Ace Wholesale Electrical Supply Co.

National Labor Relations Board - Board Decisions

Sep 29, 1961

133 N.L.R.B. 480 (N.L.R.B. 1961)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, and that the December 1960 reduction in her pay was a continuing dis-
crimination against her . Accordingly , as to Raider I shall recommend that the Re-
spondent offer to her full and correct reinstatement and make her whole.
I shall recommend that the Respondent be ordered to make all of the above-named
employees whole for any loss of earnings they may have suffered because of the
discrimination against them , by payment of a sum of money equal to the amount
they normally would have earned as wages from the date of their discrimination to
the date of their reinstatement , less their net earnings during said period, with back-
pay computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 . I will also recommend that the Re-
spondent make available to the Board , upon request , payroll and other records to
facilitate the determination of the amounts due under this remedy.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. The Rollash Corporation is an employer within the meaning of Section 2(2)
of the Act.
3. All employees of the Respondent employed at its plant , excluding the book-
keeper , the father , brother , and father-in-law of the president, and all supervisors as
defined in the Act, constitute , and have at all times material to this proceeding con-
stituted , a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. District 65, Retail , Wholesale and Department Store Union , AFL-CIO, was on
July 27, 1960 , and at all times since has been , the exclusive representative of all
the employees in the aforesaid appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By discharging or otherwise discriminating against its employees , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
6. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the aforesaid appropriate unit, as found above, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
7. By the foregoing conduct and by prohibiting its employees from discussing
union activities on their own time on company premises , the Respondent has inter-
fered with, restrained , and coerced employees in the rights guaranteed in Section 7
of the Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Rubin Brown , an Individual , d/b/a Ace Wholesale Electrical
Supply Co. ; Brown Wholesale Electric Co.; Excel Electrical
Supply Co. ; Courtesy Wholesale Electric Co . and Hyman Ram
Brown Employees Association and Hyman Ram. Cases Nos.
21-CA-3747 and 21-CB-1419. September 29, 1961
DECISION AND ORDER
On January 12, 1961, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled proceeding, finding that
133 NLRB No. 55.
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 481
the Respondent Employer and the Respondent Association had en-
gaged in and were engaging in certain unfair labor practices in viola-
tion of Section 8(a) (1), (2), and (3 ) and Section 8(b) (1) (A) and
(2), respectively, of the National Labor Relations Act, as amended,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent Employer filed
exceptions to the Intermediate Report and a supporting brief, which
were adopted by the Respondent Association "to the extent that the
Association's interests are involved."
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three- member
panel [Members Leedom, Fanning, and Brown].
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 In-
termediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent Employer, Rubin Brown, an individual, doing
business as Ace Wholesale Electrical Supply Co., Brown Wholesale
Electric Co., and Excel Electrical Supply Co., all of Los Angeles,
California, and Courtesy Wholesale Electric Co., Alhambra, Cali-
fornia, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Domination or interference with the administration of Brown
Employees Association, or the contribution of financial or other sup-
port to that organization or any other labor organization, through the
participation of supervisory personnel in the management of its
affairs.
(b) Recognition of Brown Employees Association, or any successor
thereto, as the representative of any of its employees for the purpose
of dealing with any of the respondent enterprises concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other terms or conditions of employment.
1 The Respondent Employer's request for oral argument is hereby denied because, in
our opinion , the record and brief adequately present the issues and the positions of
the parties
624067-62-vol 133-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Encouragement of membership in Brown Employees Associa-
tion, or any other labor organization, by the discharge or suspension
of employees because of their failure to acquire or retain membership
in the said labor organization, or by discrimination against them in
any other manner in regard to their hire or tenure of employment or
any term or condition of their employment, except to the extent per-
mitted by Section 8 (a) (3) of the Act, as amended.
(d) Interference with, restraint, or coercion of employees, in any
other manner, in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own free choice, and to engage in
other concerted activities for the purpose of collective bargaining and
other mutual aid and protection, or to refrain from any and all such
activities, except to the extent that such rights may be affected by an
agreement which requires membership in a labor organization as a
condition of employment, authorized in Section 8(a) (3) of the Act,
as amended.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish, Brown Employees Association, or any successor thereto,
as the representative of any of its employees for the purpose of deal-
ing with the respondent enterprises concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other terms or
conditions of employment.
(b) Jointly and severally with the Respondent Association make
whole Hyman Ram for any loss of pay he may have suffered by reason
of the discrimination practiced against him, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amount of
backpay due under the terms of this Order.
(d) Post at their respective places of business in Los Angeles and
Alhambra, California, copies of the notice marked "Appendix A"' at-
tached to the Intermediate Report. Copies of the notice, to be fur-
nished by the Regional Director for the Twenty-first Region, shall
be posted immediately upon their receipt, after being duly signed by
the Respondent Employer's representative. They should remain
posted for 60 consecutive days thereafter in conspicuous places, includ-
8 The notice is hereby amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
,the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 483
ing all places where notices to employees are customarily posted.
Reasonable steps should be taken by the Respondent Employer to in-
sure that these 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 above, as soon as they are forwarded by the Regional Director,
copies of the additional notice signed by a representative of the re-
spondent labor organization and marked "Appendix B" 3 attached to
the Intermediate Report.
(f) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
B. The Respondent Association, Brown Employees Association,
Los Angeles, California, its officers, representatives, agents, successors,
and assign, shall :
1. Cease and desist from :
(a) Performance, maintenance, enforcement or effectuation of its
trade agreements executed March 1, 1958, with the respondent enter-
prises in respect to union security, or the execution, maintenance, en-
forcement, or effectuation of any extension, renewal, modification, or
supplement of the aforesaid agreements or any superseding agreement
with the employers designated, which contains any union-security
provision.
(b) Causing or attempting to cause the respondent enterprises to
discharge, suspend, or otherwise discriminate against employees be-
cause of their failure to acquire or retain membership in the respondent
labor organization, or for other reasons.
(c) Restraint or coercion of employees, in any other manner, in the
exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through respresentatives of their
own free choice, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Employer make
whole Hyman Ram for any loss of pay he may have suffered as a
result of the discrimination practiced against him, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy."
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice marked "Appendix B" ° attached to the
Intermediate Report, to be posted by the Respondent Employer at
its places of business in Los Angeles and Alhambra, California, as
See footnote 2.
' See footnote 2.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided above. Copies of this notice, to be furnished by the Regional
Director, should be returned to him forthwith for appropriate-
disposition , after being signed by the Respondent Association's
representative.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
C. The Respondent Employer, its officers, agents, successors, and
assigns, and the Respondents Association, its officers, representatives,,
agents , successors, and assigns, shall, jointly and severally, reimburse
the present employees of each respondent enterprise, and persons
formerly in their employ, for moneys illegally exacted from them
pursuant to the contractual union-security provisions herein found
violative of the Act, as amended, or pursuant to any superseding agree-
ments negotiated and executed by the Respondents with similar or
identical union -security provisions. Such reimbursements should be-
effectuated in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and an amended charge duly filed and served in these cases, the=
General Counsel of the National Labor Relations Board caused a consolidated com-
plaint and notice of hearing to be issued under Section 10(b) of the National Labor
Relations Act, as amended, 61 Stat . 136, 73 Stat . 519. Therein , Rubin Brown, an
individual doing business as Ace Wholesale Electrical Supply Co., Brown Whole-
sale Electric Co., Excel Electrical Supply Co., and Courtesy Wholesale Electric Co.,
designated separately by name and collectively as the Respondent Employer in this
report, were charged jointly with the commission of certain unfair labor practices,
while cooperatively functioning as an integrated enterprise , under Section 8(a)(1),
(2), and ( 3) of the statute . Additionally , Brown Employees Association , designated
as the Respondent Association herein , was charged with the commission of unfair
labor practices under Section 8(b)(1)(A) and (2) of the Act as amended. Copies
of the consolidated complaint and notice of hearing were duly served upon each
designated respondent enterprise , the Respondent Association , and other interested
parties.
Subsequently , an informal answer was filed in behalf of the Respondent Associ-
ation ; the designated respondent enterprises submitted a joint formal answer, which
each of the designated enterprises , however, claimed to have presented for itself
alone. In behalf of the respondent enterprises , certain jurisdictional allegations of
the consolidated complaint were admitted ; others were denied. The General Coun-
sel's allegation that the respondent enterprises conduct business as related and
integrated enterprises was denied . Involvement of one designated respondent
enterprise , Brown Wholesale, both in commerce and business activity which affects
commerce , was conceded ; denials were entered , however, with respect to the alleged
involvement of the other respondent enterprises in commerce . Additionally, the
propriety of any Board determination to assert its jurisdiction in the present con-
solidated case was challenged , on grounds of res judicata and estoppel . Certain
substantative allegations of the consolidated complaint were admitted; the Respond-
ent Employer , however, denied the commission of any unfair labor practices . Within
the compass of a letter submitted as an informal answer, Respondent Association
made no reference to the consolidated complaint's jurisdictional allegations; the
charge that it had committed unfair labor practices was, however, denied.
Pursuant to notice , a hearing with respect to the issues was held at Los Angeles,
California, on various dates between January 5 and 13, 1960, before the duly'desig-
nated Trial Examiner. The General Counsel and the Respondent Employer were
represented by counsel . Two officers of the Respondent Association noted their
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 485
appearance in its behalf. Each of the parties was thereafter afforded a full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and pro-
posed findings and conclusions. At the outset of his presentation, the General
Counsel presented a motion to amend one of the consolidated complaint's jurisdic-
tional allegations; despite the Respondent Employer's objection, the motion was
granted. Motions to strike certain portions of the Respondent Employer's answer
were also made. One such motion-with respect to an allegation that the General
Counsel had solicited the charges herein-was granted. Cf. Petersen Construction
Corp, et al, 128 NLRB 969. Other motions to strike, presented in the General
Counsel's behalf, were denied. Prior to the completion of the Respondent Employ-
er's testimonial presentation, amendment of its answer was permitted. At the close
of the case, oral argument was heard Subsequently, counsel indicated their desire
to file briefs. Such documents have been received from the Respondent Employer's
counsel and the General Counsel's representative. They have been duly considered.
Upon the entire testimonial record in the case, the documentary evidence received,
and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
A The business of the Respondent Employer
Throughout the period with which this case is concerned, Rubin Brown has been
engaged in business as a sole proprietor under the trade name and style of Ace
Wholesale Electrical Supply Co.; his principal office and place of business has been
located in Los Angeles, California, where he is now, and at all times material has
been, continuously engaged as a wholesale distributor of electrical supplies. The
other segments of the respondent enterprise, Brown Wholesale, Excel, and Courtesy,
are California corporations; Brown Wholesale and Excel maintain their principal
offices and places of business in Los Angeles while Courtesy maintains its principal
office and place of business at Alhambra, California. Throughout the period with
which this case is concerned, each of these respondent enterprises has been con-
tinuously engaged in the wholesale distribution of electrical supplies.
Respondent Rubin Brown-supplementary to his sole ownership of Ace Whole-
sale, previously noted-owns the entire corporate stock of Brown Wholesale, Excel,
and Courtesy. Additionally, he serves as Courtesy's president, Excel's vice president,
and Brown Wholesale's secretary. (Brown Wholesale, with Los Angeles head-
quarters, maintains a Phoenix, Arizona, branch. Rubin Brown, I find, functions as
the general manager of the firm's Los Angeles operation; presently, Raymond Sulli-
van serves as the Phoenix general manager.) The General Counsel has alleged, and
the Respondent Employer has conceded, that Esther Brown is Courtesy's secretary;
her presumptive relationship to Rubin Brown, however, has not been established or
admitted.
Despite the denials presented in behalf of each designated segment of the respond-
ent enterprises, the available evidence establishes that Rubin Brown-sole proprietor,
stockholder, and corporate official-maintains and operates Ace Wholesale Electrical
Supply Company, together with Brown Wholesale, Excel, and Courtesy, as related
and integrated enterprises. Record testimony will warrant an inference, for example,
that credit problems from every segment of the Respondent Employer's business
complex are referred to Brown; bonus arrangements for every general manager rest
within his discretion. While each business entity designated appears to purchase
most of its stock-in-trade independently, the record reveals that the firms exchange
goods, services , and personnel , whenever necessary , pursuant to a cooperative ar-
rangement for their mutual benefit.
(The answer of the Respondent Employer contains an admission-contrary to
Rubin Brown's tentatively presented testimony-that Brown Wholesale makes pur-
chases for all of the respondent enterprises from 10 of more than 100 suppliers.
Upon occasion, the trucks of one firm have been used to make deliveries for another.
While a witness, Rubin Brown conceded that actual exchanges of stock-in-trade
between the various respondent enterprises, calculated to eliminate shortages, occur
daily. Although the record establishes that the goods involved in such exchanges
are routinely covered by invoices and billed , ultimately , to the recipient respondent
enterprise by its related supplier , Leslie Fox, Excel 's president and general , manager,
testified credibly that the discount arrangement which his firm effectuates in con-
nection with periodic statements covering such exchanges differs from the arrange-
ment established for sales made to competitive wholesalers.)
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Personnel exchanges-according to the available evidence-have usually involved
temporary transfers intended to provide some respondent enterprise with extra
inventory takers. All employees transferred temporarily for this purpose appear
to have been paid for the extra work involved by their regular employer. While
there is testimony in the record, proffered without contradiction, that firms which
borrow extra help for inventory purposes routinely reimburse firms supplying help
for their added payroll costs, the arrangement illustrates the degree of cooperative
integration which the respondent enterprises practice. Once, an Ace employee who
became involved in a dispute with a fellow worker was told by the firm's general
manager, that very day, that he would be transferred to Brown Wholesale's employ;
he was terminated by Ace and hired at Brown Wholesale, I find, without an employ-
ment interview or break in service. Finally, note should be taken of the
fact that the Respondent Employer's 1957 master group insurance policy, together
with its 1958 supplement, was issued upon the application of Brown Wholesale, by
Rubin Brown, owner, to cover the employees of Ace, Courtesy, and Excel, designated
as the applicant firm's wholly owned subsidiaries. Available evidence establishes also
that the Respondent Rubin Brown has unilaterally established and maintained a
common collective-bargaining policy for the respondent enterprises, evidenced par-
ticularly by their parallel agreements in 1957-58 with the Respondent labor
organization.
During the 12-month period which ended September 30, 1959, Brown Wholesale,
Excel, Courtesy, and Rubin Brown each separately received products valued in excess
of $50,000 from out-of-State sources, directly or indirectly. (At the Respondent Em-
ployer's instance, stipulations have been noted that, for the 6 months prior to March
31, 1959, Brown Wholesale's operation in Los Angeles had $320,969.70 in sales and
$256,776 in purchases; approximately 90 percent of the firm's indicated purchases
were made locally, but 70 to 80 percent of the local purchases had out-of-State points
of origin. Brown Wholesale's Phoenix, Arizona, branch, during the same period,
had $992,994.97 in sales and $780,530 in purchases, about 95 percent of its pur-
chases, whether from local or out-of-State sources, had out-of-State points of origin.
During the 3-month period which ended March 31, 1959, Rubin Brown, doing busi-
ness as Ace Wholesale, made $325,591.36 worth of sales and $274,799 worth of pur-
chases; about 80 to 90 percent of his purchases originated outside the State of Cali-
fornia. Stipulated figures for the fiscal year ending March 31, 1959, also establish
that Courtesy sold $795,987.52 worth of goods and made $670,949.39 worth of
purchases, that Excel had $686,887.58 in sales and $567,851.04 in purchases, and that
80-90 percent of the goods purchased by each designated enterprise, whether from
local or out-of-State sources, had out-of-State points of origin.) During the same
period, Brown Wholesale shipped products valued in excess of $50,000 outside the
State of California, specifically to its Phoenix, Arizona, branch.
Upon the record considered as a whole-evaluated with due regard for the con-
cessions embodied in the answer jointly filed by the respondent enterprises-I find
that Rubin Brown and the designated enterprises have conducted their business,
throughout the period with which this case is concerned, as related and integrated
enterprises. For every relevant purpose, they may be considered a single, integrated
employer, within the meaning of Section 2(2) of the Act, as amended, engaged
in commerce and business activities which affect commerce within the meaning of
Section 2(6) and (7) of the statute. Dearborn Oil and Gas Corporation, 125 NLRB
645; Canton, Carp's Inc., 125 NLRB 483; Thomas Morelli and Charles Morelli
d/b/a Morelli Brothers and Capital Transport Co., Inc., 123 NLRB 635, 638. Cf.
The Fluor Corporation, Ltd., 123 NLRB 1877, 1898. And with due regard for the
jurisdictional standards which the Board presently applies-see Siemons Mailing
Service, 122 NLRB 81, and related cases-I find, also, that assertion of the Board's
jurisdiction in this case, whether predicted upon the separate activity of the re-
spondent enterprises in commerce or their collective activity, would be warranted
and necessary to effectuate the statutory objectives.
B. The Respondent Association
Brown Employees Association, designated as the Respondent Association in this
report, is a labor organization within the meaning of Section 2(5) of the Act, as
amended, which admits to membership employees of the Respondent Employer only.
11. RES JUDICATA AND ESTOPPEL
A. Issues
Despite my conclusion, above, with respect to this Agency's statutory jurisdiction
herein, and the sufficiency of the Respondent Employer's involvement in commerce
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 487
to warrant Board exercise of that jurisdiction, a threshold contention has been
presented based upon the fact that certain representation petitions previously filed
by the respondent enterprises were dismissed by the Regional Director, adnunistra-
tively, pursuant to a determination that the business operations involved were so
limited in scope that the purposes of the statute would not be effectuated by any
further utilization of Board process. It is the Respondent Employer's contention
that the Regional Director's prior determination should be considered res Judicata in
this consolidated matter and, further that the Board ought to consider its right to
assert jurisdiction barred by estoppel. Additionally, counsel for the Respondent
Employer argues that an attempt to apply the statute "retroactively and without
previous notice" would deprive the respondent enterprises of property without due
process of law. o
B. Background
In September and October 1956, various employees of the several respondent en-
terprises were solicited to join Local 578 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America. Thereafter, through
its attorney, Brown Wholesale filed a representation petition dated November 9,
1956, with the Regional Director for the Board's Twenty-first Region, the designated
local of the International Brotherhood of Teamsters was alleged to have presented
a claim for recognition as an employee representative within a combined unit which
encompassed workers employed by all of the respondent enterprises, exclusive of
supervisors and office personnel. On November 30, 1956, this petition was amended,
however; the petitioner, Brown Wholesale, through its attorney, redefined the em-
ployee unit involved in the Teamsters' claim as a unit limited to its own employees
with customary exclusions. Concurrently, parallel petitions were filed in behalf
of Excel, Courtesy, and Ace; each of these designated Local 578 of the Interna-
tional Brotherhood of Teamsters as the labor organization interested, and limited
the employee unit involved to the petitioner's own employees.
On November 15, 1956, Secretary-Treasurer Barker of the Teamsters local ad-
vised Brown Wholesale, however, that his organization had not requested and did
not then request recognition as the exclusive representative of anyone in the firm's
employ.
Thereafter, on December 27, 1956, Regional Director Becker wrote Brown Whole-
sale that Secretary-Treasurer Barker's disclaimer of current interest in the representa-
tion of the designated firm's employees had eliminated any possible question with re-
spect to their representation; the petitioner was advised, therefore, that further pro-
ceedings upon its petition would not be warranted. Concurrently, Excel, Courtesy,
and Ace were advised by Regional Director Becker that, under applicable jurisdic-
tional standards, their separate business operations were deemed too limited in scope
to warrant assertion of the Board's jurisdiction. The petitions filed in behalf of each
of these respondent enterprises were, therefore, dismissed administratively. No
appeal from the Regional Director's action was taken by the employer petitioners.
C. Conclusions
Board determinations with respect to the assertion of jurisdiction in particular
cases have normally been considered matters of Agency discretion; courts have re-
versed such Board decisions only when, in their opinion, Agency discretion has been,
clearly, abused. N.L.R.B. v. Pease Oil Company, 279 F. 2d 135 (C.A. 2). With re-
spect to the issue which the Respondent Employer has posed, Agency policy was artic-
ulated considerably prior to the period with which the present consolidated complaint
is concerned . Siemons Mailing Service, 122 NLRB 81, 84-85. In the cited case-
which established the Agency's revised jurisdictional standards by decisional rule-
the Board declared that its standards would be applied to all future and current
unfair labor practice cases, even those which might involve unfair labor practices
committed at a time when the Board would not have exercised its statutory juris-
diction over the enterprise involved under jurisdictional standards previously enun-
ciated. The Board observed that the mere fact of a respondent's reasonable belief,
based upon knowledge of the Board's currently applicable jurisdictional standards,
that the Agency's legal jurisdiction over it would not be asserted, gave it no legal,
moral, or equitable right to violate statutory provisions:
This is especially true since the issuance of the Guss decision, which eliminated
all possible basis for believing that in such circumstances the provisions of the
Act did not apply, or that State law could or would apply to its conduct.
And the Board observed that any other policy would benefit the party whose actions
had transgressed statutory provisions, at the expense of the victim of such actions and'
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of public policy. See Clyde Taylor d/b/a Clyde Taylor Company, 127 NLRB 103;
Mike Trama (F/V Sandy Boy), 125 NLRB 151. This policy determination of the
Board has received judicial approval, N.L.R.B. v. Pease Oil Company, supra;
N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 285 F. 2d 8 (C.A. 6).
Absent unusual circumstances, not here present, doctrines of estoppel may not be
urged, successfully, to foreclose the assertion of Agency jurisdiction under circum-
stances comparable to those presented by the present record; likewise, doctrines of
res judicata cannot be found available to the respondent enterprises. N.L.R.B. v.
Baltimore Transit Co, et al., 140 F. 2d 51, 54-55 (C A. 4). In this connection,
see also Optical Workers' Union Local 24859, et al., v. N L.R B , 229 F. 2d 170,
171 (C.A. 5), cert. denied 351 U.S. 963; N.L.R.B. v. Kartarik, Inc., 227 F. 2d 190,
192 (C A. 8); N.L.R.B. v. Stanislaus Implement and Hardware Company, Ltd., 226
F. 2d 377, 379 (C.A. 9), N.L.R.B v. Gottfried Baking Co., Inc., et al., 210 F. 2d
772, 781 (C.A. 2); Local Union No. 12, Progressive Mine Workers of America,
District No. 1 v. N.L.R.B. (Rawalt Coal Co ), 189 F. 2d 1, 4-5 (C.A. 7). These
decisions reflect judicial approval of the Board's determination to apply, for par-
ticular cases, revised jurisdictional standards promulgated after the occurrence of
the unfair labor practices charged. Hence, my observation that established de-
cisional doctrine dictates rejection of the Respondent Employers' contention that
such an Agency determination herein would be arbitrary and constitute an abuse of
discretion.
With specific reference to the situation of the respondent enterprises, note should
be taken of the fact that the single representation petition initially filed in Brown
Wholesale's behalf explicitly covered all four of the present respondent enterprises;
treated as a single unit appropriate for the purposes of employee representation or
collective bargaining, such a multiple-employer enterprise would clearly have been
within the Board's applicable jurisdictional standards.
(For all that appears in the present record, indeed, the ultimate 1956 decision of
the Respondent Employer to fragmentize the employer unit initially characterized
as appropriate for the determination of asserted representation questions and to file
separate petitions for each of several operations affected by the Teamsters' organi-
zational effort, may even have been motivated, prior to the Supreme Court's Garmon
and Guss decisions, by the specific expectations of employer counsel that anticipated
dismissal of some of the petitions administratively would clear the way for judicial
relief in the State courts, should the Teamsters, organizational activity continue.)
And when three of the four petitions ultimtaely filed were finally dismissed,
administratively, because of the failure of enterprises involved to meet applicable
jurisdictional criteria, the Respondent Employer was certainly apprised, effectively,
that Brown Wholesale, at least, would have been considered sufficiently involved in
commerce to warrant the assertion of Agency jurisdiction, and that further pro-
ceedings would have been considered warranted absent the Teamsters' disclaimer
of interest.
Under the circumstances, the Respondent Employer's presently asserted belief
that the Board would not exercise its jurisdiction to compel compliance with law
for three out of four of the respondent enterprises, cannot be said to consitute either
a legal or equitable defense to statutory transgressions. Compare N.L.R.B. v. Guy
F. Atkinson Company, et al., 195 F. 2d 141, 149 (C.A. 9). Therein, the Ninth
Circuit Court of Appeals, confronted with a factual situation of sui generis character,
found the retroactive application of revised jurisdictional standards inequitable, with
respect to a respondent deemed " innocent of any conscious violation" of the statute.
If the fact of the respondents' innocence provided the essential basis of the Atkinson
determination, the court's decision cannot be said to require renunciation of this
Agency's jurisdiction in the present consolidated matter. If the court's decision,
however, was intended to announce a general rule of law-when rendered-its field
of application certainly appears to have been severely limited by the Court of Appeals
for the Ninth Circuit in cases subsequently decided. N.L.R.B. v. Forest Lawn
Memorial Park Association, Inc, 206 F. 2d 569, 591 (C.A. 9), cert. denied 347
U.S. 915; N.L.R.B. v. Charles E. Daboll, et al., 216 F 2d 143, 144 (C.A.9) cert.
denied 348 U.S. 917; N L.R.B. v. W. B. Jones Lumber Company, Inc., et al.,
245 F. 2d 388, 391 (C.A. 9). In the present case , certainly, I find it inapposite.
Counsel's additional contention that the Agency's challenged jurisdictional
standards ought not to be considered applicable to the respondent enterprises, prior
to the issuance of the consolidated complaint , because of its failure to hive them
published in the Federal Register, must likewise be rejected. Mrs. Owen E. Brennan,
Sr., et al. d/b/a Brennan's French Restaurant, 129 NLRB 52. Clearly, the Board
may freely adopt standards by "rule of decision" without prior publication , incidental
to its disposition of cases coming before it for adjudication; the authority of the
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 489
Agency in this respect-exercised for many years, indeed, without effective chal-
lenge-has received recent congressional consideration, sanction, and approval.
Section 14(c) (1) of the Labor-Management Reporting and Disclosure Act, newly
adopted, expressly permits the Board to define the area within which its jurisdiction
will be asserted, pursuant in its discretion, either by rule of decision or by rules.
adopted pursuant to the Administrative Procedure Act, appropriately published.
111. UNFAIR LABOR PRACTICES
A. The Respondent Association
1. Background
Shortly after the Teamsters' 1956 organizational activity began, employees of
four respondent enterprises were summoned to meet at the premises of Brown
Wholesale after work. (The available evidence establishes, without contradiction,
that Rubin Brown made the decision to summon the employees, and that manage-
ment officials at each respondent enterprise advised them that their attendance
would be required.) Brown reported the Teamsters' organizational effort, upon the
entire record, I am satisfied that he also repeated a purported threat by the labor
organization to establish picket lines at the premises of each firm. (No warrant
exists for any conclusion that such a threat was actually made. Brown and one
other witness testified, however, that the threat's transmittal was reported to the
employees.)
Brown declared his unwillingness to recognize Teamsters as the bargaining repre-
sentative of his employees, allegedly because of his uncertainty with respect to
their representation of an employee majority. The available evidence suggests that
his remarks may have conveyed the impression that he would not regard with favor
any employee determination to choose Teamsters as their bargaining agent.
With respect to the balance of the comments attributable to Brown, however,
sharply divergent, testimony has been offered Employee Holden, identified as an
employee listener, reported Brown's reiteration of his dislike for unions coupled
with a plea that the employees reject unionization; he also testified, both directly
and under cross-examination , with respect to a purported comment by Brown that
he might have to "terminate" some of his business houses if the employees elected
unionization . This testimony was corroborated by employee Saccorso, another
auditor. Brown, however, testified that-with respect to the Teamsters picket line
threat-employees were advised of their privilege to elect self-organization or to re-
frain from union membership; he testified, further, that the employees were informed
of the intention of the respondent enterprises to maintain regular operations, despite
the possible presence of a picket line. (Holden could not recall Brown's purported
statement of his reaction to the picket line threat; the record establishes his con-
cession , however, that Brown might have outlined his reaction to some such pur-
ported threat.) According to Brown, the employees were told that everyone willing
to work would be welcome; the employer denied any threat to close one or more
of the respondent enterprises.
While convinced that Holden testified honestly with respect to his recollection of
Brown's remarks after a 31h year lapse, I find Brown's version-which one witness,
at least , has corroborated-more worthy of credit.
With matters in this posture, Brown and the managers of each respondent enter-
prise left the employee group. The employees, however, did not disperse. Someone,
not identified for the record, suggested, that they form their own organization.
Upon a favorable vote, Brown Employees Association, designated as the Respondent
Association in this report, was formed. Without formality, apparently, Harry
Perlmutter-Brown Wholesale employee and father of Robert Perlmutter, Ace
Wholesale's general manager-was elected the organization's president.
2. History of the Respondent Association
Since its organization, Respondent Association appears to have limited mem
bership privileges to employees of the four respondent enterprises. Sometime in
March 1957, apparently-despite their lack of a formal constitution or bylaws-the
employee members held their first regular officers election. Harry Perlmutter, previ-
ously identified, was elected Association president; Paul Garner, identified for the
record as Brown Wholesale's shipping clerk, was elected treasurer; Vernonne Kern,
Brown Wholesale's head bookkeeper and self-styled office manager, was elected the
organization 's secretary.
(It is the General Counsel's contention that Perlmutter, because of his familial
relationship with Robert Perlmutter, Ace Wholesale' s general manager, enjoyed a
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
special status, reasonably calculated to persuade the Respondent Employer's em-
ployees that he was a management spokesman, throughout the period with which
this case is concerned . Garner and Kern , the General Counsel argues, possessed
and exercised supervisory authority . These contentions will be considered later in
this report; the significance of any conclusion which the record may require will
then be evaluated.)
Association representatives were appointed , presumably by the organization's
president , for each respondent enterprise . Essentially , these representatives appear
to have functioned as shop stewards ; I so find. For Excel, Shipping and Receiving
Clerk Anthony Vessella was initially designated Association representative.
During this period , also, representatives of the Respondent Association and the
Respondent Employer negotiated four separate but identical trade agreements, with
respect to certain conditions of employment. These agreements, with a common
March 1, 1957, effective date, were executed by Perlmutter and Garner for the
respondent labor organization , and by Rubin Brown for each of the four respondent
enterprises . They contained only four sections : first, the Respondent Association
was recognized as the exclusive collective -bargaining representative of the designated
firm's employees , exclusive of the manager and salesmen ; second, each employer
signatory agreed to establish and finance a medical and hospital benefit plan for
employees and their dependents, with benefits under the plan available for employees
after 90 days of service; third, paid sick leave was established for employees with
2 years of service; fourth, the term of the agreement was set for 1 year, with pro-
vision for its automatic annual renewal thereafter , absent written notice of termina-
tion served by one party or the other at least 60 days prior to the agreement's
scheduled expiration or anniversary date.
On March 1, 1958, these agreements were replaced by contracts with substantially
expanded provisions ; they were executed by Perlmutter and Garner again, in the
Respondent Association 's behalf, and by Rubin Brown for each of the respondent
enterprises, separately. Each agreement executed referred to the designated em-
ployer's prior recognition of the Respondent Association as exclusive collective-
bargaining representative of its employees , except the manager and salesmen. The
agreements , however, went on to provide that:
As the condition of continued employment , all employees in the job classifica-
tions covered by this agreement shall become members of the Association
within one year after the date of first employment and shall thereafter main-
tain membership in good standing in the Association.
Each signatory employer agreed to maintain and finance the medical and hospital
benefit plan previously established for its employees and their dependents , subject,
however, to a provision that plan benefits should be available to employees after
1 year of service . Additionally , the signatory employers agreed to provide $1,000
worth of group life insurance for each employee with 1 year's service. New pro-
visions with respect to paid vacation time were added to the contract ; modified sick-
leave provisions were also negotiated . Specific provision was made for retention of
the previously established workday and workweek . The agreement also contained
a provision that:
As heretofore , wage increases shall be granted on an individual basis depending
on merit , length of service and economic conditions.
The termination clause of the agreement provided for a 2-year contract term, from
March 1, 1958, to February 29, 1960, with a further provision for automatic renewal
thereafter, for annual terms, absent written notice.
Prior to 1959 , Respondent Association , apparently , had maintained no formal
structure. Early during the designated year, however, President Perlmutter appears
to have procured the preparation of a constitution and bylaws for the organzation.
(The document 's origin has not been established for the record . Secretary Kern
merely testified , credibly, that she had received a final draft of the constitution and
bylaws from Harry Perlmutter, with the hearsay understanding that he had received
it from an attorney previously authorized to prepare such a draft; Kern expressed
the belief, also, that the Respondent Association had ultimately paid the attorney
for his work.) At a meeting held on March 10, 1959, the final draft of the con-
stitution and bylaws was approved and adopted without revision . Twenty-six of
the Respondent Employer's employees signified their approval by signatures on the
last page of the document.
The constitution 's first article identified the Respondent Association; among its
objectives were listed: (a) the establishment and maintenance of "favorable sched-
ules" of wages , hours, and other conditions of employment for members ; ( b) reli-
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 491
ante, if possible, on "friendly negotiations and arbitration" to settle differences be-
tween Association members and their employers, rather than on "strikes which
engender needless strife and antagonism" and subject the public to great hardship
and inconvenience. Finally, the article reflected a pledge by the Association to use
every effort to promote and maintain "harmonious relations" between members of
the organization and their employers.
Constitutionally, Association membership was limited to employees-exclusive
of officers, managers, and salesmen-of the four respondent enterprises and any
other California wholesale electric supply companies. The relevant article provided,
however, that:
A new employee of the companies may not apply for membership in this
Association until he has been employed by any or all of the companies for
twelve consecutive months.
Dues and other financial obligations of members were declared to be payable in
advance on the first day of the current calendar month. Dues not paid on or before
the last day of the month in which the same were due, however, were declared to
be delinquent; under the constitution, delinquent members were declared not entitled
to any benefits cited in the bylaws. In this connection, however, the document
provided further that:
Members who fall in arrears three (3) months shall stand automatically sus-
pended as members of the Association and any member who so becomes
delinquent ceases to be a member in good standing. Such delinquent members
shall be restored to good standing upon payment of $7.50 reinstatement fee
plus all back dues.
Association affairs were to be conducted by a president, vice president, and secretary
and/or treasurer, together with an executive board composed of the officers, three
members elected from the membership at large, and such other officers and com-
mittees as the Association might determine and elect. Among other provisions relative
to the selection of officers and their duties, note should be taken of a constitu-
tional provision authorizing the president to serve as the Association's official repre-
sentative in dealing with employers in regard to wages, hours, and other conditions
of employment for members. Presidents were also authorized to appoint one or
more members of the Association in good standing as an assistant or assistants, to
"organize or police" the membership, subject to the president's direction and super-
vision. Association dues were fixed at $1.50 per month, payable monthly in advance.
Regular association meetings at 3-month intervals were required, subject to the right
of the Association's executive board to summon special meetings.
When, shortly after the constitution's adoption, Harry Perlmutter resigned as
Association president, Paul Garner was elected to replace him, Irving Block was
elected vice president, and Vernonne Kern, already the Association's secretary, was
elected to the coordinate treasurer's post. Thereafter, sometime in August 1959,
Anthony Vessella resigned as the Association's representative at Excel, under cir-
cumstances to be noted elsewhere in this report. Garner, I find, designated Cleo
Habich, Excel's head bookkeeper, to replace him, temporarily, until a permanent
replacement could be found. Habich held the post at the time of the complainant's
termination as an Excel employee, and has never been formally relieved.
At the present time, apparently, the Respondent Association is dormant. No meet-
tings have been held since the July 1959 meeting to be noted elsewhere in this report,
and the record is silent with respect to any collective action for mutual aid or pro-
tection undertaken by Association officers of representatives since that date. While
the Regional Office had the charges initially filed in the present consolidated case
under investigation, each respondent enterprise, through its designated general man-
ager, advised the Association, by letters dated November 9, 1959, that Board agents
had questioned the validity of the organization's contractual union-shop requirement
previously noted. The Respondent Association was advised that the signatory em-
ployers did not intend to compel union membership except where clearly required by
contract; under the circumstances, these employers stated that they would no longer
give effect to the compulsory union membership clause of the 1958-1960 agreement.
Assurances were given, however, that the respondent enterprises did not intend
to deprive their employees of any benefits provided under other contract provisions.
3. Supervisors as officers
With the record in this posture, the General Counsel contends that most Associa-
tion officers, previously noted, exercise supervisory authority within the Respondent
Employer's business complex. Since any factual conclusion consistent with this
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention would be largely determinative of this Agency's ultimate conclusion with
respect to the statutory violations charged, some consideration of the evidence rele-
vant to the General Counsel's contention, at this point, would seem both appropriate
and necessary.
a. Paul Garner
Upon the Association's formation , Paul Garner was elected its treasurer ; his sub-
sequent election to the organization's presidency during April 1959 has been noted.
Within the business complex of the respondent enterprises, Garner functions as
Brown Wholesale's head shipper.a That enterprise maintains a warehouse staff of
eight employees. In addition to Garner, one employee serves as a receiver; there
are two truckdrivers, and four men who serve as order fillers and stock clerks.
Rubin Brown, testifying that 50-70 percent of his own working time is spent in the
firm's warehouse, denied Garner's status as a warehouse supervisor; he insisted,
specifically, that Garner did not have the authority to hire or discharge employees.
The available evidence establishes, however, that Garner checks all of the orders
assembled by the order fillers, prior to shipment. Employee George Holden's testi-
mony, which I credit in this connection, establishes that the head shipper generally
directs the work of the other men in the warehouse area. When Holden reported
for his Brown Wholesale assignment , after his Ace Wholesale termination, he re-
ported to Garner; it was the latter who gave him his timecard, said that he (Garner)
could use a good order filler, and pointed out the time clock's location. Thereafter,
when Holden had occasion to leave work early, he told the head shipper. When
overtime work was required, Garner was the one who queried warehouse employees
about their desire to come in early or work overtime. According to Holden, Garner
approved any timecard discrepancy. Upon occasion, he transferred Holden from
one task to another, telling him to stop what he was doing and to proceed to a new
assignment . After 3 or 4 months at Brown Wholesale, Holden asked Garner for a
raise One month later-since nothing had happened-Holden approached Rubin
Brown himself. When he again requested a raise, Brown said, "Well, I will see Paul
and discuss it with him"; thereafter, Holden received a 5-cent raise . (This testimony
by Holden with respect to the discussion precedent to his raise has not been con-
tradicted.) Periodic Brown Wholesale inventory work appears to have been directed
by Rubin Brown, generally, with Garner's immediate assistance . The testimony of
Ram and employee Soccorso establishes, without contradiction, that Garner gave
them their inventory assignments.
Under these circumstances , the contention of the Respondent Employer that
Brown Wholesale's warehouse employee relationships are basically informal and
loosely defined-considered together with the concomitant contention that Garner
must be considered merely one of several trusted senior employees-misses the
mark.
(Counsel for the Respondent Employer would argue , likewise , that Brown Whole-
sale operates with a small staff , that little division of labor is practiced, and that
Rubin Brown provides necessary supervision in his managerial capacity. These
aspects of the situation , while significant, cannot be considered determinative. If
Rubin Brown has clothed Garner with various indicia of supervisory authority, the
limited size or shifting assignments of Brown Wholesale's employee complement
cannot detract from his status.)
While the available evidence will not support a conclusion that the head shipper
possesses any authority to hire or discharge employees, Rubin Brown clearly appears
to have acquiesced in his exercise of authority (a) routinely to transfer employees
from one assignment to another, (b) responsibly to direct other employees in the
performance of their regular and overtime work, and (c) effectively to recommend
wage increases . And Garner's exercise of such authority clearly appears to have
required reliance upon independent judgment. Regardless of Rubin Brown's ap-
parent failure explicitly to designate him as a supervisor, I find that he regularly
exercises supervisory authority within the statutory definition.
b Vernonne Kern
Elsewhere in this report, note has been taken of the fact that Kern, elected secretary
of the Respondent Association in March 1957. was subsequently elected the organ-
ization's treasurer also. As an Association officer, she serves on the organization's
executive committee.
Kern functions as Brown Wholesale's head bookkeeper; she represents herself to
the public, concededly. as the firm's office manager. Salaried, she regularly func-
tions with the assistance of two office employees, whose work she directs. During her
3 years of service, she has hired six office workers and discharged four.
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 493
While a witness, Kern forthrightly characterized her own position as supervisory.
The available evidence, which has not been controverted, clearly establishes the ac-
curacy of her characterization.
c. Anthony Vessella
Vessella, previously identified for the record as Excel's shipping and receiving clerk,
concededly functioned until August 1959 as the Association's firm representative.
However, the General Counsel's contention that he exercised supervisory authority
concomitantly, within Excel's warehouse, has been vigorously disputed.
Vessella characterized himself as a mere shipping clerk and warehouse employee
who worked with one other full-time warehouseman (Hyman Ram), one part-time
stock clerk (Voss), and two truckdrivers. As a witness, he denied that he possesses
authority to hire or discharge warehouse employees; he also denied participation
in management decisions with respect to pay raises, and denied possessing authority
responsibly to direct work. While he conceded his responsibility for the maintenance
of time records, he denied possession of any discretionary authority to grant per-
mission for early departures. Finally-conceding that he had, occasionally, shown
other employees how to perform assigned tasks-the shipping clerk insisted that his
activities in this respect derived merely from his seniority and stock knowledge,
rather than from any grant of supervisory authority.
The available evidence establishes, without contradiction, that while other ware-
house workers are hourly paid, Vessella is a salaried employee; as such he receives
no compensation for overtime work, whether done for Excel or the other respondent
enterprises. Routinely, Vessella has opened Excel's plant; occasionally, with General
Manager Fox absent, he has closed it. The timecards of the warehouse employees
are retained by him; these men report their arrival and departure to him, personally.
(Under the General Counsel's cross-examination, Vessella conceded that he "some-
times, occasionally" gives men permission to go home early. Only when asked,
while under redirect examination, whether he had anything to do with the men
going home early, other than "recording" their departure on a timecard, did Vessella
respond negatively. Upon the entire record and my observation of his demeanor,
I credit the shipping clerk's concession in cross-examination that his permission was
"sometimes, occasionally" sought for early departures. Under the circumstances,
also, I credit Ram's testimony that once, when he sought the permission of General
Manager Fox for an early departure, Vessella told him, "I run the back, not Les.
Anything you got to say, tell it to me.") Additionally, Vessella distributes payroll
checks to warehouse employees and drivers who might not be on hand to receive
them, personally, from Excel's office manager.
Usually, the shipping and receiving clerk works at a warehouse bench; the em-
ployee regularly assigned to assist him as a receiver works in a receiving pit, approxi-
mately 10 feet distant. Invoices covering orders to be shipped may be put on
Vessella's bench by General Manager Fox; he (Vessella) may also write up invoices,
directly, from salesmen's orders. The warehouse clerks-specifically Ram and Voss
during the period with which we are concerned-select orders, normally in sequence,
from Vessella's desk; these are filed from shelved stock-in-trade, by putting the
ordered items in market baskets and bringing them to a table, where Vessella regu-
larly checks them against their invoice. He may assist the order fillers, occasionally,
by initiating the item assembly for one invoice, then assigning someone to complete
the order. Once order fillers are occupied filling baskets, Vessella confines himself to
checking the items assembled for shipment. Usually, warehouse employees other
than Vessella assemble orders and package them for shipment; Vessella may lend
a hand about once a month, when the firm is very busy. He does not physically sort
items, nor does he load trucks. When orders previously marked for rush treatment
came through, during the period with which we are concerned, Vessella would call
them to Ram's attention; the latter would give them priority.
Vessella's testimony, credited, would indicate that he and Ram assisted each other
and that General Manager Fox assisted both. Nevertheless, while close cooperation
appears to have been the rule in Excel's small warehouse, by observation of the wit-
nesses constrains me to credit Ram's further testimony that Vessella told him when
to take inventory, when to put away stock, when to check the trucks, when to go from
one task to another, and when to serve as a counter salesman. Also, Ram's credible
testimony establishes, without contradiction, that once, when Excel was short one
driver, Vessella asked him to make deliveries with the firm's truck, even though he
had no "truck" license.
Upon the entire record, I credit Ram's testimony that two of his wage increases
were received after Vessella had made representations to General Manager Fox
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his behalf, considered as a whole, available evidence requires the rejection of
Vessella's testimony to the contrary.
The General Counsel's contention that Vessella has exercised the authority to
effectuate discharges was vigorously contested. Upon the entire record, however,
I credit testimony produced in the General Counsel's behalf which would tend to
support a conclusion that the clerk possessed and exercised such authority. Once
William Banta, truckdriver, failed to report, after Vessella had warned him to
report because the firm would be short of men. Because of Banta's failure to report,
Ram had three or four trucks to unload personally. Banta did not report the next
day, however; Vessella then stated, "I'm going to get rid of him. When he comes in
I'm going to have him fired." Subsequently, when Banta reported, Vessella was
heard to tell him, "I gave you too many chances. I always protected you. You
came under the influence of liquor and I always protected you. But this time you
took off about three days. Hy was stuck, and I had to call back Carl Voss from his
vacation to work the other couple days." Vessella, I find, also told Ram, Voss, and
another truckdriver that he was going to get rid of Banta because the latter had
played a trick once too often. I credit this testimony. Vessella denied responsibility
for Banta's discharge; he likewise denied any representation to Banta that he
(Vessella) was firing him. Questioned with respect to the incident as a witness for
the Respondent Employer, however, Vessella testified as follow:
A. Well, he didn't show up for work for Monday and Tuesday, and Mr. Fox
got fed up,with him and he told me if he doesn't show up in the morning that he
is discharged, he has a man for him; he is replacing the man . .
Q. Did the man show up in the morning then after Mr. Fox told you this?
A. In the daytime, yes, he interviewed some man.
Q. I say, did Banta show up for work the morning after Mr. Fox said this
to you?
A. Yes, he showed up.
Q. When he showed up had Mr. Fox come to work yet?
A. No.
Q. Did you say anything to Bill Banta at that time?
A. I told him ,l had a message for him.
Q. What did you tell him?
A. That Mr. Fox didn't need him any more , that he was going to replace him.
Q. That is all you told him?
A. That is all. [Emphasis supplied.]
With the record in this posture, Vessella's own testimony establishes that he antici-
pated the decision of General Manager Fox to dismiss Banta; Fox had declared his in-
tention to discharge the driver if he did not show up after a Monday-Tuesday absence;
Vessella, however, advised Banta of his discharge, even though he did report, thus
forcing Fox to seek a replacement later in the day. Upon the entire record, also, I
credit Ram's testimony with respect to Vessella' s statement on more than one occasion
that he would have to discharge him (Ram) if he did not become an Association
member.
Essentially, General Manager Fox can be said to have verified Vessella's repre-
sentations with respect to his status when he told Ram, once, that he would instruct
the shipping and receiving clerk to assign another employee to work with the com-
plainant herein; Vessella thereafter did so. Additionally, I find, Fox told Ram-once
at least-to ask Vessella whenever he wished to know what was to be done.
Two witnesses proffered in the General Counsel's behalf-the complainant and
Beverly Young, former office employee-testified to their belief, grounded in daily
observation, that Vessella was a supervisor. And Cleo Habich, Excel's chief book-
keeper and office manager , whose supervisory authority will be noted elsewhere in
this report, herself characterized Vessella as the firm's warehouse supervisor, with
four of five subordinates. Stipulations establish the fact that Vessella has seniority
over the firm's other warehouse employees, and the fact that his compensation is
"considerably" higher.
(When Habich was under cross-examination, counsel for the Respondent Employer
utilized leading questions to elicit a concession that Vessella has been known and
designated merely as Excel's shipping clerk. When asked if the firm has another
receiving clerk, however, Habich testified initially that Vessella does everything;
then she confessed ignorance as to whether he loads or unloads trucks. On the
basis of this particular confession she was persuaded to acknowledge, generally, her
ignorance as to what his duties involve. Upon the entire record, however, the con-
cession noted cannot legitimately be considered sufficient to offset her prior expression
of belief that Vessella exercised the normal authority of a foreman or supervisor;
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 495
obviously, her acknowledgment with respect to his common title,-and her confession
of ignorance with respect to the physical aspects of his work, may not be considered
sufficient to affect the validity of her opinion, based upon some period of observa-
tion, that Vessella really exercised supervisory authority.)
Upon the entire record, I am satisfied that Vessella, regardless of his common
title-throughout the period with which this case is concerned-possessed authority,
in the Respondent Employer's interest, to discipline employees, to transfer them
from one assignment to another, to direct them responsibly in their work, and to
make effective recommendations with respect to their reward or discharge, in a
manner requiring the use of independent judgment. As possessor of such authority,
throughout the period with which this case is concerned, Vessella was a supervisor
within the meaning of the Act, asamended.
d. Cleo Habich
When designated to succeed Vessella, temporarily, as the Association's Excel
representative, Habich was the firm's full-charge bookkeeper and office manager.
Salaried, she receives "considerably more" than the single office employee subject
to her immediate supervision. During the 3-year period since the Association's
formation, Habich has concededly discharged office employees on several occasions
and hired four or five replacements for such work. Undisputed testimony proffered
in the General Counsel's behalf establishes that one person hired as an Excel
office employee-Beverly Young-was interviewed and employed by Habich alone.
(Even were this testimony to be discredited, the office manager's parallel testimony
would be sufficient to establish that the power of effective recommendation with
respect to employment and discharge was hers, and that Excel's general manager
routinely confirmed her decisions.) There can be no doubt, upon the record, that
Habich has represented herself to employees as possessed of the authority to hire
and to effectuate discharges. Finally, reference should be made to the fact that she
customarily distributes the payroll checks; to this should be added the fact that she
handles employee applications for company loans in the form of payroll advances.
Clearly, Habich possesses the authority to hire employees and to effectuate their
discharge, to make effective recommendations with respect to such personnel action,
and to direct the work of other employees, responsibly, in such a way as to require
the use of independent judgment. Upon such a determination, she must be con-
sidered a supervisor within the statute' s meaning.
B. The discharge of Ram
1. Background
Hyman Ram began to work at Excel in June 1957 as a packer, receiver, stock-
keeper, and order taker. Ultimately, his assigned responsibilities appear to have in-
cluded many aspects of warehouse work. In September and October, shortly after
his hire, General Manager Fox and Vessella repeatedly urged him to join the
Respondent Association; reference has already been made, elsewhere in this report,
to Vessella's representation that Ram would face dismissal if he did not become
an Association member. During October or November, Ram did acquire Association
membership; thereafter, I find, he paid monthly dues-albeit irregularly, perhaps-to
Vessela as Excel's Association representative. (The testimonial record suggests that
Ram's dues-payment habits may, indeed, have been somewhat irregular; available
evidence with respect to the consistency of his dues payments, however, can hardly,
be considered probative.) In January 1959 Ram advised Vessella that he needed
money, temporarily, which he proposed to borrow; Vessella informed him that he
would be able to borrow the required sum from the Respondent Association without
interest. Thereafter, upon Vessella's recommendation, the Association provided
Ram with a $50 loan, which he subsequently paid off by March 1959 at the rate of
$5 per week.
2. The last Association meeting
Early in July 1959, Ram again applied, through Vessella, for an Association loan.
He reported need for $100 because of his intention to get married; President Garner,
however, rejected his loan application . When the Respondent Association next met,
Ram questioned the propriety of his application 's rejection , and demanded a report
with respect to the state of the organization's emergency loan fund. (The record
suggests a conflict with respect to the date of this meeting. Ram placed it on
August 3 or 4; however, a canceled check produced from the organization's files-
represented to be the check used to pay for the dinner which preceded the Associa-
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion meeting-would warrant an inference that it was held on July 14, 1959 , 3 months
.after the April special election meeting , previously noted . With the record in this
posture, I find that the meeting was held in July, actually , and that no August meet-
.mg was held .) The variant accounts proffered for the record with respect to the
verbal exchange which followed Ram's demand need not be reconciled . Whatever
may have been said , his demand for a report with respect to the state of the loan
fund was eventually parried . Acrimonious discussion thereafter-which Ram in-
sists, credibly , that he did not foster-ultimately led to the meeting's adjournment.
On August 1, 1959 , the complainant made his last dues payment to Vessella, cover-
ing his Association dues obligation for the month designated.
3. Ram 's discharge
Sometime during August , Ram determined to relinquish his Association member-
-ship. Approximately concurrently , Vessella resigned as the Association 's representa-
tive at Excel . (While the available evidence cannot really be considered sufficient
-to establish that distaste for the controversy which Ram 's comments had initiated at
-the July meeting of the organization motivated Vessella , record justification for such
an inference may be found . Determination of his motivation, however , would not
-seem to be required .) Elsewhere in this report , the designation of Habich to serve
-as Vessella's temporary replacement has been noted . On August 28, 1959, on the
month's final payday , pursuant to this designation , Habich asked all of the employees
-to pay their Association dues.
Ram refused. The testimony of Habich , herself, establishes that she told him,
"You know what that means . If you don't pay, you don't work here ." Ram re-
mained unmoved , despite the chief bookkeeper 's further observation that persistence
-•in his refusal to remit the small amount required would be foolish . Habich then
-,told General Manager Fox , I find , about Ram 's reluctance to pay Association dues
for the coming month ; she suggested that the general manager make an effort to
persuade Ram to change his mind . (The record testimony proffered by Fox, Habich,
.and Kern , with respect to their conduct after Ram's refusal to pay September dues,
would certainly seem to deserve characterization as divergent , to say the least. No
-reconciliation of their various recitals, however , would seem to be necessary. Upon
-the entire record , complete justification can be found for a determination that Fox,
.certainly, was fully advised of the Respondent Association 's position that Ram's
-maintenance of organization membership would be considered a condition precedent
-to his retention of employment , and that the current agreement between Excel and
the Association would require his dismissal , should his determination to withhold
the September dues payment prove to be irreversible .) At the request of Habich
and various Association representatives , Fox did expostulate with Ram several times.
According to his own testimony , the general manager pointed out, inter alia, that
"Ram had signed the Association 's constitution and bylaws , and that , under that
,.document , he would have to pay his Association dues or leave. Fox insisted that
Ram had to make a choice.
Despite these representations, which Excel 's general manager repeated several
times-coupled with a further suggestion by the firm's bookkeeper that if his dues
remained unpaid the firm would have to let him go-Ram remained adamant. On
Friday, September 25, 1959 , which was the final payday of the month , Habich dis-
tributed the payroll checks for the week ; these included pay for the full day of the
check distribution . She again requested Ram, I find, to pay his Association dues.
He refused . In words or substance , Habich acknowledged the finality of his deci-
sion and observed that he knew what that decision meant . Subsequently , she re-
ported Ram 's decision to Fox, who promised to discuss the matter with the employee
designated . ( Ram's extensive record recapitulation of the final conversation which
-'he had with Habich reveals his sharp disagreement with testimonial viewpoints ex-
pressed in the Respondent Employer 's behalf regarding the nature and significance
of the chief bookkeeper 's remark , noted . Essentially , Ram testified that Habich
told him his employment would be terminated because of his refusal to pay current
Association dues; the complainant 's testimony suggests , also, that he considered the
-bookkeeper's remark , when made, sufficient to effectuate his discharge . Ram appears
to have maintained this view throughout a subsequent conversation with General
Manager Fox, to be noted; subsequently , he even reported to various State of
California Department of Employment officials that Excel's bookkeeper had effectu-
ated his termination , with a statement that such action was being taken pursuant as
to an order of the firm's general manager. Upon the record as a whole, however,
I find it unnecessary to determine , herein, the correctness of the complainant's view
with respect to the legal significance of his final conversation with the bookkeeper.
Since he solicited or received a determination with respect to his employment status,
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 497
thereafter, from Excel's general manager, any comments by Habich with respect to
the termination of his employment could not really be said to have crystallized the
situation for which the General Counsel now seeks to hold the Respondent Employer
accountable.)
After his conversation with Habich, I find, Ram first consulted Vessella; the latter,
essentially, suggested that the complainant, having received his paycheck for the
full week, could leave immediately. Ram decided to follow Vessella's suggestion.
General Manager Fox was immediately advised of his decision.
The repeated testimony proffered by Ram in respect to his final conversations with
both Vessella and Fox certainly merits characterization as discursive. His recital
while under cross-examination, with respect to these conversations, comports essen-
tially, however, with the version Fox offered. Upon the entire record, I have found
it credible. Pertinently excerpted, Ram's testimony reads as follows:
Q. (By Mr. PERKINS.) Now, the day you left was a Friday; is that right?
A. Yes, sir. It was approximately 3:00 o'clock on Friday.. .
Q. That was still a couple of days before the end of September, wasn't it?
A. That's right, sir.
Q. And you had a conversation with Mr. Fox on that day, didn't you?
A. Yes, sir, I did. I went in and shook hands like a gentleman. Because
I've got nothing against him to this moment. .
Q. Now, it's true that Mr. Fox told you that Cleo Habich couldn't fire any-
body, isn't it? .. .
A. He says . that's right. He said that Cleo couldn't fire me .
Q. Didn't Mr. Fox tell you that you could work out the month of September?
A. Yes, sir, he did. But I walked in the back and Tony told me, "If I was
you I would leave right away." I says, "Why" but he did tell me that he
would leave right away if he was me, and that's exactly what I did. I went
back and shook hands with Mr. Fox but that's what happened. Tony Vessella
was the one that told me that I got my pay and if he was me he would
leave .
Q. Actually, [this] was before the end of the day, wasn't it, on that Friday?
A. Yes, sir. Roughly around 3:00 o'clock.
Q. And you had already been paid for working until 5:00 o'clock; is that
right?
A. That's right.
Q. And that was when Tony told you that you had been paid and you might
as well shove off?
A. Yes, sir.
Q. You knew that you could work out the month, didn't you?
A. I brought that up. I says to Mr. Fox, "I got 30 days according to what
they have told me, according to what they have got on that piece of paper that
they've got written up." And Les says, "If you want to work you can work."
But Tony says to me that it's only half a week and if he was me, he says, "I'd
leave," and that's exactly what I done.
Q. That was not in Mr. Fox's presence, that conversation, was it?
A. No, sir. I did tell him that Tony told me to leave .
Q. Didn't Mr. Fox say to you on that day, in substance, that if you didn't pay
your dues that you would lose your job, that all you had to do to stay there
was to pay your dues, and that if you didn't pay your dues you were, in effect,
quitting?
A. He told me that I was quitting. Yes, he told me that. He says to me,
"You got to pay your dues. If you want to stay here you got to pay your dues."
And ,l said, "I'd like to keep on working here. I enjoy the job. I am interested
in learning about the electric business." And he says to me, "You got to pay
your dues if you want to stay," which I refused. What's true is true. I'm not
going to deny what's true.
With this testimony boiled down to essentials, Ram appears to have been advised
by Fox that his refusal to pay Association dues would dictate his termination. I so
find. The right of the complainant to remain at work, for the balance of the month,
however, was acknowledged; Ram was told that his decision to cease work immedi-
ately would be considered tantamount to resignation.
The complainant performed no services for Excel after September 25. His charges
against the Respondent Employer and the Association in the present consolidated
case were filed 4 days later. Thereafter, by letter dated November 5, 1959, prior to
the issuance of the consolidated complaint herein, General Manager Fox advised
Ram as follows:
624067-62-.vo1 133-33 • .
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You left the employment of this company on or about September 25, 1959,
because you were informed that you would be required to pay dues to Brown
Employees Association under the terms of an existing labor contract. We
believed that we could not continue you in our employ without violating our
contract with our employees, represented by the Association'. . . .
Ram was told, however, that questions had been raised with respect to the validity
of the union-security requirement embodied in the Respondent Association's con-
tract; allegedly because of these questions and, additionally, because of the firm's
professed desire to avoid any taint of compulsion with respect to the union member-
ship requirement except where clearly required by contract, Ram was offered rein-
statement to his former position. Immediate notice of his intention to accept the
job offer was requested. The complainant, however, gave no notice of acceptance.
Stipulations noted for the present record establish that he did not, at the time of the
letter's receipt on November 6, desire reinstatement, and that he does not seek
it currently. The General Counsel has conceded that the Respondent Employer's
letter, noted, embodied a valid offer of reinstatement.
C. Conclusions
Liability of the Respondent Employer
1. The Respondent Association
a. Domination, interference, and support
(1) Supervisors as Association officers
Upon the entire record, the General Counsel's effective contentions with respect
to the legitimacy of the Respondent Association derive, essentially, from the major
allegations of the consolidated complaint regarding that organization's character.
He has alleged and presently contends that the Respondent Employer herein, through-
out the period with which this case is concerned, dominated and assisted the Re-
spondent Association, contributed to its support, and interfered with its
administration
The validity of this contention, necessarily, can only be assayed for the period
which began 6 months before the date on which Ram's initial charges were filed;
this would be March 29, 1959 Section 10(b) of the Act. While the General Counsel,
inter alia, has charged the Respondent Employer, additionally, with the initiation,
formation, and sponsorship of the Respondent Association, through various desig-
nated agents and supervisors-between January 1, 1957, and March 31, 1957,
specifically-Section 10(b) would dictate limited treatment of the record evidence
adduced with respect to the period last indicated. Pursuant to established decisional
doctrine, it can be considered background material only, significant merely for the
light which it may cast upon relevant events within the statutory limitation period.
In this connection, the General Counsel asserts, primarily, that the collective busi-
ness entity designated as the Respondent Employer herein must be held accountable
for the Association activities of Garner, Kern, Habich, and Vessella, because of their
supervisory status. This contention would certainly seem to deserve acceptance as
meritorious Elsewhere in this report reference has been made to record evidence
sufficient to justify my previously noted conclusion that Garner, Kern, Vessella, and
Habich presently possess and exercise supervisory authority within the Respondent
Employer's business complex. And the fact that Garner, Kern, Vessella, and Habich
held Association office, pursuant to election or appointment, within the period
with which this case is concerned does not appear to be disputed. Their active
participation in the conduct of Association affairs, also, has been clearly established.
When the supervisory personnel of some respondent employer hold office in a labor
organization, participate responsibly in its administration, and negotiate trade agree-
ments with their own employer-with that employer's patent knowledge, acquies-
cence, and approval, explicitly stated or implied-domination, interference, and
support, statutorily proscribed, may be considered established. Mardril, Inc , 119
NLRB 1174. Derivatively, also, interference with, restraint, and coercion of em-
ployees in the exercise of rights statutorily guaranteed may be considered proven.
Applied to the present record, these established decisional principles would clearly
seem to require a determination, in this consolidated case, that the Respondent
Employer committed the unfair labor practices with which its constituent segments
have been collectively charged.
The right of employees to form , join, or assist labor organizations and to bargain
collectively through representatives of their own free choice, or to refrain from such
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. " 499
activity, finds effective implementation in Section 8(a)(1) and (2) of the Act, as
amended. These statutory provisions forbid employers to interfere with, restrain,
or coerce employees in the exercise of designated rights statutorily guaranteed; they
likewise proscribe employer domination or interference with the formation or
administration of any labor organization, or 'the contribution of financial or other
support to such an organization . Thereby, the economic power of employers over
their employees, which clearly derives from the employer-employee relationship, may
be neutralized in matters of organization and representation, which are peculiarly
the concern of employees. Proscription of any employer intrusion in such matters
must be considered essential if employees are to be free from the coercive influence
of their employers. For employees, as this Agency and the courts have so often
found, will not, normally, lack sensitivity to various employment advantages deemed
most likely to flow from their choice of a representative their employer has found
acceptable. Nor can they be expected to overlook the disadvantages which may
attend their choice of a representative which he has opposed. Likewise, employees
cannot be expected to derive full benefit from their protected right to self-organization
if they believe-because of circumstances created by their employer, or because of
circumstances for which he may fairly be considered responsible-that their repre-
sentative, however chosen, functions subject to their employer's will. The statute,
therefore, prohibits all forms of employer domination or interference with the
formation or administration of labor organizations, together with the contribution
of support to such organizations, financial or otherwise, which might operate to
preclude the uninhibited exercise by employees of collective-bargaining rights.
N.L.R.B. v. Link-Belt Company, 311 U.S. 584; International Association of Ma-
chinists, Tool and Die Makers, Lodge No. 35 (Serrick Corp.) v. N.L R.B., 311 U.S.
72; N.L.R.B. v. Electric Vacuum Cleaner Company, Inc., 315 U.S. 685; N.L.R.B. v.
Southern Bell Telephone and Telegraph Company, 319 U.S. 50. These established
principles provide the basic premise for the contentions of the General Counsel herein.
Employers, particularly when organized as corporate enterprises, normally func-
tion through agents; the Agency concept, of course, covers supervisors. For every
relevant purpose under the statute, therefore, employers may be considered responsi-
ble for statements and courses of action attributable to their supervisors, pursuant
to common law Agency rules. Section 2(13) of the Act. Specifically, when a
supervisor participates in the management of the affairs of a labor organization,
his employer may be held accountable for his conduct. Logically, also, that conduct
may deserve characterization as employer domination, when the supervisor's par-
ticipation in the organization's affairs reflects leadership, beyond the mere exercise
of membership privileges. Nothing in the present record can be considered sig-
nificant enough to warrant a departure from these principles. (This Agency and
the courts have sometimes found that supervisory participation in the affairs of a
union may have been undertaken in an individual rather than a representative
capacity. Under such circumstances, the employers involved have not been held
responsible for the conduct of their supervisors. For reasons to be noted, how-
ever, no such absolution would appear to be warranted in the present case.) For two
Association officers-Kern and Habich-counsel for the Respondent Employer
would argue that participation in Association affairs should not be considered
sufficient to subject the firms to unfair labor practice liability. Essentially, he ap-
pears to contend that the participation of these officers were innocent, derived
from a desire consciously to promote the welfare of employees; reference is made
to testimony that neither Kern nor Habich was ever made aware, prior to this
Agency's investigation of the present charges, that their participation in Associa-
tion affairs was questioned or questionable. (In his brief, the Respondent Employer's
counsel cites Kern's willingness to resign her Association office and membership
if that course of action should prove to be necessary.) The presumptive good
faith of Kern and Habich, however, must be considered without relevance. Con-
sciousness of rectitude on their part, however, sincerely professed, could not nullify
the natural tendency of rank-and-file employees to consider supervisory personnel
part of their employer's management team.
When requested to determine whether a challenged organization may properly
be considered employer controlled, several courts have observed that the legal test
of control should not be an objective one, but rather subjective, from the stand-
point of employees. N.L.R B. v. Thompson Products, Inc, 130 F. 2d 363, 368
(C A. 6); N.L.R.B. v. Sharples Chemicals, Inc., 2'09 F. 2d 645, 652 (C.A. 6).
Accord: N.L.R.B. v. Jay Company, Inc., 227 F. 2d 416, 419 (C.A. 9); Sperry Gyro-
scope Company, Inc. V. N.L.R.B., 129 F. 2d 922, 924 (C.A. 2). With respect to
the Respondent Association, therefore, any defensive protestation that Garner,
Kern, Vessella, and Habich did not, personally, consider themselves management
spokesmen would be pointless; within the factual context revealed by the record,
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their status within the Respondent Employer's business complex must be consid-
ered reasonably calculated to foster a belief by employees that the Respondent
Association functioned subject to their employer 's control.
(2) Relevant background evidence with respect to the Association 's formation
In this connection , particularly , consideration may be given , fairly , to the back-
ground circumstances-previously noted-which appear to have stimulated the
Association's formation . The organization clearly appears to have been conceived
and formed within a context of employer hostility to another union 's organizational
effort ; under such circumstances , the fact that Rubin Brown , personally, may not
have suggested the Association 's formation-coupled with the fact that he may
not have participated in its formation-cannot be considered completely exculpa-
tory. Undisputed testimony , which I credit , indicative of the key role which some
supervisory personnel of the respondent enterprises played in the Association's
formation, considered in context , would belie Brown 's protestation that his status
was that of a mere bystander . (His readiness to abandon the employee assembly
which he, himself , had convened on Brown Wholesale 's premises-without any
announcement that the meeing was closed , or that his purpose in calling it had
been satisfied-would certainly seem to provide some basis for an inference, also,
that he then anticipated the initiation of an employee plan to forestall further
Teamsters activity .) Significantly , also, Harry Perlmutter-initially designated the
Association 's president , and ultimately designated one of its two contract nego-
tiators-while not himself a supervisor , was known to be the father of Robert
Perlmutter, Ace Wholesale 's general manager when the Association was organized.
The existence of a close personal and confidential relationship between Perlmutter
and Rubin Brown , therefore , would have been a logical inference , fully supported
by subsequent developments . ( Brown , convinced that General Manager Robert
Perlmutter deserved a bonus payment , wished to conceal his receipt of a bonus
check from certain Ace Wholesale employees ; the check was given Association
President Harry Perlmutter for transmittal to his son . The double transfer re-
quired was effectuated in March 1957 during which month Perlmutter and Garner
also negotiated the first Association agreement with Brown for employees of the
respondent enterprises .) Although not determinative , Brown's ultimate reliance
upon Harry Perlmutter as the best available conduit for the achievement of certain
management objectives certainly suggests the legitimacy of a conclusion that Perl-
mutter enjoyed a special status in the Respondent Employer 's business complex.
Compare Trim fit of California , Inc., 101 NLRB 706, 708 , in this connection.
Long ago, the United States Supreme Court found the strict rules of respondeat
superior not applicable to a comparable situation . International Association of
Machinists, Tool and Die Makers, Lodge No. 35 (Serrick Corp.) v. N.L.R .B., 311
U.S. 72, 78. The Court observed that if employees could be said to have had just
cause to believe that solicitors-professedly for a labor organization-had actually
functioned for and on behalf of management , the Board would be entitled to con-
clude that the employees involved had not had the complete and unhampered free-
dom of choice contemplated by the statute . And Perlmutter 's known special status
clearly would have given employees of the respondent enterprises just cause to
believe that his participation in the formation and administration of the Respondent
Association revealed Brown 's interest in the affairs of that organization.
Such a belief on the part of the Respondent Employer 's workers could only have
been confirmed and strengthened by the celerity with which the Respondent Asso-
ciation's first trade agreement with Brown was negotiated ; the agreement appears to
have been executed , and the Association recognized , within 2 months of the organi-
zation's formation . Significantly , the agreement in question contained no provision
with respect to either wages or hours , traditionally matters dealt with in collective
bargaining . With respect to conditions of work , also , the agreement merely estab-
lished a paid sick-leave arrangement , plus Brown's commitment to procure and
effectuate employer-paid medical and hospital benefits for his employees and their
dependents . Collective bargaining so limited in scope , conducted in a context other-
wise suggestive of the employer's influence with the union negotiators , frequently
has been considered indicative of his pervasive control with respect to the bargaining
process.
Each background aspect of the situation, noted , may legitimately be considered
persuasive evidence that the role played by the Respondent Employer's supervisors
in Association affairs could reasonably be interpreted by employees as employer
motivated; such background evidence , therefore , can certainly be said to support a
determination with respect to the existence of proscribed employer domination,
interference , and support , through supervisory activity, during the statutory 'limita-
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 501
tion period . N.L.R.B . v. Link-Belt Company , 311 U.S. 584, 588-600. As the U.S.
Supreme Court observed in the cited case:
Normally, the conclusion that [the choice of the employees ] was restrained
by the employer's interference must of necessity be based on the existence of
conditions or circumstances which the employer created or for which he was
fairly responsible and as a result of which it may reasonably be inferred that
the employees did not have that complete and unfettered freedom of choice
which the Act contemplates.
Here no one fact is conclusive . But the whole congeries of facts before the
Board supports its findings.
The employer's attitude towards unions is relevant . . The declared hos-
tility towards an "outside" union , the quick recognition of Independent,
the support given Independent 's membership drive by some of the supervisory
staff, . all corroborate the conclusion that the employer facilitated and
aided the substitution of the union, which it preferred , for its old company
union . But respondents contend that there is no evidence that the employees
had a settled conviction that the employer preferred a certain type of labor
organization or that they were under compulsion from the employer in choos-
ing between Independent and Amalgamated . There were , however, forces at
work in the plant which make tenable the conclusion of the Board that the
employer had intruded so as effectively to restrain the employees' choice. . .
As we stated in International Association of Machinists v. N.L.R.B., 311 U.S.
72, 78, "Slight suggestions as to the employer's choice between unions may have
telling effect among men who know the consequences of incurring that em-
ployer's strong displeasure ." Nor does the Board lack the power to give weight
to the activities of some of the supervisory employees on behalf of Independent,
even though they did not have the power to hire or to fire. As we indicated in
International Association of Machinists v. N.L.R.B., supra, the strict rules of
respondeat superior are not applicable to such a situation. If the words or
deeds of the supervisory employees , taken in their setting, were reasonably
likely to have restrained the employees' choice and if the employer may fairly
be said to have been responsible for them , they are a proper basis for the con-
clusion that the employer did interfere . If the employees "would have just
cause to believe that solicitors professedly for a labor organization were acting
for and on behalf of the management, the Board would be justified in conclud-
ing that they did not have the complete and unhampered freedom of choice
which the Act contemplates." International Association of Machinists v.
N.L.R.B., supra. Here such inferences were wholly justified. The attitude of
the employer towards an `outside"' organization was clearly conveyed. When
that was followed by solicitation for Independent on the part of supervisors
who had general authority over the men, it would be unfair to conclude that
the employees did not feel an actual pressure from the management. . . The
fact that these various forces at work were subtle rather than direct does not
mean that they were nonetheless effective . Intimations of an employer's pref-
erence, though subtle, may be as potent as outright threats of discharge.
The applicability of these observations, both with respect to the Respondent Asso-
ciation 's historical background and its course of conduct during the period with
which this case is concerned, would seem to be patent.
(3) Other factors within the statutory limitation period
Within the 6-month limitation period , supervisors employed by the respondent
enterprises continued to provide Association leadership. Compare Universal Oil
Products Company, 108 NLRB 68, 69. And trade agreement provisions almost as
limited as those of the initial agreement , previously noted , were maintained and
effectuated throughout the period. (The second agreement between the respondents,
executed March 1 , 1958, for a 2-year term and effective throughout the period with
which this case is concerned, contained no substantive provision to establish or
govern wages or hours. The authority previously exercised by each respondent
enterprise to grant wage increases , unilaterally determined, to individuals "depend-
ing on merit , length of service and economic conditions" was merely affirmed; the
agreement likewise provided that the workday and workweek previously established
unilaterally by the respondent enterprises , would remain unchanged . With respect
to conditions of work, the agreement did provide for the continued maintenance
of the established medical and hospital benefit plan for employees and their de-
pendents, but previous sick-leave arrangements were modified . Brown, functioning
.502 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
as the negotiator for each respondent enterprise, agreed to provide group life in-
surance for his employees, plus vacations with pay,, subject to certain limitations.
Concurrently, however, he agreed to require Association membership as a condition
of employment, effective for all employees within 1 year after the date of their
first employment. Significantly, this contractual agreement with respect to union
membership as a condition of employment was accompanied by a limitation of
eligibility for the contractually provided medical and hospital benefits, previously
available to employees after 90 days of service, to employees with 1 year of service;
Brown's new commitment to provide employer-paid group life insurance was simi-
larly limited.) While the execution of the agreement in question clearly antedated
the 6-month limitation period reviewable under the consolidated complaint's terms,
its maintenance and effectuation within that period must be considered legitimately
questionable. Essentially, the trade agreement merely established or affirmed cer-
tain fringe benefits for employees, necessarily related to their contemporaneous
acquisition and retention of Association membership, under the contract's union-
security clause. Such a limitation of the Respondent Employer's fringe benefit
program persuasively suggests' Brown's desire and intention to utilize such programs,
particularly, as organizational devices reasonably calculated to provide support for
the respondent labor organization. Cf. Rockaway News Supply Company, Inc., 94
NLRB 1056, 1058-1060; Gaynor News Company, Inc. v. N.L.R.B., 347 U.S. 17,
46-48. I so find.
The constitution and bylaws which the Respondent Association approved and
adopted on March 10, 1959-maintained and effectuated throughout the period
with which the case is concerned-provide additional evidence with respect to the
existence of a relationship between the Respondent Employer and Association cor-
roborative of the General Counsel's contention. Despite the document's recital of a
prime Association objective-establishment and maintenance of favorable schedules
of wages, hours, and other conditions of employment-no concrete efforts to achieve
the stated objective through collective bargaining, within the field of wage and hour
determination, have been made. We may note, also, the Association's formally de-
clared intention to rely, if possible, on friendly negotiation and arbitration, rather
than strikes, to settle differences between organization members and their employ-
ers; such unilateral commitments to forswear all reliance upon strike action, as an
economic weapon for the achievement of collective-bargaining goals, considered in
context, frequently have been considered suggestive of employer domination. In-
ferences of such character would certainly seem to be soundly based, particularly in
the absence of any employer quid pro quo, evidenced by the establishment of griev-
ance or arbitration procedures. (No such procedures appear to have been estab-
lished by the respondent parties in the present consolidated case; the record, indeed,
provides no evidence of any occasion, whatever, upon which employee grievances
were actually negotiated or arbitrated. Cf. George H. Clark doing business as
Clark Phonograph Record Co., 78 NLRB 34, 51. This, considered alone, would
tend to support an inference of employer domination, interference, and support
to such an extent that the organization involved must be regarded as the employer's
creation rather than a true bargaining representative of employees.)
Additionally, the constitution and bylaws vest the Association's president with the
authority to function as the organization's "official representative" for the purpose
of dealing with employers-specifically, the four respondent enterprises-concern-
ing wages, hours, and other conditions of employment. By virtue of this provision,
President Garner has been the only person authorized to deal with the Respondent
Employer in these respects, throughout the period with which this case is concerned.
(Garner and Perlmutter, whose special status has been noted previously in this report,
have actually been the Association's only negotiators.) Essentially, therefore, the
constitution and bylaws of the organization grant complete authority with respect to
contract negotiations to an officer with supervisory status. Any new agreement
negotiated presumably would be executed by Rubin Brown after discussion with
one of his own supervisors.
Although the available evidence will not support a factual determination that
Brown was responsible, personally, for the adoption of an Association constitution
which granted that organization's president sole authority to negotiate agreements,
the record would certainly seem to justify a conclusion that sponsorship of the new
constitution, with such a provision included, by supervisory personnel gave Associa-
tion members just cause to believe control of contract negotiations to be vested in
representatives of their employers (The possibility that supervisors in positions
of Association leadership could not really be regarded as employer representatives
must be rejected Obviously, the 2-year-old group could not, legitimately, be judged
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 503
equivalent to an established labor organization which has traditionally admitted
lower-echelon supervisors to membership. Cf. Nassau and Sujffdlk Contractors'
Association, Inc., et al., 118 NLRB 174, 184-187. The representative status of the
Respondent Employer's supervisors vis-a-vis the Association membership reflects
no long-range historical development, but derives from their active participation in
the group's formation, under questionable circumstances previously noted. None
of them can be said to exercise supervisory authority with Association approval,
and subject to its discipline. Nor can the presumptive inclusion of the Association
officers in the bargaining unit, under the circumstances, be held enough to divest
them of their various indicia of supervisory authority and responsibility, otherwise
calculated to persuade employees of their status as employer spokesmen.)
With matters in this posture, also, the Respondent Employer's maintenance and
effectuation of trade agreements which condition continued employment with the
respondent enterprises upon the acquisition and retention of Association membership
within 1 year would clearly warrant characterization as potent employer assistance
and support, conferred upon a labor organization otherwise tainted. I so find.
Whatever the legitimacy of union-security arrangements negotiated for the benefit
of organizations free of employer domination, interference, or support, such ar-
rangements, when they cap a course of conduct statutorily proscribed, require
administrative interdiction.
(4) Conclusions
Upon the entire record in the present consolidated case, therefore, I find, for
each of the reasons previously noted, that the Respondent Employer dominated
the Association within the period with which the case is concerned, interfered with
its administration, and contributed to its support, thereby, derivatively, the Respond-
ent Employer, I find, interfered with, restrained, and coerced employees with respect
to their exercise of rights statutorily guaranteed.
It is the General Counsel's contention, also, that the Respondent Employer must
be found guilty of discrimination against employees-with respect to hire, employ-
ment tenure, and terms and conditions of employment-to encourage membership
in the respondent labor organization or to discourage membership in other labor
organizations. To the extent that this contention may purportedly rest upon Re-
spondent Employer's domination and support of the Respondent Association or
interference with its administration, through the participation of designated super-
visory personnel in Association affairs, the contention must be rejected. However,
the General Counsel's position, otherwise, would seem to be soundly based upon
Agency decisional doctrine; the Respondent Employer's maintenance and effectua-
tion of a union-security agreement with a dominated labor organization clearly
establishes discriminatory conditions of employment statutorily proscribed. And I
so find.
b. The compliance issue
In the consolidated complaint, further, it is alleged that the trade agreements
signed on March 1, 1958, by representatives of the Association and the respondent
enterprises-with their union-security clauses-were executed despite the Associa-
tion's failure to produce any prior Board notice of the organization's compliance
with Section 9(f), (g), and (h) of the statute, then in full force and effect. Upon
this ground, considered separately, the General Counsel reiterates his contention
that the Respondent Employer should be found to have committed unfair labor
practices within the meaning of Section 8(a)(1), (2). and (3) of the statute. As
the brief filed in the General Counsel's behalf puts it:
The maintaining and enforcing of a contract containing a union security clause
between an employer and a labor organization not in compliance with Section
9(f), (g), and (h), in effect at the time of the signing of said contract and remain-
ing in effect until September 14, 1959, is a violation of Section 8(a)(1). (2)
and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, when said clause is given effect by the discharge of an employee under
its provisions on September 25, 1959.
By their respective answers the Respondents concede the Association had received
no compliance notice within the 12-month period immediately prior to its execution
of the designated trade agreements, and that the organization actually has never
received such a notice of compliance; lack of knowledge with respect to the statutory
requirement in that respect is pleaded, additionally, by the respondent labor organiza-
tion . The Respondent Employer's answer asserts, however, that notice has been
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given the respondent labor organization , dated November 9, 1959, that the union-
secu rity arrangement embodied in their currently effective trade agreements will no
longer be effectuated . Counsel for the respondent enterprises also alleges that:
(1) trade agreements with the challenged union -security provision were executed
in behalf of each respondent enterprise upon their good -faith belief both that such
action was legal in any event, and that the Respondent Association was qualified
to enter into such agreements ; (2) Section 9(f), (g), and (h) of the statute should
not be considered applicable to some of the respondent enterprises ; and (3) the
Board's antecedent refusal to process various representation petitions filed for some
segments of the Respondent Employer's business complex should be held to estop
it from any determination that the statutory provisions noted , since repealed, were
ever applicable to agreements executed by the respondent enterprises whose petitions
were dismissed . Additionally, counsel for the Respondent Employer contends now
that the recent repeal of Section 9 ( f), (g), and (h) should be considered sufficient
reason to invalidate the prosecution of any unfair labor practice charge founded on
the Respondent Association's noncompliance.
Detailed analysis of these defenses , however, would appear to be unnecessary.
Whether or not repeal of the statutory provisions now under consideration-effective
September 14, 1959, immediately upon enactment of the Labor-Management Report-
ing and Disclosure Act presently effective-requires the termination or dismissal of
prosecutions brought thereunder, the General Counsel's contention with respect to
the invalidity of Association trade agreements, because of the specific ground noted,
must be rejected.
Reference has been made to the fact that these trade agreements were executed
on March 1, 1958; Section 10 ( b) of the statute , therefore, would clearly bar any
present determination with respect to statutory violations based upon execution of
the agreements while the Respondent Association was concededly not in compliance
with Section 9(f), (g), and ( h) of the Act, as amended . Essentially, the General
Counsel appears to contend , however, that the subsequent maintenance and effectua-
tion of trade agreements executed under such circumstances , within the statutory
limitation period, constitutes an unfair labor practice subject to administrative
proscription. Since the issuance of the consolidated complaint, the U. S. Supreme
Court has found that any determination with respect to a statutory violation which
must be considered "inescapably ground" on events predating the limitation period
would be directly at odds with the purpose of the Section 10(b) proviso. Local
Lodge 1424, International Association of Machinists, AFL-CIO v. N.L.R B. (Bryan
Manufacturing Company)' 362 U.S. 411. Such a determination , however, would
seem to be the basis of the General Counsel's contention in the present case.
Under the statute prior to its most recent amendment, agreements with union-
security clauses were privileged, inter alia, if the labor organization involved (not
established , maintained , or assisted by unfair labor practices) represented a majority
of the employees in the appropriate collective-bargaining unit covered, and if the
labor organization had-
.. . at the time the agreement was made or within the preceding twelve
months received from the Board a notice of compliance with Section 9(f), (g),
(h) . . . . [Emphasis supplied.]
The position taken by the General Counsel, bottomed upon this statutory language,
necessarily reflects his basic premise that trade agreements may legitimately be found
invalid presently because of a circumstance-lack of a timely notice of compliance
with Section 9(f), (g), and (h) of the statute-which would necessarily have existed
only at the point in past time when the agreement was executed , and which, by its
very nature, could not be repeated thereafter. His 'arguments with respect to the
present invalidity of the 'agreement , therefore, would be directly based upon its
initial invalidity solely and would, in this respect at least, have no continuous inde-
pendent basis . When events relied upon to establish the invalidity of 'agreements
predate the statutory limitation period, such a contention cannot be maintained.
Local Lodge 1424, International Association of Machinists, AFL-CIO (Bryan
Manufacturing Company), 119 NLRB 502, 516, cited by the Supreme Court with
approval. The General Counsel's particularized contention that the current trade
agreements between the Respondent Employer and the Association should be found
invalid because of the Association's failure to achieve or demonstrate compliance
with Section 9(f), (g), and (h) of the statute, prior to or contemporaneously with
their execution , must , therefore, be found without merit. Compare Hooker Chemical
Corporation, 128 NLRB 1394 , in this connection.
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 505
2. The discharge of Ram
a. The lack of validity of the contractual union-security provision
Upon a determination that the Respondent Association was-throughout the
period with which the case is concerned-dominated , supported , and subjected
to interference by the Respondent Employer, disposition of the General Counsel's
final contention that Ram 's termination was improper should not require ' extended
discussion: Decisional doctrine , administratively enunciated and judicially approved
in cases too numerous to cite, clearly establishes that employee discharges effectuated
pursuant to some union-security arrangement not cognizable as privileged, under
the Section 8(a)(3) proviso , constitute unfair labor practices . See Nordberg-Selah
Fruit, Inc., et al., 126 NLRB 714, in this connection.
Counsel for the Respondent Employer presently argues, however , that Ram
was not really discharged . Reference is made to his September 25 refusal to pay
Association dues. - The respondent enterprises concede, essentially , that the com-
plainant 's refusal to pay dues on the month 's last payday was countered with an
observation=equivalent to a threat-by Excel's office manager , that the complainant
presumably knew what his refusal meant ; their counsel 's purported summary of
the record in his brief , however , continues as follows:
Ram then went to Fox and told him that Habich had discharged him. Fox
immediately corrected any such impression if Ram actually believed it, for he
told Ram , as Ram admitted , that Habich did not have authority to discharge
him, that he was not discharged , that he was free to continue working, and
that if he left he would be quitting and his employer would not be responsible
for unemployment benefits. [Emphasis supplied.]
Supportive reference is made to the complainant 's conceded departure before the
workday ended . In the Respondent Employer's behalf , it is contended that Ram,
when he left Excel 's employ under these circumstances , had not been confronted
with any deadline, counsel characterizes his separation , therefore, as a voluntary
resignation.
While it is true that the complainant did cease work and leave Excel's property
prior to the completion of his regular tour of duty, counsel 's contention that he re-
signed voluntarily must be rejected . The available evidence clearly establishes aware-
ness on the part of Excel 's general manager that Ram 's September dues remained
unpaid, so that, absent some dues payment , he would become an Association dues
delinquent on the month 's last day. The record also warrants a determination that
various Association officers-possibly nettled by Ram's behavior at their organiza-
tion's prior dinner-had apprised Fox of their determination that dues delinquency
on his part would warrant his dismissal , pursuant to their trade agreement's union-
security provisions. (The legitimacy of these representations with respect to Ram's
vulnerability to discharge , under the contractual union -security arrangement , will be
discussed elsewhere in this report .) Under such circumstances , the general man-
ager's cited observation that Habich had not discharged Ram and that he was free
to continue work cannot realistically be found to reflect indefinite suspension of any
possible discharge action . Essentially , the complainant was merely advised that his
Association dues delinquency had not yet matured , but that some dues payment
before delinquency developed would be a condition precedent to his continued
employment.
Such remarks by General Manager Fox could only be construed , realistically, as
indication that Ram 's employment would be terminated unless his Association dues
were paid by the end of the month.
Since the union -security arrangement which Fox thus purported to effectuate
could not be considered privileged under the statute's Section 8(a)(3) proviso, the
complainant was really free to consider himself relieved of any obligation to comply
with such an arrangement as a condition of employment . When faced with threats
of discharge if he did not comply, therefore , Ram could not be required to await
Excel's termination of his employment at month 's end ; his determination to cease
the performance of services immediately , though clearly voluntary , reflects his con-
structive discharge rather than resignation . Compare Ideal Baking Company, Inc.,
123 NLRB 1799, 1804 , and the cases cited in footnote 2 therein . I so find. By
Ram's constructive termination , the Respondent Employer became guilty of dis-
crimination with respect to his employment tenure and the terms and conditions
of his employment, reasonably calculated to encourage Association membership.
Thereby, obviously , Respondent Employer assisted and contributed support to the
respondent labor organization , and interfered with , restrained , and coerced em-
ployees contrary to the statute , as the General Counsel contends.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The lack of uniformity in its application
Analysis of the contractual union-security arrangement, pursuant to which Ram's
termination was presumably demanded and effectuated, provides additional ground,
however, for the determination, noted, that his separation from employment involved
the Respondent Employer in the commission of unfair labor practices.
Elsewhere in this report reference has been made to the contractual requirement
that Excel employees acquire and maintain "membership in good standing" with
the respondent labor organization, within 1 year after the date of their first employ-
ment. Prior to the adoption of the Association's constitution and bylaws, member-
ship in good standing was nowhere defined. That document provided, inter alia,
that Association dues would be considered payable in advance on the 1st day, of
each calendar month; dues not paid on or before the last day of the month for
which they had become due would be considered delinquent. Dues delinquency,
however, did not entail loss of good-standing membership. Only members whose
dues payments had fallen 3 months in arrears were to be considered automatically
suspended from Association membership, and the constitution and bylaws went on
to provide that:
... any member who so becomes delinquent ceases to be a member in good
standing. . . . [Emphasis supplied.]
Under the first constitutional provision noted, with respect to dues delinquency,
Ram was clearly not a dues delinquent on his last monthly payday, September 25,
1959, whatever the practice of Vessella and Habich with respect to routine Associa-
tion dues collection on such occasions may have been. Assumption for the sake of
argument, therefore, that 1 month's delinquency-defined in the Association's con-
stitution and bylaws-would render an Excel employee vulnerable to discharge,
could not justify the September 25 representations of Habich to Excel's general man-
ager that Ram's employment was terminable under the Association contract's union-
security provision; even with such a view of the contract's requirements, her comments,
certainly, would deserve characterization as premature. And closely analyzed, with
due regard for the crucial contractual provision which establishes organization
"membership in good standing" as an employment condition, even the ultimate
representations of the office manager, with respect to Ram's susceptibility to dis-
charge at the month's end, would likewise appear to have been erroneous. Under
the Association's constitution and bylaws, clearly dues delinquents would have to be
3 months in arrears before their membership could be considered "automatically
suspended" and their status as "good standing" members lost. Since Ram's August
1959 dues had been paid, he could not have been suspended automatically and
deprived of good-standing membership either within the following month, or upon
its expiration; under the Association's constitution and bylaws such consequences of
dues delinquency could not have eventuated until November 30, 1959, when, pre-
sumptively, his 3 months' dues arrearage might have accrued.
No situation warranting an employee's discharge for failure to maintain Associa-
tion membership, within the Respondent Employer's business complex, had ever
arisen prior to Ram's announcement of his intention to withhold dues payments.
Neither Respondent, therefore, could cite any established or mutually maintained
viewpoint or practice with respect to interpretation or effectuation of the contractual
union-security provisions now under consideration; absent evidence of such an estab-
lished viewpoint or practice, the relevant contract language, construed to accord
with the respondent labor organization's constitution and bylaws, can only be given
face value interpretation. Evaluation of Ram's treatment, however-presumptively
based upon Excel's contract with the respondent labor organization-persuasively
suggests the propriety of determination that the Association's demand for his dis-
charge because of dues delinquency, initially presented before September 25, 1959,
and effectively reiterated on that date, followed by the announcement of General
Manager Fox essentially that he would be subject to discharge pursuant to con-
tractual requirements if still dues delinquent by the month's end, was really incon-
sistent with the contractual requirement which the respondents purportedly effectu-
ated. No fixed intention by parties privy to contractual union-security arrangements
routinely to effectuate such agreements in ways patently out of harmony with their
terms can be presumed. Upon the entire record, therefore, even without regard to
the contract's failure to qualify as privileged under the Section 8(a)(3) proviso,
I find merit in the General Counsel's contention that the Respondent Employer
must have effectuated the complainant's discharge, pursuant to the Respondent
Association's demand, for some reason other than his failure to meet contractually
established requirements with respect to the maintenance of Association member-
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 507
ship as a condition of employment. Compare Pacific Transport Lines, Inc., 119
NLRB 1505, 1509-1510, in this connection. Such action attributable to the Re-
spondent Employer would clearly constitute unfair labor practices.
Liability of the Respondent Association
1. Status as a dominated organization
Implicit within the consolidated complaint , there will be found a contention by
the General Counsel essentially that the Respondent Association 's existence , through-
out the period with which this case is concerned , as an organization dominated,
assisted , supported , and subjected to interference by the respondent enterprises, in-
volved that organization in the commission of unfair labor practices under Sec-
tion 8 (b)(1)(A) and ( 2) of the statute . No Agency decisional pronouncements
have been cited to support such a contention ; no arguments have been presented
with respect to its merit . The contention must be rejected . Mere existence as the
Respondent Employer 's creature should not subject the respondent labor organization
to statutory sanctions.
2. Union-security agreements
While the respondent labor organization 's mere existence-passive by definition-
may not warrant any remedial order addressed to that body, its participation in the
maintenance and effectuation of union -security contracts disentitled to privilege
under the Section 8(a) (3) proviso would certainly seem to require administrative
interdiction . Cf. Bernhard-Altmann Texas Corporation (International Ladies Gar-
ment Workers' Union, AFL-CIO), 122 NLRB 1289 , enfd . 280 F . 2d 616 (C.A.D.C.).
Labor organizations restrain and coerce employees in the exercise of rights statu-
torily guaranteed when they participate in the maintenance and effectuation of con-
tracts whereby they are recognized as exclusive bargaining representatives of desig-
nated employee groups despite their lack of statutory qualification . A fortiori,
similar conclusions have been found warranted upon records which establish that
such labor organizations , disqualified for recognition , have effectively claimed the
right to maintain and enforce contractual union-security arrangements . Upon the
entire record , I find the respondent labor organization , by virtue of its participation
in the maintenance and effectuation of union -security agreements not entitled to
statutory protection , guilty of restraint and coercion of employees in the exercise of
rights statutorily guaranteed ; clearly, also , such a course of conduct , attributable to
the respondent labor organization , warrants characterization as "causing or attempt-
ing to cause" Respondent Employer to discriminate against employees in violation
of Section 8(a)(3) of the statute . And I so find.
3. The discharge of Ram
When, representatives of the Respondent Association demanded Rams ' discharge-
purportedly pursuant to contractual union -security provisions herein found to have
been maintained and effectuated without statutory authority-the respondent labor
organization became involved in a distinct and separately cognizable unfair labor
practice , I find, within the meaning of Section 8(a) (2) of the statute. Additionally,
reference has been made to the General Counsel 's parallel contention that Ram's
discharge was demanded , without regard to any contractual right claimed by the
respondent labor organization , for reasons other than his failure to tender the
periodic dues uniformly required of employees as a condition precedent to the
retention of Association membership . Since an appropriate reference to the Asso-
ciation 's constitution and bylaws will establish that Ram, despite his dues delin-
quency, had not yet lost "good standing " membership in the respondent labor
organization , this contention would appear to warrant acceptance as meritorious.
I so find.
,(An Association representative suggests that Ram's September dues payment
was probably withheld because of his desire to court discharge . The complainant's
conduct in this respect , the Association representative would contend , derived
from his desire to achieve some sort of reprisal , through Agency action, for the
organization 's denial of his July 1959 loan application . Nothing probative in the
present record would seem to warrant acceptance of such a contention Even
if considered established , however, the suggestion noted could hardly be considered
sufficient to defeat the consolidated complaint herein . Cf. Falstaff Brewing Corpora-
tion, 128 NLRB 294. The statute protects the right of any union member to
express dissatisfaction over the stewardship of his organization 's elected officers;
employees who engage in activity designed to vrotest the presumed maladministra-
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of their organization 's affairs cannot be said to have forfeited their statutory
protection against union -sponsored demands for their discharge.)
Upon the entire record , I find the respondent labor organization responsible for
the effective prosecution of a demand for Ram 's discharge ; by its conduct in this
particular respect, I find , the Respondent Association caused the Respondent Em-
ployer to discriminate against Ram in violation of Section 8(a)(3) of the statute
and, derivately, restrained and coerced employees of each respondent enterprise in
the exercise of rights statutorily guaranteed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent Employer and the Respondent Association set
forth in section III, above , since it developed in connection with operations of the
Respondent Employer described in section I, above, has a close, intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States, and, if
continued , would tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in and continue to
engage in unfair labor practices , it will be recommended that they cease and desist
therefrom and take certain affirmative action , including the posting of appropriate
notices, designed to effectuate the policies of the Act, as amended.
It has been found, specifically, that the Respondent Employer dominated, sup-
ported , and interfered with the administration of Brown Employees Association; it
will be recommended , therefore , that the Respondent Employer cease and desist
from such conduct, and that it cease and desist from interference with the representa-
tion of its employees through a labor organization of their own free choice . Because
of the determination herein that Brown Employees Association functions as a domi-
nated organization , it will be recommended that the Respondent Employer withdraw
recognition from the Association and completely disestablish it as the representative
of employees within the Respondent Employer's business complex, for the purpose
of dealing with any of the respondent enterprises concerning grievances , labor dis-
putes, wages , rates of pay , hours of employment , or other terms or conditions of
employment ; the Respondent Employer should refrain from recognizing Brown
Employees Association, or any successor organization , for any of the foregoing
purposes . These recommendations are not intended to prevent employees, after
unfair labor practices have been remedied and the conditions for a free choice
established , from adopting representation from their own ranks, or any other kind
of representation , if such is their genuine desire, unfettered by employer domination,
interference , assistance , or support . Ben Corson Manufacturing Co., et al, 112
NLRB 323, 346.
Concurrently , it will be recommended that the Respondent Employer cease giving
effect to its March 1, 1958, agreements with Brown Employees Association, or any
other contracts with that organization . This recommendation , however, should not
be construed to preclude the Respondent Employer from the continued effectuation
of all substantive terms, conditions of employment , and benefits set forth in such
agreements ; the recommendation is intended only to deprive Brown Employees
Association of status as an employee representative privy to trade agreements.
Additionally , it has been found that the Respondent Employer discriminated with
respect to the employment tenure and employment conditions of Hyman Ram to
encourage Association membership , in violation of Section 8(a)(3) of the Act, as
amended ; that its conduct in this respect contributed to the Association 's support;
and that its employees were , thereby, interfered with, restrained , and coerced in
the exercise of rights statutorily guaranteed . The Respondent Association has been
held to have caused the Respondent Employer to engage in the proscribed conduct
found . Normally, such determinations would suggest the propriety of an initial
recommendation that Ram be proffered immediate and full reinstatement to his
former position or substantially equivalent employment , without prejudice to his
seniority or other rights and privileges . The record establishes, however, that appro-
priate reinstatement was offered Ram by the Respondent Employer on November 5,
1959, and that he rejected the offer. To remedy this aspect of the present consoli-
dated matter , therefore , it will be recommended merely that the Respondents,
jointly and severally, make whole the complainant for any loss of pay or other
incidents of the employment relationship which he may have suffered as a result of
discrimination practiced against him, by the payment to him of a sum of money
equal to the amount he normally would have earned as an Excel employee between
September 25, 1959 , when he was subjected to discrimination , and November 5, 1959,
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 509
when the Respondent Employer's unconditional offer of reinstatement was com-
municated to him, less his net earnings during the period indicated. Crosset Lumber
Company, 8 NLRB 440, 497-498; Republic Steel Corporation v. N.L.R.B., 311 U.S.
7. Ram's pay losses, for which he should be made whole, should be computed on a
quarterly basis, pursuant to the formula which the Board now utilizes. F. W. Wool-
worth Company, -90 NLRB 289, 291-294; N.L.R.B. v. Seven-Up Bottling Company
of Miami, Inc., 344 U.S. 344.
In this connection, also, it will be recommended that .the Respondent Employer,
in order to make possible . expeditious compliance with -the recommendations, herein
made with regard to backpay, preserve and.make available. to the Board and its
agents, upon request , all pertinent payroll and other records.
The Respondent Employer's involvement in domination and support of the Re-
spondent Association and interference with its administration; compounded by their
joint participation in the maintenance -and enforcement of contractual union-
security provisions herein found both improper and, alternatively, improperly en.
forced, indicates a general purpose, attributable to both the Respondent Employer
and the respondent labor organization, to limit the lawful rights of employees.
Upon the entire record, I am persuaded that the unfair labor practices found are
potentially related to similar unfair labor practices, the future commission of which
may reasonably be anticipated, in view of the course of conduct found attributable
to the Respondents herein. (While the record does establish the dispatch of written
notice by the Respondent Employer to the Respondent Association that union-
security provisions in their currently effective agreements will no longer, be recog-
nized as valid or enforceable, no effort has- been made to relieve employees of the
,constraints necessarily incidental to the Respondent Employer's domination and
support of, the Respondent Association, and interference with its administration,
through the activity therein of supervisory personnel. Absent such action, obviously
the possibility remains that employees may be constrained in the'exercise of rights
statutorily guaranteed.) The preventive purposes of the statute will be thwarted, I
,find, unless remedial action in this consolidated case can be.made coextensive with
,the threat. In order, therefore, to make.the interdependent guarantees of Section 7
;effective, -prevent a recurrence of, the unfair, labor practices found, minimize indus-
trial strife which burdens and obstructs commerce, and thus effectuate the statutory
.policies, it will be recommended that the Respondents cease and desist from infringe-
ment, in any other manner, upon rights guaranteed Eby - the aforesaid statutory
provision.
The union-security agreements between the Respondent Association and the re-
spondent enterprises, currently effective, have been found improper, based upon my
determination that the Association could not qualify as a labor organization author-
ized to execute union-security agreements permissible under the Section 8(a)(3)
proviso. Pursuant to these agreements, during the 6-month period prior to the serv-
ice of charges upon them, and since the service of 'such charges, the Respondent
Employer and the Association have required employees to pay initiation fees and
dues to the respondent labor organization as a condition of employment. (The
record establishes that the Respondent Association did receive a notice sent in behalf
of the Respondent Employer on November 9, 1959, that the respondent enterprises
would not longer honor their contractual union-security commitments. There is a
suggestion in the record that the Respondent Association may not have made any
effort to collect dues since receipt of this notice; the matter, however, has not been
settled. )
By their maintenance and enforcement of invalid contractual union-security
arrangements, the Respondents have necessarily coerced employees to pay the fees
and dues necessary to achieve and retain membership in the respondent labor
organization. To expunge the coercive effect of these illegal exactions and ade-
quately to remedy the unfair labor practices found, it will be recommended that
the Respondent Employer and the Association be required to reimburse the employ-
ees and former employees of each respondent enterprise for any fees or dues unlaw-
fully exacted from them as a condition of obtaining or retaining employment.
Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533, 539. Such re-
imbursement should be made jointly and severally by the Respondents. Broderick
Wood Products Company, 118 NLRB 38, enfd. 61 F. 2d 548 (C.A. 10). The
reimbursement liability of both Respondents should cover the period beginning 6
months prior to the filing and service of original charges in the present consolidated
case against the Respondent Employer and Association, respectively, and should
extend to all moneys thereafter collected, until the abandonment by the Association
and the respondent enterprises of contractual union-security requirements herein
found violative of the statute.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the light of the foregoing findings of fact, and upon-the -entire record in- this
consolidated case; I make the following: - -
CONCLUSIONS OF LAW
4. Rubin Brown, an individual, doing business as, Ace Wholesaletlectrical, Supply
Co., Brown Wholesale Electric Co., Excel Electrical Supply. Co., and Courtesy
.Wholesale Electric Co., designated collectively as the Respondent Employer herein,
all function . as a single, integrated employer, within the meaning of Section (2) of
the Act as amended, engaged, separately and collectively, in commerce and business
activities which affect commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Brown Employees Association, designated as the Respondent Association
herein, is a labor organization within the meaning of Section 2(5) of the Act, as
amended, which admits employees of-the Respondent Employer, only, to membership.
3. By domination, assistance,, contributions of support, and interference with
.the administration of the respondent labor organization, through the participation of
employer spokesmen and supervisory personnel in 'the organization's affairs, and
through maintenance and effectuation of union-security provisions embodied in
various contracts with the organization designated the Respondent Employer has
engaged in and continues to engage in unfair labor practices within the meaning of
Section 8(a)(1), (2), and (3) of the Act, as_amended.
4. By participation in the maintenance and effectuation of certain contractual
union-security arrangements disqualified from consideration as privileged under
Section 8(a)(3) of the Act, as amended, because of the Respondent Association's
character as an organization maintained and assisted by conduct statutorily defined
as an unfair labor practice, the designated organization has engaged in and con-
tinues to engage in unfair labor practices within the meaning ,of Section,8(b) (.1) (A)
and (2) of the Act, as amended.
5. By causing the Respondent Employer to discriminate against Hyman Ram in
violation of Section 8(a)(3) of the Act, as amended, or to discriminate against him
because his Association membership had been denied or terminated on some ground
other than his failure to tender the periodic dues uniformly required as a condition
precedent to the acquisition or retention of membership, the Respondent Association
has engaged in and continues to engage in unfair, labor practices within the meaning
of Section 8(b)(1)(A) and (2) of the Act, as amended.
6. By discriminating'-with respect to Hyman Ram's ;employment tenure and the
terms and conditions of his employment to encourage Association membership, the
Respondent Employer has engaged in and continues to engage in unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, as
amended.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate-the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT dominate or interfere with the administration of Brown Em-
ployees Association, or contribute financial or other support to that organization
or any other labor organization, through the participation of supervisory
personnel in the management of the organization's affairs.
WE WILL NOT encourage membership in Brown Employees Association, or
any other labor organization, by the discharge or suspension of employees
because of their failure to acquire or retain membership in the labor organiza-
tion aforesaid, or by discrimination against them in any other manner in
regard to their hire or tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8(a)(3) of the Act, as
amended.
WE WILL NOT interfere with, restrain, or coerce employees in any other
manner, in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own free choice, and to engage in other concerted activities for the
ACE WHOLESALE ELECTRICAL SUPPLY CO., ETC. 511
purpose of collective bargaining and other mutual aid and 'protection, or to
refrain from any and all such activities, except to the extent that such rights
may, be i affected by an agreement which requires membership in a labor or-
ganization as a condition of employment, authorized in Section 8(a) (3) of
the Act, as amended.
WE WILL withdraw and withhold all recognition from Brown Employees
Association and completely disestablish that organization or any successor
thereto as the representative of any of our employees for the purpose of dealing
with us concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms or conditions of employment
WE WILL, jointly and severally with Brown Employees Association, make
whole Hyman Ram for any loss of pay he may have suffered by reason of dis-
crimination practiced against him.
WE WILL, jointly and severally with Brown Employees Association, reim-
burse,our present and former employees for moneys improperly exacted from
them pursuant to "union-security provisions in our 1958-60 contract with
Brown Employees Association.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by an agreement executed in conformity with Section 8(a)(3) of
the National Labor Relations Act, as amended. We will not discriminate in regard
to hire or tenure of employment, or any other condition of employment, against
any employee because of membership in or activities on behalf of any such labor
organization.
------------------------------
Employer.
Dated------------------- By------------------------ -------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF BROWN EMPLOYEES ASSOCIATION
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT perform, maintain , enforce, or effectuate the union-security
provisions of our 1958-60 contractss with Ace Wholesale Electrical Supply Co.,
Brown Wholesale Electric Co., Excel Electrical Supply Co., or Courtesy Whole-
sale Electric Co., or any superseding contract with these business enterprises.
WE WILL NOT cause or attempt to cause any of the business enterprises desig-
nated to, discharge, suspend, or otherwise discriminate against employees be-
cause, of their failure to acquire or retain membership in Brown Employees
Association, or for other reasons.
' WE' WILL NOT restrain, or 'coerce employees, in, ,any other ^ manner, in the
exercise of their right to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own free choice,
or to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection, or to refrain from any and all such
activities.
WE WILL, jointly and severally with the business enterprises previously
designated, make whole Hyman Ram for any loss of pay he may have suffered
as a result of the discrimination practiced against him.
WE WILL, jointly and severally with the business enterprises previously
designated, reimburse their present and former employees for moneys im-
properly exacted from them pursuant to union-security provisions in our
1958-60 contracts, or any superseding agreements, since May 29, 1959.
BROWN EMPLOYEES ASSOCIATION,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days-from the date hereof, and must not be
altered, defaced,. or covered by any other material.