the foregoing, we find that the General Counsel proved a prima facie case, which the Respondent Union made no effort to rebut, that the Respondent Union did not represent a majority of the Respondent Company's employees when the parties signed their union-security agreement.' Accordingly, we find that, by executing and maintaining in effect the union-security agreement, the Respondent Company assisted and supported the Respondent Union in violation of Section 8 (a) (2) of the Act and interfered with, restrained, and coerced employees in the exercise of their self-organizational rights in violation of Section 8 (a) (1) of the Act. We also find that, by providing in the agreement for membership in the Union as a condition of employment, the Respondent Company created discriminatory conditions of employment violative of Section 8 (a) (3) of the Act. As a party to this unlawful union-security agreement we further find that the Respondent Union violated Section 8 (b) (2) of the Act and restrained and coerced employees within the meaning of Section 8 (b) (1) (A) of the Act.

  2. The General Counsel excepts to the Trial Examiner's refusal to order the Respondents to reimburse the employees for dues the Respondent Company deducted from their earnings for the benefit of the Respondent Union pursuant to checkoff authorizations. Contrary to the Trial Examiner, we find that it is within the authority of the Board to order in a proper case reimbursement of deducted dues even though the complaint does not specifically allege that the dues were collected under an unlawful checkoff. This power to direct a refund has been recognized by the Supreme Court as an incident of the Board's general authority to order such affirmative action as will effectuate the policies of the Act.' We also find, in disagreement with the Trial Examiner, that the remedy of reimbursement of checked off dues is appropriate and necessary to expunge the illegal effects of the Respondents' unfair labor practices. As discussed above, the Respondent Company has given unlawful assistance and support to the Respondent Union which it has foisted upon the employees as their bargaining representative in disregard of their statutory rights. Moreover, by their union-security agreement, implemented by a dues checkoff arrangement, the Respondents have unlawfully required the employees to maintain membership in the Respondent Union as the price of employment and thereby to 4 See 2 Wigmore on Evidence, Third Edition, Section 285 (failure of a party to produce evidence in its possession as indicating unfavorable tenor of the evidence) ; see also N. L. R. B. v. Wallicic and Schwalm Company, et al, 198 F. 2d 477, 483 (C A. 3).

    6 Cf. International Metal Products Company, 104 NLRB 1076.

    6 Virginia Electric and Power Company v . N. L. R. B., 319 U. S. 533, 539; see also N. L. R. B. v. Baltimore Transit Co., 140 F. 2d 51, 58 (C. A. 4).

    HIBBARD DOWEL CO. 31 support an organization not of their own choosing . In these circumstances, we find that it will effectuate the policies of the Act to order the Respondents jointly and severally to refund to the employees all dues deducted by the Respondent Company pursuant to checkoff authorizations for the benefit of the Respondent Union.' ORDER

    Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that :

    1. The Respondents, Harold Hibbard and Ben R. Stein, Individually and as a Partnership, d/b/a Hibbard Dowel Co., Chicago, Illinois, their agents, successors , and assigns, shall :

  3. Cease and desist from :

    (a) Entering into, maintaining, renewing, or enforcing any agreement with the Respondent Local 189 , Building Service Employees Union, A.F.L., or any other labor organization, which requires their employees to join, or maintain their membership in, such labor organization as a condition of employment , unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act.

    (b) Recognizing the Respondent Local 189 , Building Service Employees Union, A.F.L., or any successor thereto, as the collectivebargaining representative of any of their employees for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours...

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