Distribution Centers, Inc.

National Labor Relations Board - Board Decisions

May 22, 1972

197 N.L.R.B. 1 (N.L.R.B. 1972)

DISTRIBUTION CENTERS OF DETROIT, INC. 1
Distribution Centers of Detroit , Inc., a Subsidiary of
Distribution Centers , Inc. and Local 337, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Ind.) and
Detroit Warehousemen 's Local 1970, Party to the
Contract . Case 7-CA-8615
May 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 27, 1971, Trial Examiner Thomas S.
Wilson issued the attached Decision in this proceed-
ing. Thereafter , Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner 's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings ,' and conclusions and to adopt his
recommended Order for reasons as set forth below.
Background
Respondent opened its Taylor facility in June
1970,2 hiring King and Wickenheiser (both of whom
were 17 years of age) as its first hourly paid
employees. Both were told by Thomas, Respondent's
vice president in charge of personnel, that they would
be supervised by McClure.
On June 9, Thomas suggested to the "boys" that he
would like to see a company union started. That
afternoon Thomas offered a typed contract purport-
ing to be between Respondent and Detroit Ware-
housemen's Local 1970 (Local 1970). Both King and
Wickenheiser signed the contract. Thomas told the
boys they could decide who would be president and
who would be vice president.
Article II of the contract provided, "as a condition
of employment . . . all associates . . . shall become
members of the Union on the 91st day after his hire
[and] shall remain members . . . during the term of
this agreement." The contract also contained the
following seniority clause:
Section 1. A new associate will not be eligible for
union membership and privileges, or company paid
benefits, until he has completed a ninety (90) day
probationary period. Upon completion of the
The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner 's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
probationary period his name will be entered onto
the seniority list and his seniority date will
become his first day worked on a continuous full-
time status at Distribution Centers of Detroit,
Incorporated. Persons who are the original signers
of this are considered to have completed their
probationary period and their names will be
entered on the seniority list. [Emphasis supplied.]
In the latter half of June, McClure arrived at the
warehouse and began giving King and Wickenheiser
work assignments and instruction with respect to the
various tasks. McClure had the job title of group
leader and had been transferred by Respondent from
its Cincinnati facility to get the Taylor facility
properly launched. Although Respondent' s organiza-
tional chart called for a general manager, operations
manager, office manager, foreman, and group leader,
there was no foreman until McClure was promoted
to that position on November 30. While assigned as
group leader, McClure reported directly to the
operations manager.
Sometime in August or September, General Man-
ager Anderson suggested to Wickenheiser that since
Local 1970 had no constitution or bylaws, McClure
could bring a copy of the independent union's
bylaws from the Cincinnati facility. McClure did so,
and said bylaws became the bylaws of Local 1970.
Findings of Fact
On October 10, within the Section 10(b) period, an
election of officers was arranged by McClure, to be
held on company time and in the Company's
lunchroom. Upon leaving the lunchroom, King was
stopped by Anderson and congratulated for being
elected vice president.
About a week later, Local 1970 began receiving
from Respondent initiation fees of $5 and dues of $1
per month under checkoff authorizations provided
by Respondent. Ultimately the dues were increased
to $5 per month and Respondent, at least in the case
of Wickenheiser, made this checkoff retroactive to
June.
On October 30, Respondent and Local 1970
executed a new contract. Except for the addition of
one holiday and a wage increase , the agreement was
verbatim the same as the June 9 agreement . McClure
was a member of Local 1970's negotiating team
during the negotiations leading to the October 30
agreement.
Respondent thereafter supplied Local 1970 with
stenographic help and Xeroxed documents when
needed. Office Manager Highsmith provided assist-
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB
544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record
and find no basis for reversing his findings.
2 Unless otherwise indicated , all dates are 1970
197 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance in composing grievances on behalf of Local
1970. Although it agreed to pay for Xeroxing, Local
1970 has not in fact done so; indeed, it has paid
nothing for any of Respondent's services.
On March 16, 1971, Thomas made a speech to the
employees in which he stated that Respondent's
owner had "very, very strong feelings" about the
Teamsters and that Respondent had in the past
closed facilities when the Teamsters came in.
On April 14, 1971, Thomas told Wickenheiser that
if the Teamsters became too strong, Respondent
would close the Taylor facility.
Conclusions
Based on the facts found above, we find that
Respondent dominated and interfered with the
formation and administration of Detroit Warehouse-
men's Local 1970, and contributed financial and
other support to it in violation of Section 8(a)(2) and
(1) of the Act.
Contrary to our dissenting colleague, we do not
believe the collection of dues, refusal to sign the
October 30 agreement unless the wage clause was left
intact, and the expulsion of King cleansed Local
1970 of Respondent's domination.
The facts remain that McClure, whom the Trial
Examiner found to be a supervisor, assisted in
negotiations for the October 30 agreement and
executed this agreement, along with Local 1970's
newly elected president, on behalf of Local 1970. The
October 30 agreement was a verbatim recitation of
the June 9 agreement as prepared by Respondent,
including the prohibition against employees becom-
ing members of Local 1970 prior to completion of a
90-day probationary period and the requirement that
employees must become members of Local 1970 on
the 91st day after their hire. Thus, Respondent
continues to have complete control over Local 1970's
membership.
Although King had been expelled from member-
ship, Respondent continued to dominate Local 1970
through McClure who, as found above, provided
Local 1970 with its bylaws and was instrumental in
arranging the election of officers on company time.
We find noteworthy the fact that this election took
place shortly after a question arose at the plant about
the fact that the June 9 contract had been executed
on behalf of Local 1970 by two minors. The
employees were given only 2 hours' notice of the
election, even though the bylaws required such notice
to be posted on the company bulletin board 10
working days before the election. One can reason-
ably conclude that the only reason for the election
was to elect an officer who had reached the age of
majority who would then sign what Respondent
believed would be a legally binding contract.
While it may be true that by the actions mentioned
by our dissenting colleague Local 1970 became less
dominated, we are of the view that the test of
domination should not be one of degree.
We further find that Respondent, by threatening to
close its Taylor installation if the employees brought
in the Teamsters Union and by dominating and
interfering with the formation and administration of
Local 1970, and contributing support to it, violated
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Distribution Centers of Detroit,
Inc., a subsidiary of Distribution Centers, Inc.,
Taylor, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
CHAIRMAN MILLER, dissenting in part:
I find insufficient evidence of domination within
the 10(b) period and dissent from that portion of my
colleagues' f: - ` ng.
It appears to be true, as the majority's recitation of
facts indicates, that Local 1970 was at its inception
instigated, and perhaps fully dominated, by the
Employer. However, after October 6, 1970, the
relevant 10(b) date herein, Local 1970 received but
minor improper assistance from Respondent, such as
the occasional use of company time for the election
of officers, the providing of checkoff forms, and
some stenographic assistance (the latter, however,
being qualified by the fact that the Local agreed to
pay for it).
On the other hand, also during this same period,
the once subservient Local 1970 appears to have
become increasingly militant and independent from
Respondent's influence. Shortly after October 10,
1970, Local 1970 started collecting dues and indeed
still later within the period increased them substan-
tially. The purpose of the dues collection was, as the
Trial Examiner found, "it had filed three or four
grievances which Respondent rejected and . . . the
Local could not take the matters to arbitration
because it had- no funds." And, during negotiations,
Local 1970 was hardly acceding to any "domination"
when it resolutely refused to sign an agreement
unless Respondent left intact a wage clause in the
agreement which Respondent had attempted to
delete. Further, it is hardly consistent with the
concept of "domination" for the Local to have
DISTRIBUTION CENTERS OF DETROIT, INC.
expelled the former president, King, from member-
ship because he "admitted he had been keeping
Respondent's officials informed regarding the inter-
nal affairs of Local 1970." I would therefore
conclude, from the evidence in this record, that
whatever had been the situation at an earlier date,
and despite the fact that Local 1970 received certain
illegal assistance from Respondent after October 10,
1970, it cannot be said to have been "dominated"
after that date.
I therefore concur in my colleagues' opinion
insofar as it finds, and prohibits, unlawful assistance,
but I dissent from that part of the Order requiring
that Local 1970 be disestablished.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge duly
filed on April 6, 1971, by Local 337, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Ind.), herein referred to as the
Union or Charging Party, the General Counsel of the
National Labor Relations Board, herein referred to as the
General Counsel' and the Board, respectively, by the
Regional Director for Region 7 (Detroit, Michigan), issued
its complaint dated June 4, 1971, against Distribution
Centers of Detroit, Inc., a subsidiary of Distribution
Centers, Inc., herein referred to as the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (2)
and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, herein referred to as the
Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice a hearing hereon was held before me
in Detroit, Michigan, on August 30-31, 1971, inclusive. All
parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to
produce and cross-examine witnesses, and to introduce
evidence material and pertinent to the issues. At the
conclusion of the hearing a short oral argument was had.
No briefs were received from any of the parties.
Upon the entire record in the case and from my
observation of the witnesses, I , make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find:
Distribution Centers of Detroit, Inc., a subsidiary of
Distribution Centers, Inc., is, and has been at all times
material herein, a corporation duly organized under, and
I This term specifically includes the attorney appearing for the General
Counsel at the hearing
3
existing by virtue of, the laws of the State of Michigan. At
all times material herein, Respondent has maintained its
principal office and place of business at 20505 Sibley
Road, in the city of Taylor, and State of Michigan, herein
called the Respondent's place of business. Respondent is,
and has been at all times material herein, engaged as a
public warehouse in storing and handling manufactured
goods and raw materials. Respondent's place of business
located at Taylor, Michigan, is the only facility involved in
this proceeding. During the year ending December 31,
1970, which period is representative of its operations
during all times material herein, Respondent, in the course
and conduct of its business operations, had a gross revenue
in excess of $50,000, which services were performed for
various enterprises shipping goods directly to Respondent's
warehouse from points located outside the State of
Michigan or performed $50,000 worth of services on
warehousing of products of customers, which products
were shipped directly from Respondent's warehouse to
points located outside the State of Michigan.
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE UNIONS INVOLVED
Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Ind.), and Detroit Warehousemen's Local 1970 are labor
organizations admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Respondent opened its Detroit (Taylor) facility in June
1970.
At his friend Mitchell King's suggestion Terry Wicken-
heiser with King applied to Respondent for work a few
days prior to June 9, 1970.2 After being interviewed by Lee
Thomas, Respondent's vice president of personnel, and
Bob Paff, then Respondent's operations manager at
Detroit, the two boys, both 17 years of age and members of
the 1970 high school graduating class, were hired as forklift
or hi-lo operators. They were told that they would be
working under the supervision and direction of one Lester
McClure as gang or group leader. McClure was then gang
leader at Respondent's Cincinnati facility but was being
transferred to Detroit in a week or 10 days. King and
Wickenheiser were the first hourly paid employees to be
hired at Detroit.
June 9 was the first day of work for Wickenheiser and
King, then the only two employees. About noon, while
eating lunch, Vice President Lee Thomas joined them. The
conversation turned to the wages, benefits, etc., of the job.
Thomas inquired if anyone had approached them about
joining a union. Nobody had. But Thomas said that he
wanted to see a company union started and would be
2 All dates herein are in the year 1970 unless otherwise specified.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing to put all the facts about wages, benefits, holidays,
etc., down on paper for them. The boys could see nothing
wrong about that.
About 2:30 p.m. Thomas returned with Paff to the two
employees. This time Thomas had with him a typed
contract purporting to be between Respondent and
"Detroit Warehousemen's Local 1970, Ind.," a name which
the boys had been allowed to select and which, at King's
suggestion, did honor to their recent graduation from high
school. Thomas also told them that they could make up
their minds which one would be president and which one
vice president of "Local 1970." So King became president
and Wickenheiser vice president of this newly formed
"labor organization." This is a case where the old saying of
"all chiefs and no Indians" is definitely applicable. i
The five-page document Respondent Vice President
Thomas presented to Local 1970 President King and Vice
President Wickenheiser purported to be a collective-bar-
gaining agreement by and between Respondent and Local
1970. In article I of this agreement Respondent recognized
"the Union as the sole and exclusive bargaining agent for
the Company's associates [employees] at its Detroit,
Michigan, warehouse," such recognition including "associ-
ates working as warehousemen" but excluding supervisors.
In article II Thomas had provided for a "union shop"
whereby "as a condition of employment ... all associates
... shall become members of the Union on the 91st day
after his hire as a full-time associate" and would have to
remain members thereof "during the term of this [3-year]
agreement."
As this was King and Wickenheiser's first day of
employment, this "seniority" clause appeared to prevent
Local 1970 from having any members. However, apparent-
ly acting from past experience,3 Thomas had drafted a
seniority clause, article X, which read as follows:
Section 1. A new associate will not be eligible for
union membership and privileges, or company paid
benefits, until he has completed a ninety (90) day
probationary period. Upon completion of the proba-
tionary period his name will be entered onto the
seniority list and his seniority date will become his first
day worked on a continuous full-time status at
Distribution Centers of Detroit, Incorporated. Persons
who are the original signers of this are considered to have
completed their probationary period and their names will
be entered on the seniority list. [Emphasis supplied.]
Thus were King and Wickenheiser rewarded for their
signatures as officers of Local 1970 onto this collective-
bargaining agreement.
The remainder of the document provided the usual legal
matters contained in an ordinary collective-bargaining
agreement: hours, wages, holidays, vacations, and a
grievance procedure ending in arbitration which would be
paid for equally by Respondent and Local 1970.
The two boys were being paid $3.33 per hour on June 9.
However the Teamsters Union and the other public
warehouses in Detroit were then in negotiations on the
question of wages. So in section 2 of article VII entitled
3 Each of Respondent's various facilities had similar independent
"unions "
"Wage Rates Per Hour" Vice President Thomas had
provided as follows:
Should the above driver's wage become 20 cents per
hour less than the wages paid for equivalent work by
competitive Detroit public warehouses the above rates
will be adjusted to a competitive level.
After Thomas had read the contract over with the two
boys, he assured them that it would be all right for them to
sign the agreement. With this assurance the two 17-year-
old minors, now officers of a "labor organization," signed
the agreement as requested. Thomas and Paff signed for
Respondent.
Thus was Local 1970 born.
1. Growing pains
About 10 days or 2 weeks later Lester McClure appeared
at the warehouse and began giving the two boys, now
joined by a few other young men, their work assignments,
showing them how to do the work, signing timecards, and
otherwise supervising the work. On one occasion when
Wickenheiser objected to the job to which McClure had
assigned him, McClure told Wickenheiser to either do the
job "or hit the clock." Wickenheiser did the work assigned.
Although, according to Vice President Lee Thomas, a
group leader had no authority to initial timecards of
employees, McClure did so at Detroit.
McClure apparently was listed on Respondent's payroll
as a "group leader." At first McClure was only temporarily
assigned to Detroit from Respondent's Cincinnati facility
in order to get the Detroit facility properly launched.
During this period of time he commuted weekly from his
home in Cincinnati. During this period McClure worked a
short day on Mondays due to his drive to and from
Cincinnati. McClure would check in about 10 o'clock on
Mondays but was paid from the beginning of the day at 8
o'clock. The other Detroit employees objected. They were
overruled. A few weeks later McClure's assignment to
Detroit became permanent. Thereafter and during the
rather lengthy period it took McClure to sell his Cincinnati
home, purchase a Detroit home, and move his family to
Detroit, Respondent continued to pay him board and
room while in Detroit, as well as mileage to and from
Cincinnati, and pay him full time as a group leader even
though working short days.4
Respondent's Detroit organizational chart calls for a
warehouse general manager (Peter Anderson), an opera-
tions manager (Robert Paff), an office manager (Charles
Highsmith), and a foreman in the warehouse and under
him a group leader (Lester McClure). During none of
McClure's tenure as "group leader" was there ever a
foreman at the Detroit facility. McClure at all times
reported directly to the operations manager . So that at all
times McClure was the only individual between the rank-
and-file "associates" (employees) and the operations
manager.
By August or September McClure's seniority came into
question by Local 1970. The question was whether
McClure's seniority dated from his first employment with
4 Thomas explained that it was Respondent's policy that "there should
be no financial sacrifice for this type of reassignment."
DISTRIBUTION CENTERS OF DETROIT, INC. 5
Respondent in Cincinnati some 7 years before or from his
first date of employment at Detroit. General Manager
Anderson decided to permit the Union to decide that
problem on its own. After all, it was clearly an academic
matter under the circumstances.
At or about this same time General Manager Anderson
called Wickenheiser's attention to the fact that Local 1970
had no constitution or bylaws. Anderson suggested that,
perhaps, McClure could bring a copy of the independent
union's bylaws from Cincinnati. McClure not only could
but, in fact, did.
And so it was that, by the substitution of the name of
Local 1970 and its officers, the bylaws of the Ohio Valley
Warehouse Employees Locals became the bylaws of
Detroit Warehousemen's Local 1970. It is noteworthy that
these bylaws provided, inter aka, as follows:
An election notice giving time, date and place of
election must be posted on the Company bulletin board
10 working days before the election. The Officers of
this local will set time, date and place of all meetings
and elections.
On September 10, it was stipulated, Local 1970 was
certified as the bargaining agent at the Respondent's
installation in Detroit as a result of a consent-election
agreement entered into by and between Local 1970,
Respondent, and the Regional Director. It was also
stipulated that the eligibility list for this consent election
contained the names of nine full-time regular employees as
those employees entitled to vote. McClure was not
included on this eligibility list purportedly because he was
still on temporary duty at Detroit.
It was stipulated that Respondent and Local 1970
certified nine employees to be eligible voters in the
September 10 consent election. If these parties had
considered the union-shop clause of their June 9 contract
to be valid, there would have been only two eligible voters
for the consent election, to wit, King and Wickenheiser.
They were the only ones who had passed their probation-
ary period as of the time of the election.
It would seem then that, if either Respondent or Local
1970 had had any confidence in the legitimacy of-Local
1970 or the legality of the so-called bargaining agreement
dated June 9 between it and Respondent, this consent
election would never have been sought by either party. In
view of the complete naivete of the Local 1970 officials
about labor matters, it is a fair assumption, here made, that
the motivating force to secure the September 10 consent
election came from Vice President Thomas and/or his
advisers. The only discernible purpose for the holding of
this consent election would appear to be to give Local 1970
the aura of legitimacy and a veneer of respectability from
having participated in a Board-conducted election.
At this point the facts disclose Local 1970 to be one of
the most completely employer-dominated labor organiza-
tions this Trial Examiner has ever seen. One would have to
revert to the 1930's in order to find another as completely
dominated by an employer as Local 1970 has been in the
instant case
However, Respondent's attorney maintained at the
hearing that Respondent had a perfect defense to the
8(a)(2) and (1) violation in that the charge here was not
filed until April 6, 1971, and so the events occurring prior
to October 6, 1970, could not, under Section 10(b) of the
Act, be held to be unfair labor practices.
For purposes of this case then we will assume that
Respondent's statement of the law is correct and that, due
to the time element imposed by Section 10(b) of the Act,
Local 1970 was legitimatized on October 6, 1970.
2. Events after October 6, 1970
So it was that Local 1970 assumed the appearance of a
legitimate labor organization through its participation in
the consent election of September 10. Despite this
legitimization of Local 1970 thereby, it retained its same
two minors as its officers, to wit, King and Wickenheiser,
together with its same 3-year collective-bargaining agree-
ment dated June 9 by which Respondent granted it
recognition, etc. Nothing, therefore, had changed except
the aura and the veneer.
A question arose at the plant about the fact that the June
9 collective-bargaining agreement was executed on behalf
of the Union by two minors.
So about noon on October 10, it was announced to the
employees that Local 1970 would hold an election of
officers after the 2 p.m. break period in the company
lunchroom. When asked about using the lunchroom at this
time, McClure answered that that would be all right with
Respondent. The facts proved McClure to be right about
this.
As of October 10 there were in Respondent's employ five
employees who had completed Respondent's 90-day
probationary period of employment and were thus on the
seniority roster and, under the union-shop provision of the
June 9 agreement, were also members of the Union. These
employees were King, Wickenheiser, Lawrence Gallagher,
Kenneth Thompson, and Lester McClure.
Under Local 1970's new bylaws, adopted from Respon-
dent's Cincinnati installation, Local 1970 was to have four
elected officers: a president, a vice president, a secretary-
treasurer, and an alternate. On October 10 this election, as
arranged by McClure, was held in Respondent's lunch-
room during working hours for about one-half hour for
which Respondent paid the attending employees. Law-
rence Gallagher was elected president; Mitchell King, vice
president; Thompson, secretary-treasurer; and Wicken-
heiser, the alternate. According to the testimony at the
hearing, McClure refused nominations for any office on
the ground that his "religion" forbade it.
As the five voting employees were leaving the lunchroom
following the election, Anderson stopped King about 5 feet
from the door thereof and congratulated him on his
election.
About a week after the October 10 election, Local 1970
began collecting initiation fees of $5 and dues of $1 per
month from its members by means of a checkoff.
Respondent supplied Local 1970 with prepared forms for
such checkoff authorizations. Local 1970 decided on the
5 Apparently the name of the independent union at Respondent's
Cincinnati installation
6 DECISIONS OF NATIONAL LABOR RELATIONS BOAicu
necessity of dues because it had filed three or four
grievances which Respondent rejected and then the Local
could not take the matters to arbitration because it had no
funds. Ultimately the dues, which are checked off by
Respondent, were increased to $5 a month. Respondent, in
the case of Wickenheiser, at least, made this checkoff
retroactive to the month of June by checking off $8 dues
from his paycheck. Local 1970 at the time of the hearing
had approximately $200 in the bank after having spent
some $50 on a beer party.
On October 30 Local 1970 and Respondent executed a
new contract. The agreement was signed on behalf of
Local 1970 by Lawrence Gallagher, Lester ,6 and
Mitchell King in that order and on behalf of Respondent
by Anderson, Paff, and Highsmith.
Except for the addition of one new holiday and an
hourly rate increase of 43 cents resulting from the
negotiations between the Teamsters Union and the other
Detroit public warehousemen, the October 30 agreement
was verbatim the same as the June 9 agreement.
However the evidence indicates that two negotiation
sessions were held before agreement was reached. The
negotiating teams for the Union, consisting of Gallagher,
Lester McClure, and King, resisted efforts by Respondent
to eliminate article VII, section 2, quoted supra, regarding
the adjustment of wages when they fall 20 cents below
competitors' wages. When Local 1970 refused to sign an
agreement without article VII, section 2, Anderson said he
really did not care if the new officers signed or not as he
already had a signed contract with Local 1970, to wit, the
June 9 agreement. However Anderson ultimately agreed to
leave article VII, section 2, in to get the new officers'
signatures on the October 30 agreement.
During its lifetime Local 1970 has required some typing
of grievances and other documents and has also required
the Xeroxing of a number of such documents. It is
undisputed in this record that Respondent has supplied
Local 1970 stenographic help as well as having Xeroxed a
number of documents for Local 1970. In some instances, in
fact, Office Manager Highsmith has assisted Union
Secretary-Treasurer Thompson in composing certain docu-
ments including grievances for and on behalf of Local
1970. It is also undisputed that, whereas there is in
Respondent's file a document signed by Local 1970
secretary and treasurer that Local 1970 would pay
Respondent 10 cents per copy for Xeroxing, Local 1970
has paid Respondent nothing for that or any other of the
services rendered to it by Respondent to the date of the
hearing.
About November 24 Gallagher spoke to Office Manager
Highsmith about the fact that the Respondent was leaving
Mitchell King in charge of the warehouse and said that the
employees "were not pleased" about this and had been
thinking of going to the Teamsters Union. Highsmith
answered that Respondent "had shut down a warehouse
because they had trouble with the Teamsters."
After McClure became foreman on November 30, King
was promoted by Respondent to be group leader. In
6 The last name is pretty much of a scribble but could be "McClure"
especially as McClure was one of Local 1970' s negotiating team and
McClure was the only "Lester" mentioned in the record
January 1971 Local 1970 expelled Mitchell King from
membership when King admitted that he had been keeping
Respondent's officials informed regarding the internal
affairs of Local 1970.
On March 16, 1971, Vice President Thomas was host at a
dinner for all of Respondent's employees at the Colonial
Inn. Thomas, as host, made an after-dinner speech in
which he mentioned that "It was our company's habit to
hold dinner meetings with employees approximately twice
a year" and that it was done in the interest of good
employer-employee relations.7 Then after philosophizing
about the "X-Y" theories of one Douglas McGregor about
labor management relations and stating that for a while
employers had too much power but now labor unions were
getting too much power which was not good, Thomas
mentioned the fact that Kenneth Ackerman, Respondent's
owner and president, has "very, very strong feelings" about
the Teamsters Union, even as Thomas admitted he himself
had. Thomas then described an episode at one of
Respondent's Ohio facilities where Ackerman was physi-
cally assaulted on the head by some Teamsters member
during a strike which caused Respondent to close down
that facility. Thomas made it clear that Respondent had in
the past closed facilities when the Teamsters came in.
On April 14, 1971, Wickenheiser was in Columbus, Ohio,
for a profit-sharing meeting. Before that meeting began he
ran into Vice President Lee Thomas in the corridor of the
building. Thomas invited him into the office. In the office
Thomas told Wickenheiser that this was a warehouse
which Respondent had closed before the Union got too
strong and added that Respondent was keeping the Detroit
facility open but that, if the Union got too strong, they
would close that facility down because they could make
more money leasing the building than by running it. After
a short chat along this line, Wickenheiser went to the
profit-sharing meeting.
For a period between November and April Local 1970
held regular meetings, many of them at Thompson's home.
Local 1970 has not met regularly on or off company
premises since April 1971.
B. Conclusions
It is difficult to even imagine a labor organization more
completely employer dominated than Local 1970 during
1970. In fact the only thing about Local 1970 which
actually emanated from Respondent's employees was the
name and number of the local which Vice President Lee
Thomas permitted his two minor employees to select in
honor of their graduation year from high school. Otherwise
the evidence conclusively proved that, in the words of the
complaint, "on or about June 9, 1970 Respondent by its
agents, Lee Thomas and Robtrt Paff, did initiate, form,
sponsor and promote and did recognize Local 1970 as the
representative" for collective bargaining for its employees.
In fact the suave Vice President Thomas actually had to
persuade the two minors that it would be all right for them
to sign the alleged collective-bargaining contract he had
prepared as "officers" of Local 1970. More complete
7 The March 16 dinner is to date the only such dinner meeting
Respondent has held for the Detroit employees
DISTRIBUTION CENTERS OF DETROIT, INC. 7
domination of an alleged labor organization consisting at
the time of these two minor employees is almost impossible
to conceive.
At the conclusion of the hearing, when queried about
what possible defense Respondent could have, Respon-
dent's attorney declared that he had a perfect defense: (1)
There was no evidence of domination on or after October
6, 1970 (6 months before the charge herein was filed on
April 6, 1971); and (2) Lester McClure (who had acted as
part of the Local 1970 negotiating team at the "negotia-
tion" and execution of the October-30 contract) was not a
supervisors
Under Section 10(b) of the Act it is true, as counsel
apparently contends, that the events of June 9 cannot be
found to be unfair labor practices unless the violation there
happens to be a continuing violation. See Local Lodge No.
1424, IAM [Bryan Manufacturing Co.], 362 U S. 411.
In this case we have such a continuing violation, unlike
the Bryan case, because the union-security clause and the
seniority clause of the June 9 contract are not legal in that,
in the instant case, these two Respondent-drafted clauses
interfere with internal union matters, to wit, both clauses
forbid Local 1970 to grant membership therein to anyone
who is not a Respondent employee who has completed his
required 90-day probationary period of employment with
Respondent. Thus Respondent completely controls at all
times the membership of Local 1970. Respondent Employ-
er has no legal right to control union membership as
Respondent has done in the instant case. By the two
articles referred to above in the alleged collective-bargain-
ing agreement, Respondent has abrogated unto itself
complete and absolute control over membership in Local
1970 whereby it controls who can become a member and
then, on the other hand, after Respondent has permitted
that employee to complete his 90-day probationary period
forces that employee into such union membership. Finally
through its power of discharge Respondent controls the
duration of any employee's membership in said local. Thus
Respondent dominates the membership of Local 1970 so
long as these contract clauses remain extant in violation of
Section 8(a)(2) and (1) of the Act.
Actually this question of continuing violations as to the
June 9 contract is academic because the October 30
contract "negotiated" by Local 1970 with Lester McClure
as part of its negotiating team contains the same exact
clauses giving Respondent the same life and death control
over Local 1970 membership. These clauses in the October
30 contract, being verbatim with those in the June 9
contract, are equally illegal and violative of Section
8(a)(2)-and, in addition, are not affected by the time
limitations of Section 10(b).
Hence whether the 6-month period of Section 10(b)
actually legitimizes, as Respondent here appears to
contend, an obviously employer-dominated labor organi-
zation need not bother us here as we have the same
illegalities within 6 months of the filing of the chaige.
Also Respondent brought out in evidence the fact that
the Regional Director had certified Local 1970 as the
bargaining representative for Respondent's employees
"exclusive of supervisors" after a consent election on
September 10. Apparently Respondent considers that this
certification legitimizes Local 1970 in some fashion. In
Bisso Towboat Company, Inc., 192 NLRB No. 116, second
par. in part 3, the Board had this to say of a somewhat
similar situation: "While securing a majority of the
employees' votes in a Board-conducted election does not
by itself insure the legality of a labor organization, it does
lend some dignity to its status" The facts in the instant
case indicate that it is highly questionable whether the
consent election here lent "some dignity" to Local 1970
status or, on the other hand, amounted to an abuse of the
Board's processes. It must be noted that at the heanng
Respondent's counsel invited and accepted a stipulation
that the eligibility list for this consent election contained
the names of nine regular employees (exclusive of McClure
who was said to be still on temporary duty in Detroit at
this time) 9 as eligible to vote. It just so happens that on
September 9 King and Wickenheiser would have been the
only two employees who had completed their 90-day
probationary period and thus the only "regular employees"
of Respondent, at least under the terms of the existing June
9 contract between Respondent and Local 1970-if the
parties had apprised the Regional Office of the existence
and the terms of the June 9 agreement. Either the existence
of the June 9 agreement was not disclosed or, at least, its
terms were not applied in that consent election.
The evidence indicates that there were two "negotia-
tions" leading to the execution of the October 30
agreement which apparently replaced the June 9 agreement
because somebody thought that this agreement ought to be
executed by someone besides two minors. The Union's
negotiating team for the October 30 contract was com-
posed of its newly elected President Gallagher, Vice
President King (who may have attained the age of 18 by
this time), and Lester McClure. McClure also had been
active in the holding of and voting in the October 10
election in the Respondent's cafetena during working
hours. At this election McClure is said to have refused
election to office because of his religion. Actually he had a
better excuse: He was at all times material herein a
supervisor within the meaning of the Act having the power
and authority to supervise and control employees, to
discharge, and to initial timecards. The employees had
been informed that they were to be working under the
supervision and control of Lester McClure and they did so
work under his direction and control.
In opposition Respondent presented evidence from Vice
President Thomas that McClure was a "gang" or "group
leader" at Detroit until promoted to foreman on Novem-
ber 30, 1970, and that, while "foremen" had supervisory
duties, "group leaders" did not. Consequently, according
to Thomas, McClure was not a supervisor at Detroit.
Admittedly Thomas did not know what duties McClure
actually performed at Detroit. All Thomas could testify to
8 Counsel apparently still feels the same way because on October 1, 1971, conclusion of the heanng, counsel well knew that my feelings then were to
he wrote the Trial Examiner explaining that he would be unable to file a the contrary Further study of this case has served merely to strengthen my
brief herein due to his heavy schedule The second and last sentence of this then opinion
epistle read "However, the lack of merit to the Complaint is so obvious that 9 Vice President Thomas had previously testified that McClure had been
a brief is probably not necessary " After my frank remarks to him at the permanently assigned to Detroit in early August
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is what Respondent's organizational chart showed-which
was that a foreman was a supervisor whereas a group
leader was not. Thomas was thus testifying according to
theory and not according to fact. Furthermore Thomas
conveniently forgot the fact that, whereas McClure may
well have been on Respondent's payroll as a group leader,
there was during none of McClure's tenure any foreman
above him as required by Respondent's same organization-
al chart. Without such a foreman over him, McClure
necessarily had to perform the duties of such foreman,
whether being paid as a foreman or as a group leader.
Hence Thomas's testimony here is worthless, particularly
in view of the duties which the evidence showed that
McClure actually performed. Furthermore Respondent
failed to call any of his Detroit supervisors who would have
known McClure's authority or to call McClure himself
who was not shown to be unavailable. The inference to be
drawn from the absence of these witnesses is that, if called,
the evidence of these witnesses would not have been
favorable to Respondent's contention. I here draw that
inference.
It is to be recalled that General Manager Anderson
deliberately got McClure involved with the Union when he
suggested to Wickenheiser that McClure could, would, and
did provide the necessary bylaws for Local 1970 from the
independent local union at Cincmnati.10 From that time
on, at least, Supervisor McClure became and remained
very active in Local 1970 with Respondent's knowledge,
consent, and cooperation in violation of Section 8(a)(2)
and (1) of the Act.
Because of the actions above found I am convinced and,
therefore, find that Respondent dominated and interfered
with the formation and administration of Detroit Ware-
housemen's Local 1970, and contributed financial and
other support to it in violation of Section 8(a)(2) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, as alleged in the complaint, I shall
recommend that it cease and desist therefrom and that it
take the necessary affirmative action to effectuate the
policies of the Act.
Having found that Respondent has illegally dominated
and interfered with the formation and administration of
10 It should be pointed out here that McClure actively assisted in
violating those same bylaws when he assisted and participated in the
election of October 10 because those bylaws required a 10-day notice of
such election to be posted on Respondent's bulletin boards prior to the
holding of any such election This provision was conveniently forgotten with
the concurrence of Respondent
Detroit Warehousemen's Local 1970 and has contributed
financial and other support to it, I will recommend that
Respondent permanently withdraw and withhold all
recognition from, and completely disestablish, Detroit
Warehousemen's Local 1970, or any successor thereto, as a
bargaining representative of any of its employees.
Because of the coercive effect of the "union shop" and
"seniority" clauses in the June 9, 1970, and the October 30,
1970, agreements, I will order Respondent to reimburse
each of its employees by a sum of money equal to the
initiation fees and dues checked off from each by
Respondent to Local 1970 with interest thereon at 6
percent per annum.
Because of the type of the unfair labor practices engaged
in by Respondent, I sense an opposition by Respondent to
the policies of the Act in general and I deem it necessary to
order Respondent to cease and desist from in any manner
infringing on the rights guaranteed its employees in Section
7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Distribution Centers of Detroit, Inc., a subsidiary of
Distribution Centers, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Ind.), and Detroit Warehousemen's Local 1970 are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By dominating and interfering with the formation
and administration of Local 1970 and by contnbuting
financial and other support to it, Respondent has violated
and is violating Section 8(a)(2) and (1) of the Act.
4. By threatening to close the Respondent's Detroit
installation if Respondent's employees bring in the
Teamsters Union and by dominating and interfering with
the administration and formation of Local 1970, Respon-
dent has violated and is violating Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 11
ORDER
Respondent, Distribution Centers of Detroit, Inc., a
subsidiary of Distribution Centers, Inc., Detroit, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or
administration of Detroit Warehousemen's Local 1970 or
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions , and order, and all objections thereto shall
be deemed waived for all purposes
DISTRIBUTION CENTERS OF DETROIT, INC.
any other labor organization of its Detroit (Taylor),
Michigan, warehouse employees, or from contributing
financial or other support to Detroit Warehousemen's
Local 1970 or any other labor organization.
(b) Giving effect to any contract or agreement between it
and Detroit Warehousemen's Local 1970 covering its
Detroit (Taylor), Michigan, warehouse employees; provid-
ed, however, that nothing herein shall be construed to
require Respondent to vary or abandon those wages,
hours, or other substantive features of its relations with its
employees, established in performance of such contract or
agreement, or to prejudice the assertion by the employees
of any rights they may have thereunder.
(c) Interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the
Act by dominating or interfering with the administration
or formation of Local 1970 or by threatening to close the
Detroit facility if the employees go to any other union.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withhold and withdraw all recognition from, and
completely disestablish, Detroit Warehousemen's Local
1970 as the representative of the Detroit (Taylor), Michi-
gan, warehouse employees for the purpose of dealing with
Respondent concerning wages, rates of pay, hours of
employment, or other terms and conditions of employ-
ment.
(b) Reimburse each of Respondent's Detroit warehouse-
men for all the initiation fees and dues checked off from
him by Respondent for Local 1970 with interest thereon at
6 percent per annum.
(c) Post at its facility in Detroit (Taylor), Michigan, and
in its home office at Columbus, Ohio, copies of the
attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.13
IT IS FURTHER RECOMMENDED that, unless the Respon-
dent notifies said Regional Director within 20 days from
the receipt hereof that it will take the action here
recommended, the Board issue an order directing Respon-
dent to take the action here recommended.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
9
WE WILL NOT dominate or interfere with the
formation or administration of Detroit Warehouse-
men's Local 1970 or any other labor organization of
our Detroit (Taylor), Michigan, warehouse employees,
and we will not contribute financial or other support to
Detroit Warehousemen's Local 1970 or any other labor
organization.
WE WILL NOT give effect to any contract or
agreement between us and Detroit Warehousemen's
Local 1970 covering our Detroit (Taylor), Michigan,
warehouse employees.
WE WILL permanently withdraw and withhold
recognition from, and completely disestablish, Detroit
Warehousemen's Local 1970, or any successor thereto,
as a bargaining representative of any of our employees.
WE WILL NOT threaten to close our Detroit ware-
house if our employees become interested in a labor
organization.
WE WILL reimburse each of our employees a sum of
money equal to the initiation fees and dues which we
checked off from him with interest thereon at 6 percent
per annum.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the right to self-organization, to form labor organiza-
tions, to join or assist any outside union, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activity.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
outside labor organization.
DISTRIBUTION CENTERS OF
DETROIT, INC., A
SUBSIDIARY OF
DISTRIBUTION CENTERS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.