Jan Power Inc. Maintenance Service

National Labor Relations Board - Board Decisions

Nov 13, 1968

173 N.L.R.B. 798 (N.L.R.B. 1968)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jan Power Inc. Maintenance Service and Service and
Maintenance Employees Union, Local 399
M & M Enterprises Co. d/b/a Columbia Building
Maintenance Co. Inc.; and System Building Service
Inc. and Service and Maintenance Employees
Union, Local 399
Service Employees Council and Service and Main-
tenance Employees Union, Local 399
Miscellaneous Warehousemen, Drivers & Helpers
Union, Local 986 (Service Employers Council; Jan
Power Inc. Maintenance Service; and M & M
Enterprises Co. d/b/a Columbia Building Main-
tenance Co. Inc., and System Building Service Inc.
and Service and Maintenance Employees Union,
Local 399 and City Building Maintenance Co.;
Crystal Building Maintenance Co.; and Western
Pacific Management Co., Parties to the Contract.
Cases 31-CA-631, 31-CA-632, 31-CA-705,
and 31-CB-234
November 13, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On May 23, 1968, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that certain Respondents had
engaged 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 attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondents had
not engaged in certain other alleged unfair labor
practices and recommended that such allegations be
dismissed. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Trial Exam-
iner's Decision and supporting briefs, and the Re-
spondent Employers filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of he
Trial Examiner except as modified below.
1. The Trial Examiner found, and particularly in
the absence of exceptions we agree, that Respondents
Jan Power Inc. Maintenance Service and M & M
Enterprises Co., hereinafter referred to as Jan Power
and M & M, committed independent violations of
Section 8(a)(1) of the Act by the acts and conduct of
their supervisors and officials, including, inter alia,
unlawfully interrogating and threatening employees,
creating an impression of surveillance, improperly
promising wage increases, and unlawfully discouraging
protected activity on behalf of Service and Main-
tenance Employees Union, Local 399, hereinafter
referred to as Local 399.
The Trial Examiner also found, and particularly in
the absence of exceptions we agree, that Respondents
Jan Power and M & M unlawfully solicited member-
ship applications and checkoff authorizations and
unlawfully deducted dues from employees' wages on
behalf of Miscellaneous Warehousemen, Drivers &
Helpers Union, Local 986, hereinafter referred to as
Local 986, in violation of Section 8(a)(2), and that
Respondent Jan Power discriminatorily reduced em-
ployees' work hours in violation of Section 8(a)(3) of
the Act.
2. The Trial Examiner found that Respondent
Service Employers Council, hereinafter referred to as
the Council, its employer-members and Local 986 did
not violate the Act by executing, maintaining, and
enforcing the collective-bargaining agreement con-
taining a union-security provision.' The General
Counsel and the Charging Party have excepted to
these findings. For the reasons set forth below, we
find merit in their exceptions.
The Trial Examiner concluded, and we agree, that
the collective-bargaining agreement should be set
aside if the evidence established "sufficient pre-
contract misconduct to taint the majority." We do
not agree, however, with the Trial Examiner's findings
that. (1) although Jan Power and M & M engaged in
substantial postcontract misconduct, the number of
employees coerced and the coercion practiced by
these employers before the contract was "minimal,"
and therefore was insufficient to establish that Local
986's majority was tainted; and (2) the coercion
practiced by Jan Power, M & M, and Western should
not be viewed in the aggregate to determine whether
the misconduct was "sufficiently pervasive to taint
the entire majority within the multi-employer unit."
In Clement Brothers Company, Inc., 165 NLRB
1 The Council is composed of Respondent Jan Power , Respondent Council to bargain collectively on its behalf and became a party to the
M & M, City Building Maintenance Co., hereinafter referred to as City , collective -bargaining agreement. The Trial Examiner found, and we
and Crystal Building Maintenance Co., hereinafter referred to as Crystal . agree, that the employees of all five employers , including Western,
Western Pacific Management Co., hereinafter referred to as Western , was constituted a unit appropriate for the purpose of collective bargaining.
apparently not a formal member of the Council , but authorized the
173 NLRB No. 120
JAN POWER INC. 799
No. 87, the Board viewed the question of whether a
union's precontract majority had been tainted by
coercion as not "susceptible to resolution by a simple
mathematical formula," but rather that "the
character of the coercion should be more realistically
measured in terms of its pervasive effect." In the
instant case, the record indicates, and the Trial
Examiner found, that in the weeks preceding the
execution of the collective-bargaining agreement with
Local 986, Jan Power, Western, and M & M coerced
employees into joining Local 986 and abandoning
Local 399 activities by unlawfully interrogating them
about Local 399 and by encouraging and soliciting
membership applications for Local 986.
We believe, furthermore, that the precontract
misconduct of all unit employers should be con-
sidered in the aggregate in determining whether Local
986's majority was tainted. We reach this conclusion
on the basis of the Trial Examiner's findings that the
five employers had authorized the Council, or its
administrator, to bargain collectively and sign a
contract on their behalf, they all executed counter-
parts of the same collective-bargaining agreement with
Local 986, and together their employees comprise an
appropriate multiemployer bargaining unit. We note
in agreement with the Trial Examiner's finding that
prior to the execution of the collective-bargaining
agreement, unit employers, on several occasions in-
volving a substantial number of employees, rendered
improper assistance to Local 986.
In addition, the evidence of substantial post-
contract misconduct renders it more likely that "the
coercion taking place before the contract was
executed was substantially more widespread than
appears from the foregoing ...."2 Thus, the Trial
Examiner found that subsequent to the execution of
the agreement, Jan Power and M & M on approxi-
mately 20 separate occasions violated the Act by
interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed to them by
Section 7 of the Act. The unlawful activities included
threatening employees with loss of jobs if they
supported Local 399, threatening to go out of
business if the employees selected Local 399 as their
representative, deducting dues for Local 986 from
employees' paychecks even though checkoff authori-
zations had not been signed, informing employees
that it was in touch with union spies, and taking
reprisals against some employees by reducing their
hours of work because of their activities on behalf of
Local 399.
Under the above circumstances, and on the record
as a whole, we find that the coercion practiced by the
employers was sufficiently pervasive to taint Local
986's entire majority.' Accordingly, we find that
Respondents Jan Power and M & M, and Respondent
Council, acting as the agent for and on behalf of the
employers, including those who engaged in unlawful
activities as described above, violated Section 8(a)(2)
and (1) of the Act by recognizing Local 986 as the
exclusive bargaining representative and by executing
and maintaining an agreement with Local 986 at a
time when that union did not represent a free and
uncoerced majority of employees. We also find that
Local 986 violated Section 8(b)(1)(A) and (2) of the
Act by entering and maintaining the said agreement at
a time when it did not represent a free and uncoerced
majority of the employees in the multiemployer
bargaining unit.'
THE REMEDY
We have found that Respondents Jan Power, M &
M, and the Council have engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2),
and (3) of the Act, and that Respondent Local 986
has engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act. We
shall, therefore, in order to effectuate the basic
policies of the Act, order that the following remedial
action be taken.
We shall adopt the recommended "Remedy" of the
Trial Examiner insofar as it applies to reimbursement
of employees coerced and discriminated against by
Respondents Jan Power and M & M. We shall, in
addition, order Respondents Jan Power, M & M, and
the Council to withdraw and withhold all recognition
from Respondent Local 986, unless and until the said
labor organization shall have been certified by the
Board as the collective-bargaining representative of
the employees in question, and to cease and desist
from giving any force or effect to the collective-
bargaining agreement, or to any extension, renewal,
or modification thereof. Nothing herein shall, how-
ever, be construed as requiring Respondents Jan
Power and M & M to vary or abandon any existing
term or condition of employment.' We shall also
order Respondent Local 986 to cease and desist from
acting as the collective bargaining representative of
the employees in the appropriate multiemployer
bargaining unit unless and until the said labor
organization shall have been certified by the Board as
the collective-bargaining representative of the em-
ployees in question, and to cease giving any force or
effect to the collective-bargaining agreement, or to
any extension, renewal, or modification thereof.
In view of our findings that Respondents Jan
Power and M & M coerced several of their employees
2 Clement, supra.
3 Clement, supra, Puerto Rico Food Products Corp., 111 NLRB
293, Mr. Wicke Ltd. Co., 172 NLRB No. 181.
4 See International Ladies Garment Workers' Union, AFL-CIO
(Bernard-Altmann Texas Corp.) v.N.L.R B., 366 U.S. 731.
5 Duralite Co., Inc., 132 NLRB 425.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into joining Local 986, and since we have also found ORDER
the union-security agreement to be unlawful, we shall
order that: (1) Respondents Jan Power and M & M
reimburse their respective employees for dues and any
other fees illegally exacted on behalf of Local 986
because of this coercion; (2) Respondents Jan Power,
M & M and Local 986, jointly and severally, reim-
burse those employees of the said employers, for dues
and any other fees illegally exacted on behalf of Local
986, because of the unlawful-security agreement; and
(3) Respondent Local 986 reimburse those employees
of Western, City, and Crystal for dues and any other
fees illegally exacted on behalf of Local 986, because
of the unlawful union-security agreement.6 Moreover,
in accordance with our decision in Isis Plumbing &
Heating Co, 138 NLRB 716, and Quality Coal
Corporation, 139 NLRB 492, we shall include an
allowance for interest on dues reimbursement, such
interest to be computed in the manner set forth in
Seafarers International Union, 138 NLRB 1142.
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's Conclusions
of Law Nos. 1, 2, 3, 4, and 5, and substitute for his
recommended Conclusions of Law Nos. 6, 7, and 8
the following:
6. By recognizing Local 986 as exclusive bar-
gaining representative of their employees and by
executing and maintaining an agreement with Local
986 at a time when that labor organization did not
represent a free and uncoerced majority of said
employees, Jan Power and M & M have engaged in
and are engaging in unfair labor practices within
the meaning of Section 8(a)(2) and (1) of the Act.
7. By recognizing Local 986 as exclusive bar-
gaining representative of the employees of Jan
Power, M & M, Western, City and Crystal, and by
executing and maintaining an agreement with
Local 986 at a time when that labor organization
did not represent a free and uncoerced majority of
said employees, the Council has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(2) and (1) of the Act.
8. By accepting recognition and by acting as
exclusive bargaining representative of the employ-
ees of Jan Power, M & M, Western, City and
Crystal, at a time when it did not represent a free
and uncoerced majority of said employees, Local
986 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act.
9. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
6 J. Howard Jenks, dlbla Glendora Plumbing, 165 NLRB No. 1, see
also Meyers Bros. of Missouri, Inc., 151 NLRB 889, Clement, supra.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Jan Power Inc., Maintenance Ser-
vice, Los Angeles, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating and threatening its
employees, unlawfully conveying to employees the
impression that their union activities are under
surveillance, and unlawfully discouraging their pro-
tected concerted activities on behalf of Service and
Maintenance Employees Union, Local 399, or any
other union.
(b) Unlawfully giving assistance to Respondent
Miscellaneous Warehousemen, Drivers & Helpers
Union, Local 986, or to any other labor organization,
by improperly soliciting membership applications and
checkoff cards, or in any other manner proscribed by
the Act.
(c) Unlawfully reducing the hours of work of
employees or otherwise unlawfully discriminating in
regard to their hire, tenure of employment, or any
term or condition of employment, in order to
discourage employees from exercising rights protected
by Section 7 of the Act.
(d) Recognizing or contracting with Respondent
Local 986, or any successor thereto, as the exclusive
representative of its employees, for the purposes of
collective bargaining, unless and until the said labor
organization shall have been certified by the Board as
such representative.
(e) Giving any effect to, performing, or in any
way enforcing its contract of January 19, 1967, or
any modifications, extensions, or renewals thereof, or
any other contract, agreement, arrangement, or
understanding entered into with Respondent Local
986, or any successor, relating to grievances, labor
disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until
the said labor organization shall have been certified
by the Board as the exclusive representative of its
employees; provided, however, that nothing in this
Decision and Order shall require Respondent Jan
Power to vary or abandon any wage, hour, seniority,
or other substantive feature of this contract, or to
prejudice the assertion by employees of any rights
they may have thereunder.
(f) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist Local
399, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act,
JAN POWER INC.
and to refrain from any and all such activities, except
to the extent that such right may be affected by
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) Make James Ferguson and Hayward Ferguson
whole for any loss of earnings they may have suffered
by reason of the discrimination against them, in the
manner and to the extent set forth in the section
herein entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents, on request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of the Order.
(c) Reimburse James Ferguson for dues and any
other union fees illegally exacted from him on behalf
of Respondent Local 986, in the manner and to the
extent set forth in he section herein entitled "The
Remedy."
(d) Withdraw and withhold all recognition from
Respondent Local 986, or any successor thereto, as
the exclusive representative of its employees, for the
purposes of collective bargaining, unless and until the
said labor organization shall have been certified by
the Board as such representative.
(e) Jointly and severally with Respondent Local
986 reimburse all of its employees who joined
Respondent Local 986 subsequent to the execution
of the unlawful union-security agreement, for dues
and any other fees illegally exacted on behalf of that
labor organization, in the manner and to the extent
set forth in the section herein entitled "The
Remedy."
(f) Post at its place of business in Los Angeles,
California, copies of the attached notice marked
"Appendix A."' Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by an authorized representa-
tive of Respondent Jan Power, shall be posted by
Respondent Jan Power, immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respond-
ent Jan Power to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Post at the same places and under the same
conditions as set forth in (f) above, as they are
forwarded by the Regional Director, copies of
Respondent Local 986's notice marked "Appendix
D."
7 In the event that this Order is enforced by a decree of a United
States Court of Appeals , the notice shall be amended by substituting for
801
(h) Mail signed copies of the attached notice
marked "Appendix A" to said Regional Director for
posting at the business offices of Respondent Local
986, at meeting halls and in places where notices to
members are customarily posted. Copies of the
notice, on forms provided by said Regional Director,
shall be returned forthwith to the Regional Director
after they have been signed by an official representa-
tive of Respondent Jan Power for such posting.
(i) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps it has taken to comply herewith.
B. Respondent M & M Enterprises Co., d/b/a
Columbia Building Maintenance Co., Inc., and System
Building Service Inc., Los Angeles, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating and threatening its
employees, unlawfully promising a wage increase to
induce execution of checkoff authorizations by
employees, and unlawfully discouraging their pro-
tected concerted activities on behalf of Service and
Maintenance Employees Union, Local 399, or any
other Union.
(b) Unlawfully giving assistance to Respondent
Local 986, or any other labor organization, by
improperly soliciting membership applications and
checkoff cards, or in any other manner proscribed by
Section 8(a)(2).
(c) Giving effect to the checkoff authorization
improperly obtained from employee Annie Sanders.
(d) Recognizing or contracting with Respondent
Local 986, or any successor thereto, as the exclusive
representative of its employees, for the purposes of
collective bargaining, unless and until the said labor
organization shall have been certified by the Board as
such representative.
(e) Giving any effect to, performing, or in any way
enforcing its contract of January 19, 1967, or any
modifications, extensions, or renewals thereof, or any
other contract, agreement, arrangement, or under-
standing entered into with Respondent Local 986, or
any successor, relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other
conditions of employment, unless and until the said
labor organization shall have been certified by the
Board as the exclusive representative of its employees;
provided, however, that nothing in this Decision and
Order shall require Respondent M & M to vary or
abandon any wage, hour, seniority, or other substan-
tive feature of this contract, or to prejudice the
assertion by employees of any rights they may have
thereunder.
(f) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
the words "a Decision and Order " the words "a Decree of the United
States Court of Appeals Enforcing an Order."
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to self-organization, to form, join, or assist the
above-named Union, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of
the Act, and to refrain from any and all such
activities, except to the extent that such right may be
affected by agreement requiring membership in a
labor organization 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) Reimburse Annie Sanders and Marvin E. Webb
for dues and any other union fees illegally exacted
from them on behalf of Local 986, in the manner set
forth in the section herein entitled "The Remedy."
(b) Withdraw and withhold recognition from
Respondent Local 986, or any successor thereto, as
the exclusive representative of its employees, for the
purposes of collective bargaining, unless and until the
said labor organization shall have been certified by
the Board as such representative.
(c) Jointly and severally with Respondent Local
986, reimburse all of its employees who joined
Respondent Local 986 subsequent to the execution
of the unlawful union-security agreement, for dues
and any other fees illegally exacted from them on
behalf of that labor organization, in the manner and
to the extent set forth in the section herein entitled
"The Remedy."
(d) Post at its place of business in Los Angeles,
California, copies of the attached notice marked
"Appendix B."8 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by an authorized representa-
tive of Respondent M & M, shall be posted by
Respondent M & M immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent M &
M to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Post at the same places and under the same
conditions as set forth in (d) above, as they are
forwarded by the Regional Director, copies of
Respondent Local 986's notice marked "Appendix
D."
(f) Mail signed copies of the attached notice
marked "Appendix B" to said Regional Director for
posting at the business offices of Respondent Local
986, at meeting halls and in places where notices to
8 In the event that this Order is enforced by a decree of a United
States Court of Appeals , the notice shall be amended by substituting for
members and employees are customarily posted.
Copies of the notice, on forms provided by said
Regional Director, shall be returned forthwith to the
Regional Director after they have been signed by an
official representative of Respondent M & M for such
posting.
(g) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps it has taken to comply herewith.
C. Respondent Service Employers Council, Los
Angeles, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from.
(a) Recognizing or contracting with Respondent
Local 986, or any successor thereto, as the exclusive
representative of the employees of its employer-
members, for the purposes of collective bargaining,
unless and until the said labor organization shall have
been certified by the Board as such representative.
(b) Giving any effect to, performing, or in any way
enforcing its contract of January 19, 1967, or any
modifications, extensions, or renewals thereof, or any
other contract, agreement, arrangement, or under-
standing entered into with Respondent Local 986, or
any successor, relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other
conditions of employment, unless and until the said
labor organization shall have been certified by the
Board as the exclusive representative of the employ-
ees of its employer-members.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to form, or join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion or to refrain from any and all such activities,
except to the extent that such right may be affected
by agreement requiring membership in a labor organi-
zation 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) Withdraw and withhold recognition from
Respondent Local 986, or any successor thereto, as
the exclusive representative of the employees of its
employer-members, for the purpose of collective
bargaining, unless and until the said organization shall
have been certified by the Board as such representa-
tive.
(b) Post at it% place of business in Los Angeles,
California, copies of the attached notice marked
the words "a Decision and Order " the words "a Decree of the United
States Court of Appeals Enforcing an Order."
JAN POWER INC.
"Appendix C."9 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by an authorized representa-
tive of Respondent Council, shall be posted by
Respondent Council immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices are customarily posted. Reason-
able steps shall be taken by Respondent Council to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps it has taken to comply herewith.
D. Respondent Miscellaneous Warehousemen,
Drivers & Helpers Union, Local 986, its officers,
agents, and representatives shall:
1. Cease and desist from:
(a) Acting as exclusive bargaining representative of
the employees of the Respondent Service Employers
Council's employer-members, for the purposes of
collective bargaining, unless and until said labor
organization shall have been certified by the Board as
the collective-bargaining representative of said
employees.
(b) Giving any effect to, performing, or in any way
enforcing its contract of January 19, 1967, or its
counterparts, or to any extension, renewal, or modifi-
cation thereof.
(c) In any like or related manner restraining or
coercing employees 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 Respondent Jan
Power reimburse all employees of the said employer
who joined Respondent Local 986 for dues and any
other fees illegally exacted from them on behalf of
that labor organization, in manner and to the extent
set forth in the section herein entitled "The
Remedy."
(b) Jointly and severally with Respondent M & M
reimburse all employees of the said employer who
joined Respondent Local 986 for dues and any other
fees illegally exacted from them on behalf of that
labor organization, in the manner and to the extent
set forth in the section herein entitled "The
Remedy."
(c) Reimburse all employees of Western Pacific
Management Co., City Building Maintenance Co., and
Crystal Building Maintenance Co., who joined
Respondent Local 986 for dues and any other fees
illegally exacted from them on behalf of that labor
9 In the event that this Order is enforced by a decree of a United
States Court of Appeals , the notice shall be amended by substituting for
the words "a Decision and Order " the words "a Decree of the United
States Court of Appeals Enforcing an Order."
803
organization, in the manner and to the extent set
forth in the section herein entitled "The Remedy."
(d) Post in conspicuous places at its business
offices, meeting halls, and places where notices to its
members are customarily posted, copies of the
attached notice marked "Appendix D."i ° Copies of
said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by an
authorized representative of Respondent Local 986,
shall be posted by Respondent Local 986 immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter. Reasonable steps
shall be taken by Respondent Local 986 to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Post at the same place and under the same
conditions as set forth in (d) above, and as soon as
they are forwarded by the Regional Director, copies
of the attached notices marked "Appendix A,"
"Appendix B," and "Appendix C."
(f) Mail to the Regional Director signed copies of
"Appendix D" for posting by Respondent Jan Power
and Respondent M & M as provided above herein.
Copies of said notice, on forms provided by the
Regional Director, after being signed by Respondent
Local 986's representative, shall be forthwith
returned to the Regional Director for such posting.
(g) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order,
what steps it has taken to comply herewith.
10 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 "a
Decision and Order " the words "a Decree of the United States Court of
Appeals Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 discourage membership in or activ-
ities on behalf of Service and Maintenance Em-
ployees Union Local 399, or any other labor
organization by discnminatonly reducing the hours
of work of any employee, or by unlawfully
discriminating against them in any other manner
with respect to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT unlawfully interrogate or threaten
our employees concerning their union activities, on
behalf of Service and Maintenance Employees
Union, Local 399, or any other union or convey to
them the impression that their union activities are
under surveillance.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT enforce or give effect to our
collective -bargaining agreement with Miscellaneous
Warehousemen , Drivers & Helpers Union, Local
986, and WE WILL withdraw and withhold recogni-
tion from said labor organization as the collective-
bargaining representative of our employees , unless
and until the Board shall certify the said labor
organization as such representative.
WE WILL NOT give assistance to Miscellaneous
Warehousemen , Drivers and Helpers Union, Local
986, or any other labor organization , by impro-
perly soliciting membership applications or check-
off cards , or in any other manner prohibited by the
Act.
WE WILL reimburse James Ferguson for dues and
any other union fees illegally exacted from him on
behalf of Miscellaneous Warehousemen , Drivers &
Helpers Union , Local 986.
WE WILL pay James Ferguson and Hayward
Ferguson for all earnings lost as a result of our
discrimination against them.
WE WILL, jointly and severally with Miscella-
neous Warehousemen , Drivers & Helpers Union,
Local 986, reimburse those of our employees who
joined the said labor organization after the execu-
tion of the collective -bargaining agreement for dues
and any other fees illegally exacted from them on
behalf of that labor organization.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees, in the
exercise of their right to self-organization , to form,
join , or assist Service and Maintenance Employees
Union, Local 399, or any other union , to bargain
collectively through representatives of their own
choosing , and to engage in concerted activities for
the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7
of the Act, and to refrain from any or all such
activities , except to the extent that such right may
be affected by agreement requiring membership in
a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
JAN POWER INC
MAINTENANCE SERVICE
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional Of-
fice, 215 West Seventh St., Los Angeles, California
90014, Telephone 213-688-5850.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 unlawfully interrogate or threaten
our employees concerning their union activities, or
unlawfully discourage protected concerted activity
of employees on behalf of Service and Maintenance
Employees Union , Local 399, or any other union.
WE WILL NOT enforce or give effect to our
collective-bargaining agreement with Miscellaneous
Warehousemen , Drivers & Helpers Union, Local
986, and WE WILL withdraw and withhold recogni-
tion from said labor organization as the collective-
bargaining representative of our employees , unless
and until the Board shall certify the said labor
organization as such representative.
WE WILL NOT give assistance to Local 986, or
any other labor organization , by improperly solic-
iting union membership applications or checkoff
cards or in any other manner prohibited by the
Act.
WE WILL NOT give effect to the checkoff
authorization coercively obtained from Annie San-
ders, and we will reimburse her and Marvin E.
Webb for dues and any other union fees illegally
exacted from them on behalf of Local 986.
WE WILL, jointly and severally with Local 986,
reimburse those of our employees who joined the
said labor organization after the execution of the
collective-bargaining agreement for dues and any
other fees illegally exacted from them on behalf of
that labor organization.
WE WILL NOT In any other manner interfere
with , restrain , or coerce our employees, in the
exercise of their right to self-organization , to form,
join , or assist Service and Maintenance Employees
Union , Local 399, or any other union , to bargain
collectively through representatives of their own
choosing , and to engage in concerted activities for
the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7
of the Act, and to refrain from any or all such
activities , except to the extent that such right may
be affected by agreement requiring membership in
a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
M & M ENTERPRISES Co., d/b/a
COLUMBIA BUILDING MAINTE-
NANCE CO. INC. AND SYSTEM
BUILDING SERVICE INC.
(Employer)
Dated By
JAN POWER INC. 805
days from the date of posting, and must not be
(Representative) (Title) altered, defaced, or covered by any other material.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 215 West Seventh Street, Los Angeles, Cali-
fornia 90014, Telephone 213-688-5850.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 enforce or give effect to the col-
lective-bargaining agreement of January 19, 1967,
with Miscellaneous Warehousemen, Drivers &
Helpers Union, Local 986, or to any extension,
renewal, or modification thereof.
WE WILL withdraw and withhold recognition
from Miscellaneous Warehousemen, Drivers &
Helpers Union, Local 986 as the collective-
bargaining representative of the employees of Jan
Power Inc. Maintenance Service, M & M Enterprises
Co. d/b/a Columbia Building Maintenance Co. Inc.,
and System Building Service Inc., Western Pacific
Management Co., City Building Maintenance Co.,
and Crystal Building Maintenance Co., Los Angeles,
California, unless and until said labor organization
shall have been certified by the Board as such
representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities, except to the extent that such right
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act.
SERVICE EMPLOYERS COUNCIL
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 215 West Seventh Street, Los Angeles, Calif.,
90014 Telephone 213-688-5850.
APPENDIX D
NOTICE TO ALL MEMBERS
Pursuant to the 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 members that:
WE WILL NOT act as the exclusive-bargaining rep-
resentative of the maintenance employees of Jan
Power Inc. Maintenance Service; M & M Enterprises
Co. d/b/a Columbia Building Maintenance Co. Inc.;
and System Building Service Inc.; Western Pacific
Management Co.; City Building Maintenance Co.;
or Crystal Building Maintenance Co., Los Angeles,
California, unless and until we shall have been
certified by the Board as such representative.
WE WILL NOT enforce or give effect to the col-
lective-bargaining agreement of January 19, 1967,
with the Service Employer's Council, or to its
signed counterparts, with the above mentioned
employers, or to any extension, renewal, or modifi-
cation thereof.
WE WILL, jointly and severally with Jan Power
Inc. Maintenance Service, reimburse those of their
employees who joined or paid dues and any other
fees to us after the execution of the collective-
bargaining agreement with their employer.
WE WILL jointly and severally with M & M
Enterprises Co. d/b/a Columbia Building Mainte-
nance Co. Inc. and System Building Service Inc.,
reimburse those of their employees who joined or
paid dues and any other fees to us after the
execution of the collective-bargaining agreement
with their employer.
WE WILL reimburse all employees of Western
Pacific Management Co., City Building Mainte-
nance Co., and Crystal Building Maintenance Co.
who joined or paid dues and any other fees to us
after the execution of the collective-bargaining
agreement with their respective employers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities, except to the extent that such right
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
Act.
MISCELLANEOUS WAREHOUSEMEN
DRIVERS AND HELPERS UNION,
LOCAL 986
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice of compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 215 West Seventh St., Los Angeles, Calif.
90014, Telephone 213-688-5850.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner- This case was
heard at Los Angeles, California on various dates between
November 13, 1967 and January 4, 1968, upon a consolidated
complaint issued on August 4, 1967,' alleging that Respond-
ents Jan Power, M & M,2 and Service Employers Council had
violated Sections 8(a)(1), (2), and (3) of the National Labor
Relations Act, as amended, and that Respondent Miscellaneous
Warehousemen, Drivers & Helpers Union, Local 9863 had
violated Sections 8(b)(1)(A) and (2) of the Act. In their
respective answers, the Respondents denied the commission of
unfair labor practices. During the hearing, Respondents moved
to dismiss various portions of the complaint. Such motions are
disposed of in accordance with the findings of fact and
conclusions of law made below.
Upon the entire record, my observation of the witnesses,
the brief filed by the General Counsel and the joint brief filed
by Respondents Jan Power, M & M and Service Employers
Council (hereafter called the Council),4 I make the following
FINDINGS AND CONCLUSIONS'
I THE UNFAIR LABOR PRACTICES
A. Background
i Based upon charges filed by Service and Maintenance Employees
Union Local 399, Building Service Employees International Union,
AFL-CIO, on the following dates in Cases 31-CA-631 and 31-CA-
632, the original, first amended and second amended charges were filed
on March 8 and 15 and on April 26, 1967, respectively , and in Cases
31-CA-705 and 31-CB-234, the charges were filed on May 11, 1967.
2 Respondent M & M does business under two corporate names
Columbia Building Maintenance Co. Inc . and System Building Service
Inc.
3 At the hearing , counsel for Local 986 stated that it is an affiliate
of the International Brotherhood of Teamsters, Chauffeurs Warehouse-
men & Helpers of America.
4 Respondent Local 986 did not file a separate brief. However, the
above joint brief contains certain arguments on its behalf.
Most of the facts are uncontroverted The Council is an
association composed of employer-members engaged in the
business of providing maintenance or janitorial service to
various commercial buildings in Southern California. At all
times material herein, such members consisted of Jan Power, M
& M, Crystal and City, and the Council was authorized by each
of such members, and by Western through written authoriza-
tion, to bargain collectively on their behalf with labor
organizations.
Until December 20, 1966, the Council was party to a
collective-bargaining agreement with Local 22, Confederated
Industrial Workers of America, covering the maintenance
employees of Jan Power, M & M, and Crystal. On that date,
Local 22 disclaimed its interest in representing the said
employees. On January 9, 1967, Local 986 claimed a majority
and sought recognition as bargaining representative of the
maintenance employees of the said three employers as well as
those of City and Western. On January 10, 1967, Herschel
Chubb, administrator of the Council, together with representa-
tives of certain of the said employers, checked the authoriza-
tion cards held by Local 986 against the payroll records of the
five employers, and recognized Local 986 as bargaining
representative of the maintenance employees of such em-
ployers.
During four bargaining sessions lasting several days, Chubb
and Lester J. Coombes, a representative of Local 986,
negotiated the terms of a collective-bargaining agreement. On
January 19, 1967, Chubb and Coombes signed a written
agreement on behalf of the Council and Local 986, respec-
tively. Counterparts of the agreement were signed by Jan
Power, M & M and Western on the same date, by City on
January 31, 1967, and by Crystal on an undisclosed date in
January 1967.
Among other things, the agreement provided as follows:
The Association, for and on behalf of each and all of its
Employer Members, set forth in Exhibit "A", hereby
recognizes the Union as the sole and exclusive bargaining
agency for all employees of each Employer Member of the
Association, in the job categories set forth in exhibit "B",
as an appropriate Multiple-Employer unit for the purposes
of collective bargaining ..... [Article 111 6
Executed this 19th day of January 1967.
Although each respective Employer, as a party signatory to
this Agreement has, for the purpose of expediency, signed a
separate duplicated copy of this Agreement, along with the
Association and the Union, it is hereby stipulated and
agreed that it is the intent of all parties signatory to this and
other duplicated copies of this Agreement to establish the
combined signed and executed said duplicated copies as one
5 No issue of commerce is presented . The parties stipulated to facts
which establish , and I find , that Jan Power, M & M, and the named
parties to the contract , City Building Maintenance Company, Crystal
Building Maintenance Company, and Western Pacific Management
Company, at all times material have been employers engaged in
commerce or in operations affecting commerce within the meaning of
the Act. I further find that the Council is an employer within the
meaning of the Act. NL R.B. v. Shuck Construction Co., 243 F.2d 519
(C.A 9). Finally , I find that Local 986 and Local 399 are labor
organizations within the meaning of the Act.
6 The members listed in Exhibit "A" were Jan Power, Columbia
Building, System Building, Western , City and Crystal.
JAN POWER INC
Agreement, with the same force and effect as though all
Employers signatory thereto had signed one copy of this
Agreement along with the Association and the Union
In addition, the agreement contained a 30-day union-security
provision, and provided for voluntary checkoff of union
initiation fees and dues.
B. The Activities of Jan Power
1. Interference and assistance
In the last week of December 1966, i e. prior to execution
of the above contract, Supervisor Duynstee of Jan Power told
Jessie Steptoe, a new employee, that the employees belonged
to the Teamsters and that the latter had obtained a raise for
them. On the following day, Duynstee told Steptoe that he
had made a mistake about the hourly pay rate which he had
mentioned the day before, and that it would not become
effective until the employees joined the Union; that either
Fred Wesley or "Herman" would be around with cards, that
the Union dues would be $8.00, but that he could not tell
Steptoe what benefits the employees would receive because he
was not supposed to talk about it. About two weeks later,
Employee Fred Wesley gave Steptoe a Local 986 "card" which
she signed and which was later picked up by "Herman." I find
that Duynstee's statements, which are not defended in
Respondent's brief, constituted unlawful encouragement and
solicitation of a membership or checkoff card for Local 986.
Jan Power did not have a lawful union-security contract with
that Local at that time. Moreover, Duynstee's remarks improp-
erly implied a promise of benefit. His remarks thus violated
Sections 8(a)(1) and (2).7
A few days after Employee Herman Ferguson signed a
Local 399 authorization card on February 6, 1967, Duynstee
asked him whether he had signed such a card, accused him and
his two brothers, James and Hayward,8 of soliciting Jan Power
employees who worked at the Le Sage Building to join Local
399, and stated that he could fire Herman for this but would
not. In mid-February, Roberts, the president of Jan Power,
questioned Herman, who was then working at the IBM
Building, as to whether he had signed a Local 399 card,
accused him and his brothers of soliciting employees at the Le
Sage Building on behalf of Local 399, stated that he had a
union spy and knew that the Fergusons had come to that
building, added that he could fire them for this but would not
do so, and named several employees as having signed Local 399
cards and two who had backed out.
In early February 1967, Hayward Ferguson signed a Local
399 authorization card. During a conversation with him at the
IBM Building in early February, Duynstee accused him and his
brother Herman of having solicited employees on behalf of
7 Although the General Counsel 's brief refers to evidence purporting
to show that Wesley was a foreman , it does not expressly assert that he
was a supervisor or that any conduct by Wesley constituted an unfair
labor practice , and the record would not support such an assertion if
made.
8 Sometimes referred to as Haywood in the record.
9 Although James testified to receipt of the check on or about
February 16, I credit Roberts ' testimony that Jan Power employees
were paid on the 5th and 20th of the month.
10 James testified that it was a white card with blue printing.
Employee Sanders ' membership application card, which is in the record,
fits that description.
11 Montgomery also testified , contrary to the contents of a
807
Local 399 at the Le Sage Building, stated that he had authority
to fire them but would not, further stated that Local 399 had
been trying to get in for a couple of years in the past but
Roberts had backed out, and after informing him that Local
399 agents might come around, instructed him not to sign
anything. On the following day, Duynstee advised Hayward to
back out of Local 399.
On or about February 6, 1967, James Ferguson signed a
Local 399 authorization card After receipt of his paycheck on
or about February 20, 1967,9 James asked Duynstee why
$8 00 had been deducted therefrom. Duynstee explained that
it was for Local 986, a new union, stated that he would tell
Roberts about it; and asked James whether anyone had come
around with Local 399 cards. James informed his brother
Herman about the deduction and told the latter that he had
not signed a Local 986 card. The following day. President
Roberts told James that a new union, Local 986, had come in,
gave him a Local 986 membership application card to sign;' 0
and stated that if he did not sign, he had to pay $16 or quit
work. Upon Roberts' instructions, Duynstee sought out
Herman, who joined them. Roberts told Herman about the
$8 00 deduction without authorization from James, and asked
Herman to examine the card before James signed it because he
was James' guardian When Herman stated that he had no
objection, James signed the card and gave it to Roberts
Shortly thereafter, Roberts instructed James not to sign
anything for Local 399 because they were trying to mess him
up.
In February 1967, after Employee George Montgomery had
signed a Local 399 card, Roberts asked him on two occasions
whether he had done so. On the second occasion, Roberts also
asked if Montgomery knew whether any and how many other
employees had also signed, and told him that he had been
informed by two Teamster officials that Montgomery and two
of the Ferguson brothers had solicited employees on behalf of
Local 399 Montgomery replied that he was sorry he had
signed, and that he would write a withdrawal letter. Roberts
said that this would be all right, and Montgomery asked him
for a "guide" to use in writing such a letter. Such a guide was
subsequently given him by Duynstee.'
Respondents contend that Roberts and Duynstee could
have teamed of Herman and Hayward Ferguson's solicitation
activities during work time through routine supervision of their
work, and not through a desire to ferret out union activity;
that their statements were not sufficient to create an impres-
sion of unlawful surveillance; that only a single statement can
be construed as a threat of discharge for solicitation on behalf
of Local 399, but that in reality it was nothing more than a
reprimand for desertion of work stations on company time in a
security building; that in addition, the employees were assured
that they would not be fired because of their solicitation and
preheating statement which he had signed, that Roberts had not told
him, shortly after rehiring him in mid -January 1967, that he had
executed and sent in a Local 986 membership card on behalf of
Montgomery I do not credit Montgomery's denial . Although the
contents of the statement were written by a Board employee,
Montgomery 's testimony contains no denial that that statement was
read to him before he signed it. However , the statement cannot serve to
establish the truth of its contents, since it was received in evidence
solely for the purpose of impeachment, and since there is no
independent evidence establishing such truth . Barker's East Main
Corporation, 136 NLRB 494, 495 Perhaps this is why the General
Counsel 's brief does not contend that Roberts acted unlawfully by the
conduct in question
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no employee ever was; and that the interrogation was isolated
and noncoercive. Conceding that in some circumstances,
employer solicitation of union cards and unauthorized deduc-
tion of union dues may be unlawful, Respondents further
contend that such conduct by Jan Power was more the
product of its lack of sophistication in the nuances of labor
law rather than of a desire to assist Local 986 with which it
already had a contract. Finally, Respondents assert that in any
event, none of the foregoing conduct was improper since Local
399 had not demanded recognition, and in fact could not have
represented the employees of Jan Power because the latter's
prior contract with Local 986 constituted a bar.
I disagree. Roberts made it clear to Herman Ferguson and
Montgomery that he had obtained information regarding their
solicitation on behalf of Local 399, not from routine observa-
tion, but from a union spy and from two Teamsters officials I
find that he thus not only created the impression of
surveillance but admitted its existence, thereby interfering
with protected rights in violation of Section 8(a)(l).
Duynstee's instructions to Hayward Ferguson not to sign
anything for, and to back out of, Local 399 similarly
constituted unlawful interference, as did his conduct in
furnishing Montgomery with a guide for use in writing a letter
withdrawing the Local 399 card which he had signed. Contrary
to Respondents' contention, Ferguson and Montgomery were
not reprimanded for soliciting on company time I find that
Roberts and Duynstee accused them only of soliciting on
behalf of Local 399 and warned Herman and Hayward
Ferguson of possible discharge for such activity. That conduct
also constituted unlawful interference even though the warning
was not carried out.
I further find that the checkoff of James Ferguson's dues
without his authorization and Roberts' subsequent solicitation
of a Local 986 membership card from James constituted illegal
assistance violative of Section 8(aX2) and (1), even if such
conduct could be attributed to the employer's alleged lack of
sophistication. I reach this conclusion even though, as found
below, the collective-bargaining agreement with Local 986 is
lawful i 2 The decision in Keller Plastics Eastern, Inc, 157
NLRB 583, relied on by Respondents, implies that where'there
is a valid contract containing union-security and voluntary
checkoff provisions, employer solicitation of membership and
checkoff cards is unlawful if the employees are subjected to
coercion in regard thereto or are advised that they must
execute the documents before expiration of their 30-day grace
period. If an improperly obtained checkoff card is unlawful, it
follows that the checkoff of dues without authorization is
equally unlawful. Accordingly, I find that the unauthorized
checkoff of James' dues violated Section 8(a) (2) and (1). I
also find that the solicitations of a Local 986 membership
application from James similarly violated those sections.
Unlike Keller, in which the employer merely warned employ-
ees that they "could" be discharged pursuant to the contract if
they did not sign membership and checkoff cards, the record
here shows that James was given the alternative of signing an
application card or paying $16 or of quitting his job. I find
that the solicitation of the application was thus unlawfully
accompanied by coercion.
As for the interrogation, it was conducted by Roberts and
Duynstee, the president and a foreman of Jan Power,
respectively, it involved Herman and James Ferguson and
Montgomery, and it was accompanied by threats of possible
discharge, admissions of surveillance, employer solicitation on
behalf of Local 986, and admonitions against membership in
Local 399. In such circumstances, the interrogation was
significant and unlawful rather than isolated and noncoercive,
as claimed by Respondents Finally, the employees of Jan
Power have a protected right, free from interference by the
latter, to talk to representatives of Local 399, to join that
Local, and to solicit on its behalf at appropriate times and
places. The fact that Jan Power had a contract with Local 986
and that it received no request for recognition from 399 in no
way diminished that right, and hence did not give Jan Power a
license to engage in the above conduct.
2. Discrimination
On an unspecified date after Supervisor Duynstee and
Herman Ferguson held a conversation which took place a few
days after February 6, 1967, the latter's work duties were
changed from sweeping and dusting to buffing, waxing and
taking care of the whole building in which he worked. In
addition, his work hours were reduced to four hours a night.
During the period from February 16 through 28, 1967, James
and Hayward Ferguson each worked fewer hours than they
had worked during the three immediately preceding periods.' 3
When Hayward asked Duynstee about his reduction, the latter
replied, "that is all the time it takes to do the work." During
the period that Hayward worked reduced hours, no other
employee was assigned to do any of the work that he had
previously performed. James was given no reason for his
reduction in hours.
The General Counsel contends that Jan Power changed
Herman's work duties and reduced the work time of all three
employees because of their activities on behalf of Local 399,
and thus violated Section 8(a)(3) and (1) of the Act. I reject
this contention insofar as it applies to Herman. The complaint
contains no allegation of discrimination against him, at no time
was Jan Power put on sufficient notice that the General
Counsel was seeking to litigate the legality of the change in
Herman's duties and hours, and I am not satisfied that the
issue was fully litigated. Farmers' Cooperative Compress, 169
NLRB No. 70.
With regard to James and Hayward, Respondents argue that
the record fails to establish that Jan Power knew that the two
men had signed Local 399 membership cards, and that in any
event, the reduction in their hours was temporary and was
motivated by complaints concerning their slipshod work and a
desire to obtain more efficient performance under different
supervision. In support of these contentions, Respondents
point to the testimony of President Roberts that he had no
knowledge that the two men had joined Local 399; that he had
received complaints about their work; that he told either
James or Hayward sometime between February 15 and the end
of that month that they were not using their time produc-
tively, that he instructed Herman, their older brother, to
12 In reaching this conclusion , I do not rely upon the cases cited by 13 Their hours were increased again shortly thereafter , and they
the General Counsel (Double A Products Co., 134 NLRB 222, and then continued to work the longer hours until August, when Hayward
Meyer Bros. of Missouri, Inc., 151 NLRB 889), since they involved voluntarily quit and James was discharged because of misconduct.
illegal collective -bargaining agreements.
JAN POWER INC.
inspect their work; and that thereafter the complaints stopped.
It is immaterial whether or not Roberts knew that they had
joined Local 399. The record establishes that shortly before
the reduction in hours, Roberts and Duynstee had interro-
gated, accused and threatened the three Ferguson brothers
concerning their activities on behalf of Local 399. In addition,
although Roberts admittedly received complaints about other
employees, he could not recall whether the work time of such
other employees was changed during February 1967. More-
over, contrary to Respondents' assertion, the record does not
establish that the reduction waspromptedby complaints about
the work of Hayward and James. Roberts testified that he
could not state with certainty that Herman's inspection took
place between February 15 and 28, the period in which the
hours reduction occurred. And although Roberts was admit-
tedly the one who decided how many hours a day an employee
would work at the time here in question, he could not recall
the exact reason for the reduction in hours. Respondents
correctly assert that disbelief of the reason advanced for the
reductions is insufficient by itself to establish a violation.
However, it is well settled that inferences relating to discrimi-
nation "are strengthened by the fact that explanation" of the
discrimination "offered by the respondent fails to stand under
scrutiny." N.L.R.B. v. Dant & Russell, Ltd., 207 F.2d 165
(C.A. 9). In view of Jan Power's expressions of strong
disapproval of the Fergusons' activities on behalf of Local 399,
the timing of the reduction in hours, and the absence of a
persuasive explanation for such reduction,' 4 I find that the
reduction was discriminatorily motivated and violated Section
8(a)(3) and (1) The fact that the hours were subsequently
increased does not establish that the reduction was unlawfully
motivated.
C. The Activities of M & M
1. In December 1966, Allen, the vice-president of one of M
& M's constituent corporations, asked Employees Moore and
his wife whether Local 399 agents had been to the building
where they were working and whether they had joined that
Local In addition, he stated that the Teamsters Union was
better than Local 399, and that he wanted the Moores to join
the Teamsters. Moore testified without contradiction that on
or about January 5, 1967, Moot, the president of the
constituent corporation, asked him whether Allen had talked
to him about joining "the Union," gave him a Local 986
membership card, told him to sign it and that Moot would fill
in the rest, and stated that Local 986 was better than Local
399. Moore signed as instructed.
I find that Allen engaged in unlawful interrogation and that
he and Moot engaged in unlawful solicitation of membership in
Local 986 prior to the execution of a valid union-security
agreement with that Local, thereby violating Section 8(a)(1)
and (2) of the Act. Respondents' sole defense is that no other
employee was solicited by M & M prior to execution of the
collective-bargaining agreement on January 19, 1967, and
hence that Moot's solicitation must have occurred after that
date, i.e. in February, when Moore assertedly would have been
14 Although Roberts mentioned in his testimony that February was
a "short " month , Respondents ' brief does not assert this as an
explanation for the reduction in hours. The time sheets for James and
Hayward show that the reduction was due in part to the fact that they
were permitted to work only one day during the seven day period
809
required to join Local 986 to avoid a request by that Local
that he be discharged pursuant to the union-security provisions
of the agreement. I disagree. Even if no other employee had
been solicited by M & M prior to January 19, 1967, the claim
that Moore's solicitation must have occurred in February is
purely speculative. Moreover, as noted below, Employee
Simmons was solicited prior to that date. In any event,
Moore's testimony was uncontradicted.
2. Employee Webb testified that in December 1966, Vice
President Allen interrogated him as to whether Local 399
agents had been to the building where he worked, and told him
that he need not join that Local, and that in the same month
or in January 1967, Allen asked the same question and told
him that it was unnecessary for Webb to talk to Local 399
agents since Local 986 would be their union. It appears that
Webb was a supervisor prior to December 18, 1966, was ill and
did not work from that date until January 16, 1967, and
returned to work on the latter date in a nonsupervisory
capacity. It is apparent that Webb's first conversation took
place while he was a supervisor and hence that it involved no
illegal conduct by Allen. In view of Webb's uncertainty as to
the date of his second conversation with Allen, I am unable to
find that it took place after he lost his supervisory status.
Accordingly, I find that the record fails to establish that it was
unlawful.
Webb further testified that during a third conversation,
Allen gave him and employee Claiborne Local 986 checkoff
cards with instructions to obtain employee signatures, includ-
mg that of an employee whom he identified as Thompson, that
Allen also gave a card to another employee; that Webb
solicited Thompson's signature on a card; but that Thompson
refused to sign.' 5 Initially, Webb testified that this conversa-
tion occurred about December 1966 or January or February
1967. On further interrogation, he thought it took place in
December. Finally, he testified that it occurred in mid-
February. As noted below, Thompson testified that Webb
brought a checkoff card for him to sign in February. Moreover,
Webb himself signed a checkoff card in February. Accordingly,
I find that Allen gave Webb and Claiborne the checkoff cards
and requested that they solicit employee signatures thereon in
February 1967, and that he similarly gave another employee a
checkoff card in that month; i.e. after the collective-bargaining
agreement with Local 986 was signed.
The General Counsel's contention that Allen's conduct
constituted unlawful assistance is predicated on the assump-
tion that it took place prior to the execution of the agreement.
Since I have found that it postdated the agreement, and since
there is no evidence that Allen used, or told Webb or Claiborne
to use, coercion in soliciting anyone, I find that Allen's
conduct is not shown to have constituted an unfair labor
practice. Keller Plastics Eastern, supra, 157 NLRB 583.
The record also shows that M & M deducted $8 from one of
Webb's February paychecks without his authorization; that
when Allen gave the paycheck to Webb in February, he also
gave him a checkoff card; and that Webb signed the card and
returned it to Allen. Webb testified that he had been told,
prior to signing the card, that there was a contract with Local
ending February 19, 1967, as compared with 4 or 5 days of work during
prior and subsequent comparable periods.
15 Although at one point , Webb referred to them as authorization
cards, a reading of his entire testimony leads me to conclude , and I find,
that they were checkoff cards.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
986. I find that the record fails to establish that the
solicitation of the checkoff card was unlawful since it took
place after execution of the agreement and since the evidence
does not establish accompanying coercion or other improper
conduct. Keller Plastics Eastern, Inc., supra. However, for the
reasons stated above in connection with James Ferguson, I find
that the unauthorized dues deduction, which is not defended
in Respondents' brief, constituted unlawful assistance to Local
986 and thereby violated Section 8(a)(2) and (1).
3. M & M deducted $8 00 in dues for Local 986 from one
of Employee Thompson's February paychecks in the errone-
ous belief that he had signed a checkoff card. When the error
was discovered, the money was refunded to him. Thompson
gave confusing testimony regarding conversations with Vice
President Allen before and after the above incident. He
testified that the first conversation antedated the incident, but
contradicted himself as to whether it took place in January or
March. Since he testified that he had been told that the
agreement had already been signed, I find that the first
conversation took place after the agreement was executed.
Thompson also contradicted himself as to whether Allen told
him during that conversation that he had to join Local 986,
said that he had to join "a" union, or merely said " `don't fight
it,' or something like that." He further testified that Allen told
him at that time that the employees were to receive a raise to
cover the $8 dues, that at the time of the refund in February,
Allen asked him to sign a checkoff card, which Employee
Webb had for him, that when he refused, Allen asked him to
think it over for a week and let him know; and that when
Allen came by later, he told Thompson that the employees
would receive a nickel raise to cover the $8 in dues, and stated:
"If you can't beat them, join them." Thompson subsequently
joined Local 986. 16
I find that Allen's promise of a wage increase , which is
uncontradicted, constituted an improper method of at-
tempting to obtain a checkoff authorization from Thompson,
and that M & M thereby engaged in unlawful interference and
assistance to Local 986 in violation of Section 8(a)(1) and (2).
See Keller Plastics Eastern, supra. However, I find that the
testimony relating to Allen's other statements is insufficient to
establish improper solicitation of membership in Local 986. I
further find that the erroneous dues deduction did not
constitute an unfair labor practice.
4. On or about January 8, 9 or 10, 1967, employee
Simmons asked Baines, the vice president of one of M & M's
constitutent corporations, about a "card" he was to sign. 17
Baines replied that a union was coming in , that it would be all
right for him to sign, that there was a conflict between two
unions, that the demands of Local 399 could not be met and
the Company would be compelled to go out of business if that
16 There is no evidence that he also signed a checkoff card.
17 On or about January 6, 1967, employee Simmons had been given
a Local 986 card by employee Morrison , who stated that the cards had
been sent "from the office" for Simmons to sign.
18I do not credit Simmons' affirmative reply to the General
Counsel's improperly leading question as to whether Moot also said that
"he would go out of business."
19 I reject the General Counsel's claim of unlawful assistance based
on Morrison 's solicitation of Simmons . There is no evidence establishing
that M & M had instructed Morrison to solicit . Moreover, although the
General Counsel introduced evidence purporting to establish that
Morrison was a supervisor , he does not expressly attribute supervisory
status to Morrison in his brief , and I find the record insufficient to
establish such status.
local came in, and that he preferred the Teamsters Union.
Simmons did not then sign the card. Two or three days later,
he asked President Moot whether it would be all right for him
to sign the card, was told by Moot that it would, and
thereupon signed it without filling it out. On January 30,
1967, Simmons also signed a Local 399 authorization card
In early February 1967, Vice President Allen asked Sim-
mons and another employer whether Local 399 had signed
them up, and stated that he could not meet the demands of
that Local and preferred the Teamsters. Shortly thereafter,
Allen told Simmons that he had heard that the latter and his
wife had signed up with Local 399, accused Simmons of
attempting to bring in another union, and told him not to talk
to Local 399 representatives. Later, President Moot accused
Simmons of playing "cat and mouse" with him, informed
Simmons that there was a war between unions, and stated that
he could not operate under Local 399 but could afford the
Teamsters.' 8
I find that the above conduct by Moot, Allen, and Baines
violated Section 8(a)(1) and (2) 19 Respondents contend that
since the interrogation and expression of preference for Local
986 were not accompanied by threats or coercion, the conduct
was lawful. However, the record establishes that a threat to go
out of business was made by Baines; that after questioning
Simmons as to whether he had signed a Local 399 card, Allen
accused him and his wife of attempting to bung in another
union, and instructed him not to talk to representatives of that
Local ;20 and Moot subsequently accused Simmons of playing
"cat and mouse" with him. It is thus clear that M & M's
conduct involved threats and was coercive.
5. The General Counsel contends that Vice President
Baines unlawfully interrogated employee Lee as to whether
any agent of Local 399 had contacted him, and that Baines
unlawfully warned Lee not to speak to any who did. I reject
this contention since I find that Lee's testimony is unreliable.
At one point in his interrogation, he was not certain as to
when the conversation occurred and as to whether Baines in
fact named Local 399. On further interrogation, he testified
that Baines did not name a union during the conversation.
6. After employee Annie Bragg signed a Local 399 authori-
zation card in February 1967, Vice President Allen questioned
her as to whether any representative of Local 399 had come to
the building where she worked. I find that such interrogation,
which is not defended in Respondents' brief, violated Section
8(a)(1).
7. Employee Reuben Landrum signed a Local 986 member-
ship card, but could not recall the date.' 1 Thereafter, Vice
President Baines asked him whether he had talked to "any
union people," and Landrum answered that he had. Since
Landrum admitted that Baines did not name any union, I
20 There is no evidence to support Respondents' claim that such
instructions were motivated only by M & M's objection to employee
discussions with Local 399 organizers during working time.
2 1 Landrum signed the card at the request of an unidentified
individual who told Landrum that he "was from the office ", who had
previously been seen in the office by Landrum , and who gave Landrum
a paycheck at the time of their conversation. The individual may have
been Morrison, who usually distributed payroll checks. If it was, the
solicitation was not unlawful (see fn . 19, supra). If it was not, the
absence of identification of the individual precludes a finding that the
solicitation was attributable to M & M.
JAN POWER INC.
reject the General Counsel's contention that the interrogation
was coercive.
8. M & M deducted $8 in dues for Local 986 from
Employee Annie Sanders' February 16, 1967, paycheck, which
she received on or about February 20, 1967. When she told
Vice President Allen that she had not joined that Local and
asked about the deduction, he replied that she would have to
join "a" union in order to work, asked her whether Local 399
agents had talked to her about joining, and upon her negative
reply, gave her a Local 986 membership application and a
checkoff card, both of which documents bore the date January
4, 1967. Sanders took the documents home, signed them, but
placed them in a drawer and never returned them. In another
conversation sometime after February 20, 1967, Allen asked
Sanders if Local 399 agents had asked her to join. When she
answered in the negative, Allen instructed her to "tell them to
go to hell" if they came to her In March or April 1967, Allen
sent another Local 986 membership card and another checkoff
card to Sanders, who signed and gave them back to Allen. She
testified that she did so because of Allen's statement that she
could not work if she failed to sign.
I find that Allen's interrogation of and statements to
Sanders, and the unauthorized deduction of Local 986 dues
from her wages, violated Section 8(a)(l) and (2). Respondents
contend that it cannot be determined whether Allen attempted
to "pressure Sanders into signing a card or merely advised her
of her contractual obligation to join the union and of the
existence of a checkoff provision." According to Respondents,
such advice constitutes lawful conduct. I find that Allen's
conduct in telling Sanders that she would have to join a union
in order to work, and in giving her Local 986 application and
checkoff cards on two occasions, did not constitute mere
advice regarding her contractual obligations. Unlike the con-
duct in Keller Plastics Eastern, supra, relied on by Respond-
ents, such conduct constituted a coercive threat. I therefore
find that the solicitation of the application and the checkoff
card amounted to unlawful assistance to Local 986 and
interference which violated Section 8(a)(2) and (1).
D. The Validity of the Collective-Bargaining Agreement
As noted above, the Council on January 10, 1967,
recognized Local 986 as the bargaining representative of a unit
composed of the maintenance employees of Jan Power, M &
M, City, Crystal, and Western, and executed a collective-
bargaining agreement containing a union-security provision
with that Local on January 19, 1967. The General Counsel
contends that the Council "and its Employer-members"
violated Section 8(a)(1), (2), and (3) by executing, maintaining
and enforcing that agreement. His position is predicated upon
22 The General Counsel does not deny that a majority of the
employees in the unit signed Local 986 membership cards. Nor is there
any contention that the agreement was signed in the face of a
conflicting claim by Local 399 which raised a real question concerning
representation within the meaning of Gaylord Printing Co., Inc., 135
NLRB 510.
23 Weinstein Electric Corp., 152 NLRB 25.
24 Hampton Merchants Assn., 151 NLRB 1307. There is no
evidence that the Council participated in maintaining or enforcing the
contract.
25 New Orleans Laundries, Inc., 114 NLRB 1077, Sioux City
Brewery, 82 NLRB 1061.
811
the theory that in view of the bargaining history and the
provisions of the agreement, the appropriate bargaining unit
was a multi-employer unit consisting of the employees of the
five "members" of the Council; and that in view of the illegal
assistance rendered to Local 986, the record establishes that
that Local did not represent an uncoerced majority in that
unit,22 In its brief, the Charging Party contends that the
execution, maintenance and enforcement of the contract
constituted unfair labor practices by the Council, Jan Power
and M & M, but does not assert that this conduct also
constituted unfair labor practices by Western, Crystal or City.
Western was not a formal member of the Council and was
not named as a respondent in the complaint herein. Although
Crystal and City were members of the Council, they too were
not named as respondents. In addition, the General Counsel at
the hearing disavowed any intention of seeking a finding of
remediable unfair labor practices by these three employers. In
these circumstances, I reject the General Counsel's contention
insofar as it applies to Crystal City, and possibly to Western. On
the other hand, I agree that the multiemployer unit was an
appropriate unit. I also agree that if Local 986 did not
represent an uncoerced majority in the unit, Jan Power and M
& M violated Section 8(a)(1), (2), and (3) by executing the
agreement through the Council and by maintaining and
enforcing it thereafter,2 3 and that the Council violated those
sections by executing the agreement.24 However, I do not
agree that the record establishes that Local 986 lacked an
uncoerced majority.
In support of his contention that an uncoerced majority
was absent, the General Counsel argues that the acts of
assistance and coercion shown by the record were so pervasive
that they fainted Local 986's entire majority, thereby ren-
dering the agreement illegal, and warrants an order requiring
the Council and its "members" to withdraw and withhold
recognition from Local 986 and to cease giving any effect to
the agreement. At the same time, the General Counsel
recognizes the distinction between the situation in which the
Board will issue such an order because the assistance and
coercion took place before the agreement was signed,' s and
the situation in which the Board will refuse to issue such an
order because all the illegal conduct occurred after the
agreement was executed 26 He then points to the following
instances of illegal assistance which took place before the
agreement was executed on January 19, 1967: the conversa-
tions between Employee Steptoe and Supervisor Duynstee of
Jan Power, the conversation between Employee Simmons and
Vice President Baines of M & M, the conversation between
employee Moore and President Moot of M & M, and the
solicitation of employees by Alvin Coughlin, the president of
Western.2 7 By relying only on this misconduct, the General
26 Lykes Brothers, Inc. of Georgia, 128 NLRB 606.
27 It is undisputed that in late December 1966, Coughlin toured
various buildings serviced by Western and participated with Employee
Landcraft in solicitation of Western employees to sign Local 986
membership cards, and that Coughlin introduced an agent of Local 986
to Employee Diaz and four other employees, stating that the agent was
there to sign them up. Respondents ' brief admits that Coughlin's
presence during the solicitation "might well have tainted the authoriza-
tion cards then obtained ." I find that such cards were tainted.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel implies, and I agree, that it was the only specific
precontract misconduct established by the record.2 s
Like the General Counsel, the Charging Party contends that
Local 986 did not have an uncoerced majority at the time the
agreement was signed , but bases this claim on a somewhat
different theory. Its position is that the postagreement
misconduct shown by the record suggests the likelihood that
there was substantially more preagreement misconduct than
appears, that the proven and suggested misconduct had a
pervasive effect upon the entire bargaining unit, and hence that
a finding that the entire majority was tainted is warranted.29
In support of this contention, it cites Clement Brothers, Inc.,
165 NLRB No. 87, in which the Board stated.
The Trial Examiner treated the question of District 50's
precontract majority as one which was suceptible to
resolution by a simple mathematical formula; we conclude
that the character of the coercion should be more reahs-
tically measured in terms of its pervasive effect. We have
found that in the period beginning approximately 8 weeks
prior to the signing of the contract, as the evidence
affirmatively shows, at least seven employees were coerced
into joining the Union. The likelihood that the coercion
taking place before the contract was executed was substan-
tially more widespread than appears from the foregoing is
suggested by Respondents' coercive tactics continuing after
the contract was signed . Thus, the Respondent Company,
on approximately 18 separate occasions between June and
September 1965, unlawfully threatened employees with
loss of jobs and other reprisals if they participated in any
way in the Operating Engineers ' organizing campaign, which
commenced in June 1965.
In view of the foregoing, and the record as a whole, we
cannot find, as did the Trial Examiner, the coercion
practiced by the Respondents did not taint District 50's
entire majority.
It thus appears that the General Counsel and the Charging
Party both agree that the contract was unlawful and should be
set aside only if it can properly be found that there was
sufficient precontract misconduct to taint the majority. I
concur. I do not agree , however, that the record establishes
such misconduct. Considering each of the five contracting
employers separately, I find that of the cards which made up
Local 986's Majority, those signed by the employees of
Western were tainted by that company's substantial precon-
tract misconduct; that the evidence does not establish precon-
tract misconduct by City and Crystal which would taint any
cards signed by their employees; and that although Jan Power
and M & M engaged in substantial postcontract misconduct,
28 The General Counsel does not rely on any claim of misconduct
by either Crystal or City, and properly so. There is not a shred of
evidence that Crystal committed any misconduct . As for City, the
record shows the following . During an unspecified date in January
1967, an unidentified individual called City 's employees to a meeting in
the driver's room. At the meeting , Charles McMullen , Jr., the son of
City's owner , asked the employees whether they wanted to join a union.
When they replied that they wished to discuss the matter before
deciding , McMullen left the room. After discussion , during which some
dissatisfaction with Local 399 was expressed , the employees decided to
become members of Local 986 . Upon McMullen's return, he was
informed by their spokesmen that they wanted a union , and he told
them that he would have a union man come out with cards. Employees
the precontract misconduct by each was not significant enough
to taint the cards signed by the respective employees of each. I
reach this conclusion as to Jan Power and M & M because, as I
read the Clement decision, it holds only that given evidence of
more than minimal precontract misconduct and of substantial
postcontract misconduct by an employer, it may realistically
be inferred that his precontract misconduct was more substan-
tial than appears and was sufficiently widespread to create a
reasonable doubt as to the uncoerced character of the
majority. I do not interpret Clement as laying down a similar
rule where, as in the case of Jan Power and M & M, the
precontract misconduct of each was only minimal.
Under the theories of the General Counsel and the Charging
Party, the misconduct of each employer would not be
considered separately. The General Counsel's position is that
the established precontract misconduct by Western, Jan Power,
and M & M should be viewed in the aggregate, and that so
viewed, it was sufficiently pervasive to taint the entire majority
within the multiemployer bargaining unit. The Charging Party
interprets Clement as requiring the conclusions that the
precontract misconduct by Western must be tacked to the
pre-and post-contract misconduct by Jan Power and M & M,
and that the aggregate of such misconduct suggests the
likelihood that the precontract misconduct by the latter two
employers was more substantial than appears, as well as the
likelihood that Crystal and City also engaged in significant
precontract misconduct.
I reject the contention that the misconduct shown by the
record should be aggregated for purposes of determining
whether it tainted Local 986's majority. The General Counsel
cites no authority which holds that a justified inference as to
the misconduct of one employer requires the same inference as
to other employers merely because the employees of these
employers are in the same bargaining unit. Nor is that
proposition established by Clement, which involved only a
single employer. The fact that a multiemployer bargaining unit
is deemed appropriate here indicates that there is a sufficient
degree of community of interest among the employees in the
unit rather than among their five employers Neither that fact
nor the circumstance that the five employers bargained
through the Council requires the assumption that their labor
relations policies were identical. Such an assumption "would
introduce into the Act an element of guilt by `association' "3 o
which is not warranted. A finding of community of labor
policies among the five employers must be predicated on more
direct evidence thereof, as for example, common ownership,
management and centralized control of such policies, or upon
misconduct by an agent of the Council which is attributable to
Johnson, Green, and Smith testified that they later found Local 986
cards on the desk in the driver 's room, but had no knowledge as to who
put them there Each signed a card and returned it to the desk.
According to Johnson , he and others signed on January 26 , 1967 I find
the record insufficient to establish unlawful solicitation on behalf of
Local 986 by City, since it has not been established that a representative
of City placed the cards in the driver 's room. Moreover, there is no
showing that the above events took place before the agreement with
Local 986 was signed
29 The Charging Party concedes that there is no presumption that an
uncoerced majority was absent when Local 986 was recognized and the
agreement was signed.
30 Dearborn Oil & Gas Corporation, 125 NLRB 645, 647.
JAN POWER INC.
the five employers, or upon a joint-employer plan to obtain a
majority for Local 986. No such evidence has been called to
my attention, and I am aware of none. 31
Thus, I find no basis for treating as tainted a majority of the
cards signed by employees of the five employers prior to the
agreement . At most, the record justifies only elimination of
the cards signed by Steptoe of Jan Power, by Simmons and
Moore of M & M, and by Western employees. But since the
record does not disclose exactly how many Western employees
signed Local 986 cards,32 or how many employees were in the
bargaining unit,3 3 there is no showing that elimination of the
above mentioned cards would destroy Local 986's otherwise
undisputed majority. For these reasons, as well as the fact that
the record does not establish how many employees of Jan
Power and M & M signed Local 986 cards,34 the record
similarly falls to establish that elimination of those cards, even
if warranted, would destroy such majority when added to the
other tainted cards.
I find that the General Counsel has not met his burden of
establishing that the agreement was unlawful and that its
execution, maintenance or enforcement was an unfair labor
practice.
E. The Council's Responsibility
The General Counsel seems to contend that the Council is
responsible for the unlawful conduct committed by Jan Power
and by M & M, and for the misconduct by Western. The
Charging Party, however, concedes that the misconduct of
Western cannot be ascribed to the Respondents. There is no
suggestion either in the General Counsel's brief or in the record
that any officer or employee of the Council participated or
even knew of such conduct by the three employers. Thus, if
the General Counsel is seeking to attribute such conduct to the
Council, it must be on the theory that Jan Power and M & M
were agents of the Council by reason of their membership
therein, and that Western was an agent of the Council by
reason of its appointment of the latter as its bargaining agent.
The difficulty with this position is that it relies upon an
improper reversal of roles. The Council was not the principal,
it was the agent of the three employers. Accordingly, it cannot
be held derivatively responsible for acts of its principals. In
Dan T. Edwards and Son, d/b/a Western Auto Associate Store,
143 NLRB 703, the company president unlawfully paid the
union dues of his employees without obtaining their prior
authorization. Although he was also the president of an
employer association to which the company belonged, the
Board refused to attribute the misconduct to the association in
31 Employee Landcraft of Western testified that in late December
1966, President Coughlin told him that he would receive a call from
someone regarding a union whose name Landcraft could not recall, that
he received a call from an individual who identified himself as the
representative of a maintenance company and of a union , but whose
name Landcraft could not recall , that the individual invited Landcraft
to a meeting of a group of janitors or custodians representing various
unnamed maintenance companies, and stated that the incumbent union
was to be changed , that Landcraft telephoned Coombes, a representa-
tive of Local 986, who stated that a number of men representing "the
maintenance companies " would be present at the meeting , that the
meeting was held between Christmas and New Year 's day , that in
addition to Landcraft , the meeting was attended by nine persons whose
names he did not know ; and that Coombes requested them to solicit the
employees of their respective companies to sign application and salary
deduction cards On this record, I am unable to find that any of the
813
the absence of substantial evidence of any independent illegal
conduct by the association. A fortiori the misconduct by Jan
Powers, M & M and Western cannot be attributed to the
Council since, unlike the situtation in Western Auto, the
Council and the three employers did not even have common
officers. I find that the record fails to establish any unfair
labor practices by the Council.
F. The Alleged Conduct of Local 986
The General Counsel and Charging Party contend that since
the collective-bargaining agreement was unlawful, Local 986
violated Sections 8(b)(1)(A) and (2) by executing, maintaining
and enforcing that agreement Since I have found that the
illegality of the agreement has not been established, I reject the
contention.
11 THE REMEDY
I shall recommend that Respondents Jan Power and M & M
cease and desist from their unfair labor practices, and that they
take certain affirmative action, specified below, which I find
necessary to remedy and to remove the effects of the unfair
labor practices.
I shall recommend that Respondent Jan Power make James
and Hayward Ferguson whole for any loss of earnings suffered
because of its discrimination against them, by paying to each a
sum of money equal to that which, absent discrimination, he
would have been paid by Respondent for the period from
February 16 to 28, 1967, less his net earnings during the said
period. The loss of earnings shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Since I have found that the collective-bargaining agreement
between the Council and Local 986 was not unlawful, and
since the record does not otherwise establish the inability of
that Local to represent the employees covered by the
agreement, I do not deem it necessary, in order to effectuate
the policies of the Act, to recommend an order to cease giving
effect to the agreement or to cease recognizing Local 986
unless and until certified. Lykes Bros. Inc. of Georgia, 128
NLRB 606.
As requested by the Charging Party, I shall recommend an
order reimbursing employees for dues deducted without
authorization or with coerced authorization. Meyer Bros. of
Missouri, Inc., 151 NLRB 889. So far as the record shows, the
only employees who fall into this category are James Fer-
guson, who was in the employ of Respondent Jan Power, and
Annie Sanders and Marvin E. Webb, who were in the employ
contracting employers joined with each other in a program of coercive
action to obtain a majority for Local 986.
32 Employees Landcraft and Diaz gave some testimony relating to
cards signed by Western employees.
33 The charge against the Coui.cil indicates that about 200 persons
were employed by the employers which it represented. It is well
established , however, that a "charge is not proof ." N.L.R.B. v. Indiana
& Michigan Electric Co., 318 U S. 9.
34 Respondents' brief asserts (pp. 11 , 17, 32, 36) that Jan Power
and M & M employed approximately 40 and 90 employees, respectively,
and that it is conceded that over half of these signed cards. Respondents
cite the charges filed against those employers as authority for the
assertion regarding the number which each employed . But as already
noted, a charge is not proof Moreover , Respondents have not disclosed
where the alleged concession appears in the record , and I have
discovered none therein.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent M & M.35 I shall therefore recommend that
these three employees be reimbursed by their respective
employers, with interest, for dues illegally deducted from their
wages.3 6 I shall further recommend that M & M cease giving
effect to the checkoff authorization coercively obtained from
Sanders.3
Conclusions of Law
1. By unlawfully interrogating and threatening employees,
and by unlawfully discouraging protected concerted activity
on behalf of Local 399, Respondents Jan Power and M & M
engaged in unfair labor practices in violation of Section 8(a)(l)
of the Act.
2. By unlawfully conveying to employees the impression
that their union activities were under surveillance, Respondent
Jan Power engaged in unfair labor practices in violation of
Section 8(a)(1).
3 By unlawfully promising a wage increase to induce
execution of a checkoff authorization by an employee,
Respondent M & M engaged in an unfair labor practice in
violation of Section 8(a)(1).
4. By unlawfully soliciting membership applications and
checkoff authorizations on behalf of Local 986, and by
unlawfully deducting dues on behalf of Local 986 from the
wages of employees, Respondents Jan Power and M & M
engaged in unfair labor practices in violation of Section 8(a)(2)
and (1) of the Act.
5. By temporarily reducing the hours of work of James and
Hayward Ferguson because of their activities on behalf of
Local 399, Respondent Jan Power engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The record fails to establish that Jan Power or M & M
engaged in any alleged unfair labor practices not found above.
8. The record fails to establish that Respondent Council
and Respondent Local 986 engaged in any unfair labor
practices.
[Recommended Order omitted from publication.]
35 There is no evidence that the execution of a Local 986
membership application also constituted authorization to deduct dues
or other fees . On the contrary, the record shows that the Local 986
membership application and the checkoff card were separate docu-
ments. Accordingly , I do not find that an employee who signed an
application as a result of his employer 's coercion should also be deemed
to have authorized checkoff of his dues as a result of coercion.
36 Since there is no evidence that Local 986 participated in the
deduction , I shall not recommend a similar reimbursement order against
that Local.
37 Such an order is unnecessary in the case of James Ferguson, who
is no longer in the employ of Jan Power.