Florida Mattress Factory, Inc. of Tampa

National Labor Relations Board - Board Decisions

Oct 10, 1950

91 N.L.R.B. 772 (N.L.R.B. 1950)

In the Matter of FLORIDA MATTRESS FACTORY, INC. OF TAMPA and
ALFRED P. AGUIAR, AN INDIVIDUAL
Case No. 10-CA-726.-Decided October 10, 1950
DECISION AND ORDER
On April 21, 1950, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief. The request for oral argument made
by the Respondent is hereby denied, inasmuch as the record and brief,
in our opinion, adequately present the issues and positions of the
parties.
To the extent here material the Board has reviewed the rulings made
by the Trial Examiner at the hearing, and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and brief, and
the entire record in the case, and finds merit in the Respondent's
exception that the Board should decline to assert jurisdiction over the
business operations involved herein.'
As detailed in the Intermediate Report, the Respondent is engaged
at its only plant in Tampa, Florida, in the manufacture and sale of
mattresses and living room furniture. In the course of its business,
the Respondent annually purchases raw materials valued at approxi-
mately $250,000, of which about 90 percent is shipped directly to it
from points outside the State of Florida.
All the Respondent's sales are made within the State of Florida.
The Trial Examiner, relying on the fact that the direct inflow of
goods annually approximated $225,000, concluded that the Board
should assert jurisdiction over the Respondent. However, as the
Respondent's operations affect commerce only by way of direct inflow,
1 In view of our disposition of the case, we find it unnecessary to pass upon the Re-
spondent 's motion to reopen the record to adduce additional evidence on another phase of
the case.
91 NLRB No. 132.
772
FLORIDA MATTRESS FACTORY, INC., OF TAMPA 773
and as such inflow is less than $500,000 in value annually, we find, in
accord with our recently announced policy,2 that it would not effectu-
ate the policies of the Act to assert jurisdiction here. We shall, there-
fore, dismiss the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent, Florida Mattress Factory, Inc. of Tampa, be, and it hereby
is, dismissed,
. MEMBERS REYNOLDS and STYLES took no part in the consideration of
the above Decision and Order. -
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a second amended charge filed by Alfred P. Aguiar, the General Counsel
for the National Labor Relations Board,' by the Regional Director for the
Tenth Region (Atlanta, Georgia ), issued a complaint dated January 13, 1950,
against Florida Mattress Factory, Inc., of Tampa , herein called Respondent,
alleging that the latter had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and ( 7) of the National Labor Relations Act (61 Stat. 136),
herein called the Act. Copies of the complaint , the charge , the amended charges,
and notice of hearing , were duly served upon the respective parties.
With respect to the unfair labor practices , the complaint alleged, in sub-
stance, that on or about May 19, 1949, Respondent discharged Alfred P. Aguiar,
Sam W. Kesterson , and Joseph W. Baumbaugh , and on or about May 30, 1949,
discharged Lawrence Olar, because of their membership in and activities on
behalf of District 50, United Mine Workers of America, herein called the Union,
and because they engaged in concerted activities with other employees for the
purposes of collective bargaining and other mutual aid and protection. The
complaint further alleged that Respondent, through its officers and agents, by
means specifically pleaded in the complaint , interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act. By an "Answer and Motion" filed on or about January 25, 1950, Respondent
denied that it was engaged in interstate commerce within the meaning of the
Act, that it had committed any unfair labor practices , and specifically pleaded
as follows :
Respondent further says that neither said labor organization , nor any
of its affiliate or constituent units, nor an individual acting in its behalf,
can claim any rights , privileges , or benefits under the National Labor Rela-
tions Act as amended , by reason of its failure to comply with Section 9
(h) of the Act; that the charging party herein, to wit: Alfred P. Aguiar,
2 Federal Dairy Co ., Inc., 91 NLRB 638.
' The, General Counsel and his representative at the hearing are' herein referred to as
the General Counsel and the National Labor Relations Board as the Board.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is an officer, within the meaning of the Act, of Local No. 13447, an affiliate
of said District 50, United Mine Workers of America ; that said Alfred P.
Aguiar is "fronting" for said labor organization, and that he is the "alter-
ego" of said labor organization, and that he is not entitled as one acting
in behalf of, either directly or indirectly, (sic) said union to claim any
benefits or rights under the Act, for the reasons stated, and that by reason
"of the non-compliance herein before pleaded . . . neither said Union nor
its members . . . are entitled to prosecute such complaint."
The notice served on Respondent advised it that the hearing on the com-
plaint was set for January 31, 1950, at Tampa, Florida. About one-half hour
before the hearing was scheduled to open, the undersigned Trial Examiner
was served with a restraining order issued by the Circuit Court of Hills-
borough County, Florida, in Chancery, in an action brought by the Respondent
herein against John Doe (later amended to read David London) as Trial
Examiner for the National Labor Relations Board, William J. Rains, Attorney
for the Tenth Region, National Labor Relations Board, and Paul L. Styles,
Regional Director for the Tenth Region, National Labor Relations Board. By
said temporary restraining order, the undersigned was enjoined from proceeding
in the hearing herein until the further order of the State court in said Chan-
cery action. The undersigned convened the hearing at the time and place
scheduled in the notice of hearing afore-mentioned and there announced that
he would abide by the order of the State court until the same was dissolved,
and that no testimony in the instant proceeding would be taken while said re-
straining order remained in effect. At the request of the General Counsel,
and with the consent of Respondent, the hearing was postponed. to the follow-
ing day so as to permit the General Counsel to take such action as he deemed
appropriatd to vacate the restraining order. The hearing herein was thereafter
continued indefinitely subject to resumption upon 2 days telegraphic notice
to all the parties. On February 21, 1950, the undersigned was advised that
the United States District Court for the Southern District of Florida, to which
said State court action had previously been removed, had on that day vacated
the temporary restraining order issued by the State court and had dismissed
said action. All the parties were on the same day notified by telegraph that
the hearing in the instant proceeding would be resumed on February 24, 1950,
at 10 a. in. Pursuant to the telegraphic notice, the hearing was held in Tampa,
Florida, on February 24-27, 1950. The General Counsel and Respondent were
represented by counsel and the charging party appeared in person. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded to all parties. At the hearing,
the undersigned denied Respondent's motion to dismiss previously filed with
the Regional Director and by the latter referred to the Trial Examiner herein.
During the hearing, the following motions by Respondent were likewise denied :
(1) To postpone the taking of testimony herein until the decision of the
United States Court of Appeals for the Fifth Circuit on Respondent's appeal
from the afore-mentioned order of the United States District Court vacating
the restraining order issued by, and dismissing. the action originally brought
in, the Florida State Court.
(2) To postpone the taking of further testimony herein and await the ruling
of the Board on Respondent's proposed appeal from the undersigned's inter-
locutory denial of Respondent's motion to dismiss.
FLORIDA MATTRESS FACTORY, INC. OF TAMPA 775
At the close of the hearing, the General Counsel moved to conform the
pleadings to the proof relative to formal matters such as names, dates, and
places ; there being no objection, the motion was granted. The parties waived
oral argument. The time to file briefs was extended to March 27, 1950, during
which time a brief was received from Respondent.
Upon the entire record in the case and from my observation of, the witnesses
at the hearing, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation engaged in the manufacture and sale
of bedding and living room furniture at Tampa, Florida. In the course and
conduct of its business operations during the past year, Respondent purchased
raw materials for use in its manufacturing operations, having a value of more
than $250,000, approximately 90 percent of which was purchased outside the
State of Florida and was shipped in interstate commerce to Respondent at
Tampa. During the same period, Respondent manufactured and sold finished
products consisting principally of bedding and living room furniture, valued
in excess of $500,000, no part of which was sold or shipped to customers outside
the State of Florida.
Respondent strongly denies here, as it did in the State and Federal court
action by which is sought to enjoin the instant proceeding, that it is "engaged
in interstate commerce or that the operations of [its business has] any close,
intimate or substantial relation to interstate commerce." It not only argues
that "the purchase of a substantial amount of raw material in interstate com-
merce alone is not sufficient to allow jurisdiction by the" Board, but also takes
the more extreme position that because the discharges involved herein were
engaged in production work that did not include the actual handling of goods as
they were received from an interstate carrier on Respondent's railroad sidings or
platforms, that therefore, the Board is without jurisdiction over complaints
involving such production employees.
The contention last afore-mentioned is so patently untenable as to require
no further discussion. Nor is there any merit to Respondent's position that
because it sold no goods in interstate commerce the Board is without jurisdic-
tion in this proceeding. In casting the Board's jurisdictional mold, Congress
did not make it a condition to the exercise of jurisdiction that an employer be
engaged in both the purchase and sale of goods in interstate commerce. It was
its intent, expressed in Section 1 of the Act, that the jurisdiction of the Board be
invoked to insure that the "free flow of commerce . . . not be interrupted, ob-
structed or burdened by industrial strife or unrest," 2 and by Section 2 (7) of the
Act, it legislatively determined that interstate commerce is so affected by any
conduct which burdens or obstructs such commerce or the free flow of commerce.
"It matters little where the obstruction to that free flow of commerce occurs.
Here, labor strife in the [Tampa] plant of the company [would] interfere with
and obstruct the free flow of raw materials coming into [Florida] from other
states, and it is just such an obstruction that Congress intended to prevent
by passage of this Act." 3 It has repeatedly been held by both the courts and the
Board that a manufacturer who purchases a substantial amount of goods and
2N. L. R. B. v. Van de Kamp's Holland-Dutch Bakers, Inc., 152 F. 2d 818 (C. A. 9).
0 IMd.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials outside the State for use in his business is subject to the jurisdiction
of the Board, notwithstanding the fact that he ships none, or only an insub-
stantial part, of his products in interstate commerce.'
I find that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District 50, United Mine Workers of America, is a labor organization admitting
to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology. of events
As previously indicated, Respondent is a Florida corporation engaged in the
manufacture and sale of bedding and living room furniture. Larry N. Boyd
was its "principal owner" and general manager. At the time of the hearing,
Respondent employed approximately 100 employees. During. all times relevant,
its factory was under the general supervision of one Burdict, the plant super-
intendent, and was divided into 3 departments, each under the direction of
a foreman or department manager. Dolan was in charge of the furniture
department, Rooks of the millroom, and Paul of the mattress department.
According to his own testimony, Boyd became aware of union activity among
Respondent's employees approximately 6-8 weeks before May 19, 1949. After
being so advised, Boyd called a meeting of the employees and told them that
he had heard that they "were engaged in some sort of a union, that it would
be o. k. with him-to choose any union [they] wanted," and that they could
have the unrestricted use of Respondent's assembly room, unobserved by
management, to hold a meeting for the purpose of determining whether they
"wanted a union or not." The record does not specifically disclose whether the
offer of the use of the assembly room was accepted, although there was some
testimony indicating that the offer was rejected and that the meeting sub-
sequently held occurred at some other place. In any event, the union meeting
was held on April 27, 1949, at which time the following officers were elected from
among Respondent's employees :
Alfred P. Aguiar, President
J. B. Edwards, Vice President
Lillie Emeterio, Financial Secretary
Lawrence Olar, Recording Secretary
Sam Kesterson, Treasurer
Prior to the time union activities commenced, Respondent had promulgated
no rule with respect to talking by its employees during their work hours or on
Respondent's premises. During Boyd's talk to the employees, however, he
instructed them "not to talk about the union on the job."
On or about May 17, 1949, Respondent received a letter from the Union's
International Representative at Jacksonville, Florida, in which Respondent was
advised of the Union's claimed status as bargaining representative for Respond-
ent's employees, and requesting an appointment for an early bargaining confer-
ence. On May 19 Respondent discharged Aguiar, Kesterson, and Baumbaugh,
followed on May 30 by the discharge of Olar. On June 1 Aguiar filed a charge
i Ibid; N. L. R. B. V. McGough Bakeries Corporation, 153 F. 2d 420 (C. A. 5) ; Atlanta
Brick and Tile Company, 83 NLRB 828, affirming 79 NLRB 756; Trueman Fertilizer Com-
pany, 73 NLRB 1235.
FLORIDA MATTRESS FACTORY, INC., OF TAMPA 777
with the Board , served on Respondent on June 3, alleging that Respondent had
violated Section 8 (a) (1) and Section 8 (a) (3) of the Act by making the dis-
charges afore-mentioned , and by "other acts and conduct , [had] interfered
with , restrained , and coerced its employees in the exercise of their rights as
guaranteed in Section 7 of the Act."' The complaint was issued on January 13,
1950, and served on Respondent on the same day.'
B. Interference, restraint, and coercion'
Sometime after Boyd's speech to the employees, Foreman Rooks asked Baum-
baugh if he knew anything about the Union and asked another employee, Herbert
Bolton, whether he had joined the Union. About a week after Boyd's speech,
Burdick and Rooks asked Kesterson on three or four occasions "how the Union
was going." During the same period, Superintendent Burdick frequently asked
Lawrence Olar why he joined the Union and made repeated inquiries of Vera
Olar, the wife of Lawrence Olar, also employed by Respondent, as to "how the
Union was coming along." After Aguiar was discharged on May 19, Boyd told
Lawrence Olar he was "going to get rid of all the fellows that talked about the
Union." At about the time of the Boyd meeting, Foreman'-Dolan asked Joseph
Alonso and several other unidentified employees whether they belonged to the
Union. After Aguiar was discharged, Respondent's Vice President McNab,' in
discussing that discharge with Vera Olar, told her that Respondent was "just
not going to have [the Union], that is all out of the question, there is going to be
no union. Mr. Boyd will fire everyone in the plant before he has it." There was
no denial of the foregoing incidents by Boyd, Burdick, Rooks, Dolan or McNab.
By the conduct afore-mentioned, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed. in Section 7 of the
Act, and thereby violated Section 8 (a) (1) thereof .9
C. The discriminatory discharges
1. Alfred P. Aguiar
Aguiar was first employed by Respondent in November 1947, "to run the planer,
the ripsaw, and the cutoff saw in the millroom" at 70 cents an hour. Two weeks
later he was raised to 75 cents and about a month following to 80 cents an hour.
Thereafter, he performed work in other departments and was a "general flunkey"
about the plant. Although other employees were on occasion laid off because of
5 This charge also alleged that Respondent had discriminatorily discharged Johnnie
Oilzer on May 19, 1949. The complaint, however, made no mention of the latter's discharge.
° Respondent in its brief (p. 14) states that "the law . . . requires the complaint to be
filed within 6 months from the occurrence of acts making up the charge ." There is no such.
requirement . Section 10 ( b) of the Act merely prohibits the issuance of a complaint "based
upon any unfair labor practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the persons against whom
such charge is made ." That requirement was fully complied with in the instant case.
.7 The findings in this paragraph are based on the credited and undenied testimony of
Kesterson, Baumbaugh, Lawrence Olar, Vera Olar, Herbert Bolton," and Joseph Alonso.
So identified in Respondent's brief at p. 33.
° Siandard - Coosa-Thatcher Company, 85 NLRB 1358.
10 The following findings pertaining to all four discharges are based on their credited
and undenied testimony and that of Vera Olar and J. B . Edwards. Respondent offered
no testimony as to why the men were discharged. Its self-serving letter to the Board,
dated June 10, 1949, admitted into evidence without objection , at best can serve only as
a statement of Respondent 's position as to why the men were discharged. It cannot be
considered as substantial evidence to prove that the men were lawfully discharged.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lack of work, Aguiar suffered no such loss from the time he was first employed
until he was discharged on May 19, 1949. There was no evidence that Aguiar
had ever been disciplined or criticized for his work or conduct.
As Aguiar returned to his work after lunch on May 19, the following conver-
sation took place between him and Vera Olar concerning supplies she needed to
resume her work :
OLAR. Alfred, you had better hurry, I'm going to need 3 nets.
AGUTAR. Now?
OLAR. No; but I'll need them in a few minutes.
AGUTAR. O. K.
Nothing further was said and the conversation apparently lasted only a few
seconds. Foreman Paul approached Aguiar almost immediately thereafter, while
the latter was engaged in preparing the material for Vera Olar, and said to him :
"I'm sorry, I have been told to fire you." As Aguiar was about to leave his post,
he encountered Superintendent Burdick and told him he had been fired. Burdick
answered, according to Aguiar, "Well you all brought it upon yourselves, [you]
worked in secret, instead of taking the offer that Mr. Boyd had made about the
assembly room." Mrs. Olar, who overheard the conversation, testified that Bur-
dick told Aguiar he had been fired "for speaking about the union." I find no
inherent inconsistency in the underlying meaning of the two versions of Burdick's
statement. Significantly, Burdick was not called to testify by Respondent to
give his version of the conversation. Respondent's failure to produce Burdick,
or any of the other witnesses to whom violative conduct was attributed, raises
a presumption that, if produced, such witnesses would refute the unsubstantiated
claim" Mrs. Olar's version of the subject of her conversation with Aguiar
stands undenied and is credited. Not a scintilla of evidence was offered to
prove that after Boyd's speech either Aguiar, or any of the other dischargees,
engaged in union activity or talked otherwise than was necessary for the perform-
ance of their work while "on the job."
The foregoing, coupled with Respondent's failure to offer any proof why Aguiar
was discharged, its hostility to the Union as heretofore found, its knowledge of
Aguiar's position as president of the Union, '2 his record of steady employment,
the timing and summary discharge on the day following receipt of the Union's
demand for recognition and a bargaining conference, compel the conclusion that
Aguiar was discharged because of his union activity and I so find.
2. Sam W. Kesterson and Joseph W. Baumbaugh
Within an hour after Aguiar was discharged, Baumbaugh was given a "rush"
job to be completed within 10 to 15 minutes. To do the work, Baumbaugh
required some lumber from a station approximately 10 to 15 feet from his post.
While on his way to secure the lumber, Baumbaugh passed Kesterson's station
and asked him whether he knew that Burdick and Rooks were watching them.
Kesterson did not answer and both men continued with their work, practically
without interruption. Rooks approached Kesterson immediately and told him
to draw his time, that he was "fired." Kesterson asked Burdick why lie was
discharged and was told that Rooks "saw him talking." He went to the office
and asked Boyd if he was fired because he was a union officer and was told that
'IN. L. R. B. v. Ohio Calcium Company, 133 F. 2d,721, 727; N. L. R. B. v. Remington
Rand, Inc., 94 F. 2d 862, 868.
12 Commencing about a week or two after the election, Foreman Dolan constantly saluted
Aguiar as "Mr. President"
FLORIDA MATTRESS FACTORY, INC., OF TAMPA 779
he (Boyd) was "going to get rid of all of them." Baumbaugh asked Burdick
why he was fired and was told that he "talked too much."
Kesterson was first employed by Respondent on October 1, 1948, and prior to
the date of his discharge had never been criticized for talking. Baumbaugh has
been in Respondent's employment since August 1945 when he was engaged as a
band saw operator at 50 cents an hour. His work was apparently satisfactory,
for at the time of his discharge he was receiving 85 cents an hour. He was the
first employee to join the Union and enlisted Aguiar's membership therein among
others.
Except for Kesterson's and Baumbaugh's testimony as to what Rooks assigned
as the reason for their discharge, no evidence was offered to prove that either
men had violated the rules imposed by Respondent, or indeed, why they were
so summarily discharged. Consideration of all the testimony compels the
conclusion that the reason assigned by Rooks for these two discharges, viz, exces-
sive talking, finds no support in the record. Rather, it can only lead to a judg-
ment that the reason assigned was a mere pretext and that the real reason for
the terminations was because of Kesterson's and Baumbaugh's union member-
ship and activities and for the purpose of discouraging such membership and
activities by the remaining employees. That conclusion is based on Respondent's
hostility to the Union as heretofore found ; its knowledge of, the dischargees'
union affiliation and activities as evidenced by Boyd's statement to Kesterson
that he was "going to get rid of all [the officers]," and by Rooks' questioning of
Baumbaugh about the Union ; by the summary manner and timing of the dis-
charges ; by the apparently good work-record of both men and the complete lack
of proof by Respondent of any valid reason for the discharges.
Accordingly, I find that Respondent violated Section 8 (a) (1) and (3) of
the Act by discriminately discharging Kesterson and Baumbaugh on May 19,
1949.
3. Lawrence Olar'a
Olar was hired in December 1947 as a mill hand at 80 cents an hour. Four
months later, he was transferred to the garnett room and raised to 85 cents ; 6
weeks thereafter, he was given another 10 cents increase. He joined the Union
in mid-April 1949, and was elected its recording secretary on April 27. Com-
mencing 2 or 3 days later, Burdick "almost daily" talked 'to him about the
Union, inquired why he joined the Union, and told him he "didn't know what
he could get out of the Union."
On May 30, 1949, all the employees were assembled for the purpose of listening
to a speech "about the Union" by J. Tom Watson, Respondent's attorney. Accord-
ing to Olar's summary of the speech, Watson told the employees that the Union
"was putting things" in their heads, that it wouldn't do them "any good." As
Watson concluded his speech, Boyd announced "that would be all," and left the
assembly room with Watson, as did most of the employees. Olar, in the presence
of his wife, Vice-President McNab, a shipping clerk, and a salesman remarked :
"Well he must have got $300.00 for that speech." Olar then returned to his
work. He was there about 3 minutes when he was called to the office by Burdick.
Upon reaching there, he found his pay envelope fully prepared and containing the
money due him as wages. Boyd said to him "I overheard what you said. I can't
have any thing like that around here, I will have to let you go."
Fully realizing that the burden of proving that Olar's discharge was dis-
criminatory rests on the General Counsel, I am convinced that that burden has
11 Based on Olar's credited ' and undenled testimony.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been sustained. A more difficult problem might be presented were Olar's dis-
charge the only one effected that month. However, in the light of Boyd's uncon-
tradicted threat to Kesterson that he was going to get rid of all the Union's
officers, Olar's discharge cannot be so isolated 14 Against the background of
Respondent's illegal conduct as described in the preceding portions of Section
III herein, Respondent's indignation at Olar's remark cannot be accepted as
the true reason for has discharge. Though Respondent apparently contends that
the remark was derogatory of its attorney and therefore justified Olar's dis-
charge, I cannot agree either with the characterization or that it justified the
discharge. Olar, being a union officer, could understandably be of the opinion
that the arguments advanced by Watson as Respondent's attorney might not
be objectively sound and were perhaps influenced by the liberal fee suggested in
his comment. While it is true that there was no impropriety in Watson's
speech, it would be utterly unrealistic to assume, and indeed it is not claimed,
that the speech was an objective analysis of the problem which then faced both
management and the employees. At most, Olar's remark was intended to
convey the impression that, in his opinion, Watson's arguments should be meas-
ured as those of a well-paid advocate. Viewed in that light, Olar's remark
was protected no less than Watson's speech. In any event, Olar's remark certainly
could not offend Watson for it was made outside his presence. When, therefore,
consideration is given to Olar's good work record and to Respondent's established
anti-union animus and threats, it becomes clear that Respondent here, as in
the case of Aguiar, Kesterson, and Baumbaugh, seized upon the first available
pretext to rid itself of the union officers and adherents. Accordingly, I find
that Olar was discharged because of his union activity and membership, and
for the purpose of discouraging further union membership and activity by its
remaining employees in violation of Section 8 (a) (1) and (3) of the Act.
4. Aguiar's alleged "fronting" for a noncomplying union
The defense upon which Respondent placed the greatest emphasis both at
the hearing and in its brief, is that the Union which was the object of the
employees' activities herein, and of which Aguiar was the president, had not
complied with Section 9 (h) of the Act requiring its officers to file the non-Com-
munist affidavit required by that section.15 Respondent further urges that Aguiar
is "fronting" for said Union, is its alter ego, and that neither Aguiar nor any
member of the Union is entitled to relief herein by reason of the Union's non-
compliance with Section 9 (h).
While Congress, in enacting this section, took effective action to curb com-
munistic influence in the exercise of leadership in the labor movement by de-
priving noncomplying labor organizations of certain rights and the use of the
Board's enforcement machinery," it did not withdraw from the protective
guarantees of the Act the basic rights assured to individual "employees" in
Section 7 thereof, notwithstanding membership in a noncomplying union.
"The effect of the discharge of three union officers is not destroyed by Respondent's
failure to discharge two other officers. Clearly, a complete housecleaning of union officers
is not essential to a finding that some employees have been discriminated against. Stewart
Warner Corporation, 55 NLRB 593, 610; Wooster Brass Company, 82 NLRB 514. Nor is
it necessary to speculate what further retributive action Respondent might have taken
had not the unfair labor practice charge been filed on June 1, 1949.
15 The General Counsel conceded at the hearing that the Union had not complied with
Section 9 (h) of the Act.
10 Andrews Company, 87 NLRB 379.
FLORIDA MATTRESS FACTORY, INC., OF TAMPA 781
The Board, in its recent decision in the Andrews case, summarized the impact
of Section 9 (h) as follows: "In dealing with a noncomplying union, [the Board]
is forbidden to take the following steps : (a) it may not investigate a question
concerning the representation of employees or certify the union as the statutory
bargaining representative; (b) it may not entertain the organization's petition
under Section 9 (e) for a union-shop election; and, finally, (c) it may not
issue a complaint pursuant to a charge filed by the organization." In the
same decision however, the Board pointed out that "this section clearly shows
that by its enactment, Congress was directing its legislative powers toward
the rights and privileges of labor organizations as opposed to the rights and
privileges of individual employees." [Emphasis supplied.] Thus, Section 7
still unconditionally guarantees to "employees" the basic right to self-organiza-
tion and the right to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection. Significantly, however,
the exercise of those rights is not conditioned upon membership in, or activity in
behalf of, a complying union. To make effective the guarantees just described,
Section 8 (a) proscribes as unfair labor practices the conduct of an employer
which interfere with the free exercise of such rights. Accordingly, Section 8
(a) (1) makes it unlawful "to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed, in Section 7," and Section 8 (a) (3) out-
laws discrimination "to encourage or discourage membership in any labor organi-
zation." And, in providing a remedy against the practices prohibited by Section
8 (a), Section 10 (b) permits "any person"" to file an unfair labor practice
charge, regardless of the state of Section 9 (h) compliance by the labor organiza-
tion involved.
The clear language of the Act unconditionally guaranteeing to all employees
the rights enumerated, coupled with the unfettered right to the exercise of the
remedies provided by the Act for the violation thereof, compel the conclusion
"that employees who have engaged in union activities in behalf of a noncomply-
ing Union are still protected by the Act ... and that Section 9 (f), (g), and (h)
relate to union rights only, thus leaving unaffected the rights guaranteed in
Section 7 to individual employees." 18 [Emphasis supplied.]
I am likewise of the opinion that because Aguiar, the charging party, was
president of the admittedly noncomplying union involved herein, he is not
thereby precluded from filing an unfair labor practice charge in behalf of himself
and other employees.19 The mere fact that the Union "might derive an incidental
benefit from a finding that unfair labor practices were committed in the case
is immaterial." 20 Furthermore, though Respondent strenuously urges that
the ban of Section 9 (h) should be imposed because of Aguiar's testimony that
he filed the charge herein at the request of a noncomplying union, I conclude, as
did the Board in the Olin Industries case just cited, that such fact "is imma-
terial." A contrary holding would not only bar Aguiar, the employee, from
the relief to which he is entitled under the Act, but would now, by reason of
the limitation imposed by Section 10 (b) of the Act,21 also foreclose considera-
tion of the wrongs inflicted upon Kesterson, Baumbaugh, and Olar, the other
17 Section 203.9 of the Board's Rules and Regulations so interprets Section 10 (b) of
the Act.
18Andrews Company, supra, fn. 4; Augusta Chemical Company, 83 NLRB 53.
19B. F. Goodrich Company, 88 NLRB 550.
99 Olin Industries, Inc., 86 NLRB 155, fn. 2.
"No complaint shall issue based upon any unfair labor practice occurring more than
six mnths prior to the filing of the charge with the board. . . .
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three discriminatorily discharged employees, as well as the rights of all other
employees who are entitled to relief from Respondent's alleged unlawful restraint,
coercion, and interference. Accordingly, I conclude that neither the failure of
the Union to comply with Section 9 (h) of the Act, nor the fact that Aguiar was
its president and filed the instant charge at its request, bars consideration of
the complaint on its merits?'
CONCLUSIONS OF LAW
1. District 50, United Mine Workers of America, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the tenure of employment of Alfred P.
Aguiar, Sam W. Kesterson, Joseph W. Baumbaugh, and Lawrence Olar, thereby
discouraging membership in and actively on behalf of District 50, United Mine
Workers of America, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
'3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
22 Globe Wireless, Ltd., 88 NLRB 1262.