Flying Dutchman Park

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 414 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
Flying Dutchman Park, Inc. and Toby Kelly

Teamsters Automotive Employees Local Union No.
665, affiliated with International Brotherhood of
Teamsters, AFL–CIO and Toby Kelly. Cases
20–CA–26331, 20–CA–26403, and 20–CB–9761
September 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On November 9, 1995, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel and the Union each filed exceptions and sup-
porting briefs and the Respondent Employer filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
The issue presented in Case 20–CA–26403 is whether
the Respondent Employer (the Respondent) violated Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
sign a contract submitted to it for execution by the Un-
ion.3 As the judge explained, Section 8(d) of the Act
requires the parties to a collective-bargaining relation-
ship, once they have reached agreement on the terms of a
collective-bargaining contract, to execute that contract at
the request of either party. A failure to do so constitutes
a violation of Section 8(a)(5) of the Act. Initially, the
judge found that the parties had reached oral agreement
on a new contract prior to the Union’s request that the
Respondent sign a written version of the agreement. The
judge further found, however, that the contract contained
an unlawful clause in its union-security provision. With-
out further analysis, the judge found, in effect, that the
one unlawful clause voided the entire contract. Accord-
ingly, the judge concluded that he could not require the
Respondent to execute the agreement and recommended
that the complaint in Case 20–CA–26403 be dismissed.
For the reasons set out below, we agree with the judge
that the contract clause at issue here was unlawful, but
disagree with his further finding that this one unlawful
clause voided the entire contract. Finally, since we also
find that the Respondent was obligated to execute the
agreed-on collective-bargaining agreement, we find that
the Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to execute the contract.

1 The Respondent Employer has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The judge incorrectly cited Acme Tile & Terrazzo Co., 318 NLRB
425 (1995), in his decision.
2 The Order contains remedial provisions that are in accord with our
decision in Indian Hills Health Center, 321 NLRB 144 (1996), as
modified in Excel Container, Inc., 325 NLRB 17 (1997).
3 In Cases 20–CA–26331 and 20–CB–9761, we adopt the judge’s
findings, to which there were no exceptions, that the Respondent Em-
ployer and the Respondent Union violated the Act by enforcing union-
security and dues-checkoff provisions in the absence of a collective-
bargaining agreement lawfully containing such provisions and that the
Respondent Employer violated Sec. 8(a)(1) by threatening employees
with discharge if they did not join the Union at a time when no bargain-
ing agreement had been agreed to and executed.
The judge has fully set out the facts. In brief, the Re-
spondent and the Union had a collective-bargaining rela-
tionship for at least 12 years prior to the events at issue
here. The parties’ last collective-bargaining agreement
expired in September 1993. Thereafter, the Respon-
dent’s president, James Vierling, met with Richard Rod-
riguez, the Union’s vice president and chief negotiator,
on seven or eight occasions to negotiate a new contract.
Ray Vetterlein, the Respondent’s labor consultant, was
present at some of those meetings. Prior to the parties’
last meeting on August 18, 1994,4 Vierling was con-
cerned about three issues: wages, holidays, and inclusion
of language in the contract that would limit the contract’s
application to the city and county of San Francisco. At
the August 18 meeting, Vierling and Rodriguez resolved
these issues and reached agreement on a new contract.
Rodriguez agreed to reduce the oral agreement to writ-
ing. The written agreement contained the following
clause in its union-security provision:
When an Employee is engaged outside of the Union of-
fice, he shall be required to obtain a referral from the
Union before starting to work.
The union-security provision of the expired contract also
contained this clause.5
On August 23, Ernie Yates, the Union’s president,
faxed a copy of the agreement to Vierling. Vierling then
4 All dates hereafter refer to 1994 unless otherwise stated.
5 The union-security provisions of the expired contract and the pro-
posed contract are identical and read as follows:
SECTION 1: HIRING OF EMPLOYEES:
Only members in good standing in the Union shall be re-
tained in employment. For the purposes of this Section, “member
in good standing” shall be defined to mean employee members of
the Union who tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining member-
ship.
All employees covered by this Agreement shall become
members of the Union within thirty-one (31) days from the effec-
tive date of the Agreement or within thirty-one (31) days from the
date of employment, whichever is later, and shall remain mem-
bers of the Union in good standing as a condition of continued
employment.
The Employer shall be the sole judge of the competency and
fitness of the Employee. When an Employee is engaged outside
of the Union office, he shall be required to obtain a referrral [sic]
from the Union before starting to work.
329 NLRB No. 46
FLYING DUTCHMAN PARK, INC. 415
called Rodriguez to complain that the August 23 agree-
ment did not contain the agreed-on language limiting the
contract’s application to the city and county of San Fran-
cisco. This was Vierling’s only objection to the contract.
On August 25, Rodriguez faxed Vierling a corrected
copy of the agreement that included the jurisdictional
language requested by Vierling. Also on August 25, the
Respondent and the Union received copies of a decertifi-
cation petition which employee Toby Kelly had filed
with the Board on August 23. On August 26, Vierling
sent Vetterlein a copy of the contract. In his cover letter,
Vierling stated that the contract was “straight forward”
and asked Vetterlein whether he should sign the agree-
ment given the filing of the decertification petition.
Thereafter, the Respondent refused to sign the agree-
ment.
We agree with the judge that the parties reached
agreement on a new contract on August 18 and that the
written agreement faxed to Vierling on August 25 con-
formed to the terms of the August 18 oral agreement.
We also agree with the judge that the Respondent’s ob-
jections to signing the agreement arose only after it ob-
tained knowledge of the decertification petition. As to
these objections, the Respondent now asserts that it was
not obligated to execute the contract because the union-
security clause set out above was unlawful and voided
the entire contract. The Respondent also now asserts that
it was not obligated to execute the agreement because it
had, in effect, a good-faith doubt of the Union’s continu-
ing majority status based on the filing of the decertifica-
tion petition and the fact that less than a majority of the
unit employees were union members. Because, as ex-
plained above, the judge found merit in the Respondent’s
former argument and dismissed the complaint on that
basis, he did not address the Respondent’s latter argu-
ment in his decision. We shall now consider these argu-
ments in turn.
Initially, contrary to our dissenting colleague, we agree
with the judge, for the reasons stated by him, that the
union-security clause was unlawful on its face. More
specifically, because the collective-bargaining agreement
does not provide for an exclusive hiring hall arrangement
with the Union, the contractual provision requiring em-
ployees “engaged outside of the Union office” to obtain a
“referral from the Union before starting to work” is un-
lawful on its face. Even if, as our colleague contends,
the term “referral” does not require an employee to be-
come a union member before starting to work, it clearly
requires, by its ordinary meaning, that an employee is
required to obtain an approval or clearance from the Un-
ion before actually beginning to work. On this basis
alone, the provision is unlawful on its face. See Acme
Tile & Terrazzo Co., 318 NLRB 425, 428 fn. 11 (1995),
affd. 87 F.3d 558 (1st Cir. 1996).
Further, we disagree with our dissenting colleague’s
assertion that “extrinsic evidence” supports her conten-
tion that the union-security clause was lawful. Our col-
league relies on the testimony of Union President Rodri-
guez that the Union never proposed or urged on the Re-
spondent any interpretation of the union-security clause
that would require newly hired employees to become
members of the Union or to obtain the Union’s approval
before starting to work. However, the record also con-
tains a February 4, 1994 letter from the Union’s attorney
to the Respondent’s negotiator, Ray Vetterlein, which
contrasts with Rodriguez’ testimony. The letter states
that its purpose is to “confirm the following understand-
ing” reached at the February 2, 1994 bargaining session:

The Employer agrees to interpret the Union’s se-
curity clause to require that the employees be sent to
the Union for clearance and [that] they obtain that
clearance before they are put to work. The employer
agrees that if it should violate that provision there
will be a $100.00 penalty for each such violation.

Thus, Rodriguez’ testimony notwithstanding, the record
establishes that the Union proposed that the union-security
clause be interpreted to require that new employees get
“clearance” from the Union before starting to work. We see
no real substantive distinction between clearance and ap-
proval.
Our dissenting colleague also relies on contractual lan-
guage which states that “the Employer shall be the sole
judge of the competency and fitness of the Employee.”
That language, however, does not persuade us that the
union-security clause is lawful. The Respondent may
well be the sole judge of competency and fitness, but, by
the express terms of the union-security clause, the Union
must nevertheless add its approval before an employee—
no matter how competent or fit—is permitted to start
working. Thus, the above “competency and fitness” lan-
guage in the contract simply clarifies that the Union’s
approval or disapproval of employees before they start
work will not turn on an assessment by the Union of their
competency and fitness.
Our colleague also argues that the required referral is
not a condition precedent to being hired, but is at most a
condition precedent only to actually starting to work.
Even if this is so, the fact remains that, under the express
terms of the union-security clause, newly hired employ-
ees cannot actually start to work until they obtain the
contractually required “referral” from the Union. In the
absence of an exclusive hiring hall arrangement, we do
not think that the Union can impose this condition prece-
dent to starting work.
Finally, our dissenting colleague attempts to save this
provision by imputing to the term “referral” a special
meaning in accord with “what the Union contends is its
lawful intent.” We have already found that extrinsic evi-
dence about the Union’s intent does not compel a finding
that the intent was lawful. But, even assuming a lawful
intent as our colleague contends, the issue in this case is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
whether the clause violates Sections 8(a)(1) and
(b)(1)(A). That turns on whether the clause reasonably
tends to restrain or coerce employees in the exercise of
protected rights. Boilermakers Local 686 (Boiler Tube
Co. of America), 267 NLRB 1057, 1057 (1983); see Acme
Tile & Terrazo Co., supra at 427 fn. 7 (in determining
whether employer’s statements to employees that they
must obtain a “referral” from the union violated Section
8(a)(1), Board applies an objective test). This is an objec-
tive test which necessarily involves inquiry into the plain
meaning of the words of the clause, and how employees
would reasonably interpret it. See J. C. Penney Co., 266
NLRB 1223, 1224 (1983). Unless a contrary intent has
clearly been communicated to employees and applicants
for employment, therefore, evidence as to the parties’
intent is of no avail in resolving the issue of whether the
clause is unlawful on its face. In this case, we find that
prospective employees reasonably could interpret this
clause as a restraint on their Section 7 right to choose or
refrain from union membership or support.
For the reasons set forth above, we agree with the
judge that the union-security clause is unlawful on its
face. We further find, however, that the judge erred in
finding that the inclusion of the unlawful clause in the
contract justified the Respondent’s refusal to sign the
agreement. The judge failed to consider in his analysis
whether the Respondent’s refusal to sign the contract was
motivated by the presence of the unlawful clause in the
contract or by other considerations. In cases where a con-
tract contains an unlawful provision, but the employer’s
refusal to sign the contract is motivated by reasons other
than the presence of the unlawful provision in the con-
tract, the Board requires the employer to execute the con-
tract with the unlawful provision deleted. See, e.g.,
Tulsa Sheet Metal Works, 149 NLRB 1487, 1488 (1964),
enfd. 367 F.2d 55 (10th Cir. 1966), and Custom Sheet
Metal & Service Co., 243 NLRB 1102, 1109–1110
(1979), enf. denied 666 F.2d 454 (10th Cir. 1981).
In the present case, as the judge himself observed, the
Respondent’s objections to signing the agreement arose
only after the decertification petition was filed. As set
out above, on August 26 Vierling advised Vetterlein that
the contract submitted for execution on August 25 was
straightforward and explained that his only concern was
whether he should sign the contract in light of the filing
of the decertification petition on August 23. Thus, it is
clear that Vierling’s refusal to sign the contract was not
motivated by the fact that it contained an unlawful
clause. Indeed, that Vierling’s refusal to execute the
agreement was motivated by factors other than the pres-
ence of the unlawful clause in the proposed contract is
underscored by the fact that although the expired agree-
ment contained the same unlawful provision, Vierling
had never objected to its inclusion in that contract nor
sought its removal from the proposed contract during
negotiations. “This indicates that the objections [based
on the illegal clause] were merely afterthoughts and may
not therefore stand as defenses to the 8(a)(5) allegation.”
Custom Sheet Metal & Service Co., supra at 1110.
Having found that the inclusion of the unlawful clause
in the contract does not justify the Respondent’s refusal
to execute the contract, we now address the issue of
whether the unlawful clause so permeates the contract as
to render the entire contract unenforceable.6 This issue
need not detain us long. For in cases where the Board
has found a union-security provision unlawful because it
did not provide newly hired employees the legally estab-
lished grace period in which to become union members,
the Board has not found that such a provision so perme-
ates a contract as to render the contract unenforceable.
See Royal Components, Inc., 317 NLRB 971, 972
(1995). We likewise decline to make such a finding here
where the clause in question is “not basic to the whole
scheme of the contract, and there is no provision that the
contract is ‘integrated’ or that its respective sections are
‘interdependent.’” NLRB v. Tulsa Sheet Metal Works,
367 F.2d at 59.7 For all these reasons, we reverse the
judge and find that the inclusion of the illegal clause in
the contract did not justify the Respondent’s refusal to
execute the agreement.
As to its second defense, the Respondent asserts that it
also was not obligated to execute the contract on or after
August 25 because it had a good-faith doubt about the
Union’s continued majority support among the unit em-
ployees. In support of its asserted good-faith doubt, the
Respondent relies on both (1) the precontract circum-
stance that only a minority of the unit employees were

6 An employer is not obligated to execute a contract which contains
an illegal provision or provisions that so permeate the contract as to
render it unenforceable. As the 10th Circuit explained in NLRB v.
Tulsa Sheet Metal Works, 367 F.2d 55, 59 (1966):
We are, of course, mindful that not all provisions of a collective bar-
gaining agreement are severable. But employment contracts should
not be completely obliterated because some provisions are beyond the
legal limits of the parties’ bargaining power, unless such illegal provi-
sions permeate the complete contract to such an extent as to affect its
enforceability entirely. NLRB v. Rockaway News Co., 345 U.S. 71, 73
S.Ct. 519, 97 L.Ed. 832.
7 Cf. NLRB v. Custom Sheet Metal Service, 666 F.2d 454, 459–461
(1981), where the 10th Circuit reversed the Board’s finding that an
employer who was no longer engaged in the construction industry was
obligated to execute the contract between the employer association and
the union. The court found, inter alia, that a provision included in the
contract which limited employment to those with “‘minimum training
or experience qualifications’ (i.e., journeyman and apprentice sheet
metal workers—Article III)” was unlawful because the respondent was
not engaged in the construction industry. The court also found that this
unlawful provision permeated the contract to such an extent as to ren-
der the contract unenforceable. In this regard, the court stated that “[i]f
any provision of a collective bargaining agreement is truly vital, it is a
provision pertaining to the classification of employees, and this seems
especially true when the wage scale in a contract is directly tied to the
classification scheme.” Id. at 460. By contrast, although the court also
found that the contract contained an unlawful 8-day union-security
clause (art. V), the court did not find that this provision permeated the
contract.
FLYING DUTCHMAN PARK, INC. 417
actually members of the Union, and (2) the postcontract
filing of the decertification petition. More specifically,
the Respondent was aware, during contract negotiations
before its August 18 final agreement with the Union on
the terms of the new contract, that only a minority of the
unit employees were actually members of the Union.
The August 23 decertification petition was, of course,
filed after the parties’ August 18 final agreement on their
contract. The Respondent received a copy of the decerti-
fication petition on August 25—the same day it received
the corrected copy of the final agreed-on contract from
the Union for signature.
We find that the Respondent was not permitted to as-
sert a good-faith doubt about the Union’s continued ma-
jority status based on either of the above circumstances
following the August 18 agreement on a new collective-
bargaining agreement. When an employer asserts a
good-faith doubt about an incumbent union’s continued
majority status based on events—including the filing of a
decertification petition—occurring after final agreement
on the substantive terms of a collective-bargaining
agreement, an employer may not lawfully refuse to bar-
gain. This is true regardless of the status of any written
instrument incorporating such agreement.8 As the Board
stated in Auciello Iron Works:9

We affirm the rule set forth in North Bros. Ford that a
union’s acceptance of an employer’s outstanding con-
tract offer precludes the employer from raising a good-
faith doubt of the union’s majority status based on
events occurring after acceptance. Thus, the em-
ployer’s good-faith doubt based on subsequent events
is not available to defend a refusal to execute a valid
agreement or a withdrawal of recognition.

Thus, the Respondent could not refuse to execute the
agreed-on contract on the asserted basis of a good-faith
doubt about the Union’s continued majority status where the
asserted doubt was based, at least in part, on a decertifica-
tion petition filed after the parties reached final agreement
on August 18.
The Respondent cannot circumvent this rule on the
grounds that its asserted good-faith doubt is also based,
at least in part, on pre-August 18 grounds—the fact that
only a minority of the unit employees were actually
members of the Union. The Supreme Court has rejected
such preagreement grounds for post-agreement assertions
of good-faith doubt of a union’s continued majority
status. In Auciello Iron Works, Inc. v. NLRB, supra, the
Court held that an employer violates Section 8(a)(5) and
(1) by refusing to execute an agreed-on collective-
bargaining agreement because of an asserted good-faith

8 North Bros. Ford, 220 NLRB 1021, 1022 (1975); Highland Hospi-
tal, 288 NLRB 750, 760 (1988), enfd. 861 F.2d 56 (2d Cir. 1988); and
Bennett Packaging, 285 NLRB 602, 608 (1987).
9 317 NLRB 364, 368 (1995) (emphasis in original), enfd. 60 F.3d
24 (1st Cir. 1995), affd. 517 U.S. 781 (1996).
doubt about a union’s continued majority status when the
asserted doubt arises from facts known to the employer
before the union accepted the employer’s contract offer.
The Court noted that a union is entitled under Board
precedent to a conclusive presumption of continued ma-
jority status during the term of a collective-bargaining
agreement, up to 3 years.10 The Court particularly re-
jected the notion that an employer’s repudiation of a con-
tract might be justified because its doubt of the union’s
majority status was expressed very soon after—even as
little as 1 day after—the employer and the union agreed
on a contract.11 In sum, the Court held that the precon-
tractual good-faith doubt about the union’s continued
majority status was not adequate to support an exception
to the conclusive presumption of continued majority
support for the union arising “at the moment” a collec-
tive-bargaining contract offer has been accepted.12
Applying these principles here, the fact that only a mi-
nority of the unit employees were actually members of
the Union was known to the Respondent Employer be-
fore August 18. The Respondent nonetheless reached
agreement with the Union on August 18 and did not re-
pudiate the agreement until a week later. Under Auciello,
supra, the Respondent could not lawfully refuse to exe-
cute the agreed-on contract on the asserted basis of a
good-faith doubt deriving, at least in part, from minority
membership in the Union among unit employees which
the Respondent was aware of before the parties agreed to
the contract.
Accordingly, in light of the above considerations, we
find that the Respondent could not lawfully rely on a
good-faith doubt about the Union’s continued majority
status as a basis for refusing to execute the August 18
collective-bargaining agreement, regardless of whether
that asserted doubt was based on circumstances that ex-
isted before the parties reached agreement on their con-
tract, or events that occurred after it.13 Consequently, we
10 517 U.S. at 786, citing NLRB v. Burns Security Services, 406
NLRB 272, 290 fn. 12 (1972).
11 517 U.S. at 788. Thus, the Court found that, under the Act, an
employer has adequate courses of action available to it to act on any
doubts about a union’s continued majority status that the employer may
have prior to reaching agreement with the union on a collective-
bargaining agreement. Specifically, the Court found that an employer
harboring such a doubt during contract negotiations, but prior to
agreement, could withdraw its outstanding contract offer and then
either (1) petition the Board for a representation election under Sec.
9(c)(1)(B) of the Act; (2) withdraw recognition of the union based on
its doubt, and then rely on that doubt to defend against any subsequent
unfair labor practice charge alleging unlawful withdrawal of recogni-
tion; or (3) further investigate the circumstances giving rise to its doubt,
while nevertheless continuing to bargain in good faith with the union.
Id. at 788–789.
12 Id. at 791–792.
13 In view of our finding that the Respondent is not permitted to as-
sert a good-faith doubt, we make no findings as to whether the evidence
cited by the Respondent would have been, in other circumstances,
sufficient to establish a good-faith doubt as to the Union’s majority
status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
find that the Respondent violated Section 8(a)(5) and (1)
of the Act, as alleged, by refusing to execute the parties’
collective-bargaining agreement.
AMENDED CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening employees with loss of employment
for not complying with a union-security clause at a time
when there was no collective-bargaining agreement in
effect lawfully containing such a clause, Respondent
Employer has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By enforcing union-security and dues-checkoff pro-
visions in the absence of a collective-bargaining agree-
ment lawfully containing such a clause, Respondent Em-
ployer engaged in unfair labor practices in violation of
Section 8(a)(1), (2), and (3) of the Act and Respondent
Union engaged in unfair labor practices in violation of
Section 8(b)(1)(A) and (2) of the Act.
5. By refusing to sign the contract submitted to it for
execution by the Union on August 25, 1994, the Respon-
dent Employer violated Section 8(a)(5) and (1) of the
Act.
6. The aforementioned unfair labor practices are un-
fair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
AMENDED REMEDY
Having found that the Respondent Employer and the
Respondent Union violated Section 8(a)(1), (2), and (3),
and Section 8(b)(1)(A) and (2) respectively, we shall
order them to cease and desist, and to take certain af-
firmative action necessary to effectuate the policies of
the Act. Specifically, we shall order the Respondents to
reimburse, with interest, any employees who tendered
dues and/or fees between June 2 and September 30,
1994. Interest shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987); see also Florida Steel Corp., 231 NLRB
651 (1977). Further, having found that the Respondent
Employer violated Section 8(a)(5) and (1) by refusing to
execute the agreed-on contract, we shall order the Re-
spondent Employer to execute that agreement, with the
unlawful union-security clause deleted, and to give retro-
active effect to that agreement. We shall also order the
Respondent Employer to make whole its employees for
any loss of earnings that they may have suffered as a
result of its failure to execute the collective-bargaining
agreement on August 25, 1994. Backpay, if any, is to be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest, as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). Nothing here is to
be construed as requiring the Respondent to recoup
wages or benefits already received by its employees.
ORDER
The National Labor Relations Board orders that
A. Respondent Teamsters Automotive Employees Un-
ion Local No. 665, affiliated with International Brother-
hood of Teamsters, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Enforcing a union-security clause or dues-checkoff
provision with Flying Dutchman Park in the absence of a
collective-bargaining agreement lawfully containing such
a clause.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent that it has not already done so, make
whole employees for all dues and fees unlawfully with-
held from them with interest as provided in the
“Amended Remedy” section of this decision.
(b) Within 14 days after service by the Region, post at
its offices and meeting halls copies of the attached notice
marked “Appendix A.”14 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Sign and return to the Regional Director sufficient
copies of the notice for posting by Flying Dutchman
Park, Inc., if willing, at all places where notices to em-
ployees are customarily posted.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. Respondent Flying Dutchman Park, Inc., San Fran-
cisco, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with the loss of employ-
ment for not complying with a union-security clause at a
time when there is no collective-bargaining agreement in
effect lawfully containing such a clause.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FLYING DUTCHMAN PARK, INC. 419
(b) Enforcing a union-security clause or dues-checkoff
provision with Teamsters Automotive Employees Local
Union No. 665, in the absence of a collective-bargaining
agreement lawfully containing such a clause.
(c) Refusing to execute and give effect to the collec-
tive-bargaining agreement agreed to by the Respondent
Employer and Teamsters Automotive Employees Local
Union No. 665 on August 18, 1994, except to the extent
specified below.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Execute the collective-bargaining agreement sub-
mitted to it by Teamsters Automotive Employees Local
Union No. 665 on August 25, 1994, except that the
agreement shall not contain the union-security clause
found unlawful.
(b) Abide by all the terms of the collective-bargaining
agreement entered into with Teamsters Automotive Em-
ployees Local Union No. 665 and give retroactive effect
to its terms.
(c) Make whole its employees in the manner set forth
in the “Amended Remedy” section of this decision, for
any loss of pay which they may have suffered by reason
of the Respondent Employer’s refusal to execute and
give effect to the collective-bargaining agreement agreed
to by the parties on August 18, 1994, restoring whatever
rights and privileges they may have lost by reason of the
Respondent Employer’s failure to execute and give effect
to the agreement.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its San Francisco, California facility copies of the at-
tached notice marked “Appendix B.”15 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

15 See fn. 14, above.
employees employed by the Respondent at any time
since June 2, 1994.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER FOX, concurring and dissenting in part.
I agree with my colleagues in every respect except that
I would not find that the union-security clause contained
in the agreed-on collective-bargaining agreement is
unlawful on its face. In my view, the reference to the
requirement of obtaining a “referral” from the Union
does not, in context, mandate either that employees must
be approved by the Union before they are hired or that
they must join the Union before they can lawfully be
required to under the 8(a)(3) proviso. The referral re-
quirement applies to employees who have been “engaged
outside of the Union office” and merely requires that
they obtain the referral before actually “starting to work.”
This is entirely consistent with what the Union contends
is its lawful intent: to ensure that the Union knows who
is on the Respondent’s payroll and their date of hire. The
clause by its terms operates in circumstances where the
hiring or “engagement” of the employee has already oc-
curred; and its specification that employees “become
members of the Union . . . within thirty-one (31) days
from the date of employment” (with membership defined
in terms of payment of dues and initiation fees) makes
clear that the “referral” requirement is not a requirement
that employees join the Union before they begin work.
The collective-bargaining agreement also states that “the
Employer shall be the sole judge of the competency and
fitness of the employees,” thereby making clear that the
Union has no ability to veto the Employer’s hiring deci-
sions.
In construing a clause that is alleged to unlawfully en-
courage union membership, we must begin with the Su-
preme Court’s statement in NLRB v. News Syndicate, 365
U.S. 695, 699 (1961), that “we will not assume that un-
ions and employers will violate the federal law, favoring
discrimination in favor of union members against the
clear command of this Act of Congress.” As the Court
made clear in that case, illegal objects will not be pre-
sumed, and contracts will not be found unlawful merely
because they fail to disclaim all illegal objects. See also
Teamsters Local 357 v. NLRB, 356 U.S. 667 (1961).
That a union-security clause may contain terms that are
ambiguous is not a basis for finding the clause to be un-
lawful on its face. See Electronic Workers IUE Local
444 (Paramax Systems), 311 NLRB 1031, 1037 (1993),
enf. denied on other grounds 41 F.3d 1532 (D.C. Cir.
1994). Rather, in construing such clauses, as in other
contract interpretation matters,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420
the parties’ actual intent underlying the contractual lan-
guage in question is always paramount, and is given
controlling weight. To determine the parties’ intent,
the Board normally looks to both the contract language
itself and relevant extrinsic evidence, such as a past
practice of the parties in regard to the effectuation or
implementation of the contract provision in question, or
the bargaining history of the provision itself.
Mining Specialists, 314 NLRB 268, 268–269 (1994) (foot-
notes omitted).
My reading of the clause as having a lawful purpose is
supported not only by the language of the clause, but also
by extrinsic evidence in the record as to how the clause
has been implemented by the parties in the past. The
language of the union-security clause is identical to the
language of the union-security clause in the prior, ex-
pired agreement between the parties. However, there is
no evidence that the clause was ever unlawfully applied
to require newly hired employees either to become mem-
bers of the Union or to obtain approval from the Union
before going to work. To the contrary, the Union’s
president testified without contradiction that the Union
had never proposed or urged on the Respondent any such
interpretation of the union-security clause, that employ-
ees were in fact hired and allowed to go work without
first joining or being approved by the Union, and that the
Union never sought to take any action against those em-
ployees.
In sum, the contractual clause at issue here contains
express provisions making clear that employees are not
required to be or become union members until they have
been employed for 30 days and disavowing any role for
the Union in approving or disapproving employees se-
lected by the Employer for hire. The record reflects that
the clause has been applied in a lawful manner in the
past. Under these circumstances, I am unable to con-
clude that the clause can only by construed to have the
unlawful purpose ascribed to it by my colleagues and
therefore must be found to be unlawful on its face.
Regardless of the legality of the union-security clause,
however, it was not a ground on which the Respondent
declined to execute the contract. Thus, even accepting
the judge’s reading of the clause, I agree with my col-
leagues that the inclusion of the clause in the contract did
not justify the Respondent’s refusal to execute the con-
tract. I also agree that Auciello Iron Works v. NLRB, 517
U.S. 781 (1996), is controlling, and that the Respondent
was not privileged to refuse to execute the agreement
because of its asserted good-faith doubt about the Un-
ion’s continued majority status. Accordingly, I agree
with my colleagues that the Respondent Employer has
violated Section 8(a)(5) and (1) in the respects stated. I
would not, however, as part of the amended remedy, di-
rect that the union-security clause be deleted from the
agreement the Respondent is required to execute.

APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT enforce a union-security clause or dues-
checkoff provision with Flying Dutchman Park in the
absences of a collective-bargaining agreement lawfully
containing such a clause.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL make whole employees for all dues and fees
unlawfully withheld from them, with interest.
TEAMSTERS AUTOMOTIVE EMPLOYEES LOCAL
UNION NO. 665

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid and protec-
tion
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees with the loss of em-
ployment for not complying with a union-security clause
at a time when such a clause is not lawfully in effect.
WE WILL NOT enforce a union-security clause or dues-
checkoff provision with Teamsters Automotive Employ-
ees Local Union No. 665, in the absence of a collective-
bargaining agreement lawfully containing such a clause.
WE WILL NOT refuse to execute and give effect to the
collective-bargaining agreement whose terms we agreed
to with Teamsters Automotive Employees Local Union
No. 665 on August 18, 1994.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
FLYING DUTCHMAN PARK, INC. 421
WE WILL execute and give retroactive effect to the col-
lective-bargaining agreement submitted to us for execu-
tion by Teamsters Automotive Employees Local Union
No. 665 on August 25, 1994, except that the agreement
shall not contain the clause of the union-security provi-
sion found unlawful.
WE WILL make whole our employees for any loss in-
curred as a result of our unlawful enforcement of the
union-security and dues-checkoff provisions, with inter-
est; and WE WILL make whole our employees for any loss
of pay which they may have suffered by reason of our
refusal to execute and give effect to the collective-
bargaining agreement whose terms we agreed to with
Teamsters Automotive Employees Local Union No. 665
on August 18, 1994, with interest; and WE WILL restore
whatever rights and privileges our employees may have
lost by reason of our failure to execute and give effect to
the agreement.
FLYING DUTCHMAN PARK, INC.
Lucille Rosen, Esq., for the General Counsel.
Richard Harrington, Esq. (Chandler, Wood, Harrington &
Maffly), of San Francisco, California, and Raymond H.
Veterlein (Labor Relations Associates), of San Francisco,
California, for the Employer.
David Rosenfeld and Antonio Ruiz, Esqs. (Van Bourg Wein-
berg, Roger & Rosenfeld), of Oakland, California, for the
Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard these
cases in trial at San Francisco, California, on July 27, 1995. On
September 20, 1994, Toby Kelly, an individual (Kelly), filed
the charge in Case 20–CA–26331 alleging that Flying Dutch-
man Park, Inc. (Respondent Employer or the Employer) com-
mitted certain violations of Section 8(a)(1), (2), and (3) of the
National Labor Relations Act (the Act). That same date, Kelly
filed a charge in Case 20–CB–9761 alleging that Teamsters
Automotive Employees Local Union No. 665, affiliated with
International Brotherhood of Teamsters, AFL–CIO (Respon-
dent Union or the Union) committed certain violations of Sec-
tion 8(b)(1)(A) and (2) of the Act. On December 28, 1994, the
Acting Regional Director for Region 20 of the National Labor
Relations Board issued a complaint and notice of hearing
against Respondents, alleging that Respondent Employer vio-
lated Section 8(a)(3), (2), and (1) of the Act and Respondent
Union violated Section 8(b)(2) and (1)(A) of the Act by unlaw-
fully enforcing the union-security and dues-checkoff provisions
in the absence of a written collective-bargaining agreement.
Respondent Union filed a timely answer to the complaint, de-
nying all wrongdoing. Respondent Employer admitted the
allegations of the complaint.
On November 8, 1994, the Union filed a charge against the
Employer in Case 20–CA–26403 alleging that the Employer
violated Section 8(a)(5) and (1) of the Act by failing and refus-
ing to sign an agreed-on contract. A separate complaint issued
in that case on December 28, 1994. Both complaints were con-
solidated for trial. Respondent Employer filed an answer and
amended answer in Case 20–CA–26403 denying the allegations
of the complaint and raising certain affirmative defenses.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the post hearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Employer is a California corporation with an office and
principal place of business located in San Francisco, California,
where it is engaged in providing valet parking services for
commercial institutions and private parties.
During calendar year 1993, the Employer provided services
in excess of $50,000 to enterprises within the State of Califor-
nia, which enterprises meet the Board’s standards for asserting
jurisdiction on a direct basis. Accordingly, Respondent-
Employer admits and I find that the Employer is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Both Respondents admit and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union-Security and Dues-Checkoff Provisions
1. The facts
The facts in Cases 20–CA–26331 and 20–CB–9761 are not
in dispute. Respondent Union has been party to a series of
collective-bargaining agreements with the Respondent Em-
ployer for approximately 12 years. The most recent agreement
between the Union and the Employer expired by its terms on
September 1, 1993. The parties have not yet executed a succes-
sor agreement. In Case 20–CA–26403, the General Counsel
contends that the parties reached agreement on a successor
collective-bargaining agreement in August 1994. The agree-
ment which expired in September 1993, contained a union-
security provision. However, after the expiration of the agree-
ment in September 1993 the parties continued to enforce the
union-security and union-checkoff provisions of the expired
agreement. The union-security and dues-checkoff provisions
were enforced in the absence of any written collective-
bargaining agreement.
On June 2, 1994, the Respondent Union and the Employer
agreed to enforce the union-security clause and ensure that
every employee became a member of the Union on or before
June 17. On June 7, the Employer wrote the Union furnishing a
list of all the unit employees and stating, “Upon subsequent
written notification from the Union that any employees are not
members of Local 665 or in the process of becoming members
of local 665, we will see that they are terminated.” On June 22,
the Employer advised its employees “we have agreed upon a
Union shop provision with Local 665 that requires any [sic] and
all employees who have worked 30 days or more to become
and remain members of the Union in good standing as a condi-
tion of employment.” On or about September 30, 1994, Re-
spondent Employer ceased withholding union fees and dues
from its employees and stopped transmitting such moneys to
Respondent Union. On September 30, 1994, during the pend-
ency of these cases, the Employer’s representative wrote the
Union stating, “We had deducted dues and initiation fees at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422
your written request when there was not a signed collective
bargaining agreement containing a checkoff clause.”
2. Analysis
The obligation to pay dues under a union-security provision
accrues from the date of the execution of the collective-
bargaining agreement. Hampton Merchants Assn., 151 NLRB
1307 (1965); Safeway Stores, 111 NLRB 968 (1955); and Ster-
ling Precision Corp., 131 NLRB 1229 (1961). The Board has
held that a union-security clause does not survive the expiration
of a contract and cannot be enforced after the contract has ex-
pired. Auto Workers Local 376 (Emhart Industries), 278
NLRB 285 (1986). See also Teamsters Local 25 (Tech Weld
Corp.), 220 NLRB 76 (1975).
The execution of a dues-checkoff authorization must be vol-
untary. Air La Carte, 284 NLRB 471, (1987). The dues au-
thorization may be lawful for a fixed period of time so long as
the employee may revoke at least once per year and at the ter-
mination of any collective-bargaining agreement. NLRB v.
Postal Service, 827 F.2d 548 (9th Cir. 1987); Frito-Lay, 243
NLRB 137 (1979). Dues checkoff does not survive expiration
of a contract. Linton Business Systems v. NLRB, 501 U.S. 190
(1991); Indiana & Michigan Electric Co., 284 NLRB 53, 55
(1987); and Petroleum Maintenance Co., 290 NLRB 462
(1988). See also Geo. C. Christopher & Son, 290 NLRB 472
(1988).
In this case, Respondent Employer, pursuant to an agreement
with Respondent Union, unlawfully advised employees that
they would be fired if they did not join Respondent Union at a
time when no bargaining agreement had been agreed to and
executed. The parties further enforced dues checkoff in the
absence of a valid agreement and valid authorizations from the
employees. Cleveland Typographical Union Local 53 (Plain
Dealer Publishing Co.), 225 NLRB 1281 at 1284 (1976);
Teamsters Local 25 (Tech. Weld Corp.), supra; and Namm’s
Inc., 102 NLRB 466 (1953).
B. The Alleged Refusal to Sign an Agreed-on Contract
1. Facts
In this case, the General Counsel and the Union allege that
Respondent Employer and the Union reached agreement on a
new collective-bargaining agreement on August 18, 1994, and
that Respondent Employer has failed and refused to execute a
written contract embodying the terms of that collective bargain-
ing agreement. Respondent Employer contends that the parties
did not reach complete agreement on a new collective-
bargaining agreement. Further, Respondent Employer contends
that the Union did not represent a majority of bargaining unit
employees and, therefore, it would be inappropriate to order the
Respondent Employer to sign and abide by the collective-
bargaining agreement.
The Union and Employer have had a collective-bargaining
relationship for at least 12 years. James G. Vierling, Respon-
dent Employer’s president, has personally participated in the
negotiation of collective-bargaining agreements with the Union,
including the negotiations for a successor agreement to the
contract which expired September 1993. The Employer met
with the Union on seven or eight occasions, sometimes with the
assistance of the Employer’s labor consultant and sometimes
without. Prior to the meeting of August 18, Vierling was con-
cerned with three issues: contract language limiting the contract
to the city and county of San Francisco; wages; and holidays.
These issues were resolved on August 18, according to both
Vierling and Richard Rodriguez, the Union’s vice president and
negotiator.1 Although other issues had been raised by Vier-
ling’s labor consultant, the credited evidence reveals that on
August 18 Vierling reached agreement with Rodriguez and
Rodriguez agreed to reduce the agreement to writing.
On August 23, Ernie Yates, the Union’s president, faxed a
copy of the contract to Vierling. Vierling called Rodriguez and
complained that the proffered contract did not contain language
limiting the contract to the city and county of San Francisco.
Rodriguez agreed to make the change. The Union had never
opposed so limiting the contract but had never submitted a
written limitation to Vierling. The jurisdictional clause was the
only objection Vierling raised to the contract. On August 25,
Rodriguez faxed Vierling a corrected copy of the contract with
the jurisdictional clause limiting the contract to the city and
county of San Francisco. On August 26, Vierling sent a copy
of the contract to Ray Vetterlein, his labor consultant, stating
that the contract was “straight forward” and asking whether he
should sign the agreement given the filing of the decertification
petition. On August 23, Kelly had filed a decertification peti-
tion with the Board. That petition was received by the Union
and Respondent Employer on August 25. Vierling’s covering
letter to Vetterlein in no way indicated that he had not reached
agreement with the Union or that the proffered contract differed
from his agreement with the Union. Thereafter, Respondent
Employer refused to sign the agreement and continues to refuse
to sign the agreement.
2. Analysis
Section 8(d) of the Act explicitly requires the parties to a col-
lective bargaining relationship to execute “a written contract
incorporating any agreement reached if requested by either
party.” H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). “When
an oral agreement is reached as to the terms of a collective-
bargaining contract, each party is obligated, at the request of
the other, to execute that contract when reduced to writing, and
a failure or refusal to do so constitutes” a violation of Section
8(a)(5) of the Act. Liberty Pavilion Nursing Home, 259 NLRB
1249 (1982); and Interprint Co., 273 NLRB 1863 (1985). “It is
well established that technical rules of contract do not control
whether a collective bargaining agreement has been reached.”
Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89 (8th Cir.
1981). Rather, the crucial inquiry is whether there “is conduct
manifesting an intention to abide and be bound by the terms of
an agreement.” Capital-Husting Co., Inc. v. NLRB, 671 F.2d
237, 243 (7th Cir. 1982).
In determining whether underlying oral agreement has been
reached, the Board is not strictly bound by technical rules of
contract law but is free to use general contract principles
adapted to the bargaining context. Americana Healthcare Cen-
ter, 273 NLRB 1728 (1985). The burden of proof is on the
party alleging the existence of the contract. Cherry Valley
Apartments, Inc., 292 NLRB 38 (1988).
Here the undisputed credible evidence establishes that after
seven or eight bargaining sessions, Vierling reached agreement
with the Union on a new collective-bargaining agreement on
August 18. The Union furnished Vierling a copy of the agreed-
on contract. Vierling called the Union and objected to the fail-

1 Respondent’s labor consultant had raised other issues during negotia-
tions. However, Vierling apparently dropped those other issues when the
Union acceded to his demands on jurisdiction, wages, and holidays.
FLYING DUTCHMAN PARK, INC. 423
ure to restrict the contract to the city and county of San Fran-
cisco. The Union agreed to correct the written agreement to
conform to the agreement of the parties. A corrected collec-
tive-bargaining agreement was forwarded to Respondent Em-
ployer. However, before the Employer executed the agreement,
the employees filed a decertification petition. Vierling sought
advice from his labor consultant as to whether or not he should
sign the agreement in light of the petition. Vierling did not tell
either his consultant or the Union that no agreement had been
reached. I find, therefore, that agreement had been reached on
August 18 and that the written agreement faxed to Vierling on
August 25 conformed to the oral agreement reached on August
18. Respondent’s objections to the agreement arose only after
it obtained knowledge of the decertification agreement.
3. Alleged unlawful union-security clause
Respondent Employer contends that the union-security
clause of the new agreement is unlawful and, therefore, makes
the agreement void. The Employer states that the following
language makes the agreement unlawful:

When an Employee is engaged outside of the Union office, he
shall be required to obtain a referral from the Union before
starting to work.

In Acme Tile & Terrazo Co., 318 NLRB 425 (1995), the
Board held that the respondent employers’ requirement that
employees obtain a “referral,” “approval,” or “clearance” from
the bricklayers union was “tantamount to requiring immediate
membership” in the union. The Board pointed out in footnote
11:

We note that even if the Respondent Employers did not re-
quire their employees to actually become members of the
Bricklayers Union by April 3 as a condition of employment,
the violation is nevertheless established. In our view employ-
ees cannot be required to obtain ‘approval’ or ‘clearance’ as a
condition of employment in the absence of an exclusive hiring
hall agreement. Carpenters Local 2396 (Tri-State Obayashi),
287 NLRB 760, 762 (1987) enfd. mem. 878 F.2d 1439 (9th
Cir. 1989).

In Carpenters Local 2396, supra, the Board held that, absent
an exclusive hiring hall arrangement, a union violates Section
8(b)(1)(A) and (2) if it interferes or attempts to interfere with an
individual’s employment for union-related reasons. Further, by
maintaining a union-security agreement which is unlawful on
its face, a union violates Section 8(b)(1)(A). The mere main-
tainance of such an ageement violates Section 8(b)(1)(A); if the
clause is enforced, the union also violates Section 8(b)(2).
In the instant case, there is no exclusive hiring hall provided
for in the contract. Nonetheless, the union-security clause re-
quires employees to obtain a referral from the Union. Such a
union-security clause is unlawful on its face under Acme Tile &
Terrazzo. Accordingly, although Respondent Employer had
agreed to such a contract, I cannot require the Respondent Em-
ployer to execute the agreement. Therefore, I must recommend
dismissal of the complaint in Case 20–CA–26403.
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees with discharge for refusing to
pay periodic dues to Respondent Union during a time they were
not contracted to do so, Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By enforcing a union-security clause conditioning em-
ployment on membership in Respondent Union, in the absence
of a collective-bargaining agreement containing such a valid
union-security clause, Respondent Employer engaged in unfair
labor practices in violation of Section 8(a)(1), (2), and (3) of the
Act and Respondent Union engaged in unfair labor practices in
violation of Section 8(b)(1)(A) and (2).
5. The aforementioned unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The union-security clause in the agreement reached on
August 18, 1994, is unlawful under the Act. Accordingly, Re-
spondent Employer cannot be ordered to execute the agree-
ment.
THE REMEDY
Having found that Respondents engaged in unfair labor
practices, I shall recommend that they be ordered to cease and
desist therefrom and take certain affirmative action designed to
effecuate the policies of the Act. Specifically I shall require
Respondents to reimburse with interest any employee who
tendered dues and/or fees between June 2 and September 30,
1994. Interest shall be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987); see
also Florida Steel Corp., 231 NLRB 651 (1977).
[Recommended Order omitted from publication.]