Disabled American Veterans, Inc.

National Labor Relations Board - Board Decisions

May 23, 1955

112 N.L.R.B. 864 (N.L.R.B. 1955)

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to reinstate employee Mary Johnson, refused to bargain collectively with the
Union, and put into effect changes in working conditions without prior consultation
with the Union. Because of the underlying purpose and tendency of this unlaw-
ful conduct, I conclude that there exists danger that the Respondents will in the
future commit other unfair labor practices. Accordingly, in order to effectuate the
purposes of the Act, it will be recommended that the Respondents cease and desist
not only from the unfair labor practices found but also from in any other manner
infringing upon the rights guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondents offer to Mary John-
son immediate reinstatement to her former or a substantially equivalent position,
without prejudice to her seniority and other rights and privileges previously enjoyed,
and make her whole for any loss of earnings she may have suffered because of the
discrimination against her, by paying to her a sum of money equal to the amount
she normally would have earned from March 4, 1954, the date of the discrimina-
tion against her, to the date of the offer of reinstatement, less her net earnings dur-
ing the said period. The back pay provided for herein shall be computed on a
quarterly basis in the manner established by the Board; earnings in one particular
quarter shall have no effect on the back-pay liability for any other period. It will
further be recommended that the Respondents bargain collectively with the Union,
upon demand, as the representative of the employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
[Recommended Order omitted from publication.]
Disabled American Veterans , Inc. (Idento Tag Operation) 1 and
International Brotherhood of Pulp , Sulphite & Paper Mill
Workers, A. F. L, Petitioner . Case No. 9-RC-2410. May 23,
1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act a hearing was held before Richard C. Curry, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
The Employer has requested leave to present oral argument before
the Board. The Employer's motion is hereby denied as the record,
including the briefs filed by the parties, adequately presents the issues
and positions of the parties.
1. The Disabled American Veterans, hereafter called DAV, is a
membership corporation operating under a charter granted by the
Congress of the United States in 1932. Its membership is, in gen-
eral terms, limited to persons wounded or disabled in wartime line of
duty. The organization consists of about 187,000 members in about
1,800 local chapters throughout almost all of the States.
A primary purpose of the DAV is to advance the interests and work
for the betterment of all disabled veterans and their dependents. This
purpose is furthered in three main ways: (1) through representation
of any veteran or his dependents in the presentation of claims for
benefits under the laws of the United States before the Veterans Ad-
1 The name of the Employer appears as amended at the hearing.
112 NLRB No. 116.
DISABLED AMERICAN VETERANS, INC. 865
ministration; (2) through promotion of, and assistance in, the em-
ployment of disabled veterans; and (3) through presentation and
advocacy to Congress of new or corrective legislation beneficial to
disabled veterans and their dependents. The DAV maintains a staff
of about 185 service officers located in the Veterans Administration
offices throughout the country to implement its program of veterans'
betterment. The service officers act to set in motion and assist in the
processing of claims for veterans and their dependents to obtain for
them various legislative benefits. The DAV also maintains a staff
in Washington, D. C., including registered lobbyists, which works to
advance its legislative program.
The DAV derives the funds to maintain its veterans' betterment pro-
gram from two main sources.z One source is membership dues; the
other is the operation of the Employer herein, Disabled American Vet-
erans, Inc. (Idento Tag Operation).
In 1941 the DAV, seeking a new method for raising funds, joined
with a private business firm in a venture mailing miniature license
identification tags to car owners throughout the United States. In
1946 the DAV bought out the private firm's interest in the venture and
Idento Tag has continued the license identification tag operation.
Idento Tag has its plant in Cincinnati, Ohio, about 5 to 6 miles
from DAV National headquarters in the same city. Each year
Idento Tag obtains the names and addresses of automobile owners in
practically all of the States, together with the numbers of their license
plates. Idento Tag secures from various manufacturers the indi-
vidual units, which, in composite, make the license identification tags.
The manufacturers send the individual units to Idento Tag's plant,
where its staff of approximately 260 employees assembles the compo-
nents into completed tags. Idento Tag mails to each car owner a set
of two tags bearing his license number, and encloses with the tags an
explanatory pamphlet, a card to hold money, and a return envelope.
The pamphlet explains that if keys attached to a tag are lost and a
finder drops them into a mailbox, the keys will be returned to the
owner through the DAV. The pamphlet requests a contribution to
provide assistance to disabled veterans and their dependents, and ad-
vises that contributions are not used for direct relief and that the
recipient is under no obligation to return the tags.
In the fiscal year ending June 30, 1954, Idento Tag purchased mate-
rials valued at about $1,972,000, of which about $514,000 was shipped
directly from points outside the State of Ohio. During the same pe-
riod Idento Tag mailed over 41,000,000 sets of identification tags to
automobile owners throughout the United States. In return, Idento
2 There are in ilie record some sagne references to additional fund raising by the Dis-
abled American Veterans' National Service Foundation, but there are no particularized
facts on such other fund raising
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tag received about $4,762,000, of which approximately $4,449,000 was
contributed by car owners from outside Ohio.'
The Employer asserts that it is a charitable, nonprofit organization
and therefore not engaged in commerce within the meaning of the Act.
Idento Tag claims alternatively that, even if it is engaged in commerce,
the Board should not, in the exercise of its discretion, assert jurisdic-
tion over its operations. It is immaterial, as the Board 4 and courts 5
have held, that an employer is a nonprofit organization motivated by
considerations not strictly commercial where the particular activities
involved are commercial in nature, and we are convinced that Idento
Tag's operations are substantially commercial.
The operations of Idento Tag are separable into three main
processes, the receipt of components and fabrication of the tags, the
assembly and mailing of the mailing pieces, and the handling of
receipts. In the first process Idento Tag has extensive dealings with
strictly commercial enterprises which involve purchases of almost
$2,000,000. Then its staff of about 260 employees fabricate the indi-
vidual components into finished tags and assemble them with other
materials for mailing. Finally, they open and sort return mail and
tabulate receipts. The totality of these processes is characteristic of
a highly developed commercial enterprise. Only one feature of
Idento Tag's methods might conceivably be considered not strictly
commercial; that is, that the Idento Tag pamphlet advises recipients
they are under no obligation to return the tags. However, we deem
that factor to be the end product of a carefully planned selling pro-
gram. We consider Idento Tag's method of distributing the license
identification tags a highly specialized, and successful, sales technique
intelligently grounded upon the nature of the product offered and the
characteristics of the seller.
The above facts and findings, and the record generally, establish
that the Employer's operations meet the Board's new dollar-volume
standards for assertion of the Board's jurisdiction.6 They also show
-1 In the last 6 months of 1954, Idento Tag shipped out of Ohio other products valued at
about $23,400. Those items were offered at set prices to those automobile owners who
had contiibuted one dollar or more for the license identification tags As Idento Tag dis-
closed at the hearing that it intended to discontinue the sale of such items when its supplies
thereof weie depleted, we do not rely upon such sales for the purposes of this Decision
However, it is noted that Idento Tag offered these products for sale on an experimental
basis as a prospective additional source of income and decided to discontinue their sale
because the "experiment has not been successful " Furthermore, we do not rely upon the
out-of-State shipments from DAV National Headquarters of various products containing
the DAV emblem valued at approximately $94,000 duiing the fiscal year ending June
30, 1954
4 California Institute of Technology, 104 NLRB 1402 , and cases cited in footnote 4
therein
6 N L. R B v Christian Board of Publication, 113 F 2d 678 (C A 8) ; Polish National
Alliance v N L R. B., 136 F 2d 175 (C A 7), affd 322 U S 643
e This is so whether the Employei 's operations are considered as fabrication and whole-
sale distribution under Jonesboro Grain Drying Cooperative, 110 NLRB 481, or as retail
distribution under J. R. Knott and Hugh H Hogue d/b/a Hogue and Knott Supermarkets,
110 NLRB 543.
DISABLED AMERICAN VETERANS, INC. 867
clearly that Idento Tag's operations are commercial in nature. Fur-
thermore, the Employer has failed to advance any special circum-
stances which might warrant exempting it from the operation of
the Board's processes. Accordingly, we find that the Employer's
operations affect commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert jurisdiction.
2. The Petitioner and the Intervenor 7 are labor organizations
claiming to represent certain employees of the Employer.
3. A question affecting commerce exists concerning representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. All parties agree upon inclusion in the voting unit of Idento
Tag's production and maintenance employees at its Ridge Avenue
plant, but they disagree as to the placement of the employees engaged
in the portions of Idento Tag's operation located at DAV National
Headquarters at the time of the hearing. Five of Idento Tag's depart-
ments s were then located at national headquarters, and the Employer
would include the employees of all five departments in the voting unit.
The Petitioner would exclude from the unit only the employees of the
receiving department. The Intervenor would exclude the workers
in all five departments.
The Intervenor argues the employees of the five departments should
be excluded from the voting unit because they are geographically
separate and because they are confidential office employees.
The record shows that Idento Tag designed the Ridge Avenue plant
to house all of its departments except receiving. Of the 5 departments
not operating at Ridge Avenue at the time of the hearing, 4 were to
be relocated within 6 months thereafter, and removal of the shipping
department from national headquarters to Ridge Avenue had actually
begun. There are no plans for removal of the receiving department
to Ridge Avenue because the functions of that section require the use
of expensive machinery and equipment permanently installed at na-
tional headquarters.
All of Idento Tag's employees, including those in the receiving
department, are under the general direction of the D-,\-V's national
adjutant. They are all on one payroll, have the same wage scale, and
participate in the same welfare benefits (vacations, sick leave, retire-
ment, etc.). Idento Tag has a general plan for transfer of employees
from one department to another because the nature of its operations
results in peak periods in some departments at times work in others is
4 United Rubber, Cork, Linoleum and Plastic Workers of Amei lea, CIO
9 Shipping , special order, receiving, acknowledgment and direct mail, and lost key
departments
369028-56-vol. 112-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slack.' The work of the employees in the five disputed departments
has a general clerical character, but the work is plant clerical in nature,
not office clerical , and this fact is also applicable to production em-
ployees at the Ridge Avenue plant in such departments as return mail,
editing, and mail sorting.
The above facts and the entire record establish that the employees
working in the five departments still at national headquarters at the
time of the hearing and those at the Ridge Avenue plant have close,
common interests with respect to their terms and conditions of em-
ployment. There is clearly no merit in the Intervenor's grounds, or the
Petitioner's unexpressed reasons, for excluding the employees of any
of the five disputed departments from the voting unit. Accordingly,
we find that the following unit of employees is appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act:
All production and maintenance employees employed by the Dis-
abled American Veterans, Inc. (Idento Tag Operation) in Cincinnati,
Ohio, excluding office clerical employees, executives, managers, super-
visors, and guards as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN FARMER and MEMBER RODGERS , dissenting :
We dissent from the decision in thise case to assert jurisdiction over
a project operated by a nonprofit veterans organization which exists
to advance the cause of disabled veterans and their dependents. We
-do not consider the assembly and mailing of miniature license identi-
fication tags by such an organization to be the type of operation over
which the Board's jurisdiction should be exercised.
The DAV distributes the identification tags in anticipation of
charitable contributions it expects to receive for its veterans' better-
nient program. Individual recipients of the tags have no legal obli-
gation to make a donation in return. Token items dispensed by numer-
ous charitable organizations are widely recognized in our society as
marks of charitable donors.1° The use of such a technique for solicit-
ing funds does not make the operation of a particular agency any less
charitable; the operation certainly does not become a commercial trans-
action in the traditional business sense." In fact, the funds received
by the DAV have otherwise been administratively determined to be
charitable; contributors may, for income tax purposes, deduct as
0 At the time of the hearing 11 receiving department employees were working on the
assembly line at the Ridge Al enue plant, leaving only about 20 employees at receiving
-department work.
10A particularly pettment example of the practice is the distribution of Christmas seals
by the Tuberculosis Association
11 The sole aspect of the Employei 's operations which has had any resemblance to tradi-
tional commerce- the sale of some items at stated prices-is , as the majority herein notes,
.being discontinued
KRESGE-NEWARK, INC. 869
charitable donations their contributions for the DAV identification
tags. Furthermore, it seems improper to conclude, as the majority
herein apparently does, that money donated in the spirit of charity
becomes the reward of a commercial transaction upon its receipt.
Thus, the majority's reliance upon the California Institute of Teclc-
nology case , and other similar cases , is misplaced , because the money
received by the institutions in those cases was the product of tradi-
tional sale for value transactions. Accordingly, we cannot agree that
funds the Employer expends to solicit charity or funds it receives as
charitable contributions should be considered for the purpose of de-
terming whether the Employer's financial operations meet the Board's
dollar -volume criteria for assertion of its jurisdiction.
We do not agree that the policies of the Act will be effectuated by
Board exercise of its jurisdiction over the operations of the Employer.
Kresge-Newark, Inc. and Hotel and Restaurant Employees and
Bartenders International Union, AFL, Petitioner. Case No.
2-RC-7121. May 23, 1955
DECISION AND DIRECTION
On January 18, 1955, pursuant to a stipulation for certification upon
consent election , an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Second
Region among the employees in the agreed appropriate unit. Follow-
ing the election, the Regional Director served on the parties a tally of
ballots which showed that of approximately 117 eligible voters, 109
cast ballots, of which 54 were cast for the Petitioner, 51 were cast
against the Petitioner, and 3 were challenged . One void ballot was cast.
The challenged ballots were sufficient in number to affect the results of
the election.
On January 25, 1955, the Employer filed timely objections to the
conduct of the election . In accordance with the Rules and Regula-
tions of the Board , the Regional Director conducted an investigation,
and on March 25, 1955, issued and duly served on the parties his re-
port on challenged ballots and report on objections in which he rec-
ommended that the objections be overruled , and that the challenges be
overruled and the impounded ballots opened and counted . On April
11, 1955, the Employer filed exceptions to the report on objections;
no exceptions were filed to the report on challenged ballots.
The Board has reviewed the stipulation of the parties , the objections,
the Regional Director 's report on challenged ballots and report on
objections , and the Employer 's exceptions . Upon the entire record in
the case, the Board makes the following findings of fact :
112 NLRB No. 112