Oregon Teamsters' Security Plan Office

National Labor Relations Board - Board Decisions

Aug 25, 1955

113 N.L.R.B. 987 (N.L.R.B. 1955)

OREGON TEAMSTERS' SECURITY PLAN OFFICE ' 987
for the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. The Association has been at all times since 1940, and is now, the exclusive
representative of all the employees in the above-described appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of the
Act.
4. By refusing to permit the Association, through representatives of its own choos-
ing to make its own independent on-the-job analysis and investigation of the work
being performed by Howell Edmonds, relevant to a pending grievance filed on behalf
of Edmonds, the Respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act 24
[Recommendations omitted from publication.]
^ The Respondent's proposed conclusions of law are rejected.
Oregon Teamsters' Security Plan Office and William C. Earhart,
Administrator thereof, and of Teamsters Security Administra-
tion Fund; and Warehousemen Local No. 206, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, and Teamsters Building Association, Inc. and
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, and its Local No. 223,
Grocery, Meat, Motorcycle and Miscellaneous Drivers and
Warehousemen Local No. 206, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, and Joint Council of Drivers, No. 37 and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, and Its Agents, John J. Sweeney,
and Oregon Teamsters' Security Plan Office, and William C.
Earhart, Administrator thereof, and of Teamsters Security
Administration Fund and Office Employes International
Union, Local No. 11. Cases Nos. 36-CA-410, 36-CA-637, 36-CA-
638, 36-CA-639, 36-CA-647, and 36-CA-648. August L5, 1955
DECISION AND ORDER
On January 10, 1955, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions together with supporting briefs.
113 NLRB No. 111.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 briefs, and the entire record herein. The Board finds that it will
not effectuate the policies of the Act to assert jurisdiction in this pro-
'ceeding, and will, for the reasons hereinafter stated, dismiss the com-
plaints herein in their entirety.
This is the first proceeding to be decided by the Board in its 20-year
history in which labor organizations have been charged with com-
mitting unfair labor practices as employers in dealing with their
own employees.
The Respondents herein are :
1. The International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, hereinafter called the Inter-
national, and its representative, John J. Sweeney.
2. Teamsters' Locals No. 206 and No. 223, which represent em-
ployees in the Portland, Oregon, area.
3. Teamsters' Joint Council of Drivers, No. 37, hereinafter called
Joint Council, which coordinates the activities of 23 Teamsters locals
in Oregon and Washington.
4. Oregon Teamsters' Security Plan Office, hereinafter called Se-
,curity Plan Office, which is the name assumed by an organization,
consisting at the time of the hearing in this case of an administrator,
Respondent Earhart, and a staff of office and clerical employees. With
the aid of this staff , Earhart administers 18 trust funds established,
pursuant to Section 302 of the Taft-Hartley Act, by collective-
bargaining agreements between various Teamsters locals and em-
ployers in Oregon, Washington, Idaho, and Montana. Under the
applicable trust arrangements the administrator of these funds is
appointed by the trustees, half of whom are designated by Teamsters,
the balance by the interested employers. With contributions to the
trust funds furnished by the employers, the administrator purchases
health and welfare insurance policies for the employee-beneficiaries of
the trusts, and his office processes and pays claims under these policies.
5. Teamsters Building Association, Inc., hereinafter called Build-
ing Association, which is a nonprofit corporation owning and operat-
ing-a small office building in Portland, Oregon. All the stock of this
corporation is owned by six Teamsters locals. All the tenants of
this office building are exclusively Teamsters organizations, except
for Security Plan Office.
_ The Trial Examiner found that all the Respondents were "em-
ployers" within the meaning of Section 2 (2) of the Act, which pro-
vides that the term "employer" as used in the Act does not include
"any labor organization ( other than when acting as,an employer), or
OREGON TEAMSTERS' SECURITY PLAN OFFICE 989
anyone acting in the capacity of officer or agent of such labor organiza-
tion." [Emphasis supplied.] The Trial Examiner construed this
parenthetical language to mean that, when acting as employers with
relation to their own employees, labor organizations are subject to
the, proscriptions of Section 8 (a) of the Act applicable to employers
generally. The Trial Examiner found also that all the Respondents
were engaged in commerce. With regard to the further question
whether it would effectuate the policies of the Act to assert jurisdiction
over the Respondents, the Trial Examiner deemed it proper to apply
to them the same jurisdictional standards as the Board has heretofore
applied to employers generally. Applying these standards, the Trial
Examiner found that all the Respondents except Security Plan Office
were an integral part of a multistate enterprise, consisting of the In-
ternational and all its affiliates, and that the,annual outflow of initia-
tion fees and per capita taxes from its affiliates to the International's
headquarters in Washington, D. C. ($6,000,000), was more than suf-
ficient to meet the Board's applicable minimum requirement ($250,000)
for asserting jurisdiction over a multistate enterprise.' With regard
to Security Plan Office, the Trial Examiner relied on the fact that
from its office in Portland, Oregon, it remitted to an insurance com-
pany in California policy premiums at a rate in excess of $2,000,000
per annum, which was more than sufficient to meet the minimum out-
flow requirement applicable under the Board's standards to an inde-
pendent enterprise ($50,000) 2 The Trial Examiner, accordingly, con-
cluded that it would effectuate the policies of the Act to assert juris-
diction over all the Respondents.
The Respondents except to the Trial Examiner's foregoing jurisdic-
tional findings. We find merit in these exceptions.
We agree with the Trial Examiner's general interpretation of^Sec-
tion 2 (2) of the Act that labor organizations are "employers" with re-
spect to their own employees. However, Board assertion of its juris-
diction over the Respondents in this case, as in all cases, depends upon
whether the Respondents, as employers, are engaged in commerce or in
activities affecting commerce, and, if so, whether the policies of the
Act will be effectuated by asserting jurisdiction over them. Demon-
strably, the mere inclusion of labor unions in the statutory definition
of "employer" does not constitute a legislative ukase that, in all in-
stances; their operations affect commerce and that assertion of the
Board's jurisdiction over unions will effectuate the policies of the Act.
We consider the limited inclusion of labor organizations in the Act's
,definition of an "employer" to be consistent with the undisputed legis-
lative intent to empower the Board to decide, pursuant to appropriate
jurisdictional standards, whether to assert jurisdiction over particular
_,j See Jonesboro Grain•-Drg1inq•Opoperative, 110 NLRB 481•-
9Ibid.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers, thus leaving the Board free to determine whether the oper-
ations of a union-employer, like any other employer, affect commerce
within the meaning of the statute, and, if so, whether Board assertion
of its jurisdiction over such operations will effectuate the policies of
the Act.
All of the Respondents in this case, including the Building Associa-
tion and the Security Plan Office, are nonprofit organizations. The
relevant transactions of the Respondent International and its locals
consist of the interstate transmission of member initiation fees and
per capita taxes from the locals to the International. The Security
Plan Office remits employees' policy premiums across State lines to an
insurance carrier. The Joint Council and the Building Association
have virtually no interstate inflow or outflow of funds.
Each Respondent exists and operates for the benefit of Teamsters
members and other employees in bargaining units the Teamsters rep-
resents. The basic aim and function of the International, Joint
Council, and locals is to improve the working conditions of workers,
increase their job security, and otherwise promote their general wel-
fare. The Security Plan Office is a fiduciary engaged essentially in ad-
ministering trust funds established by collective-bargaining agree-
ments pursuant to the provisions of Section 302 of the Act. The oper-
ations of the Security Plan Office constitute a typical labor union func-
tion in furtherance of employee welfare. The Building Association is
an instrumentality of 6 stockholders, Local 206, and 5 other Teamsters
locals, none of which participates in any commercial transactions.
In these circumstances, we believe that, if the Respondents are to be
treated like any group of employers for which the Board has estab-
lished jurisdictional criteria, that group must be the one categorized as
nonprofit organizations. The standards for nonprofit employers are
clear; 3 the Board, with legislative approval, asserts jurisdiction over
nonprofit organizations "only in exceptional circumstances and in con-
nection with purely commercial activities of such organizations." 4 The
Respondents' activities directed to advancement of employee interests
are, obviously, not substantial engagement in a commercial venture
within the contemplation of the Board's jurisdictional principles for
nonprofit employers.'
We find, accordingly, that the initial requirement for assertion of
Board jurisdiction over the operations of the Respondents (effect
upon commerce within the meaning of the Act) has not been estab-
lished.
3 Lutheran Church, Missouri Synod, 109 NLRB 659 ; Armour Research Foundation of
Illinois Institute of Technology, 107 NLRB 1052: California Institute of Technology, 102
NLRB 1402: Philadelphia Orchestra Association, 97 NLRB 548; The Trustees of Columbia
University In the City of New York, 97 NLRB 424.
'House Retort No. 510, 80th Cong, Ist Sees.. 82 (1947).
5 Cf. Bausch & Lomb Optical Company, 108 NLRB 1555, wherein the labor organization
involved u as engaged in the manufacture and sale of optical products.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 991
Moreover, even assuming that the Board's jurisdictional standards
for nonprofit organizations should not be applied to the Respondents,
we would not assert jurisdiction over their operations in this case. If
the standards for nonprofit employers generally are not applicable to
the nonprofit Respondents, we do not deem applicable the existing
Board jurisdictional criteria for any other type of employer. The
Board's overall jurisdictional plan takes cognizance of different types
of employer operations. There are, for example, different standards
for manufacturing companies, public utilities, transportation com-
panies, and others. We do not believe that labor organizations, which,
when engaged in their primary function of advancing employee wel-
fare, are institutions unto themselves within the framework of this
country's economic scheme, should be made subject to any of the
standards originated for business 6 organizations. Accordingly, we
would, at least, require for labor organizations as employers the estab-
lishment of a jurisdictional standard contemplating the singular
characteristics of their institutional operations. In presenting this
case for Board determination, the General Counsel failed to suggest
any such standard.
'In light of these considerations, we shall dismiss, in their entirety,
the complaints against all the Respondents.'
[The Board dismissed the complaints.]
MEMBER MURDOCH, concurring :
I concur in the result dismissing the complaint herein, but on more
limited grounds than those set forth in the main opinion.
In my opinion, after careful reconsideration of the issue,8 Congress
did not intend, either in the Wagner Act or the Taft-Hartley Act, to
regulate relations between unions and such employees as they utilize
in their normal collective-bargaining activities. When a union leaves
its normal role as a collective-bargaining agency and embarks on a
commercial enterprise, however, it obviously cannot carry into that
field its immunity as a collective-bargaining agency.
I note that my dissenting colleagues quote extensively from legis-
lative history of pre-Wagner Act bills in coming to the opposite con-
O With respect to Respondent Building Association , the record shows that it serves the
tenants in the small office building it owns and operates . If we were to apply to Build-
ing Association , standing alone , the Board 's standard for employers operating office build-
ings, we would not assert jurisdiction In McKinney Avenue Realty Company (City
National Bank ), 110 NLRB 547, the Board ruled it would assert jurisdiction over an
office building operation only when the operator of the building is otherwise engaged in
commerce and uses the building primarily to house its own offices . As noted above, the
Building Association itself is not engaged in commerce nor does the record show any
transactions , in commerce by any of its stockholders.
7 To the extent inconsistent herewith, the decision in Air Line Pilot8 Association, Inter-
national, 97 NLRB 929 , is hereby overruled.
8In 1951, I signed the Board's opinion in Air Line Pilots Association, 97 NLRB 929,
where the issue arose in a representation proceeding.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elusion. However, the legislative history of the Wagner Act itself
is the only sure guide to the intent of the Congress which enacted that
Act. Yet my dissenting colleagues fail to quote the pertinent section
of the Senate report thereon.
The Senate Committee report on S. 1958 explained the exclusion
of labor organizations from the definition of "employer" in Section
2 (2) of the Act in these words:
The term "employer" excludes labor organizations, their officers,
and agents (except in the extreme cases where they are acting as
employers in relation to their own employees). Otherwise the,
provisions of the bill which prevent employers from participating
in the organizational activities of workers would extend to labor
unions as well, and thus would deprive unions of one of their
normal functions. [Emphasis supplied.] 9
In other words, unions had to be generally excluded from the defini-
tion of "employer" or they would run afoul of Section 8 (a) (1) acid
(2) by attempting to organize the employees of other employers, either
on their own behalf or in behalf of another union. Only one exception
to this blanket exclusion of unions from the definition of "employer"'
is made-"in extreme cases where they are acting as employers in rela-
tion to their own employees." Had Congress intended that in all
cases unions should be regulated as employers in relation to their own
employees, it obviously would simply have said this without qualifica-
tion. But instead it limited their, inclusion to "extreme cases."
Plainly the word "extreme" must be given some effect in determining
what Congress intended rather than ignoring it or reading it out as
my dissenting colleagues necessarily do. There is nothing "extreme"
or unusual in a union having employees in carrying on its normal'
collective-bargaining functions. At the minimum unions commonly
have office and clerical employees and paid organizers, as Congress
plainly knew. Therefore Congress must have been talking about
something else when it made reference to "extreme, cases" where they
are acting as employers in relation to their own employees. Such
"extreme cases" do exist where unions have departed from their tradi-
tional role and embarked on commercial enterprises-banks for ex-
ample-where they have employees in the same context as any other
industrial employer.10 Plainly then, this exceptional and limited area
must be what Congress had in mind. As such, it is the sole exception
in which unions are included in the definition of "employer" and are
subject to Section 8 (a) of'the Act. Strongly supporting this view is
the admitted-and oft-criticized fact, that the Wagner Act was in-
r
'a'Board 'compila 'tion of Legislati 've' History of NLRA, 1935, p. 2305.
10 See, e. g., Millis and Montgomery , Organized Labor , 1945, pp . 344-382, for a, dis-
cussion of labor unions ' experience in the banking business.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 993
tended to regulate employers in the interest of employees and unions-
not to regulate unions as well.
The Taft-Hartley Act, however, regulated unions as well as em-
ployers. But nowhere in its language or its legislative history is there
the slightest indication that Congress intended to regulate unions in
relation to their own ordinary employees under Section 8 (a) of the
Act. Congress specified the proscribed union unfair labor practices
in Section 8 (b) of the Act, which are pertinent in relation to em-
ployees of other employers rather than in the context of their own
ordinary employer-employee relations. Thus, for example, in Sec-
tion 8 (b) (2), unions are prohibited from "causing or attempting to
cause" other employers to discriminate against their employees, but
unions are not forbidden to discriminate against their own employees.
The specification in Section 8 (b) of what are unfair labor practices by
unions necessarily excludes others not mentioned, under well-estab-
lished principles of statutory construction.
Contrary to the suggestion of the dissenters, I indulge in no assump-
tions-tacit or otherwise-as to the need or lack of need of congres-
sional regulation of relations between unions and their ordinary em-
ployees. That is a matter for Congress to consider and decide. If
Congress desires this Board to regulate the relations between unions
and their own employees in their normal collective-bargaining func-
tions, it can amend the Act to so provide. Until such time, I shall
continue in the belief that under the Act as presently drafted they re-
main free from such regulation.
Mr:M1iERS RODGERS and LEEDdM, dissenting :
We dissent from the decision of the majority of the Board in this
proceeding not to assert jurisdiction over the Respondents. We be-
lieve such decision achieves a paradoxical and unwarranted result in
permitting labor unions to deny to their own employees-the very rights
and privileges which unions have so vigorously advocated'and won for
the employees of others. Labor unions are now free to flout the very
statutory provisions which they ardently championed, and which have
been hailed as the Magna Charta of labor.
Most of the charges of employer infractions of the Taft-Hartley
Act have in the past been filed by labor unions, and one of the most
militant unions in this respect has been the Respondent International
and its affiliates. They have been commendably alert to detect viola-
tions of the Act by employers, and by the very nature of things, they
are the ones who usually call for the services of this. Board and the
Labor Management Relations Act by filing appropriate charges of un:
fair labor practices.
Employers who have been required to defend' themselves before the
Board against union charges-of discrimination' against en loyees,
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to bargain with employee representatives , and other forms of
interference with employee organizational rights, will no doubt be
astonished to learn from the instant decision that the unions which
filed.the charges against them are free to engage in the very conduct
for which they ( the employers ) are required to answer.
We turn now from these general considerations to the particular
cases before us . As the complaints in the instant charges are being
dismissed by the majority on jurisdictional grounds, there is no need
for us to pass upon the merits of these complaints . It may not be
inappropriate to observe , however, that the Respondents herein (all
of them labor organizations or agencies controlled by such organiza-
tions ) are each charged with engaging in 1 or more of the 5 unfair
labor practices enumerated in Section 8 (a) of the Act and that the
't'rial Examiner, after a lengthy and careful analysis of the evidence,
sustained virtually all of the charges . Thus, he found that the Inter-
national, Security Plan Office , and Locals 206 and 223 had violated
Section 8 ( a) (1) and ( 2) of the Act by their solicitation of em-
ployees of the 3 Respondents last named to join Local 223 rather than
the Charging Union; that Security Plan Office , Building Associa-
tion, and Joint Council had violated Section 8 ( a) (1), (2), (3),
and (4 ) of the Act by discharging , altogether , 3 employees and 1
supervisor ( all of whom were adherents of the Charging Union) in
anticipation of their giving testimony at a Board hearing in sup-
port of the charges in Case No . 36-CA-410 against Security Plan
Office and Local 206; that Local 206 had violated Section 8 (a) (1)
and (3 ) of the Act by discharging an. employee because she had re-
fused to cross a picket line established by the Charging Union; that
Security Plan Office had violated Section 8 ( a) (5) of the Act by re-
fusing to bargain with the Charging Union, although it represented
a majority of the employees of Security Plan Office ; and that the In-
ternational and its representative , Sweeney, violated Section 8 (a)
(1) of the Act by seeking to influence the testimony of a witness at
a Board hearing.
These violations found by the Trial Examiner were not mere tech-
nical or trivial infringements upon the rights of the employees in-
volved, but were, if the Trial Examiner is correct, part and parcel of
a purge of all employees of the Respondents who persisted in promot-
ing the cause of the Charging Union as against Local 223 , the organiza-
tion favored by the other Respondents ; and, if we accept the Trial
Examiner 's findings, certain of the Respondents by their conduct
showed not only a disregard for the guarantees of the Act but also for
the Board's judicial processes by discharging employees because they
had been subpenaed by the General Counsel to testify against two of
the Respondents and, in the case of Respondent Sweeney, by urging
OREGON TEAMSTERS' SECURITY PLAN OFFICE 995
a prospective witness for the General Counesl either to falsify her
testimony or "take a trip."
Thus, the violations charged to the Respondents not only run the
entire gamut of employer unfair labor practices, but also include at
least one novel variation.ll We do not say that the Board's jurisdic-
tion should depend on the seriousness of the offenses alleged. We wish
to point out only that the nature of the charges and of the Trial Ex-
aminer's' findings in this case, and the records of other proceedings
against union-employers in the Board's files cast grave doubt on the
validity of any tacit assumption by the majority that employees of
labor unions do not need the protection of the Act; and such charges,
findings, and records tend to vindicate the fears expressed by wit-
nesses at the hearings before the Senate Labor Committee in 1934
on the original Wagner bill (S. 2926), which proposed to exclude all
employees of labor unions from the protection of the Act.12 Those
witnesses opposed such exclusion on various grounds, including the
naivete of any view that unions could be "trusted to deal fairly with
those who work for them." 11 It was presumably because of these con-
siderations and because of the patent danger that in hiring their own
employees unions might discriminate against nonmembers, that the
Senate Labor Committee, in reporting the 1934 bill, proposed to modify
the blanket exclusion of unions from the definition of "employer" by
inserting the present parenthetical language which includes labor
unions as an employer "when acting as an employer." 14
In explaining the reasons for this change, the 1934 Senate Labor
Committee report stated :
The reason for stating that "employer" excludes "any labor organ-
ization, other than when acting as an employer" is this : In one
sense every labor organization is an employer, it hires clerks, sec-
retaries and the like. In its relations with its own employees, a
labor organization ought to be treated as an employer, and the
"No case has been found in the entire 20 years of the Board's experience where a
respondent has visited reprisals upon Board witnesses even before they had testified
'a While, as stated in the majority opinion, the instant proceeding is the first case actual-
ly to be decided by the Board in which a labor organization has been charged with unfair
labor practices against its own euiployces, a p;utial search of the Board's files shows that
since 1947 charges have been filed against unions as employers in 28 cases, not including
the instant proceeding. Fifteen of these cases contained a charge of discrimination
against one or more employees in violation of Section 8 (a) (3) of the Act One case
charged a violation of Section 8 (a) (4) of the Act In 13 cases unions weie charged,
as employers, with refusing to bargain with other unions, in violation of Section 8 (a)
(5) of the Act Independent violations of Section 8 (a) (1) were alleged-in two cases.
Of these 28 cases, 1 is still pending before the General Counsel on appeal from a-Regional
Directoi's dismissal on the merits of the charge filed, 1 was disposed of by a formal settle-
ment agreement, 15 were withdrawn by the charging parties, and 11 were dismissed as
lacking merit
>s See Board Compilation of Legislative History of NLRA, 1935, pp. 720, 940, 1102.
"Thus modified, Section 2 (2) of the 1934 bill read, as does the present Act : The
term 'employer' . . . shall, not include . . . any labor organization [ other than when
acting as an employer]. . . . 11 1
996 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD
bill so provides. But in relation to other employees, it ought not
to be treated as an employer, and ought to have the right to use
lawful means to induce employees to join the organization.15
As the 1934 bill was not acted upon by Congress, a new bill (S. 1958)
was introduced by Senator Wagner in 1935, which again contained
a blanket exclusion of labor unions from the definitioit of "employer,"
omitting the parenthetical language proposed by the Senate Labor
Committee in 1934. That language was, however, restored by the com-
riiittee 'in the new bill as reported by it, the reasons given for such
restoration being substantially the same as those cited in the 1934 re-
-port quoted above; 16 and that language was retained without change
in the bill as finally enacted and in the 1947 Taft-Hartley amendments.
It is clear from the foregoing that Congress contemplated that, by
including labor organizations in the definition of employer, it was ex-
tending the protection of the Act not only to persons employed in
"commercial" activities of labor organizations but also to the clerks and
secretaries, hired to assist in carrying out the conventional, noncom-
mercial functions of a labor union. The instant decision nullifies that
purpose of Congress by holding that-it would not effectuate the poli-
cies of the Act to assert jurisdiction over noncommercial activities of
labor unions, thus denying the protection of the Act to the very
"clerks" and "secretaries" referred to in the Senate Committee re-
port.
,It is true that the Board has broad discretion in determining whether
the assertion of its jurisdiction in a particular case will effectuate the
Act's policies. However, in exercising that discretion in the past, the
--Board has shown a commendable respect for the views of Congress, as
gleaned from legislative history, with regard to the proper bounds of
Board action. Thus, in Hotel Association of St. Louis,17 in declining
to assert jurisdiction over the hotel industry, the Board relied upon
a comment by Senator Taft made on the Senate floor 2 years after the
enactment of the present statute and upon other "post-legislation"
history. Yet, here, the majority would give no effect to the statement
quoted above from the Senate Committee report, which antedated con-
gressional action on the provision under consideration, and which
manifests an intent that the Board make its processes available to em-
ployees engaged in noncommercial activities of labor unions.
We do not believe that the force of this legislative history is, im-
paired by the language quoted by the majority from the conference
report on the Taft-Hartley Act, relating to the exclusion of nonprofit
organizations from the definition of "employer." There is no indica-
tion,in that report that, in approving the Board's policy of declining
,, ,.' w Rnatd Gnraptlation.of Legislative History of NLRA, 1935, p. 1102.
1 Id., p. 2305.
3P 92 NLRB 1388
OREGON TEAMSTERS' SECURITY PLAN OFFICE 997
to assert jurisdiction over noncommercial activities of nonprofit organ-
izations, the conferees had in mind labor unions. The Board had
not at that time had occasion to resolve the question of its jurisdiction
over labor unions. (In the only subsequent case other than the instant
proceeding in which that question arose, a representation case, the
Board asserted jurisdiction and directed an election in a unit of em-
ployees performing conventional labor union functions.18 , We fail
to find that this decision evoked` any congressional strictures.)
Moreover, the language of the conference report quoted by the
majority should be read in context with the rest of the paragraph in
which it appears and the legislative provisions to which it refers.
Section 2 (2) of the Taft-Hartley bill passed by the House (H. R.
3020) amended Section 2 (2) of the Wagner Act by inserting immedi-
ately after the language including in the definition of "employer"
labor organizations "when acting as an employer," languageexcluding
-from that definition "any corporation, community chest, fund, or
foundation organized and operated exclusively for religious, chari-
table, scientific, literary or educational purposes, or for the prevention
of cruelty to children or animals, no part of the net earnings of which
inures to the benefit of any private shareholder or individual." As
passed by the Senate, however, this bill, in lieu of the foregoing broad
exclusion of nonprofit organizations devoted to,religious or charitable
purposes, etc., excluded only any nonprofit corporations and associa-
tions operating hospitals. The conferees adopted this more limited
exclusion favored by the Senate, and it was in explanation of this
action that the statement was made which is, quoted in part by the
majority from the conference report. The entire statement, insofar
as here relevant, is as follows :
The conference agreement . . . follows the Senate amendment in
the matter of exclusion of nonprofit corporations and associations
f operating hospitals. The other nonprofit organizations excluded
under the House bill are not specifically excluded in the con-
ference agreement, for only in exceptional circumstances and in
connection with purely commercial activities of such organiza-
tions have any of the activities of such organizations or of their
employees been considered as affecting commerce so as to bring
them within the scope of the National Labor Relations Act." 19
[Emphasis supplied.]
It seems clear from the foregoing that the antecedent of "such or-
-ganizations", in the excerpt quoted is not nonprofit organizations gen-
erally (including unions) as the majority opinion implies; but only
the specific categories of nonprofit organizations enumerated in the
18Air Line Pilots Association, 97 NLRB 929. Included in the , unit were, contract nego-
tiators and organizers.
' House Report No 510, 80th Cong., 1st Sess , p. 32.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
House bill. That these categories were not deemed to include labor
.unions follows from the fact that the exclusion of nonprofit organiza-
tions in the House bill was immediately preceded by the familiar
language including labor unions as employers "when acting as an
employer." It is unrealistic, in any case, to believe that a Congress,
which, animated by a desire to make the Wagner Act a two-way street,
adopted an elaborate code of restrictions upon labor unions, could have
intended to strike down in whole or in part the only limitations in
the Wagner Act upon labor union conduct. Such a view not only
takes language out of context but ignores the mood of Congress in
passing the Taft-Hartley Act.
. We would, therefore, affirm the Trial Examiner and assert juris-
diction over all the Respondents herein.
In any case, even if one accepts the view of the majority that the
Board should not assert jurisdiction over the noncommercial activities
of labor unions, it is difficult to understand how the operations of
Security Plan Office can be classified as "noncommercial." As found
by the Trial Examiner, this cffice, in Portland, Oregon, is a separate
legal entity from the other Respondents. It receives contributions
from about 2,000 employers, parties to collective-bargaining agree-
ments with Teamsters locals. In accordance with the provisions of
these agreements, the Security Plan Office uses these contributions,
currently about $2,000,000 per annum,; to defray the cost of health
and welfare insurance policies purchased from a life insurance com-
pany in Los Angeles, California. The Security Plan Office, itself,
processes claims under these policies ,and acts as disbursing agent for
the insurance company in paying such claims. For these services, that
office receives an allowance from the insurance company equal to
4 percent of total premiums.
It is apparent from the foregoing that the Security Plan Office per-
forms functions ordinarily associated with insurance brokers and
underwriters. Under the Wagner Act, the Board, with the approval
of the Supreme Court,2° asserted jurisdiction over a fraternal organi-
zation relying on the fact that it provided death, disability, and
-accident benefits (on a nonprofit basis) to its members and their bene-
ficiaries. More recently, the Board asserted jurisdiction over insur-
ance operations of the Knights of Columbus.21 Accordingly, even if
we equate labor unions and their agencies with other nonprofit organi-
zations for jurisdictional purposes, as the majority does, it is not
clear why their operations in the insurance field should be treated as
noncommercial while similar operations of other nonprofit organiza-
tions for the benefit of their members are regarded as commercial.
2D Polish National Alliance v. N. L. R. B., 322 U . S. 643.
21 Knights of Columbus, Case No. 1-RC-3913 ( not reported in printed volumes of Board
Decisions and,Orders).
OREGON TEAMSTERS' SECURITY PLAN OFFICE 999
We believe that even under the rule announced by the majority limit-
ing the Board's exercise of jurisdiction to commercial operations of
unions, jurisdiction should be asserted over Security Plan Office.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, and is based upon separate charges duly filed by Office Employes
International Union, Local No. 11, herein called Local 11, against the various
Respondents named above in the respective cases.
Pursuant to said charges, the General Counsel of the National Labor Relations
Board issued six complaints against the respective Respondents. The original com-
plaint, dated June 25, 1954, in Case No. 36-CA-410, as amended, alleged that on
or after March 1, 1953, Respondent Teamsters Security Administration Fund, also
known as Oregon Teamsters' Security Plan Office, and William C. Earhart, ad-
ministrator thereof, herein referred to as Security Fund and Earhart, individually
and jointly with Warehousemen Local No. 206, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, herein called Local 206 and the International, respectively, had dominated,
assisted, and contributed support to Local No. 223, Grocery, Meat, Motorcycle and
Miscellaneous Drivers, affiliated with said International, within the meaning of
Section 8 (a) (1) and (2) of the Act.'
Subsequent to the initial hearings on the above-described complaint, held on July
21 and 22, 1954, and discussed below, the General Counsel, relying upon interim
developments, issued a group of additional complaints. These included a consolidated
complaint dated August 13, 1954, in Cases Nos. 36-CA-637, 638, and 639, against
four Respondents, the International, Local 206, Local 223, and Teamsters Building
Association, Inc., herein called Building Association. That complaint, as amended,
alleged that: (1) Local 206 on or about June 10, 1954, discriminatorily terminated
the employment of June Cook because of her activities in behalf of Local 11, within
the meaning of Section 8 (a) (1) and (3) of the Act; (2) Building Association
discharged Irene Morcom 2 and Virginia Olstad on or about July 28 and 29, 1954,
respectively, at the behest of Respondent International, because of their activities in
behalf of Local 11 and because they honored Board subpenas requiring their presence
and testimony at the hearing in Case 36-CA-410 on July 21, 1954, within the mean-
ing of Section 8 (a) (1), (3), and (4) of the Act; (3) Local 223, as an employer,
had interfered with the activities of its own employees and had dominated and
contributed unlawful support to itself in its other capacity as a labor organization,
within the meaning of Section 8 (a) (1) and (2) of the Act; and (4) Respondent
International, by its role in the foregoing activity, engaged in conduct violative of
Section 8 (a) (1), (2), (3), and (4) of the Act.
The complaint in Case No. 36-CA-647 was issued on August 17, 1954, and
alleged that Joint Council of Drivers, No. 37, herein called Joint Council, an organi-
zation formed pursuant to the constitution of Respondent International, had, together
with Respondent International, discharged the above-named Irene Barnes on or about
August 13, 1954, because of her activity in behalf of Local 11 and because she
honored a Board subpena requiring her appearance and testimony in Case No. 36-
CA-410 on July 21, 1954, thereby engaging in conduct violative of Section 8 (a)
(1), (2), (3),and (4) of the Act.
Another complaint, in Case No. 36-CA-648, issued on August 19, 1954, and
named as Respondents the International and its agent, John J. Sweeney, together
with Security Fund and its administrator, William C. Earhart. That complaint, as
amended, alleged that: (1) Respondent International and Respondent Sweeney in
'As will appear below, these complaints deal inter alia with the office employees of
the various labor organizations identified as Respondents herein; these labor organiza-
tions are named as Respondents in their capacities as employers under Section 2 (2) of
the Act. While that section excludes a labor organization from the definition of an em-
ployer under the Act, an exception to the exclusion provides that a labor organization is
deemed to be an employer "when acting as an employer." Such is the case here Air Line
Pilots Association, 97 NLRB 929, 930, and Raybestos-Manhattan, Inc., 80 NLRB 1208.
2 Morcom has since married, and appears in the transcript as Irene Morcom Barnes.
She is so referred to herein.
379288-56-vol. 113-64
^ ' 1000 DECISIONS ' OF NATIONAL LABOR. RELATIONS BOARD
-July 1954 attempted to dissuade employees from honoring Board subpenas in Case
No. 36-CA-410, to withhold information from the Board when testifying, and to
perjure themselves, within the meaning of Section 8 (a) (1) of the Act; (2) em-
ployees Marian Henry and Mary Ermence were discharged by Security Fund on
August 13 and 16, 1954, respectively, pursuant to instructions from Respondent In-
ternational, within the meaning of Section 8 (a) (1), (2), (3), and (4) of the Act;
and (3) Security Fund and Earhart had refused to bargain collectively with Local 11
as the representative of its employees in an appropriate unit, within the meaning of
Section 8 (a) (5) of the Act.
On August 19, 1954, the Regional Director for the Nineteenth Region issued an
order consolidating all of the above-entitled cases in order to effectuate the purposes
of the Act and to avoid unnecessary costs or delay. Copies of the various charges,
complaints, orders consolidating cases, and notice of hearing thereon were duly
served upon the various Respondents who thereafter filed answers denying the com-
mission of any unfair labor practices.
Pursuant to notice a hearing was held at Portland, Oregon, on July 21 and 22,
1954, and between September 13 and 21, 1954, before Trial Examiner Martin S.
Bennett , duly designated by the Associate Chief Trial Examiner. All parties were
represented; participated in the hearing; and were afforded full opportunity to be
heard, to examine and cross-examine witnesses , and to introduce relevant evidence.
Motions were filed by Respondents to sever the cases and were denied. N. L. R. B.
v. Seamprufe, Inc., 186 F. 2d 671 (C. A. 10), cert. denied 342 U. S. 813; United
Mine Workers, District 31, et al., 95 NLRB 546, 548, enfd. 198 F. 2d 389 (C. A.
4), cert. denied 344 U. S. 884; Roadway Express, Inc., 108 NLRB 874; and Inter-
national Typographical Union, 87 NLRB 1418. Ruling was reserved on a motion by
counsel for Respondent Locals to dismiss the complaints and it is hereby denied. At
the close of the hearing the parties were given an opportunity to argue orally and to
file briefs. Oral argument was waived. The time for filing briefs was extended
at the request of counsel for Respondents who, together with the General Counsel
and Local 11, have submitted briefs. Motions to dismiss the complaints filed by
certain of Respondents, on the ground that they are not engaged in commerce, are
disposed of hereinafter.
The Charging Party has submitted a number of proposed conclusions. As to those
relating to Cases Nos. 36-CA-637, 638, 639, and 647, Nos. 1, 3, and 8 are accepted;
the remainder are rejected as being completely or partly unacceptable. As to those
relating to Cases Nos. 36-CA-410 and 648, Nos. 1, 2, 3, 4, 9, and 10 are accepted;
the remainder are rejected as being completely or partly unacceptable.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS of FAcr
1. THE BUSINESS OF RESPONDENTS
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America is a national labor organization which maintains its principal office in
Washington, D. C., and has 872 chartered locals in the United States, Alaska, Hawaii,
Canada, and the Canal Zone. The International and its locals have a membership, as
of July 31, 1954, of 1,204,477 members. It has in its employ, outside of Washington,
D. C., 34 officers, representatives, and organizers; this figure includes John J.
Sweeney who was a general organizer for the International between February 1, 1953,
and September 1, 1954, the period material herein, was therefore its agent, and who
reported directly to a vice president of the International; on September 1, 1954,
Sweeney became secretary-treasurer and director of the Western Conference of
Teamsters, a division of the International. In the year ending December 31, 1953,
the International had a total revenue of $6,587,327 of which $5,755,232 represented
remittances to its principal offices in Washington, D. C., from all of its locals of the
per capita tax levied upon each member; also included in the larger figure was the
sum of $626,425 which represented a percentage of the initiation fee levied upon new
members and remitted to the International offices in Washington, D. C., by the re-
spective locals .3
s On the assumption that these totals Include remittances to the International from
those locals that may be located in the District of Columbia , the foregoing figures , Insofar
as they represent sums of money passing across State lines, should be reduced accord-
ingly; it is apparent that such a reduction would be relatively slight and would not affect
the conclusions that follow.
--ACS- £(3REGON TEAMSTERS SECtlRTTY PLAN OFFICE 1001
Local 206, affiliated with the International, has a membership of approximately
•2,750; had receipts from dues, reinstatement and application fees, and fines during
the year ending June 30, 1954, totaling $156,839; and remitted per capita taxes in
the amount of $46,786. Local 223, affiliated with the International, has a member-
ship of approximately 600; had receipts from the same sources during the year
ending June 30, 1954, of $32,468; and remitted per capita taxes in the amount of
$7,258.
Joint Council of Drivers, No. 37, is comprised of 23 Teamsters locals-21 in
the State of Oregon and 2 in the State of Washington-and is established pursuant
to article XV of the constitution of the International which makes the formation of
a joint council mandatory under certain specified- circumstances. It has no bylaws of
its own and operates under the constitution of the International. Its income in the
year ending June 30, 1954, totaled $177,645 based upon per capita taxes paid by its
constituent locals, of which $8,609 represented taxes from locals in the State of
Washington.
Teamsters Building Association, Inc., an Oregon corporation, was incorporated in
1948 and all of its stock is owned by six Teamsters locals, including Respondent
Local 206. It was formed as a device to get around certain restrictions on the owning
of real estate by labor organizations; this device, utilizing a nonprofit corporation for
such a purpose, is now permitted under Oregon law in contrast to a prior flat ban on
the owning of real estate. Its only function is to own and operate 1 office building
in Portland, Oregon, known as the Teamsters Building, all of whose tenants, with 1
exception discussed below, are Teamsters locals. Income of the corporation is de-
rived almost entirely from the rental of building space to its tenants and, during the
year ending June 30, 1954, this rental income totaled $49,767. While desk if not
office space is provided for an International representative, the record does not dis-
close whether this service is paid for by the International. Building Association does
not maintain a separate office of its own; its business affairs are conducted from the
office of Joint Council whose recording secretary, Clyde C. Crosby, was also president
of Building Association. The records of Building Association are maintained partly
in the Joint Council office and partly in the office of Teamsters Local 162; Crosby, at
the time material herein, was also general secretary-treasurer of the latter organiza-
tion which is not involved in this proceeding.
Teamsters Security Administration Fund is an entity whose administrator and
managing agent is William C. Earhart. The Security Fund is established as the re-
sult of collective-bargaining agreements between the 23 locals belonging to the Joint
Council and approximately 2,000 employers located primarily in the State of Oregon,
but including a small number in the surrounding States of Washington, Idaho, and
Montana. These agreements provide for the establishment of health and welfare
plans pursuant to Section 302 of the Act, and cover some 16,000 employees. The
actual operating technique consists of a trust provided for in the collective-bargaining
agreement with trustees appointed, presumably in equal numbers, by both parties
to the collective-bargaining agreements. There are in all 18 such trust agreements
behind Security Fund. All the trust agreements provide for the appointment of an
administrator and Earhart, appointed to that post on April 1, 1954, administers all
these trusts. He was the first full-time administrator, his predecessors since July
1950, the date of inception of Security Fund, having been various Teamsters officials
who devoted a portion of their time to the post, apparently on a nonremunerative
basis. Earhart's primary function is to operate an office known as the Teamsters
Security Administration Fund which is indirectly financed, as follows, through funds
paid into the respective trusts.
Each of these trusts has purchased a health and welfare insurance policy for the
employees it covers with the Occidental Life Insurance Company in Los Angeles,
California. Contributions from the approximately 2,000 employers in the four
-States are sent to the administrator of the trusts, Earhart. The insurance premiums
are substantially equal to the total contributions and are remitted monthly by
Earhart, for the trusts, to the insurance company in Los Angeles. That company
in turn remits 4 percent of the premiums to Teamsters Security Administration Fund
for the sole purpose of maintaining an office in Portland and processing and paying
claims under the health and welfare plans by drafts on Occidental. For the first
4 years of its operation, ending July 1; 1954, receipts of the trusts have averaged in
excess of $1,000,000 per annum. Premiums remitted to the-insurance company for
the month of June 1954 totaled $178,266; in other words, premiums in excess of
$2,000,000 per annum are currently being, remitted to the insurance company. An
insurance company allowance to Security Fund of 4 percent to operate the claims
office is based upon the latter figure and is forwarded to Security Fund by separate
check from the Los Angeles office of Occidental.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Security Fund also does business, apparently for the sake of convenience, under
the name of Oregon Teamsters' Security Plan Office; this name appears on its office
door and on its letterhead. Security Fund, which exists for no purpose other than
that stated above, rents and maintains offices in the building owned and operated
by Teamsters Building Association in Portland, known as the Teamsters Building.
As stated, all other tenants of that building are local unions or other divisions of
the Teamsters organization.
Conclusions
In considering the problem whether the various Respondents herein are engaged
in commerce, I have been able to discover but one case where the Board exercised
jurisdiction over a'labor organization as an employer. Air Line Pilots Association,
supra. That was a representation proceeding involving the employees of a labor
organization which maintained offices in several cities throughout the United States.
The Board found that "Congress intended that labor unions be treated like any other
employer with regard to their own employees," and pointed out that "the Board
normally assumes jurisdiction over enterprises which are multi-state in character......
The Board has recently revised its jurisdictional policies in a number of respects.
While it is understandable, due to the paucity of such cases, that express standards
have not been set up specifying the circumstances under which jurisdiction will be
asserted over a labor organization as an employer, I believe that if jurisdiction is
to be asserted herein, it must be done upon the basis of fitting the facts, as they apply
to the various Respondents, into one of the formulae spelled out by the Board in.
its recent decisions. As will be apparent, those referred to in the case of Jonesboro
Grain Drying Cooperative, 110 NLRB 481, are germane herein. The Board there
promulgated, inter alia, these standards:
(a) That it would assert jurisdiction over an enterprise receiving goods or mate-
rials from out-of-State valued at $500;000 or more per annum.
(b) That it would assert jurisdiction over an enterprise producing or handling
goods and shipping such goods out-of-State, or performing services outside the State
in which the enterprise is located, valued at $50,000 or more per annum.
(c) That it would assert jurisdiction over an enterprise other than retail which
is operated as an integral part of a multistate enterprise, and (1) the particular
establishment meets any of the foregoing as well as other standards set forth in
the Jonesboro decision; or (2) the direct outflow of the entire enterprise amounts
to $250,000 or more per annum; or (3) the indirect outflow of the entire enterprise
amounts to $1,000,000 or more per annum.
Turning first to Respondent International, the record demonstrates that it main-
tains 872 locals in the United States, Alaska, Hawaii, Canada, and the Canal Zone.
Its 1953 revenues, based upon per capita taxes and initiation fees received from its
constituent locals, were in excess of $6,000,000 and were forwarded by these locals
to the International in Washington, D. C. As for the relationship between the
International and its constituent locals, the provisions of the International constitution
demonstrate that the International and its locals constitute one integrated, closely
knit, and national organization, which is well within th, logical meaning of the term
"multistate enterprise," as used by the Board. These provisions are corroborated
by the bylaws of Local 206. It is also noteworthy that Local 223, under trusteeship,
has no constitution or bylaws and that it operates under the International constitu-
tion. Some of the provisions of the International constitution are listed below:
(1) The general president of the International may appoint a temporary trustee
"to take charge and control" the affairs of a local union whose affairs are not being
conducted in accordance with the constitution of the International.
(2) Said trustee is authorized to take full charge of the affairs of the local, to
remove officers, and to appoint temporary officers during his trusteeship. As
demonstrated in the present case, the power to appoint trustees is in fact exercised
by the International, and a trustee, although described in the constitution as "tem-
porary," may enjoy a trusteeship lasting for a number of years. His duties, more-
over, are to see that the local Junctions under the International constitution.
(3) Officers of a local suspended by a trustee are directed by the constitution to
turn over all funds, books, and property of the local to the trustee who, in turn, is
directed to take possession of same.
(4) Said trusteeship does not come to an end until the general president of the
International so directs.
(5) Charters are issued to local unions only upon the signing of a contract pro-
viding that upon revocation of the charter, "all books, documents, contracts, name,
moneys, funds, and property shall belong to and shall be delivered over to the-
International union... .
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1003
(6) Charters to locals may be revoked by the general president of the International
when deemed necessary.
(7) Upon revocation or forfeiture of the charter of a local union, and upon its
subsequent reorganization, the general executive board of the International has the
power to exclude from membership in the new local persons responsible for the
revocation or forfeiture of the charter.
(8) The general executive board has the power to deny membership in the
international to applicants to any local union.
(9) The general secretary-treasurer shall "notify the local secretary to comply
with the laws [of the International] and if he does not, he shall be removed from
office for the second offense."
(10) Any local secretary-treasurer or business representative is required to be
bonded. Upon his failure to obtain a surety bond satisfactory to the general secretary-
treasurer of the International, he is automatically deprived of holding any office for
which a bond is required. The general president or general executive board is em-
powered to suspend or revoke any local charter for failure to comply with these
bonding requirements.
(11) Any organizer or officer of the International may be empowered by the
general president or general secretary-treasurer of the International to audit the
books of any local, and any local union officer refusing to turn over books and
records to the delegated officer is subject to expulsion by the general executive board.
(12) When a local union secedes, disaffiliates, or dissolves, its records, property,
and funds are to be delivered to the general president or his representative. All
such property and funds are held in trust by the International until reorganization has
been effected, but, if no reorganization is effected within 6 months, all properties and
funds of the local become the property of the International.
(13) When a local union is on strike or has been subjected to a lockout, the
general president determines whether or not benefits are to be paid as provided
in the International constitution.
(14) A local union desiring to present a wage scale to an employer must, after
obtaining approval of its joint council, forward a copy of same to the general pres-
ident and obtain his approval before presenting it to the employer.
(15) No contract entered into between a local union and an employer is binding
until it is approved by the general president of the International.
(16) Upon the filing of charges against a member or officer of a local, the general
president may, in his discretion, immediately suspend such member or officer from
membership or office.
(17) When the general executive board determines that a local union shall
arbitrate a dispute with an employer, the local is directed to carry out this decision.
(18) Any local union not paying an assessment levied, under indicated circum-
stances, by the general executive board, shall be suspended.
(19) Any local union within the jurisdiction of a joint council is required by the
International constitution to affiliate with said council.
It is common knowledge that the degree of control of an international union over
its locals and the extent of local autonomy vary greatly among labor organizations
in direct ratio to their constitutional requirements and operating techniques. Under
some circumstances, not present herein, it might well be argued that a designated
local labor union is an entirely independent entity not completely or substantially
subject to the wishes and control of its parent organization.
It is clear, on the other hand, that the provisions of an international constitution
may well subject a local to international control of a substantially complete and
binding nature. Thus, it is significant in the present case that the International con-
stitution places the formation of a local, thu revocation of its charter, its existence
and property, and the very management of its affairs, under the close and controlled
supervision of the International, as set forth above in more detail. See Rose, Rela-
tionship Of The Local Union To The International Organization, Virginia Law
Review, 843-870 (Nov. 1952), and cases cited therein, including Operating Engineers
v. Jones Construction Company, 240 S. W. 2d 49 (Ky.); Federation v. Office and
Professional Workers, 74 A. 2d 446, 449 (R. I.); and Fitzgerald v. Abramson, 89 F.
Supp. 504 (S. D., N. Y.).
If, as is the case here, the International can strip a local of its property and of -
its right to conduct day-to-day operations, and even abolish it entirely, it becomes
almost meaningless to discuss the separate existence of the local as an entity inde-
pendent of the International. See Chicago Typographical Union No. 16, et al., 86
NLRB 1041, 1045-7. See also Hickey v. Stickel, N. Y. Sup. Ct., decided Nov. 16,
1954, 35 LRRM 2167; Low v. Harris, 90 F. 2d 783 (C. A. 7); Brown v. Hook, 79
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. A. 2d 781; Davis v. 1. A. T. S. E., 60 C. A. 2d 713, 141 P. 2d 486; and Seslar v-
Local 901, (D. C., Ind.), 87 F. Supp. 447, revd. on other grounds 186 F. 2d 403,
(C. A. 7), cert. denied 341 U. S. 940.
I find, in view of all the foregoing factors present in this case, that the International
and its locals constitute integral parts of a multistate enterprise which falls within
the purview of the formula laid down by the Board in the Jonesboro decision: Spe-
cifically, the direct outflow of the entire enterprise, namely, the movement ,of over
$6,000,000 per annum in funds from all of the locals to the International in Wash-
ington, D. C., is well in excess of the $250,000 figure specified in that decision. I
further find that the International and all of its locals, including Respondent Locals,
are engaged in commerce within the meaning of the Act, and that it would effectuate
the purposes of the Act to assert jurisdiction herein. See Lonsford v. Burton, Oreg.
Sup. Ct., decided Feb. 24, 1954, 34 LRRM 2100; Harker v. McKissock, N. J. Sup. Ct.,
81 A. 2d 480; Fanara, et al. v. Teamsters, et al., N. Y. Sup. Ct., decided July 28,
1954, 34 LRRM 2714; and Retail Clerks v. Westling, Wash. Sup. Ct., 247 P. 2d 253. 4,
Turning to the Joint Council, here too the record warrants a finding that it is
engaged in commerce within the meaning of the Act and that its operations fall within
the Board's new formula on jurisdiction. It is clear from the International constitu-
tion that a joint council is a creature of and an integral part of the multistate
Teamsters organization. Some of its provisions are as follows:
(1) The formation of joint councils is mandatory where 3 or more locals are
located in 1 city.
(2) Locals are required to belong to these joint councils and to pay monthly
dues to them.
(3) The joint councils adjust all questions of jurisdiction between locals.
(4) Joint councils have authority to approve or disapprove of any strike, lawsuit,
or similar action contemplated by a local.
(5) Locals desiring to present a wage scale to employers must first submit a copy
of same to its joint council.
(6) After local unions within the jurisdiction of a joint council affiliate with it,
as directed by the International constitution, they are directed to comply with the laws
of the joint council as well as to obey its orders.
(7) When two local unions have a dispute concerning their jurisdiction, they are
required to submit said controversy for determination to the joint council; a party
aggrieved by the decision of the joint council may appeal to the International general
president.
(8) Although not done pursuant to a constitutional provision, it is significant, in
the present case, that Joint Council on March 5, 1954, saw fit to appoint International
Representative Sweeney "to coordinate the activities of all departments of the Joint
Council and its organizers." This actually constituted, as the record demonstrates,
an attempt to set up Sweeney as de facto secretary of Joint Council in the place of
Ward Graham, who was substantially relieved of his duties, although not expressly so.
I find, in view of the foregoing, that the Joint Council herein, whose membership-
is composed solely of Teamsters locals throughout the State of Oregon and in 5i
counties in the State of Washington, constitutes an integral part of the Teamsters'
multistate enterprise, is engaged in commerce; and that it would • effectuate ithe
purposes of the Act to assert jurisdiction over its operations.
Building Association contends that it has no connection with the International, and
it is true that there is no specific reference to it as such in the International constitution.,
However, as found, all of the stock in Building Association is owned by six Teamsters
locals which are very specifically, as set forth above, subject to the control of the
International. This control includes the right to appoint trustees over said locals.
If, as here, the International may appoint an International representative as a tem-
porary trustee to take charge of and control the affairs of a local union, and, as
demonstrated, these trusteeships can and do last for years, it logically follows
that by its demonstrated control over the locals, the International can readily
exert similar control over the Building Association, which is entirely owned and
controlled by said locals. See Thurston Motor Lines, Inc., 110 NLRB 748; and
Osceola Foods, Inc., 107 NLRB 161. Moreover, it is noteworthy in the present case
that Building Association has no office of its own and conducts its business operations
from the office of the Joint Council. I find, therefore, that Building Association is
• It becomes unnecessary to determine whether the operations of this multistate enter-
prise meet any of the other standards set forth in the Jonesboro decision. Similarly,
although it appears that none of the locals involved herein, when considered separately,
meet the direct outflow standards, I' deem it unnecessary to treat with this problem-in
view of,the foregoing findings
OREGON TEAMSTERS ' SECURITY PLAN OFFICE 1005
a salient and intrinsic part of the Teamsters organization and is engaged in interstate
commerce.
I further find that the facts present herein bring the case within the Board's recent
pronouncement as to the circumstances under which it will assert jurisdiction over
office buildings. In McKinney Avenue Really Company (City National Bank), 110
NLRB 547, the Board held that it would assert jurisdiction over an office building
operation only when the employer which owned or leased and which operated the
office building was itself otherwise engaged in interstate commerce, and also utilized
the building primarily for its own offices. In the present case, the office building is
owned by six locals of the Teamsters organization and is used exclusively, save for
Security Fund, for the use of its own offices by Teamsters locals which have been
found to be engaged in commerce. Indeed, as will appear below, Security Fund,
which is engaged in interstate commerce, is the operating mechanism for a number
of health and welfare trusts, at least one-half of whose trustees are appointed and
controlled by Teamsters locals. I find that it would effectuate the purposes of the
Act to assert jurisdiction over the operations of Building Association.
Turning to Security Fund, it is readily apparent that at least on one ground, it
falls within the purview of the formula laid down in the Jonesboro decision. In view
of the fact that Security Fund ships in excess of $2,000,000 per annum in funds to Cal-
ifornia, well in excess of the $50,000 per annum standard, it falls within the formula.
I deem it unnecessary to determine whether it meets any of the other standards pro-
mulgated by the Jonesboro decision. I find, therefore, and totally aside from the
fact that Section 302 of the Act already asserts Federal jurisdiction over such plans,
that Security Fund is engaged in commerce and that it would effectuate the purposes
of the Act to assert jurisdiction herein. United Marine Division, ILA v. Essex Trans-
portation Co., 216 F. 2d 410 (C. A. 3); Polish National Alliance v. N L. R. B., 322
U. S. 643, 648; N. L. R. B. v. Phoenix Mutual Life Ins. Co., 167 F. 2d 983 (C. A. 7),
cert. denied 335 U. S. 845; N. L. R. B. v. Tri-State Casualty Insurance Co., 188 F. 2d
50 (C. A. 10); Oklahoma State Union, et al., 92 NLRB 248; and Professional and
Business Men's Life Ins. Company, 108 NLRB 363.5
II. THE LABOR ORGANIZATIONS INVOLVED
I find that Local No. 223, Grocery, Meat, Motorcycle and Miscellaneous Drivers,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, in its capacity as a labor organization, and Office
Employees International Union, Local No. 11, are labor organizations admitting to
membership the employees of Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and background
This proceeding originally involved one relatively simple complaint in Case No.
36-CA-410. That complaint contained allegations of unlawful assistance and
domination of a labor organization by Security Fund and Local 206, in 1953. Hear-
ings were duly held in the matter on July 21 and 22, 1954, and were duly recessed to
August 17 in order to enable the General Counsel to more precisely identify the entity
known as Security Fund. During the recess substantially all of the more serious
conduct complained of by the General Counsel in the other cases took place, save
for one earlier discharge in June. This alleged conduct involved, inter alia, 5 dis-
charges among the 23 workers in the Teamsters Building in Portland, Oregon, for
union activity and/or honoring Board subpenas on July 21 and 22, 1954, interference
with the processes of the Board, and a refusal to bargain. These new allegations,
together with the original allegations, were ultimately litigated before me in hearings
held, as stated, from September 13 to 21, 1954.
Initially, a brief description of the situs of the alleged unfair labor practices may
be helpful. All of the, employees involved in this proceeding work in a small
Portland office building, known as the Teamsters Building. As heretofore set forth,
this building houses only organizations connected with the Teamsters organization,
specifically, a number of Teamsters locals, Joint Council, and Security Fund, at
G Although it would appear that Security Fund is in the insurance business as an agent
of Occidental Insurance Company because it is paid directly by Occidental to process and
pay claims under the insurance contracts between Security Fund'and Occidental, and
because traveling auditors for Occidental regularly audit the drafts and claims files in
Portland, I deem it unnecessary to pass upon whether this business arrangement per se
places,Security Fund in commerce
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least one-half of whose trustees are Teamsters designees and in some cases Teamsters
officials as well; in addition, desk or office space in the building was assigned to
John Sweeney, an International representative of Teamsters at the time material
herein. These various organizations employed a total of approximately 23 office
clericals and the 5 discharges alleged herein to be discriminatory were in that group.
Four of the discharges took place relatively close together in point of time; in fact,
two occurred on the same day, although carried out by different employers.
For some years, Local 11 had traditionally represented the office employees in
the various offices of the Teamsters Building, as they had the office employees of
other AFL affiliates in the area. Written contracts were first executed in 1952 and
expired in April of 1953. Negotiations early in 1953 between Local 11 and the
various Teamsters organizations in Portland made no progress, chiefly because of
a shifting of responsibility between International Representative Sweeney and Clyde
Crosby, then general secretary-treasurer of Local 162, president of the Building
Association, and recording secretary of Joint Council, whenever Secretary-Treasurer
James Beyer of Local 11 attempted to negotiate with one or the other.
Specifically, as Beyer credibly testified, Crosby, after originally delaying meet-
ings, at a later date informed Beyer, on the one hand, that the question of representa-
tion was an International problem and that International Representative Sweeney
would represent the various Teamsters organizations in collective bargaining. On
the other hand, Sweeney, when contacted by Beyer, informed him that it was a
local problem. Sweeney also raised the possibility that the office workers would
be taken into a Teamsters local, it being the Teamsters' policy to do so. It is fully
understandable therefore, in view of this shifting of responsibility, that negotia-
tions broke down early in July 1953. In fact, the building was picketed by Local
11 during a 2- to 3-week period late in July and early in August 1953, apparently
with little effect.
B. Case No. 36-CA-410
The gravamen of this complaint, the original one herein, is directed to conduct
taking place in 1953, allegedly violative of Section 8 (a) (1) and (2) of the Act.
Although reference is made to this conduct being instigated and directed by the
International , only Local 206 and Security Fund are named as Respondents. They
are alleged to have contributed support to, to have assisted, and in fact to have
dominated Local 223. It may be noted that as of approximately January 1, 1953,
Local 223 had no representation among the office employees of the Teamsters
Building. However, by July, and after the conduct detailed below, all but 2
or 3 of the approximately 23 girls in the building were initiated therein.
Turning first to Security Fund, the record demonstrates that Mary Ermence entered
the employ of Security Fund in 1950 as claims manager and was promoted to
the position of office manager in January 1953. There was no full-time paid
administrator of Security Fund in the picture until April 1, 1954, when William
Earhart was hired for that post. Prior thereto, various individuals, all connected
with Teamsters organizations in the building or in the area, served as administra-
tors or coadministrators on a part-time and apparently unpaid basis. The com-
plement of office personnel was 5 or 6 early in 1953, although it gradually increased
until, at the present time and particularly after the employment of Earhart, the
number is approximately 10. Prior to April 1, 1954, and the advent of Earhart,
Ermence hired and trained employees and also directed them in the performance
of their duties. She used the titles of office manager or director and signed official
correspondence in such a manner. I find, in view of the foregoing, that during
1953 and prior to April 1, 1954, Ermence was a supervisor within the meaning of
the Act .6
As heretofore found, Local 11 was the collective- bargaining representative of
the employees of Security Fund early in 1953 pursuant to a 1952 agreement which
expired on or about April 1, 1953, as the result of a notice to terminate from Local
11.7 Late in February or early in March 1953, International Representative Sweeney
O The subsequent discharge of Ermence on August 16, 1954, and the question of her,
supervisory status at that time, is treated below in the discussion relating to Case No.
36-CA-648.
7 Two contentions of Respondents may be disposed of at this point. They contend that
(1) Local 11 had theretofore enjoyed an unlawful degree,of union security, and that (2)
Local 11 unlawfully compelled its own office employees to belong to it. As to (1), this
contention, assuming it to be true, is no defense to subsequent unlawful conduct by any
of the Respondents herein. As to (2) the processes of the Board are available to litigate
this contention, if it be correct and meritorious.
OREGON TEAMSTERS' SECLTRITI PLAN OFFICE 1007
asked Ermence, as the latter testified, to ascertain whether the employees of Security
Fund wished to join a Teamsters organization. Sometime in April Ermence men-
tioned this talk to Clyde Crosby, an officer of Joint Council, president of Building
Association, and a trustee of certain of the trusts behind Security Fund. Crosby
assured her that it would be desirable for the office employees of Security Fund
to join a Teamsters organization. Thereupon, Ermence spoke to the group of office
workers under her supervision. She informed them that it would be a "good thing"
for them to join a Teamsters organization; that Local 11 would never be able to
negotiate another agreement with Security Fund; and that the Teamsters' officials
had said "they would give us possibly a pay raise and better working conditions."
During May 1953, Sweeney asked Ermence if she was prepared to distribute ap-
plications for membership in Teamsters and she agreed to do so. Either then
or at another talk around the same time, Sweeney informed her that membership
in Teamsters would result in pay raises and a 71/2-hour workday. Later in May,
Sweeney brought a group of applications to the Security Fund office, gave them
to Ermence, and told her to distribute them among the girls "she was sure of."
The applications bore both the name of the International and Local 223 in the
caption. Local 223, it may be noted, had not theretofore represented office workers
as such.
As a result, during the latter part of May and immediately after obtaining the ap-
plications, Ermence passed them out to a number of girls, all apparently employees of
Security Fund. She told the girls that these were applications to join Teamsters, to
sign them if they wished, and to return them to Ermence. A number of the girls
signed them, Ermence witnessed their signatures, and the applications were taken into
custody by Ermence. In fact, on June 1, Ermence personally signed an application
and had it witnessed by one of the girls in the Security Fund office. Ermence then put
the signed applications, of which six were introduced in evidence, into a folder. She
proceeded to Sweeney's office in the Teamsters Building, handed him the folder, and
stated, "Here are the applications." Sweeney accepted the folder and thanked Er-
mence. Sometime thereafter, the girls, including Ermence, were notified by Sweeney
to appear at an initiation meeting; it appears that other female employees of the build-
ing also were present. The group was initiated into the Teamsters organization in
the presence of Sweeney and Crosby.
The testimony of various of the employees in the Security Fund office supports that
of Ermence. Thus, Dorothy Carlisle, the widow of a former president of Teamsters
Local 162, was an employee of Security Fund until June 1953 when she was dis-
charged by Ermence. Carlisle credibly testified that approximately in March 1953,
Ermence spoke to the assembled employees of Security Fund at an office meeting and
stated that the Teamsters organization was considering establishing a local union to
take in the office workers in the building; that an agreement would be drawn up and
submitted to the employees; and that the employees would be given a chance to de-
cide whether or not they preferred to transfer from Local 11. Ermence further stated
on this occasion that, "If we knew which side our bread was buttered on, it would
behoove us to make the wise choice." This, I find, was manifestly a reference to the
fact that at least one-half of the trustees behind their employer, Security Fund, were
appointees of Teamsters and presumably Teamsters controlled, particularly in view of
the official connection of at least some with Teamsters organizations. Carlisle
testified that she never informed Ermence that she wished to join a Teamsters organ-
ization , that it was Ermence who introduced the topic, and that it was raised by
Ermence at two of the office meetings of Security Fund employees.
Similar support of the testimony of Ermence is furnished by Gloria Latham, who
worked for Security Fund from November 1951 until January 1954 and who did
join Local 223. She credibly testified that at an office meeting held early in May
1953, Ermence informed the assembled employees that the Teamsters organization
would offer them a program, and it was up to the employees to decide whether they
preferred a Teamsters union or Local 11. Ermence also stated that "if we knew what
side our bread was buttered on that we would join the Teamsters." One or two weeks
later, Ermence distributed Teamsters application blanks among the employees and
informed them that it was for them to decide. It appears that Ermence, on this
occasion , according to Latham's testimony on cross-examination, stated that the em-
ployees would sign the applications if they knew "what side our bread's buttered on."
I find here as well that this was a manifest reference to the economic power of Team-
sters over the employees of Security Fund.
Marian Henry, an employee of Security Fund from May 1952 until her discharge
on August 13, 1954, discussed hereinafter, further corroborated the testimony of Er-
mence . She credibly testified that in March 1953 she belonged to Local 11, but that
in April Ermence introduced her to the concept of Teamsters representation. Thus,
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ermence , on that occasion , summoned Henry to her desk , stated that they did not have
a satisfactory setup with Local 11, and asked how Henry felt about joining a Team-
sters union . Henry responded that this would defeat the purposes of collective
bargaining because the latter would be a "puppet union ." Ermence replied that the
Teamsters had been good to them and that they would enjoy many more benefits than
under Local 11. Henry then asked , "Is it a must that we join the Teamsters Union?"
Ermence merely smiled and shrugged her shoulders . Henry replied that she under-
stood the situation . I find , under the foregoing circumstances , that Ermence by her
conduct, in response to Henry's question , indicated that it was a "must." In the early
part of June , Ermence handed a Teamsters application blank to Henry , asking her to
fill it out and return it to Ermence if she wished to. Henry promptly obliged. Some
weeks thereafter, Henry was initiated into the Teamsters organization , after being
instructed earlier that day by Ermence that there would be a meeting and that she
"was requested to attend."
Moreover, even one witness called by Respondents, Patricia Schlaht, further cor-
roborated the testimony of Ermence. She admitted that she had been a dues-paying
member of Local 223 since July 1953; that Ermence on an unspecified occasion
prior to October 1953, but apparently during this period under consideration, had
called her in to her, Ermence's, office; and that Ermence then told her that the other
girls were joining Local 223 and that if they did "I want you to."
In appraising the foregoing conduct, I base no finding of an unfair labor practice
upon what Ermence may have been told by Sweeney or Crosby, those aspects of her
testimony being set forth to show how the Teamsters' campaign came about. The de-
cisive factor is that Ermence, clearly a representative of management, engaged in this
conduct. Nor is it of any import that Ermence may not have been personally over-
joyed at the prospect of having Teamsters as the collective-bargaining representative
of the employees of Security Fund. The simple answer is that Ermence was regarded,
and properly so, by the office employees of Security Fund as their supervisor and in
fact their only direct supervisor.
Sweeney testified that Ermence, in May 1953, had asked him for the Teamsters
application blanks, that he did not give her the blanks, that he did tell her to help
herself to a bunch of cards on his desk, and that she never furnished him with any
signed applications. However, the record supplies no logical motive for Ermence,
absent outside influence, to have attempted to swing employees from Local 11 to
Teamsters. Her testimony is supported by that of Virginia Wilson, former business
representative of Local 11 who, in April 1953, was told by Ermence that the girls had
been instructed not to join Local 11; moreover, Ermence, on this occasion, referred
Wilson to Sweeney. Likewise, Sweeney admitted handing out a Teamsters applica-
tion blank in May to Virginia Olstad, the telephone operator for Building Association,
as Olstad testified, telling her that all the girls in the building were joining Local 223.
In fact, Sweeney's own testimony in several instances demonstrates this; thus, for
example, in June 1953 at the initiation meeting, he informed the girls that there would
be an office workers local for Teamsters which would organize wherever it could in
the area and that he, Sweeney, was merely doing what he was being paid to do.
Respondents stress the fact that in August 1953 Ermence furnished an affidavit to
the General Counsel in connection with the original case, wherein she made some
statements of a more innocuous nature than her testimony herein and in part contrary
thereto. Ermence testified that she had deliberately withheld certain information
and shaded facts on the occasion of her affidavit because she feared the loss of
her position if she furnished an affidavit damaging to Teamsters , that she anticipated
that Sweeney would await her return from the local office of the General Counsel and
would inspect her copy of the affidavit, and that Sweeney did precisely that. She
further testified that she was determined not to perjure herself herein
I have given considerable thought to the question of the credibility of Ermence
who withstood an extensive cross-examination and impressed me as an honest and
forthright witness. I am impressed by the fact that her testimony is corroborated
by that of Carlisle and Latham both of whom were referred to in the affidavit; in this
respect, it is noteworthy that Carlisle had been discharged from Security Fund by
Ermence. Moreover , as noted , Ermence 's testimony herein attributes conduct to
Sweeney which was of a pattern with conduct which he admittedly engaged in with
at least one other building employee. In addition, it may be noted that the brief
of Security Fund concedes that there is evidence that Ermence "assisted" Local 223
prior to August 1, 1953. I have therefore credited the testimony of Ermence.
Ermence, the only full -time management representative then employed by Security
Fund , commenced and carried out a campaign to transfer the affiliation of the office
employees of Security Fund to Teamsters . I find that by the conduct of Ermence in
soliciting membership for Teamsters, passing out applications for membership therein,
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1009
picking up signed applications for membership , uttering thinly veiled threats of
economic reprisal for failure to sign up with Teamsters , and promising increased
benefits if the employees would affiliate with Teamsters, Respondent Security Fund,
also known as Security Plan Office, has contributed unlawful support to Teamsters and
Local 223 and has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Sec-
tion 8 (a) (1) and (2) thereof. N. L. R. B. v. Coca-Cola Bottling Co. of Stockton,
212F.2d465 (C.A.9).
The record does not warrant a finding that this conduct by Security Fund consti-
tutes domination of Local 223. In fact, it would appear far more likely that
Local 223 dominated Security Fund, in view of the fact that at least one-half of the
trustees of Security Fund are Teamsters appointees and that at least some are
Teamsters officials. Moreover, the record amply demonstrates the influence of
Teamsters over Security Fund, a not unlikely situation inasmuch as it is common
knowledge that a health and welfare plan is a benefit commonly sought by labor
organizations from employers who, in most cases, have not volunteered such
benefits.
Similarly, I see no merit to the contention of the General Counsel that a remedy
of disestablishment of Local 223 is in order. Contrary to his position, I see no reason
why Local 223 cannot represent Teamsters employees other than its own employees.
In addition, inasmuch as the conduct under consideration herein took place prior to
the appointment of Earhart as administrator of Security Fund, I find that he has
not engaged in these unfair labor practices, although, as will appear, the proposed
remedy will involve him. See N. L. R. B. v. Mastro Plastics Corp., 214 F. 2d 462
(C. A. 2); N. L. R. B. v. Thayer Co., 213 F. 2d 748 (C. A. 1); N. L. R. B. v. Poly-
nesian Arts, 209 F. 2d 846 (C. A. 6); Marathon Electric Mfg. Corp., 106 NLRB 1171;
Radio Industries, Inc., 101 NLRB 912; Knickerbocker Plastic Co., 96 NLRB 586;
Boss Overall Cleaners, 100 NLRB 1210, 1237; and Monolith Portland Cement Co.,
94 NLRB 1358.
Turning to Local 206, the facts are not intricate. June Cook, whose discharge is
hereinafter discussed, was 1 of 2 female clericals in the employ of Local 206. She
had been a member of Local 11 since 1947. Cook testified that in June 1953 Finan-
cial Secretary Jack Estabrook of Local 206 spoke to her and said that he was on the
spot because someone had informed International Representative Sweeney, who was
also trustee of Local 223, that Cook had refused to joint a Teamsters local. Cook
denied this, pointing out that some years before she had belonged to a Teamsters
organization in the area during a period of temporary employment and was on a
wtihdrawal card from that organization. Later that day, Estabrook brought applica-
tions for membership in Teamsters to the office; he gave 1 to Cook and 1 to the other
office clerical, a Mrs. Crosby who is the wife of Clyde Crosby. Estabrook stated
that if the girls had no objections they were to turn them in to Sweeney. Later
that day Cook turned in a completed application to Sweeney at a time when he was
in the company of Clyde Crosby.
Mrs. Crosby was not called as a witness herein and Crosby did not testify con-
cerning the incident. Estabrook substantially corroborated the testimony of Cook.
He testified that the applications had been given him by an officer of Local 223 and
that he had given the applications to his two office clericals. He allegedly informed
them that it was up to them to sign and that he did not care one way or the other.
In this last respect, his testimony differs somewhat from that of Cook, set forth above,
as well as from his subsequent testimony, fully understandable, that as a union official
he was always ready to sign up someone for the Teamsters organization and that he
would "go along with the rest of the boys in the Teamster Building any time." Here,
as elsewhere, the testimony of Cook, a straightforward witness, is credited. I find
that Financial Secretary Estabrook, as Cook testified, passed out Teamsters applica-
tion blanks to his two office employees and told them to sign if they had no objection.
I find that this statement, viewed in its proper perspective under the circumstances,
was tantamount to a direction from their employer to sign the cards.
The right of employees under Section 7 of the Act to join or assist labor organiza-
tions of their own choosing is effectively implemented by Section 8 (a) (1) and (2).
These provisions forbid employers from interfering with or supporting labor organiza-
tions of their employees. They also forbid the foisting of a labor organization of
the employer's choice upon employees who are not insensitive to the disadvantages
that may flow from the choice of a representative opposed by their employer. I find
that Local 206, as did Security Fund shortly before, has by the foregoing conduct
contributed assistance and support to Local 223, and has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of
the Act, thereby violating Section 8 (a) (1) and (2) thereof. See N. L. R. B. v.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coca-Cola Bottling Co. of Stockton, 212 F. 2d 465 (C. A. 9). As in the case' of
Security Fund , I find that this did not constitute domination of Local 223.
C. The discharges
1. Introduction; the 1954 organizational campaign
The remaining cases involve alleged unfair labor practices largely occurring during
a period of approximately 2 months in 1954. As stated, the major portion of these
allegations relates to a group of 5 discharges in the Teamsters Building, 4 of them
between July 29 and August 16, 1954. This latter group lends itself to initial
treatment and I shall proceed to consider their cases at this point.
As heretofore set forth, Local 11, the traditional bargaining representative for the
office employees of the Teamsters Building, was unable in 1953 to pin down a re-
sponsible official of the Teamsters to a bargaining session, let alone a new con-
tract, despite an unsuccessful strike during portions of July and August of that year.
Thereafter, many of the employees of the building signed up with Local 223 of
Teamsters and the circumstances, at least with respect to employer interference by
Security Fund and Local 206, have been set forth above.
In 1954, Local 11 again renewed its organizational efforts, its chief protagonist in
the building being Marian Henry, an office employee of Security Fund, who was
openly dismayed at the possibility of Local 223 becoming the bargaining representa-
tive of the building clericals. In June 1954, Henry, who had previously acted as
a spokesman for the office girls of Security Fund, visited the Portland office of the
Board to ascertain whether or not a representation election was in the offing for the
office clericals of the building. She apparently ascertained that no representation
petitions were in the picture and determined that a petition should be filed by
Local 11.
During the last week of June, she circulated among the 23 girls of the building
and obtained 8 signatures to a petition asking the Board to hold an election to de-
termine whether the employees wished to be represented by Local 223 of the
Teamsters or by Local 11. Thereafter, early in July, Henry obtained blank authoriza-
tion cards from Secretary-Treasurer James Beyer of Local 11 and also circulated them
throughout the building. During July, and prior to the first hearing herein on
July 21, 1954, she obtained 13 signed cards designating Local 11 as bargaining rep-
resentative, primarily from office employees of Security Fund. She also, during the
first 2 weeks of July, obtained dues for Local 11 from 14 employees in the building.
The original hearings in Case No. 36-CA-410, based upon charges filed by Local
11, were held on July 21 and 22. The General Counsel subpenaed six girls, all
office clericals in the Teamsters Building, to appear on July 21. All six appeared
on that date; they were Carol Wagner, Irene Manning, and the girls ultimately
discharged between July 29 and August 16 who are involved herein, namely, Virginia
Olstad, Irene Morcom Barnes, Marian Henry, and Mary Ermence. The General
Counsel, on July 21, then excused the first 2 of the 6, subject to later call, but
directed the other 4 to return to the hearing on July 22. The four girls duly
appeared at the hearing on that date. These four girls were subsequently discharged-
Olstad by Building Association on July 29, Barnes by Joint Council on August 13,8
and Marian Henry on August 13 and Mary Ermence on August 16, both by Security
Fund. These four discharges are taken up in that order .9
2. Virginia Olstad
The consolidated complaint in Cases Nos. 36-CA-637, 638, and 639 alleges, inter
alia, that Respondent Building Association discharged Olstad on July 29 because of
her activities in behalf of Local 11 and because she honored the subpena requiring
her presence on July 21 and 22 in Case No. 36-CA-410, thereby violating Section
8 (a) (1), (3), and (4) of the Act. The complaint further alleges that Respondent
International, by instructing Building Association to carry out the discharge of
Olstad, had violated the same sections of the Act and had thereby further contributed
unlawful support to Respondent Local 223 in the latter's capacity as a labor organiza-
tion, within the meaning of Section 8 (a) (1) and (2) of the Act.
81t is also alleged that Barnes was discriminated against by Building Association on
July 28 or 29 when she was deprived of certain part-time work she had performed for
that organization as well.
9 Two other girls were subpenaed to appear for the first time on July 22, namely, Anne
Foster and Patricia Schlaht. The former did not testify and the latter ultimately testi-
fied for Respondents on September 20.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1011
Virginia Olstad, the only full-time office employee of Building Association, was-
employed full-time as a telephone operator on the building switchboard which served
all the building offices, although some offices also had additional private lines. She
entered the employ of Building Association on February 9, 1953. During her
period of employment she received a $5-wage increase in August or September 1953
from Building Association President Crosby, who was her direct superior. Olstad,
as she testified, was one of the group who, at the request of Marian Henry, had
signed a petition for-' Local 11 in mid-July 1954. She was discharged on July 29,
effective July 30. Late in the afternoon of July 29, which was 7 days after these
hearings had recessed on July 22, Crosby approached the switchboard where Olstad'
was on duty, silently handed her an envelope, and left. Olstad opened the envelope
and discovered therein a letter signed by Crosby and addressed to her which, much
to her surprise, read as follows:
Please accept this notice as your termination of employment as of July 30,
1954.
You will find enclosed a check in the amount of $59.25 to cover this week's
salary and a check in the amount of $118.50 to cover two weeks notice.
Sincerely regret having to take this step but I consider it necessary . I would
be happy to discuss this further with you if you feel you wish to do so.
Later that afternoon, Olstad went to Crosby's office. There is a substantial con-
flict between Olstad's version of the ensuing conversation and that of Crosby. Not
only was Olstad a most impressive and straightforward witness but, as will appear
below, there are a number of major discrepancies in the versions of Respondents'
witnesses, including Crosby, which render their versions unworthy of credence.
Thus, Olstad testified and I find that she proceeded to Crosby's office on July 29 and,
her discharge letter being silent as to a reason, asked why she had been discharged.
Crosby replied that he did not wish to give her a reason as she might use it against
him; that she had been warned 30 days earlier by him to stay out of building politics;
that she had lost her "loyalty"; and that he was not dissatisfied with her work but
that several of the secretaries of the various locals had complained about her. He
offered finally to accept her resignation and to give her the best of recommendations.
It is noteworthy that Crosby, in his post as recording secretary of Joint Council,
similarly refused to give Irene Morcom Barnes the reason for her discharge on
August 13.
Crosby's version was that he had warned her 30 days earlier to operate the switch-
board so as to merit the confidence of building tenants and not to loiter on coffee
breaks; that he thereafter observed no improvement in her performance; and that he
decided on July 29 to discharge her, at which time he reminded her of their prior
talk and claimed that she had not complied with his recommendations.
Olstad credibly testified that there had in fact been a talk with Crosby approximately
30 days earlier but that it had not been on the matter referred to by him in his testi-
mony. It appears that a former office employee of Security Fund, Lucille Tombe,
had returned to work in the building as an employee of Local 206; that Crosby had
been instrumental in obtaining the position for her, apparently out of friendship; that
there had been bad feeling between Tombe and Mary Ermence, an employee of
Security Fund; that Ermence had, according to Crosby, started a silent treatment of
Tombe, and that Olstad was told by Crosby on this occasion to stay out of internal
politics in the building. She testified that no mention was made of her performance
of her duties on this earlier occasion and that Crosby had mentioned her talking to
employees during coffee breaks only on the occasion of her discharge. I find that
approximately 30 days prior to her discharge Crosby spoke to Olstad about the Tombe
matter; that he at no time prior to her discharge complained about the performance
of her duties and, specifically, that she had monitored calls; and that these complaints
were raised for the first time by Crosby on July 29 and only after Olstad sought him
out and persisted in obtaining the reason for her abrupt discharge.
It is ultimately certain alleged derelictions on the part of Olstad, namely misfeasance
and malfeasance of duty as a telephone operator, which Respondent basically advances
as a reason for her discharge. And it is precisely these reasons which are not only
demonstrably porous in nature but, in addition, with respect to which Crosby, testify-
ing in detail, and his supporting witnesses have substantially contradicted themselves.
The item stressed most herein by the witnesses for Respondents was the claim
that Olstad had "monitored" or listened in to a telephone call made to San Diego by
a building tenant , namely Secretary-Treasurer Estabrook of Local 162. Crosby, in
his capacity as president of the Building Association, was understandably concerned
over complaints relative to telephone service and was unhappy over the fact that
some tenants had installed private lines , he preferring that all calls be handled through
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the switchboard . He testified that Estabrook complained to him about Olstad shortly
before he , Crosby, had his talk with Olstad 30 days prior to her discharge ; that Esta-
brook informed him he had telephoned a number in San Diego ; that upon completion
of the call he, Estabrook , happened to pass the switchboard ; and that Olstad promptly
commented that the recipient of the call , Poteet, was a pleasant person . Estabrook
allegedly expressed surprise over the fact that Olstad was familiar with the identity
of the person he had called . Crosby testified that he never raised this matter with
Olstad because he felt that she would deny it; nevertheless , he allegedly did com-
municate with a representative of the telephone company and made inquiries concern-
ing the monitoring of calls and methods of detecting this practice.
(1) However, the testimony of Estabrook , the complainant in the matter, places
the call at a far earlier date . While he did corroborate Crosby to the extent that he
allegedly believed his San Diego call had been monitored , his other testimony does
not support that of Crosby. It will be recalled that Olstad entered the employ of
Building Association on February 9, 1953 , almost Ph years before her discharge.
Estabrook testified , contrary to Crosby, that his complaint about the San Diego call
was one of several he had made to Crosby during a 30- to 60-day period which he
placed as not "too long after Mrs . Olstad came to work," and also shortly after
Olstad came to work for the building.
Estabrook also testified that it was as, a result of this San Diego call and several
similar incidents not explained herein that he allegedly determined to install a private
phone in his office ; that he did so after the San Diego incident; and that he installed it
"at least six months" prior to the date of his testimony herein on September 16.
Thus, Estabrook has variously placed the date of his complaint to Crosby sometime
its 1953 , also no later than mid-March 1954 but apparently earlier , and in either event
long before Crosby claimed that he received the complaint.
In view of the fact that Olstad had been in the employ of Building Association
for almost 11/2 years , it is clear and I find that this incident , even on the basis of Esta-
brook's version , was an ancient matter which took place long before the discharge
of Olstad and long before the talk between Crosby and Olstad late in June which,
in any event , dealt with other matters , and that there was no subsequent complaint
of this type from Estabrook to Crosby.
(2) But there is a more basic flaw in Estabrook 's testimony concerning the San
Diego incident . His testimony would indicate that he placed a call to the home tele-
phone number of a Teamsters representative in San Diego , Poteet, and that Olstad
could not possibly have been familiar with the number . The credited testimony of
Olstad effectively disproves this claim . She testified that she had in fact on many
occasions asked Estabrook whether Poteet was a pleasant person because, as Estabrook
well knew, she was interested in locating similar employment in San Diego and that
she asked Estabrook if Poteet had a switchboard and, if not , would Estabrook per-
suade him to install one there . In fact , she discussed Poteet with Estabrook not
once but rather once a week from early spring of 1954 until the time of her discharge.
She further testified , and I find , that Estabrook was the only person in the build-
ing who placed calls to San Diego and that she, in behalf of Estabrook , had placed
person-to-person calls for Poteet in San Diego on many occasions . It would be per-
fectly understandable for a switchboard operator to be familiar with a telephone num-
ber regularly called out of town even on the basis of a station -to-station call. More-
over, Olstad , as elsewhere , was an impressive witness. The means for contradicting
her testimony concerning these numerous out-of-town calls to San Diego, namely,
telephone company records of long-distance calls, was available but was not utilized,
despite the fact that Crosby allegedly did not hesitate to confer with a telephone com-
pany representative when he investigated the complaint about monitoring of calls.
In sum , the facts do not bear out this complaint by Respondents . Not only was the
matter a relatively ancient one , but there is no evidence of any warnings given to
Olstad because of her alleged derelictions in servicing the calls of Estabrook. This
is in strong contrast to the fact that Crosby , on his own testimony , saw fit to allegedly
warn Olstad about so slight a matter as speaking to another employee although Olstad
apparently had not been an offender in that respect . I find that there is no substance
to this claim by Estabrook and Crosby concerning Olstad.
Respondent adduced testimony concerning Oldstad's alleged dereliction of duty in
handling telephone calls made by Secretary -Treasurer Thomas Malloy of Teamsters
Local 255 which is not directly involved herein.., According to Malloy, he was,dis-
connected on three separate occasions while speaking on the telephone at 5:30 p: m.,
the hour that the building and the switchboard normally close . On either the second
or third of these occasions , which he placed as occurring 6 months prior to the date
of his testimony herein on September 20, 1954 , namely on or about March 20, he
complained to Olstad who asked him whether he had placed or received the call.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1013
Malloy did not recall his answer at the time but did recall that Olstad replied that she
could not possibly have disconnected him. Malloy also testified that he suspected
Olstad had been listening in to his calls on various occasions , the dates of which he
did not furnish, because he heard a clicking noise while he was talking on the line.
There are a number of factors which render this testimony singularly unimpressive.
(1) The time that Malloy discussed the matter with Olstad, on the face of his own
testimony, was approximately mid-March long before her discharge and well before
the conversation that Crosby held with her approximately 30 days before her dis-
charge.
(2) It does not appear from the record that Malloy considered the matter of suf-
ficient weight to bring to the attention of the building management. He testified that
he had not discussed his suspicion that Olstad was listening in on his calls, in view of
the clicking noise he heard, with Olstad or Crosby. Malloy did not specifically testify
that he did not complain to Crosby concerning those times that he was cut off, but
the testimony of Crosby discloses that Malloy did not. Crosby was asked to enumer-
ate those who had complained to him about Olstad's work and he proceeded to name
several people but did not include Malloy.
(3) The testimony of Olstad discloses that she was devoid of fault on the occasion
that Malloy complained about being cut off and moreover that she then explained
the matter to him. Thus, on the indicated occasion, Malloy did appear at the switch-
board and complained about being cut off. Olstad ascertained from him that he had
made this call and reminded him that the switchboard was an automatic one; that
Malloy, by dialing the numeral 9, was automatically given an outside line; that by
dialing 9 Malloy, the caller, was automatically connected with the telephone equip-
ment downtown; and that she, Olstad, used no plugs in completing such a call and in
fact had no control over it. She further informed Malloy, in conclusion, that he was
perforce disconnected on the other end of the call. This talk, it may be noted, took
place in the presence of Malloy's secretary who happened to be standing near the
switchboard, but who did not testify herein. Upon receiving this explanation Malloy
made no further comment and left the scene.
(4) As to the clicking noises constituting evidence of the monitoring of calls, the
uncontroverted and credited testimony of Olstad discloses quite the contrary. She
testified that the building equipment is automatic; that when an incoming call is re-
ceived, the operator must test to see whether the called party is talking on a line; that
the test is made by touching the board in the proper hole with the tip of the operator's
cord; that if the party is talking the act of touching with the cord causes a clicking
noise; and that if the party is not talking there is no clicking noise and the operator
then knows that the line is open and plugs it in.
It is clear and I find that Olstad's conduct in these situations did not constitute the
monitoring of calls as Respondents contend. Moreover, the true explanation of the
situation was presumably within the knowledge of Crosby who, as he testified, had
seen fit to contact the telephone company at the time of the San Diego incident and
had received an explanation of the operation of a switchboard. I find, in view of the
foregoing, that there is no substance to Respondents' allegations insofar as they relate
to this Malloy incident.
The next complaint concerning Olstad's performance of her duties was made by Jim
Haggin , secretary of Teamsters Local 281. According to Crosby, Haggin expressed
general dissatisfaction with Olstad, stating that he believed she was listening in on
telephone conversations. Haggin did not furnish Crosby with any specific instances,
merely explaining his objections to Olstad and stating that he would install a private
phone if conditions did not improve. The testimony of Crosby, although vague in
this respect as in others, apparently attributes but 1 complaint to Haggin and this,
together with complaints from others, allegedly was received from 4 to 6 weeks prior
to his, Crosby's, testimony herein on September 15. Crosby also testified that "It could
have been a couple months ago. I don't know." This, as is apparent, embraces a
period starting 2 weeks prior to Olstad's discharge and ending 2 weeks after her dis-
charge, in mid-August.
Haggin, however, supplied considerable more detail in his testimony. He testified
herein on September 20 that he complained to Crosby 2 or 3 times in mid-summer of
1954 and that it might have been in June; that of 3 complaints, the last 2 were about
2 weeks apart and the last 1 about 1 week before Olstad's discharge; and that the
first complaint was about 2 months before the last 2. His testimony would place the
complaints as starting over 2 months prior to her discharge, sometime in May, and
ending approximately July 22. Olstad denied that she had ever monitored any phone
conversations of Haggin or of anyone else. Aside from the inconsistencies between
Haggin's and Crosby's testimony herein, there are a number of factors which render
Haggin's purported dissatisfaction with Olstad unimpressive:
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Initially, the testimony of Haggin was vague and self-contradictory. In his
direct examination he testified that on the first occasion he heard Olstad talking over
the public address system and that on the second and third occasions he heard her
talking to someone . On cross-examination he testified that he was able to identify her
voice only on the third occasion.
(2) As indicated , it was Olstad 's job to page people and to make announcements
over a public address system whose only microphone was located on a shelf im-
mediately adjacent to the switchboard . Olstad, as she testified , kept her headset on
while making announcements . According to Haggin , he had placed a long-distance
call to Seattle and heard Olstad speaking over the public address system . He claimed
that he heard her voice speaking into the mike and not the reproduction of her voice
over the several outlets located throughout the building . Just how he was able to
completely sever her spoken words from her reproduced words, and in fact completely
eliminate the latter , he did not explain.
(3) Moreover , with respect to the long -distance call, it is common knowledge that
an operator in placing a long-distance call retains an open key until such time as she
has completed the call and, if necessary, reached the proper party. In fact , Crosby,
at one point in his testimony , indicated that he was aware of this necessary practice.
Thus, it would seem quite appropriate for Olstad , in placing a Seattle call for Haggin,
to have kept a key open until that time, and, if an announcement was needed , to have
proceeded to make it.
(4) This brings up Olstad's uncontroverted and credited testimony that if she in
fact had made an announcement in her customary loud voice over the system while
Haggin was on the line, with the key open, the result would have been such as to
shake his teeth rather than to permit him to sit still and overhear it.
(5) It is also common knowledge that a telephone operator on an automatic
switchboard can overhear a conversation , if she wishes , without the parties being
aware of any outside noise or of the fact that she is listening in . Assuming that
Haggin in fact did overhear Olstad talking while he was engaged in two local calls, the
very fact that she was engaged in a conversation would tend to refute his claim
that she was eavesdropping.
(6) Finally, neither Haggin nor Crosby saw fit to raise any of these matters with
Olstad , which is indicative of the lack of gravity they attached to the situation.
The remaining source of displeasure with Olstad , concerning which evidence was
adduced, was Reg Mikesell , president of Joint Council at the time material herein and
secretary -treasurer of Local 501 of Vancouver , Washington . Mikesell was 1 of those
identified by Crosby as having complained about Olstad at a time variously estimated
by Crosby as being 4 to 6 weeks or 2 months prior to September 15, 1954, this
constituting a period starting 2 weeks before and ending 2 weeks after Olstad's dis-
charge on July 29, 1954. He also testified that Mikesell complained that Olstad
was listening in to calls and that he complained twice. Crosby placed the time as
subsequent to the conversation held between Crosby and Olstad 1 month prior to
her discharge , but before the actual discharge . According to Crosby , Mikesell so
firmly believed that his calls were being monitored that it was his practice, when
calling his office from the outside through the board , to ask the party taking the call
to call back on his, Mikesell 's, private line . Just why Mikesell did not call on the
private line in the first place is not disclosed.
Here as elsewhere Respondents ' contentions are not impressive for, as will appear,
when consideration is given to Mikesell 's basis for concluding that Oldstad was
monitoring his calls, one is almost at an utter loss to comprehend how a rational
person, not motivated by discriminatory factors, could have come to the conclusion
that Mikesell did.
(1) Thus, according to Mikesell, Olstad displayed familiarity with a complication
that arose between Local 501 in Vancouver and Local 305 in Portland . Although
both locals had similar contracts covering the milk drivers that constituted their
membership , the contract for Local 305 in Portland called for a starting hour of
6 a. in., whereas the contract for Local 305 in Vancouver called for a starting hour of
7 a. m. The complicating factor was that Portland drivers in Local 305 sometimes
did work in Vancouver . As a result Mikesell had instructed Business Agent Olson
not to make deliveries in Vancouver before 7 a. m.
In what manner the foregoing background is directly germane to Olstad's conduct,
set forth below, is not definitively disclosed by the testimony of Mikesell . However,
he did testify that Olstad asked him one day what was the matter with Olson because
the drivers were angry with him . Mikesell promptly concluded , on the basis of this
query from Olstad, that Olstad had heard of the difficulty involving the two locals,
or the resentment at Olson , by listening in to his, Mikesell 's, telephone conversations.
Just how he arrived at this conclusion is not disclosed ; moreover, his testimony
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1015
supplies no logical basis for his having come to this conclusion . Olstad testified,
on the other hand , that a girl friend of hers happens to have the good fortune to be
married to a man in the dairy industry ; that this friend of hers, presumably repeating
information gleaned from her husband , made derogatory remarks about some osten-
sibly unethical conduct by a Teamsters representative in Vancouver to Olstad ; and the
latter, in turn , attempted to defend her indirect employer and informed her friend
that she doubted whether Mikesell knew of this conduct , the precise nature of which
does not appear in the record.
Olstad testified that she then spoke to Milkesell on the occasion he referred to,
told him of the information she had received from her friend , and identified the
source of her information . She further testified that she asked Mikesell for some
information on the matter because , as she told him, she had been under the impres-
sion that the Teamsters organization did not carry on that type of "tactics" any
longer. Mikesell later testified only that he did not "remember" that Olstad gave
him the source of her information . I find that Olstad , an impressive witness here as
elsewhere , did so inform Mikesell . I further find that this incident does not on its
face remotely constitute evidence of monitoring by Olstad . The fact is that she
heard of certain events and mentioned them to a Teamsters official . Whether she
was improperly forward by so taking the initiative is immaterial herein because
Respondent made and makes no issue of it . Finally, even Mikesell conceded that
Olstad might have learned this information elsewhere.
(2) Even more impressive herein is the actual timing of the incident . Crosby, as
noted , portrayed Olstad 's alleged derelictions as taking place a matter of weeks before
her discharge , and, in fact , subsequent to-an alleged warning he gave her about her
work 1 month prior to her discharge . Mikesell , however , testified that his conversa-
tion with Olstad took place in the fall of 1953; this was almost 1 year before she
was discharged . If Mikesell mentioned the incident to Crosby at all, presumably he
would have done so soon thereafter, although it does not appear from his own testi-
mony that he ever mentioned it to Crosby . Significantly , Olstad got a raise in pay
in August or September 1953. I find that this incident , as testified to by Olstad,
took place in the fall of 1953 , long before the discharge of Olstad , and that there is
no substance to Respondents ' claim that the incident played a part in the determina-
tion to terminate Olstad.
Conclusions
It has been demonstrated that the various episodes advanced by Respondents as
evidence that Olstad engaged in improper activities as an employee are contrary to
the fact , not substantiated , fall of their own weight , or are singularly trivial. I find
that they were not the true reasons for her discharge . As for the other factors relied
upon by the General Counsel , the record demonstrates that the evidence heavily
preponderates in favor of his position herein.
(1) As stated , Olstad was one of those who signed a petition for Local 11, in
mid-July 1954.
(2) Olstad was 1 of 4 female employees under subpena to appear on July 21 and
recalled on July 22 in Case No. 36-CA-410, the complaint in which was based upon
charges filed by Local 11 . These charges resulted , as found , from the organiza-
tional activities of Local 11 in 1954 and the rival activity of Teamsters Local 223.
As will appear , the reasons advanced in the cases of the other three women, who were
discharged by various Teamsters organizations and Security Fund , are as devoid of
substance as those in the case of Olstad . And, although different reasons are ad-
vanced in each case , there is 1 common denominator in the cases of all 4 , namely,
these were the only 4 girls under subpena to appear in behalf of the General Counsel
at this hearing both on July 21 and 22 in support of the General Counsel 's complaint
which was based upon charges filed by Local 11.
( 3) Olstad was discharged after almost 11/2 years in Respondent's employ during
which she had received a wage increase.
(4) Crosby, who conceded that she had been an excellent operator technically,
save for her alleged derelictions and was willing to give her a recommendation,
nevertheless , was unwilling to give her the reasons for her discharge.
(5) Crosby never warned Olstad concerning any of the alleged derelictions he
raised herein , which , moreover , were demonstrated to have no merit.
(6) The record demonstrates that counsel for Building Association sought, on
July 21 , pursuant to a request from International Representative Sweeney to persuade
Olstad not to appear at the hearing , pending his attempt to get her temporarily
excused in order that the switchboard be manned until such time as Olstad was
actually needed to testify . She later telephoned Counsel Landye ' to the effect that
379288-56-vol 113-65
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
she had consulted with her own attorney, although she had not, who advised her to
honor the subpena'requiring her appearance at 10 a. in. on July 21. Sweeney was
promptly advised of this conversation by Landye. Moreover, later that day, after
the conclusion of the,hearing, Sweeney commented to Olstad that he had tried "to
get her off the hook" but that she would not return to work. Olstad replied that
she had enjoyed the proceedings so much that she did not want to leave them.ia
Just how this appearance at the hearing was viewed by officials of the various
Respondents was well indicated by the credited testimony of Mary _Ermence, an
employee of Security Fund, whose discharge is hereinafter discussed. Thus, on
July 22, her superior, Earhart, in commenting, on Marian Henry, another Security
Fund employee, who appeared at the hearing on July 22, pointed out that Henry
had been under subpena and had talked with the General Counsel's representative
and the "enemy." While Earhart's statements are not binding upon Building Asso-
ciation , which knew she was under subpena, they illustrate how the presence of the
four girls on July 22, in aid of the case brought by the arch-rival of Teamsters,
Local 11, was regarded. •
I find in view of the foregoing considerations that the evidence heavily pre-
ponderates in favor of the position of the General Counsel herein. I find that
Building Association, discharged Olstad on July 29, 1 week after she had honored a
Board subpena to appear at this hearing on July 22 in support of a case initiated by
Local 11. I find that Building Association thereby discriminated with respect to the
hire and tenure of her employment in order to encourage membership in Teamsters
and discourage membership in Local 11, thereby interfering with, restraining, and
coercing employees in the- exercise of the rights guaranteed under Section 7 of the
Act and violating Section 8 (a), (1) and (3) thereof.
The complaint also'alleges that this discharge was violative of Section 8 (a) (4)
of the Act. Several of Respondents' briefs stress the fact that Section 8 (a) (4)
spells, outi'a violation where an employee has "given testimony under this Act,"
whereas Olstad and the other three employees had merely honored subpenas and
appeared at the hearing.on July 22. It is clear, however, that their presencefat the
hearing was commanded by the General Counsel as a preliminary, to their ultimately
testifying at an undetermined date or hour; this is underscored by the fact, as the
record demonstrates, that the early days of this hearing were unexpectedly devoted
to procedural matters and that all four girls later did testify, although after their
discharges.
'The Board's administrative process must be protected by removing the impediment
of employee fear of reprisal because one has furnished evidence which the Board
requires in order to fulfill the determinations entrusted to it by, Congress. The
objectives of the Act would be thwarted if the employer could impose such restraints
upon the right of an employee to appear and testify. It is mere sophistry to state
that an employee is protected because he actually gave testimony at a Board pro-
ceeding, but is not protected because he honored a subpena, appeared at the hearing,
and was discharged before he had an opportunity to testify. The invasion of the
employee's rights and impairment of the administrative process, in my view, is all
the greater in the latter instance.
I find, therefore, that by the discharge of Olstad, Building Association has also
engaged in conduct violative of Section 8 (a) (4) of the Act. See N. L. R. B. v.
Fulton Bag & Cotton Mills, 180 F. 2d 68 (C. A. 10); Pacific Intermountain Express
Company, 110 NLRB 96; Kanmak Mills, Inc., Kulpmont Manufacturing Company,
Inc., 93 NLRB 490, 493; South Jersey Coach Lines, 92 NLRB 791; and Briggs
Manufacturing Company, 75 NLRB 569, 570.
The consolidated complaint in Cases Nos. 36-CA-637, 638, and 639, further
alleges that the discharge of Olstad by Building Association was carried out pursuant
to instructions from Respondent International and that the International has as a
result also violated Section 8 (a) (1), (2), (3), and (4) of the Act. As I construe
the complaint and the evidence, the General Counsel is proceeding on the theory
that the liability of the International results from the fact that International Repre-
sentative Sweeney -brought about the discharge of Olstad as part of a plan to wipe
out support of Local 11 in the building as well as to; prevent hostile testimony in
these hearings. While there is evidence that Sweeney was actively engaged in pro-
moting the interests of Teamsters Local 223 and was opposed to the representation of
10The complaint in Case No 36-CA-648 alleges alleged unlawful attempts by-Sweeney
to dissuade employees from testifying, this allegation is treated hereinafter - At this point
it is found, however, that although counsel for the Building Association, James Landye,
acted as Sweeny's agent on this occasion, nevertheless I see nothing improper in his,
Landye's, conduct.
. OREGON TEAMSTERS' SECURITY PLAN OFFICE 1017
employees by Local 11, I do not believe that the record will support a finding that
Sweeney, as an agent of the International, directed, authorized, or brought about
Olstad's discharge. The facts herein are equally susceptible of the explanation that
the discharge of Olstad was carried out by Crosby independently of the instructions
by Sweeney, although presumably not contrary to his wishes.
The-General Counsel has not argued herein that the International is responsible
'for the acts of its subordinate organizations absent any direct evidence of authoriza-
tion or ratification. See United Mine Workers v. Coronado Coal Co., 259 U. S. 344.
While a good argument could be made in support of this proposition, inasmuch as
the facts present herein demonstrate a greater degree of International control over
its subordinate - organizations than was present in the above-cited case, and the
record also demonstrates more active participation by the agent of the International
in the affairs of Teamsters subordinate organizations in the Teamsters Building than
would accompany mere organizational efforts, I do not deem this issue of Inter-
national responsibility, per se, for the acts of its subordinates, to have been litigated
before me. Accordingly I shall recommend that this allegation of the complaint
against the International be dismissed.
3. Irene Morcom Barnes
The case of Barnes actually involves 2 acts of alleged discrimination against her,
both carried out by Crosby in 2 of his 3 roles herein, namely as president of the
Building Association and as secretary of Joint Council. The complaint in Cases
Nos. 36-CA-637, 638, and 639 alleges that Building Association on July 29, 1954,
relieved Barnes of certain part-time duties previously performed by her. The
complaint in Case No. 36-CA-647 alleges that Joint Council, on August 13, dis-
charged Barnes from her full-time position. Both complaints also attribute re-
sponsibility for the discharge and loss of work to the International on the theory
that the action was taken pursuant to instructions from the- International.
Barnes entered the employ of Joint Council in April 1953 and was one of several
full-time office clericals in its employ. Her primary duties, initially, were as sec-
retary to Ward Graham, then secretary-treasurer of Joint Council. Barnes also was
retained on or about the same date as a part-time -bookkeeper for Building As-
sociation For this she was initially paid $70 weekly by Joint Council and $5
from Building Association. In the fall of 1953, she received a.$5-wage increase
from Joint Council and another 11/z months later, this making a total of $80. Sev-
eral weeks later her pay from Building Association was raised to $10 weekly.
The record demonstrates that Barnes was a supporter of Local 11.- Late in June
or early in July. 1954, she signed the petition circulated by employee Marian Henry
of Security Fund urging the Board to conduct an election and ascertain whether the
employees of the Teamsters Building desired representation by Local 11 or by
Teamsters Local 223. During July she also signed a card designating Local 11 as
her bargaining representative. Barnes was 1 of 6 girls under subpena by the Gen-
eral Counsel on July 21 who attended the initial hearings herein and was 1 of 4,
including Olstad whose discharge by Building Association has previously been found
to be discriminatory, who were directed to return on July 22 and did so. As in the
case of Olstad, events affecting her tenure of employment happened rapidly there-
after.
On July 28 or 29, 1954, Crosby, acting in his capacity as president of the Build-
ing Association, relieved Barnes of her duties on the Building Association books,
giving her no reason. As demonstrated, this was either the same day or the day
before the discharge of- Olstad by Crosby, who similarly furnished Olstad no reason.
On the following day, Crosby notified Barnes that she would no longer relieve the
switchboard operator, Olstad, on the latter's coffee breaks. On August 13, Crosby,
acting in his capacity as recording secretary of Joint Council and in behalf of its ex-
ecutive board, informed Barnes that she was discharged Crosby refused to give
her a reason and admitted herein that he then stated he expected her to file charges
with the Board.ll
The defense of Joint Council and Building Association went into great detail to
establish that the discharge of Barnes resulted from her failure to follow a proce-
dure established by Joint Council early in March 1954. Similarly, Crosby testi-
fied that he previously took away Barnes' work on the Building Association books
"There is a conflict between Barnes and Crosby as to whether Crosby, on this occasion,
told Barnes, as she testified, that she would discover the reason for her discharge as the
other girls did. Phyllis Dietrich, her coworker, supports Crosby in this respect. There is
no conflict, however, over the fact that : he refused to give Barnes a reason for the
discharge. , , I ,
1018 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
because she had not followed these procedures on Joint Council work and that as
a result he lost confidence in her. Some explanation of this procedure may be
of assistance in evaluating subsequent events.
The record amply demonstrates that to some extent Barnes was caught in the
middle of an intraunion battle for power, although as will appear this constituted
a pretext for her discharge. Ward Graham, for'whom Barnes primarily worked as
secretary,ehad been secretary-treasurer of Joint Council from February 1953 until
August 20, 1954. However, some months before, he had lost much of his power
in the affairs of Joint Council and this power in turn had fallen upon Crosby and
International Representative John Sweeney. On or about March 5, 1954, Graham
was relegated to the inferior post of secretary-treasurer of Teamsters Local 324 in
Salem, Oregon. Although he retained his post as secretary-treasurer of Joint Council,
he retained little if any influence in the affairs of that organization, but did appear in
the Portland office 1 or 2 times weekly.
On March 5, 1954, the executive board of Joint Council, consisting of President
Mikesell, Recording Secretary Crosby, Trustee Estabrook, and one other, passed
a resolution which withdrew the prerogative of its secretary, namely Graham, to
dictate policy. In addition to naming John Sweeney as trustee of Taxicab Drivers
Local No. 281, not involved herein, the resolution designated Sweeney "to coordinate
the activities of all departments of the Joint Council and its organizers." Stated
otherwise, as Respondents in effect contend, Sweeney took over the duties of Graham,
although allegedly unwillingly, and was designated to handle and process matters
coming before the Joint Council. Graham, however, was not entirely out of the
picture. It is against this background that Respondents contend Barnes became
an unsatisfactory employee, demonstrating loyalty primarily to Graham, not comply-
ing with instructions about the delivery of mail to Sweeney, and was discharged
for that reason.iz
The gravamen of Joint Council's difficulty with Barnes was its purported dissatis-
faction with the handling of mail addressed to the Joint Council during the period
from March 5, 1954, until the discharge of Barnes on Augut 13, over 5 months later.
It was contended that Joint Council set up a procedure which; had it been followed
by Barnes, would have resulted in prompt processing of mail. However, an analysis
of the basic contentions of Respondents discloses their lack of merit.
(1) Barnes credibly testified that her instructions were that mail addressed to
the Joint Council, other than, personal mail addressed to Graham, was to be turned
over to Sweeney for handling on those days when Graham was not in Portland, name-
ly 3 or 4 days a week. The testimony of Joint Council President Mikesell, in at least
one instance, agreed with that of Barnes. He allegedly informed Barnes that
Graham should get the mail when in Portland, but otherwise that Sweeney should;
it may be noted that Mikesell, his term as president ended, replaced Graham on
August 25 as secretary-treasurer of Joint Council, Graham having resigned some
days earlier. Crosby gave conflicting versions on the matter, testifying at one
point that Barnes was directed to route all mail across Sweeney's desk, under all
circumstances, but elsewhere testifying that if Graham was in the office he was
to get the mail. In fact, Crosby allegedly admitted to Graham that the latter
procedure was a desirable one.
(2) Sweeney testified that from March 5 through the discharge of Barnes on
August 13, not a single piece of mail for the Joint Council was turned over to him.
This I deem fantastic, irrespective of whether the mail was light, as Barnes testified,
or, as Mikesell testified, heavy because the operations of Joint Council were big
business. This serves only to highlight Mikesell's testimony that he concluded,
within several weeks after March 8, that Barnes was secretive, was not carrying out
orders, and that he therefore took up the matter with her on a large number of
occasions. If the operation were of the size portrayed by Mikesell, and, bearing
33 Some testimony was developed to the effect that Barnes, while relieving on the switch-
board once told another employee that she had listened in on a telephone conversation
and that this was reported to Crosby shortly before her discharge, although the incident
occurred many months before her discharge The record amply demonstrates, however,
that Barnes was not discharged for that reason by Respondents and in fact it was not
mentioned to her or taken up by the executive committee of Joint Council. Crosby in
his testimony originally gave only the reason described above, and later, as an after-
thought, did bring up this other matter, saying that he brought it up unwillingly. How-
ever, he displayed no such reluctance in bringing up a similar allegation when testifying
about the discharge of Olstad. Hence. I deem it unnecessary to resolve the conflict herein
as to whether Barnes did or did not listen in to a particular telephone conversation some
months prior to her discharge.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1019
in mind Sweeney's foregoing testimony that no mail was delivered or processed by
him, one could only conclude that the organization became defunct within a matter
of weeks; this very definitely did not come to pass. Moreover, although the record
amply demonstrates that the officials of Joint Council, and particularly Crosby,
had no hesitancy in exchanging strong words with Graham about Joint Council
matters, neither Crosby nor Mikesell deemed this development so serious as to
take Graham to task during this entire period of over 5 months, despite the fact
that he, in practical effect, had been deposed from office by the executive commit-
tee of Joint Council which included both Crosby and Mikesell.
(3) Respondents have contended that Barnes was secreting Joint Council mail.
Barnes, it appears, had a key to Graham's desk and was under instructions from him
to place all personal mail addressed to him in the desk. However, all mail enter-
ing the building was processed initially by Virginia Olstad, the telephone operator,
and no one connected with the Joint Council deemed the mail situation to be so
grievous during this period of over 5 months as to inquire from Olstad concerning
the mysterious disappearance of all this heavy mail, as characterized by Mikesell.
Noteworthy herein is the fact that Edith Manning, an office employee of several
locals in the building who customarily received some of her employers' mail from
Barnes, testified that mail was frequently misdelivered in the building; that she
had heard one of her employers, Secretary Jim Haggin of Local 281, complain about
mail being late; but that she had never heard Barnes blamed for any delay in the
mail.
(4) As evidence of Barnes' alleged failure to follow this operating procedure,
Respondents offered in evidence some 23 letters and telegrams which Mikesell,
testifying on September 20, 1954, said he found in Graham's desk when he searched
the desk on Thursday evening, September 16, pursuant to a request from counsel
for the International made that same evening and while this hearing was in progress.
However, Crosby, testifying on September 15, claimed that this correspondence had
been found in the desk on August 20 or 21 by Mikesell and himself while jointly
looking through the desk.
Mikesell's further testimony herein is of interest. He testified that he was con-
firmed as secretary-treasurer of Joint Council on August 25 and left for a 2-week
vacation on September 1. He claimed that upon his election he did not take over
Graham's desk; that Graham turned over the key to him on August 25; that he,
Mikesell, opened the desk either then or prior to September 1 when he left on his
vacation; and that on leaving he, Mikesell, informed the officials of Joint Council
that the desk was available for use if anything was needed. He, Mikesell, how-
ever, did not look into the desk until September 16, when, as indicated above, he
was asked to do so, and when he allegedly found the exhibits offered herein. This
of course is irreconcilable with the testimony of Crosby that he and Mikesell went
through the desk together on August 20 or 21 when the two of them found it alleged-
ly full of Joint Council mail.
(5) Moreover, the record does not disclose that Graham improperly received
and handled the items in question. Some of these items were patently of no great
consequence and the record will not support a finding that this correspondence did
not properly come to Graham either in letters marked personal or on those days,
when he was in the office. Furthermore, testimony presented by witnesses for
Respondent that replies were not discovered does not constitute evidence that
replies were not made by Graham, in view of an incomplete search and in view of
the fact that Graham was never questioned by Respondents on the matter, although
available and, in fact, testifying for the General Counsel on other matters. Finally,
a number of the items were addressed to Graham by name and others were demon-
strably minor in significance.
Conclusions
As demonstrated, Respondents' reasons for the termination of Barnes are not im-
pressive. I am convinced, on this record, that were she as derelict in the perform-
ance of her duties as portrayed by the witnesses for Respondents, she would not
have been retained for over 5 months in the face of the much more direct treat-
ment handed out to her superior, Graham. I find that the reason advanced was
not the true reason for her discharge. While the record demonstrates that Barnes
may well have sympathized with Graham in his struggle for power, I am convinced
that absent other factors she would not have been discharged when she was. The
record does supply these other factors.
Thus, Sweeney considered Barnes as being pro-Graham and opposed to Sweeney
carrying on the functions of Graham. This situation existed at the time of the
initial hearings herein where Sweeney was allied with the various Respondents.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover Sweeney knew that Barnes was prepared to present testimony at the
hearing which he, Sweeney, considered to be damaging to Teamsters . Thus, on the
day before the opening of the hearings , Sweeney was advised by Counsel Landye,
who in turn had been so advised by Barnes , that Barnes intended to tell the truth
at the hearings and, more specifically , to testify that Sweeney had given her an,
application for Local 223 in 1953.
Sweeney promptly called in Barnes , as she testified , and informed her that he had'
not done so . She replied that he had also given one to Olstad , which he also dehied.
Sweeney denied herein that he had given an application to Barnes in 1953 ; however'
he did admit that he had given one to Olstad , as in fact the latter also testified.,
Accordingly I credit the testimony of Barnes . In any event , on either version„
Sweeney was on ample notice that Barnes would - be a witness whom he, Sweeney,'
deemed to be hostile to the various Respondents.
More significantly , the record fully demonstrates the close relationship and coop-
eration between Crosby, the employer of Barnes , and Sweeney. In fact , Respondents'
contentions concerning Barnes, treated above, demonstrate that Sweeney was in fre-
quent contact with Crosby ; relative to the manner in which Barnes allegedly per-,
formed her duties. ' Here as well , Administrator Earhart of Security Fund, who, as
appears below, was in close and frequent contact with Crosby, informed Mary'
Ermence of'Security Fund, prior to the discharge of Barnes , that Barnes was known
to be associated with Local 11. Although Earhart's statements are not binding,
upon Crosby, they are. significant in evaluating the views of the small group of men'
who, it is clear from this record, ran affairs in the Teamsters Buillding.
Also significant herein is the fact that Barnes was discharged in the same manner'
as Olstad , that is, without a reason being assigned by her employer, and that Crosby
played a leading role in the discriminatory discharge that very same day, August 13,'
of Marian Henry by Security Fund, discussed below. See E. Anthony & Sons, v.•
N. L. R. B., 163 F. 2d 22, 26, 27 (C. A., D. C.), cert. denied 322 U. S. 773. This
unexplained coincidence of time is indicative , not of a real coincidence but rather,.
in the , present circumstances and on this record, of a deliberate effort by management
in the building to "scotch the lawful measures of the employees before they had
progressed too far toward fruition ." N. L. R. B. v. Jamestown Sterling Corp., 211
F..2d 725, 726 (C. A. 2); and Sears Roebuck and Company, 110 NLRB 1162.
I find , in view of the foregoing , that Barnes , a Local 11 sympathizer, was dis-
charged by Respondent Joint Council on August 13, 1954', not for the reason'
advanced , but because she had identified herself on July 21 and 22, when under
subpena by the General Council, with the faction of building employees including
Olstad which was sympathetic to Local 11 and which was prepared , in support of its
charges, to present testimony hostile to the interests of Respondents . The existence
of a justifiable ground for discharge is no defense if it is not the moving cause.
Wells, Inc. v. N. L. R. B., 162 F. 2d 457, 460 (C. A. 9); and N. L. R. B. v. L.
Ronney & Sons Furniture Mfg. Co., 206 F. 2d 730, 737 (C. A. 9), cert. denied 346
U. S. 937. I further find that Respondent Building Association on July 28 or 29,
and for the same reasons, relieved Barnes of her duties with that organization, both
actions being taken by Crosby in his respective roles with the two organizations.
This conduct by Building Association and Joint Council patently was violative of
Section 8 (a) (1), (3), and (4) of the Act. N. L. R. B. v. A. B. Swinerton, Richard
Walberg and Howard Hassard; etc., 202 F. 2d 511 (C. A. 9), cert. denied 346
U. S. 814, and N. L. R. B. v. Whitin Machine Works, 204 F. 2d 883 (C. A. 1).
As alleged in Case No. 36-CA-647, it is found that the discharge of Barnes by
Joint Council constituted a visible demonstration that support of Local 11 and assist-'
ing the General Counsel in his presentation of the cases bottomed upon charges filed
by that organization , would be met with prompt reprisals . Inevitably, her discharge
constituted encouragement of and assistance to Local 223, the chosen vehicle of
the Teamsters organization to represent the office employees of the building. I find
that her discharge constituted assistance to and support of Local 223, within the
meaning of Section 8 ( a) (1) and (2) of the Act, but not domination thereof.
However, for the reasons previously indicated in the discussion of the discharge of
Olstad, and particularly because the record does not demonstrate that Sweeney spe-
cifically directed, caused, or ratified the actions taken against Barnes, I do not find
that Respondent International was responsible for the discrimination against her and
has thereby engaged in unfair labor practices.
4. Marian Henry
The complaint in Case No. 36-CA-648 alleges , inter alia, that Security Fund and
its administrator , William C. Earhart, both named as Respondents , discriminatorily
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1021
discharged Marian Henry on August 13, 1954, within the meaning of Section 8 (a)
(1), (3), and (4) of the Act. It also alleges that Respondent International and its
agent, International Representative Sweeney, instructed the aforenamed Respondents
to carry out the discharge of Henry, thereby violating the same sections of the Act.
It is further alleged that this conduct by the above-named Respondents constituted
unlawful domination of, and support to, Teamsters Local 223 within the meaning of
Section 8 (a) (1) and (2) of the Act.
Marian Henry entered the employ of Security Fund as an office clerical on May 15,
1952, and was discharged by Earhart on August 13, 1954. This, it is to be noted, was
the same day that Crosby, the president of Building Association and recording secre-
tary of Joint Council, who plays a part in the Henry case, discriminatorily discharged
Irene Barnes , as heretofore found. At the time of her discharge, Henry had the
second highest seniority in the office complement of approximately 10. There is no _
evidence of dissatisfaction on the part of Security Fund with her work, and the reason
advanced by Earhart for her discharge was her alleged insubordination, which re-
sulted in his decision on August 13, as he testified, to discharge her that day.
While Earhart was newly employed by Security Fund on April 1, 1954, and initially
was not familiar with its operations and personnel, he does not contend that he
lacked such familiarity after several months; in fact, he inaugurated a number of
changes not long after he was-hired, allegedly to improve the operating efficiency of
the office. In such a context, entitled to weight herein is the fact that Earhart, when
asked by Henry for a wage increase, granted hera $5 increase effective the week of
June 21, this being the week after her return from her vacation. I find, as Office
Manager Ermence testified, that Earhart did not consult with Ermence on the matter
prior to granting the increase. Although Earhart claimed that he did talk it over
with Ermence before granting it, I find only that he asked her to communicate the
news of the increase to Henry. And in any event, Earhart testified that both he and
Ermence agreed that the wage increase was in order. I
Insofar as this record indicates, Henry was the leading advocate of Local 11 in
the building, and was openly opposed to Teamsters Local 223. She was, moreover,
a leader among the girls in the building, as well as among those in the Security
Fund office, and carried out certain concerted activities in their behalf. -
Thus, when Local 11 renewed its organizational activities in the building in 1954,
Henry became its chief protagonist. In May 1954, 9 of the approximately 10 girls
in the Security Fund office voted among themselves on the issue of whether Henry
should represent them in the event they needed representation; they voted 6 to 3 that
she should. Again, around June 1, she polled the girls in the Security Fund office
as to their satisfaction or dissatisfaction with certain remodeling work being con-
templated by Earhart. Later that month she visited the Portland office of the Board
to ascertain whether or not a representation election was in the offing for the office
clericals of the building. Learning that there was none, she concluded that a petition
should be filed by Local 11. During the last week of June, she circulated among the
23 girls of the building and obtained 8 signatures in favor of a Board election to
determine which of the 2 labor organizations should represent the building employees.
Early in July, she distributed authorization cards for Local 11 in the building, and
obtained 13 signed cards, primarily from employees of Security Fund, prior to July
21. Also, during this latter period she collected dues for Local 11 from 14 girls.
As found, Henry was 1 of 4 girls, including Olstad, Barnes, and Mary Ermence,
subpenaed by the General Counsel to appear on July 21 and testify in support of
charges brought by Local 11 against Respondents. She, too, was 1 of the 4 who
were directed to return on July 22 and did so. Although Earhart, several days prior
to July 21, informed Henry that counsel for Security Fund would get her excused
from her subpena, Henry replied that she had been served by the Board and would
appear unless the Board excused her from it. Precisely how Henry's appearance
on July 21 and 22 was viewed by her superior, Earhart, is set forth below.
On August 13, Henry was discharged by Earhart under the following circumstances:
Shortly after the office opened Crosby appeared and asked for Earhart, who had
previously telephoned from his home and informed Henry that he was ill and would
not be in until 11:30.13 It may be noted that, in addition to his three posts with
Teamsters organizations, as described above, Crosby was also a trustee of at least
eight of the trusts administered by Security Fund and, indirectly at least, an employer
of Henry. Henry duly reported Earhart's illness to Crosby, who then asked for his
home telephone number, saying that he wished to discuss the remodeling of the
1a Findings hereinafter are based upon the testimony of Henry. a clear and forthright
witness. Her testimony is not substantially disputed by that of Earhart.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Security Fund offices with Earhart; the details of this remodeling project appear
below. Earhart appeared on the scene shortly before noon and received some
messages from Henry. He made a telephone call, left, and soon returned. He
called Henry into his office, said that she had gone over his head on the remodeling
job, that this constituted rank insubordination which he would not tolerate, and that
her services were no longer desired. Henry protested that she had been in the office
for over 2 years, that Earhart had never warned her or criticized her work, and that
she was entitled to a warning. She added that the decision to terminate her was not
that of Earhart and that she was aware of its source. Earhart made no reply.
Earhart testified that he discharged Henry around lunch time on August 13; that
he believed it "possible" that he discharged her after talking with Crosby that day;
that he, Earhart, made the decision that very day, August 13, to discharge Henry; and
consistent with what he told Henry, that the reason for her discharge was her lack
of acceptance of the remodeling project and going over his, Earhart's, head to Crosby,
as president of Building Association.
The history of the remodeling project is as follows: Security Fund had office space
in the basement of the Teamsters Building. After Earhart entered the employ of
Security Fund in April 1954, he concluded that the office ought to be rearranged in
the interest of efficiency. This project, while utilizing the same working area, involved
the erection of new partitions and the removal of others, this resulting in Earhart
and Ermence having separate offices and placing the rest of the employees all in one
large room. After being considered and discussed for some period of time, both by
Earhart and the office employees of Security Fund, the project was scheduled to
start on or about July 24. It was started at that time and was substantially completed
early in August, around August 6, when Office Manager Ermence left on her vaca-
tion. Certain finishing touches were applied between that date and August 13.
There is no dispute but that Henry, as Respondents contend, was opposed to the
remodeling project , although as further appears, she was acting in a representative
capacity for the girls in the Security Fund office who had designated her as their
spokesman.
Henry informed Earhart a number of weeks prior to her discharge, and some days
prior to July 22, that the girls in the Security Fund office uniformly opposed the
changes. It appears that the girls in discussing the proposed changes with Henry
had expressed the fear that the changes would constitute a disruptive influence that
would throw them behind in their work, which apparently proved to be the case.
On July 22, Henry attended the second day of the hearing under subpe_na, as set
forth above, after previously declining Earhart's suggestion that counsel for Security
Fund get her excused. During a recess at the hearing, Earhart spoke to Office
Manager Ermence about Henry. He stated, according to Ermence, that "Four top
Teamster officials" had asked him that day what was "wrong" with Henry, because
Henry "went up and talked to Mr. Tillman [counsel for the General Counsel] and
the enemy." Ermence pointed out that Henry was present at the hearing under
subpena: Earhart replied that he nevertheless was unhappy over the matter and-
asked, "Doesn't she know who signed her pay check?" 14 -
Just about the same time, but in any event on July 22, Henry telephoned Crosby-
and asked to see him in person about the remodeling job, explaining that the girls
in the Security Fund office were 100 percent opposed to it. He replied that it was-
Earhart's responsibility and when she pointed out that Earhart had refused to discuss
the merits of the plan with her, as he had, Crosby refused to talk to Henry about it
then or any other time.
At the end of the day, on July 22, Earhart had another conversation with Ermence
wherein he disclosed that he had been informed by Crosby of Henry's telephone call.
He informed Ermence that Henry had done something unbelievable and very bad;
that she "had the guts to go to Clyde Crosby and tell him about the remodeling
job"; and that she had told Crosby that the entire office staff was unhappy over the
remodeling which was due to commence on or about July 24.
On Friday morning, August 6, Earhart again spoke to Ermence, stating that some-
thing would have.to be done about Henry because Crosby had informed him that
Henry "talks too much." Ermence pressed Earhart for details and he, in turn,
explained that Henry had allegedly been discussing the discharge of Olstad around
14 These findings and those that follow are based upon the straightforward testimony
of Henry and Ermence, which is credited here as elsewhere. The testimony of Earhart
either supports or does not substantially dispute theirs. In fact, Henry presented her
testimony despite her expressed fear, stated on cross-examination, of Teamsters officials.
Whether justified or not, her presentation of testimony adverse to Respondents, under
such circumstances, lends weight to her testimony
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1023
the building and saying that Olstad "would live to see the day when the NLRB put
her back to work." Ermence explained that Henry might have been influenced
by her, Henry's, close friendship with Olstad, and that "a lot of us girls here in the
office" regretted Olstad's departure.
Later that day, August 6, Earhart called Henry into his office. He stated he had
learned from Teamsters officials that Henry was upset over the discharge of Olstad.
Henry admitted that she was, because Olstad was a close personal friend, and added
that even Ermence became ill over the news that Olstad had been discharged on
July 29. Earhart added that the Teamsters officials had also attributed to Henry the
statement that Olstad would be put back to work before long. Henry disavowed
responsibility for rumors in the building, whereupon Earhart told her that the matter
would be dropped, but to stay out of internal politics in the building. Earhart spoke
to Ermence still later that day, informed her that he had spoken to Henry earlier
that day, and that "everything was fine." He stated that Henry denied making the
statement attributed to her, but that she had admitted that she was unhappy over
the discharge of Olstad because of her close friendship with the latter. Earhart told
Ermence that if Henry did not "keep her nose out of" building politics he would
have to do something about it. Ermence was absent from the building the following
week on her vacation.
On Thursday, August 12, a Teamsters publication was circulated in the building
and it contained an article dealing with the organizational campaign of Teamsters
Local 223. Henry and a group of Security Fund employees were discussing the article
when Earhart entered the office. Henry then pointed to the article and asked Earhart
how she was expected to stay out of internal politics in the building when such infor-
mation appeared in a Teamsters paper. She explained that the entire office was
upset and that some of the girls had asked Henry, who was their spokesman, to pro-
cure the return of their dues and initiation fees from Local 223. Earhart read the
article but made no comment. The article, it may be noted, was of a factual and
relatively innocuous nature, and its contents are not deemed particularly germane
herein, save for the fact that they related to the organizational campaign of Local 223.
On August 13 Henry was discharged by Earhart allegedly for insubordination in go-
ing to Crosby about the remodeling project, under circumstances heretofore set forth.
No other reason was given her. Turning to a consideration of the merits of this con-
tention by Respondents, it readily becomes apparent that the contention is sup-
ported primarily by improbable and contradictory testimony and will not stand up
as the true cause for her discharge.
(1) Earhart claimed that he discharged Henry on August 13 because of her insub-
ordination in contacting Crosby. However, the alleged insubordination took place on
July 22 and Earhart was informed of Henry's conduct by Crosby on the very day
she spoke to Crosby. Earhart, in fact, mentioned the incident on the same day to
Ermence, but disclosed no intention to discipline Henry, although at that time he was
obviously taking Ermence into his full confidence. And, although Henry had en-
gaged in no further alleged insubordinate act of this nature involving the merits of
the remodeling plan and/or Crosby, Earhart allegedly decided on August 13 to dis-
charge her.
(2) Also deemed significant herein is the fact that just 1 week before her dis-
charge Henry was taken to task by Earhart for the discharge of Olstad, heretofore
found discriminatory, and predicting her return to work in the building as a result
of National Labor Relations Board intervention. Although Earhart mentioned to
Henry that Teamsters officials had reported this to him, his talk the same day with
Ermence discloses that Crosby was at least one source of his information and an in-
fluential one as well:
(3) But 1 day before her discharge, Henry openly criticized the organizational
campaign of Local 223 and informed Earhart that some of the girls were interested
in withdrawing therefrom. The implications of this for Earhart, who had been
selected for his job by Teamsters officials in the building, including Crosby, are
obvious.
(4) It would appear that the foregoing statement by Henry brought matters to a
head and was the final straw following her prior prominence in Local 11 organiza-
tional activities, her solicitation of signatures for an election, her signing up girls in
the building for Local 11, and her collection of dues for Local 11. Also significant
herein is the fact that Henry appeared at the hearing on July 21 under subpena by
the General Counsel, was 1 of 4 recalled on July 22, and openly conferred at the
hearing with the General Counsel and counsel for the Charging Party in the presence
of Teamsters officials. How this conduct was interpreted by the latter and, more
particularly, how it was ultimately evaluated by Earhart, is reflected in Earhart's
statement to Ermence that Henry had conferred with the General Counsel and the
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"enemy" at the hearing, and in his, Earhart's, pointed reference to her ignoring the
identity of the people who signed her paychecks, a reference which I find was patently
-directed to identification of the Teamsters organization as her indirect employer.is
(5) The foregoing serves only to highlight the order in which events took place
,on August 13. Earhart originallytestified that he "possibly" conferred with Crosby
that day prior to discharging Henry, but later conceded that he had. Crosby admit-
ted that he spoke with Earhart that morning, prior to the discharge and told him of
a rumor in the building that the girls had allegedly been instructed to slow down
,and that he thought Henry was the girl who issued the instruction. He allegedly in-
formed Earhart that he wanted him to investigate the matter and put a stop to it.
Crosby conceded that he might have indirectly indicated in this talk that Earhart
should discharge Henry. This, however, is contrary to the testimony of Earhart who
-claimed that no one instructed him to discharge Henry.
While Crosby testified that on this occasion he discussed only the slowdown in
the building with Earhart, the testimony of Earhart attributed other topics of dis-
cussion to Crosby. Thus, according to Earhart, Crosby, in addition to mentioning
the slowdown, mentioned Henry's activities in the remodeling project, as well as her
views of the Olstad discharge. Aside from the conflict in the two versions of this
conversation, further demonstrating the unreliability of the testimony, it is clear that
Earhart's version brings up the remodeling project which involved relatively ancient
conduct by Crosby, as well as the Olstad discharge which involved Henry's protest of
the discrimination against Olstad by Crosby, also not then a current matter. Sig-
nificantly, Earhart elsewhere testified that he discharged Henry only because of her
insubordination in that respect; in fact he mentioned nothing else to her on August 13.
Moreover, there is no substantial evidence that Henry directed or instigated any
slowdown in the building. Nor did Earhart deem it necessary to investigate this mat-
ter. Significantly, Earhart did not in this conversation inform Crosby that he had
previously selected Henry for discharge, a normal response in that context, were such
the case. I find, on a clear preponderance of the evidence, that, prior to this con-
versation with Crosby on the morning of August 13, Earhart had not selected Henry
-for discharge. And although Earhart claimed herein that he was not aware of Henry's
membership in Local 11, the record does clearly demonstrate that he knew her to
be opposed to Teamsters Local 223, and in fact had so expressed himself to Ermence.
Moreover, Earhart's comment to Ermence on July 22 clearly indicates that he re-
garded Henry as a supporter of Local 11.
(6) With Crosby on the scene on August 13, one is inescapably drawn to the,fact
that this was the very same day, August 13, that Crosby personally discharged Irene
Morcom Barnes, under circumstances hereinabove found to be discriminatory. More-
over, it is clear from the foregoing sequence of events that it was Henry's espousal
of the case of Oistad which, in part, put her in disfavor with Teamsters officials and
as a result with Earhart, who I find on this record as well as on his own testimony, was
very much subservient to the wishes of the Teamsters officials, a not illogical situation
in view of the structure of the trusts behind Security Fund. And, as Earhart testified,
Crosby was a member of the committee who selected him for his job. Furthermore,
irrespective of whether the discharge was directed by Crosby or not, the record still
overwhelmingly discloses that the reasons advanced by Earhart and Security Fund
for the discharge of Henry simply do not stand up. I find that they were not the true
reasons for her discharge.
Conclusions
I find on a preponderance of the evidence herein that Henry was discharged by
Security Fund and its administrator, Earhart, not for the reasons advanced by them,
but because of her identification with Local 11 activities; her opposition to Local 223;
her participation in the hearings of July 21 and 22, 1954, when she was identified
by her employer as allied with the "enemy" because when under subpena by the Gen-
eral Counsel she conferred with him and counsel for Local 11; and her support of
Olstad, whose previous discharge was discriminatory. Her discharge for those
reasons is found to have been violative of Section 8 (a) (3) and (4) as well as
derivatively of Section 8 (a) (1) of the Act. N. L. R. B. v. Nemec Combustion
Engineers, 207 F. 2d 655 (C. A. 9), cert. denied 347 U. S. 917; N. L. R. B. v. Kibler-
3s At this point it may be noted that Earhart claimed that the office employees of Secu-
rity Fund were his, and not those of the trusts behind Security Fund and as a result, not
the employees of the trustees of the Fund, one-half of whom were Teamsters designees ;
It will be recalled that Crosby was trustee of at least eight of these trusts Although
Earhart's contention is not sustainable, inasmuch as Security Fund is the operating arm
of the trusts, I deem it unnecessary to develop this precise relationship herein.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1025
Camp Phosphate Enterprise, 216 F. 2d 113 (C. A. 5); N. L. R. B. v. A. B. Swinerton,
Richard Walberg and Howard Hassard; etc ., supra; N. L. R. B . v. Whitin Machine
Works, supra; and Kitty Clover, Inc., 103 NLRB 1665, 1680, enfd. 208 F. 2d 212
(C. A. 8).
Moreover , even on the basis of Respondent 's claim that Henry was discharged be-
cause of her activity in protesting the proposed remodeling to Crosby, she did so as
spokesman for the girls in the Security Fund office and this constituted concerted
activity for the mutual aid or benefit of the employees , inasmuch as the proposed re-
modeling was anticipated by the employees as likely to adversely affect their working
conditions , as in fact it temporarily did. Nor did her contacting of Crosby consti-
tute insubordination , for Henry had first spoken to Earhart, had achieved no satis-
faction , and had then proceeded to the official who was a trustee of at least eight
trusts administered by the Security Fund office. I find therefore that her discharge
for engaging in this activity independently constituted conduct violative of Section 8
(a) (1) of the Act. Salt River Valley Water Users' Association v. N. L. R. B., 206
F. 2d 325 (C. A. 9); N. L. R. B. v. Phoenix Mutual Life Ins. Co., 167 F. 2d 983, 987
(C. A. 7), cert. denied 335 U. S. 845. Modern Motors, Inc. v. N. L. R. B., 198 F. 2d
925 (C. A. 8); N. L. R. B. v. Smith Victory Corporation, 190 F. 2d 56 (C. A. 2);
Standard Coil Products Co., Inc., 110 NLRB 412; Mac Smith Garment Company,
Inc., 107 NLRB 84; Rugcrofters of Puerto Rico, Inc., 107 NLRB 256; and Lloyd A.
Fry Roofing Company, 109 NLRB 1314.
I do not deem Crosby 's participation herein as binding upon Respondent Inter-
national or Respondent Sweeney and accordingly recommend that the case against
them , in this respect , be dismissed.
I further find that Earhart 's discharge of Henry strongly demonstrated to employees
of Security Fund that adherence to and support of Local 11 and honoring the subpena
of the General Counsel herein constituted activity which would be met with strict and
prompt reprisal . It is inevitable that her discharge constituted encouragement of and
assistance to Local 223 of the strongest sort and aided the organizational efforts of
that organization . Earhart was well aware of these organizational efforts and, more-
over , the record discloses that Earhart knew Henry to be an outspoken opponent of
Teamsters Local 223. Nor does it constitute a defense to Respondents that Earhart
may not have expressly intended by the discharge to render assistance to Local 223;
that result inevitably follows. N. L. R. B. v. Radio Officers' Union of the Commercial
Telegraphers Union, AFL, 347 U. S. 17. 1 find that her discharge constituted as-
sistance to and support of Local 223 , within the meaning of Section 8 (a) (1) and (2)
of the Act, but not domination thereof, as alleged.
5. Mary Ermence
The complaint in Case No. 36-CA-648 alleges, inter alia, that Security Fund and its
administrator, William C. Earhart , both named as Respondents , discriminatorily
discharged Mary Ermence on August 16, 1954, within the meaning of Section 8 (a)
(1), (3), and (4) of the Act. It also alleges that Respondent International and its
agent , International Representative Sweeney, instructed the aforenamed Respond-
ents to carry out the discharge of Ermence , thereby violating the same sections of
the Act . It is further alleged that this conduct by the above -named Respondents, as
in the discharge of Marian Henry, constituted unlawful domination of and support to
Teamsters Local 223 within the meaning of Section 8 (a) (1) and (2) of the Act.
Ermence entered the employ of Security Fund in September 1950 as claims manager
and, at the time of her discharge on August 16, 1954, had the highest seniority in the
office. At the time of her hiring, the complement of personnel including Ermence
totaled 5 or 6, and as heretofore found , she was, until April 1, 1954, a supervisory
employee. Prior to the hiring of Earhart on April 1, Security Fund had been under
the direction of a succession of Teamsters officials -who, devoted but a portion of their
time to the office . The record does not disclose how substantial this time was and
there is no evidence that these part -time administrators received a salary in addition
to their remuneration from Teamsters organizations . During this period , Ermence
hired employees for the Security Fund office and also procured them for other organ-
izations in the building. When Earhart came upon the scene , the total complement of
personnel including Ermence was approximately 10. Her salary remained at $100
per week thereafter, although the highest salary paid the other employees of Security
Fund was not in excess of $70 per week , and in some cases as low as $55.
Ermence was on vacation during the week of August 9 and therefore was absent
on Friday, August 13, when Marian Henry was discharged by Earhart. Ermence
returned to work on Monday, August 16, and was greeted by Earhart, who promptly
asked for her resignation . Ermence refused and asked for a reason, pointing out
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she had been a devoted and loyal employee. Earhart replied that he had lost
his faith in her. Earhart admitted that he refused to supply her with a reason and
proceeded to discharge her.
A primary issue herein is whether or not Ermence was a supervisor within the
meaning of the Act at the time of her discharge. The precise question is whether
her duties, admittedly supervisory prior to the advent of Earhart, changed sufficiently
thereafter so as to change her status to that of a rank-and-file employee. There is
no doubt that some change was wrought in her situation. For all practical purposes
Ermence had run the office some of the time before Earhart was hired. And, after
Earhart was hired at an undisclosed salary, there is no doubt but that he proceeded
to run the office. This was a full-time position for Earhart and moreover, as he
testified, his absences from the office were slight, averaging approximately one-half
day a week; these apparently were short absences of 1 hour or longer, although once
in a great while he would be required to go out of town for a few days.
Thus, Earhart ran the office, but Ermence, as I find, was not relegated to,the
status of an ordinary rank-and-file employee. The issue is, and 1 deem it a close
one, whether or not she retained sufficient supervisory duties as to warrant the con-
clusion that she remained a responsible representative of management.
The record of the period that elapsed between April and August 1954 demon-
strates that Earhart relied upon Ermence to orient him in the problems of the office,
but nevertheless did take a firm grasp of matters and forcefully went about making
drastic changes. These included the remodeling operation discussed above as well
as the installation of a new filing system, both of which were measures he deter-
minedly carried out despite the opposition, whether sound or not I deem unnecessary
to determine, of many girls in the office.
Ermence testified, and I find, that Earhart, soon after taking over, informed her
that her duties were to be primarily clerical; however, this did not prove to be quite
the case. The operation of the office consists basically of processing claims for
benefits under the health and welfare plans. The job is broken down into a number
of steps which are carried on at different desks in the office. It appears that these
operations require a minimum of supervision, if any, and that the girls were pretty
much competent to handle their duties by themselves. However, the problem did
arise that work of a particular sort would occasionally pile up on a desk. Then, in
order to avoid a bottleneck, it became necessary for other employees to devote
themselves to this particular operation. Ermence would distribute the work to the
appropriate desks and would work herself wherever her services were most required.
As for working area, she and Earhart shared an office from April 1 on. In the
remodeling operation, which started late in July and concluded just before her dis-
charge, the net effect was to reduce a larger number of rooms to a total of 3, namely
1 large office for all the girls and 2 small ones for Earhart and Ermence. Earhart
informed Ermence, as she testified, that he desired a private office in order to have
private conversations with the employees and that he wished her to have the office
next to him so as to "direct the work out to the different desks."
There is evidence that in several instances during the April-August period Earhart
handled the hiring or interviewing of prospective employees. They were directed
to his office and he in turn asked Ermence to sit in on the interview and ask some
technical questions on office procedure. After the interview was complete, Earhart
would solicit Ermence's opinion as to the qualifications of the complaint.
During May, an employee of Security Fund, Tombe, was discharged for in-
competency. According to Ermence, Earhart raised the matter and complained to
her about Tombe's lack of knowledge on a certain matter; he then asked for
Ermence's opinion of Tombe's work. Ermence gave her opinion, apparently un-
satisfactory, and suggested that Earhart contact the auditor, repeating a comment
previously made by the auditor about Tombe's work. Thereafter, Earhart did con-
fer with the auditor and informed Ermence that he had decided to discharge Tombe.
Earhart testified that he did give weight to the views of Ermence in this and other
matters and that he "placed a great deal of confidence in the opinion expressed by
Mrs. Ermence in any of the problems we were talking about, either in regard to
"hiring or firing." He claimed that he placed more weight on her views than on
those of anyone else in the office.
In sum, the case of Respondents reduces itself to a claim that Earhart relied
heavily upon Ermence and gave effective consideration to her views on hiring and
firing as well as on raises in pay for employees. The claim of the General Counsel,
in effect, is that Ermence was a senior employee who was in the nature of a -lead
lady at best but not a supervisor.
A number of recent cases tend to support the position of the General Counsel
herein. These cases deal with analogous but not closely similar positions. See,
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1027
e. g., Poultry Enterprises, Inc. v. N. L. R. B., 216 F. 2d 798 (C. A. 5), where the
'court pointed out'that "occasional performance of supervisory duties does-not make
an employee a supervisor within the meaning of the Act." This decision also cited
with approval a number of Board holdings to the effect that "sporadic exercise of
some supervisory authority, but not the full duties and responsibility of the regular
supervisor, during the latter's absence, did not constitute one a supervisor."
In Precision Fabricators v. N. L. R. B., 204 F. 2d 567 (C. A. 2), the court pointed
out that a so-called "room boss" who made routine work assignments did not, in so
doing, have independent judgment and was not a supervisor. Similar views were
taken in the following decisions. N. L. R. B. v. Parma Water Lifter Co., 211 F. 2d
258 (C. A. 9), cert. denied 348 U. S. 829; N. L. R. B. v. Wnitin Machine Works,
204 F. 2d 883 (C. A. 1); N. L. R. B. v. Quincy Steel Casting Company, 200 F. 2d 293
(C. A. 1); N. L. R. B. v. North Carolina Granite Corp., 201 F. 2d 469 (C. A.
4); N. L. R. B. v. Beaver Meadow Creamery, Inc., 215 F. 2d 247 (C. A. 3);
and N. L. R. B. v. Valentine Sugars, Inc., 211 F. 2d 317 (C. A. 5).
Similar views were expressed by the Board, in finding an absence of supervisory
authority, in Doak Aircraft Co., Inc., 110 NLRB 792; Eagle Iron and Brass Com-
pany, 110 NLRB 747; and Miami Paper Board Mills, Inc., et al., 109 NLRB 167. In
not too different circumstances, however, the Board found that supervisory authority
did exist. Dura Steel Products Company, 109 NLRB 179; Legion Utensils Company,
109 NLRB 1327; Beneke Corporation, 109 NLRB 1191; Gen Pro, Inc., 110 NLRB
12; and Colonial Fashions, Incorporated, 110 NLRB 1197.
I have given considerable thought to the problem and, as indicated, I consider the
decision a close one. The burden of the General Counsel, however, is to prove his
point by a preponderance of the evidence; in my view, the evidence stacks up fairly
,even and, therefore, the General Counsel has not preponderated herein. In view of
Ermence's having been placed in a separate office, on a level or near level with Ear-
hart in the eyes of employees; her being retained in the same substantially higher
salary bracket she had enjoyed as a supervisor; her participation in the hiring of em-
ployees; her role, even on her own testimony, in the discharge of Tombe; and Ear-
hart's uncontroverted testimony that he did give substantial and effective weight to
her recommendations on wage raises as well as in other matters, which is supported
by evidence of instances when he confided in her, I conclude, although not free from
doubt, that the evidence does not preponderate in favor of a finding that the duties of
Ermence had changed sufficiently from those she enjoyed at the time she admittedly
was a supervisor so as to render her a nonsupervisory employee within the meaning
of the Act at the time of her discharge.16
This however is not the end of the problem. For, as Earhart's counsel correctly in-
formed him when Earhart sought his advice sometime between August 11 and 13
prior to the discharge of Ermence, supervisors at times are still subject to the protec-
tion of the Act. The record demonstrates for the reasons set forth below that his
counsel's advice was correct and that this was in fact such an occasion when the
supervisor was protected.
Ermence, it will be recalled, was 1 of 4 girls under subpena by the General Coun-
sel at the original hearing on July 21 who were directed to return on July 22. As
demonstrated, the other three were discriminatorily discharged on July 29 and
August 13. The record does not disclose that Earhart bore any animus directed to
Ermence on July 22, perhaps-because his conduct in confiding in her indicated that
he considered her sympathetic to Teamsters interests, but, as set forth, his statements
to Ermence clearly reveal the interpretation he placed upon the presence of Marian
Henry, an employee of Security Fund, at the hearings on July 21 and 22. Thus, Ear-
hart criticized Henry as associating with the General Counsel and the "enemy,"
namely counsel for Local 11, who were presenting a case in support of charges by
,Local 11 against various Respondents, including Security Fund.
The record discloses that shortly prior to the discharge of Ermence, Earhart was in
receipt of information which could well have caused him to reassess the situation rela-
tive to Ermence. Thus on August 6, Earhart, as found, informed Marian Henry that
he had been informed by Teamsters officials that she, Henry, was upset over the dis-
charge of Olstad, heretofore found to be discriminatory. At the conclusion of this
talk, Earhart warned her to stay out of International politics in the building. It
was during this talk that Henry informed Earhart that Ermence had become ill
over the discharge of Olstad and had left work as a result. Again, on August 13,
16 While it may well be that Earhart ultimately , as he acquired additional experience,
might have whittled down the job of Ermence to a true nonsupervisory one, this was not
done by August 16 And while Ermence signed a card for Local 11 in July 1954, she had
,done likewise for Local 223 in 1953, a time when her supervisory status is conceded.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day Earhart discriminatorily discharged Henry, reference was made to Henry's
alleged insubordination in talking to Crosby about the remodeling project. It is sig-
nificant that in this talk, as Earhart admitted herein, Henry informed him that
Ermence was on advance notice from Henry that she, Henry, proposed to speak to
Crosby about the remodeling project.
_ Although Earhart testified that he decided to discharge Ermence during the week-
end before Monday, August,16, the record demonstrates that Earhart had the matter
under prior consideration, namely at about the same time that he discriminatorily
discharged Henry on August 13. For, as he testified, he called his counsel relative
to the extent of protection from discharge that a supervisor had under the Act, on a
date he placed between August 11 and 13. However, Ermence was not at work on
August 13 and therefore was not avilable for discharge in person.
. Turning to the one reason advanced by Earhart for the discharge of Ermence,
a consideration of his testimony discloses that it was actually no reason at all. He
claimed that he lost faith in her because he, Earhart, did not know what was
going on in the office. He did not enlighten Ermence or this record as to what he,
Earhart, should have known about the office and at this stage I am still unaware of
what he referred to. He flatly refused to supply Ermence with a reason for her dis-
charge. His testimony that he informed her he no longer had any "faith" in her
stands unexplained, because there is no evidence that he at any time expressed any
displeasure to Ermence over office matters not brought to his attention. Nor did
-he ever explain to her what was to be brought to his attention.
The most logical conclusion that manifests itself and, in fact, just about the only
'one that the evidence herein points to is that on or about August 13, at the time
Earhart discriminatorily discharged Henry, as found above, because of her as-
sociation with the General Counsel while under subpena for the presentation of
-testimony in this case, Earhart concluded that Ermence, in whom he had previously
-closely confided his discriminatory motivation toward Henry, was apt to render
.the same service to the General Counsel as Henry by presenting testimony which
,would support the General Counsel's case against Respondents herein. I so find.
Entitled to weight in arriving at this conclusion is Ermence's tenure and experience,
the reliance Earhart admittedly and openly displayed in her ability to handle office
matters, and the great extent to which he confided in her. In the face of all this
there is simply no evidence in support of Earhart's claim herein. Earhart's loss
of faith or confidence in Ermence can, on this record, be equated only with a
conclusion on his part that Ermence would present adverse testimony at a later
-stage of this hearing.17 I believe and find, that, but for this conclusion by Earhart,
Ermence would not have been discharged.
Conclusions
All employees have the right-of access to the processes of the Board and the
right, if not duty, to testify in aid of a proceeding brought by the General Counsel
against any invasion of their right to organize, which is guaranteed by public policy.
As found, Ermence was not a rank-and-file employee. She was, however, under
subpena by the General Counsel and attended the hearings on July 21 and 22
quite obviously as a prospective witness for the General Counsel in the litigation
of the alleged unfair labor practices by Security Fund and the other Respondents
against rank-and-file employees who do have the full protection of the Act. The
sole issue here is whether, by her discharge, Respondent Security Fund has interfered
with, restrained, and coerced the self-organizational rights of these other em-
ployees. I believe and find that it did. This is not, I might add, a case of divided
loyalties in which event the conduct of Security Fund with respect to Ermence would
be viewed differently. See, e. g., Texas Company v. N. L. R. B., 198 F. 2d 540
(C A 9).
I find that the discharge of Ermence, following directly on the heels of the
other discriminatory discharges of the prospective witnesses of the General Counsel
and particularly so, on the next workday after Earhart discriminatorily discharged
Marian Henry for substatnially the same reason as Ermence, plainly demonstrated
to rank-and-file employees that her discharge was but a part of a plan to thwart
their self-organizational activities. The net effect of this conduct would logically
cause rank-and-file employees reasonably to fear that Security Fund would take
similar action against them if they rendered similar obedience to a Board subpena.
17 In fact Ermence concretely manifested this to International Representive Sweeney
just prior to July 21 or 22 as appears below. However, although Sweeney was a regu-
lar visitor to the Security Fund office, there is no evidence that he discussed Ermence's
termination with Earhart.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1029
I find that the discharge of Ermence constituted an invasion of the self-organizational
rights of rank-and-file employees.
Stated in simplest terms , the case of Ermence involves, in its most direct sense,
an attempt to prevent the Board from carrying out the congressional policy entrusted
to it, by procuring the attendance of witnesses at a Board hearing and by recording
their testimony in the prescribed manner. A discharge intended or reasonably cal-
culated to prevent the accomplishment of this policy inevitably restrains and coerces
employees in the exercise of the rights guaranteed by the Act because it demonstrates
to them that should they venture to testify concerning the unlawful conduct of their
employer, they, in turn , may bring down upon themselves the extreme penalty of
discharge. I find that the discharge of Ermence by Security Fund and its administra-
tor, Earhart, under the circumstances present herein, inevitably constituted such a
demonstration to the rank-and-file employees. N. L. R. B. v. Talladega Cotton Fac-
tory, Inc., 213 F. 2d 208 (C. A. 5), and N. L. R. B. v. Vail Mfg. Co., 158 F. 2d 664
(C. A. 7), cert. denied 331 U. S. 835. Although the latter case was decided after
the amendments to the Act, the former case clearly shows that no change was made
in this respect.
As the court aptly pointed out in the Talladega Cotton Factory decision, "We
see no reason why the Board in the exercise of its statutory discretion does not have
the same remedial power to redress acts of indirect interference and restraint of
ordinary employees through the discharge of supervisors, as it admittedly has to
redress acts of direct interference and restraint with the right of the same em-
ployees to uninhibited self-organization." The court went on to say that a contrary
claim "evinces undue preoccupation with the statutory definition [of supervisor]
rather than with the underlying purpose and intent of the Act as a whole. .
In view of the foregoing considerations, I find that Security Fund and its adminis-
trator, Earhart, have by the discharge of Ermence on August 16, 1954, interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. I shall rec-
ommend the dismissal of the allegations against those Respondents insofar as they
relate to Section 8 (a) (3) and (4) of the Act inasmuch as those sections are directed
to protection of employees in the direct sense.18
For the reasons heretofore stated in considering the discharge of Marian Henry,
I find that the discharge of Ermence constituted assistance to and support of Local
223, within the meaning of Section 8 (a) (1) and (2) of the Act, but not domination
thereof, as alleged. In addition , there being no evidence that Respondent Inter-
national or Respondent Sweeney directed, ratified , or caused the discharge of
Ermence, I shall recommend that the case against them , in this respect , be dismissed.
6. June Cook
The complaint in Cases Nos. 36-CA-637, 638, and 639, further alleges that Re-
spondent Local 206, on or about June 10, 1954, discriminatorily discharged June
Cook because of her activities in behalf of Local 11, thereby violating Section
8 (a) (1) and (3) of the Act. The case of Cook is sui generis and in most respects
involves considerations other than those present in the four cases heretofore dis-
cussed. Cook was 1 of 2 office clericals in the employ of Local 206. Financial
Secretary Estabrook, who had hired her 6'/z years previously, asked her to resign
on June 10, 1954. Cook, an impressive and straightforward witness, testified that
on June 10 Estabrook asked for her resignation, stating that after conferring with
Mrs. Crosby, the other office clerical and the wife of Clyde Crosby heretofore
identified, he, Estabrook, had decided that Cook "was not qualified to do the work."
According to Estabrook,, he asked her to resign, stating that most of her work had
been eliminated. I credit Cook's testimony here as elsewhere.
The General Counsel contends that Cook was discharged on June 10, 1954, be-
cause of her union sympathies and activities starting in 1953, after many months of
maneuvering by Estabrook to eliminate her from his employ. Respondent Local 206
claims that she was discharged because of technological changes resulting from the
installation of a new bookkeeping machine which eliminated a substantial portion of
18 Of course , in the event that the Board concludes that Ermence was not in fact a
supervisory employee at the time of her discharge, the record well warrants a finding
that her discharge was violative of Section 8 (a) (3) and (4) of the Act as well for the
reasons previously stated herein in considering the cases of the three girls whose dis-
charges shortly preceded hers In addition should it appear on her reinstatement that
her duties have nondiscriminatorily become solely those of a rank-and-file employee, she
would then be subject to the protection of the Act within the meaning of Section 8 (a)
(3) and (4).
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her duties as cashier and bookkeeper. Although the case of the General Counsel in
this situation is not as strong as those of the four heretofore discussed, the defense of
Respondent herein impresses me as singularly weak for reasons which follow.
Cook had been a member of Local 11 since sometime in 1947. During June 1953,
Financial Secretary Estabrook spoke to Cook and informed her that he was on the
spot because someone had informed International Representative Sweeney that
Cook had refused to join a Teamsters local. Later that day, Estabrook gave Cook
and Mrs. Crosby, the other office clerical, applications for Local 223 with instruc-
tions to fill them out and return them to Sweeney. Cook did so. In the latter part
bf June 1953 she was initiated into Local 223 in the presence of Crosby and Sweeney.
One or the other of the two promised that the girls present would receive withdrawal
cards from Local 11.
As indicated, Local 11 attempted early in 1953 to obtain another collective-
bargaining agreement from the various Teamsters organizations in the Teamsters
Building, consistent with their traditional representation of office employees in the
building. Secretary-Treasurer Beyer of Local 11 was greeted with evasive treatment
by both Crosby and Sweeney, each of whom took turns evading responsibility in
the matter and shunting Beyer to the other. Ultimately, negotiations broke down
early in July 1953 and Local 11 picketed the building during a 2-3 week period late
in July and early in August with little or no effect.
On the first day of the picketing, a number of girls employed in the building re-
fused to cross the picket line. After about 15 minutes, their respective employers
appeared on the scene and directed them to report to work. The girls promptly
obliged with the exception of 2, Cook and Irene Manning; the latter was employed
by 4 locals in the building, Local 223 and 3 others which are not involved herein.
They remained outside the picket line for about 1 hour and then entered the build-
ing. It is this episode on which the General Counsel relies in attributing Cook's
ultimate fall from grace with Local 206 after joining Local 223 and being initiated
therein.
Cook took her 2-week vacation immediately after the foregoing episode, and,
upon her return, noticed that Estabrook did not speak to her for 2 weeks. He broke
the silence thereafter, sometime in August, and proceeded to ask for her resignation,
stating, as Cook testified, that she "had put him on the spot . the picket line had
caused quite a bit of trouble, and with me not going through it, that had caused him
trouble." Cook\replied that she would think it over and nothing further was done.
However, Cook had been promised a raise by Estabrook prior to leaving on her
vacation. This she did not receive, although, 1 day after her return from her vaca-
tion, a raise was given to Mrs. Crosby as well as to 2 assistant business agents in
the office. In October 1953, Estabrook again brought up the subject of her resigna-
tion, stating that if she would work until October 20 and resign at that time he would
pay her salary through the month of November. He did not specifically advert to
any reason for desiring to terminate her employment on this occasion, and Cook
refused to resign.
Nothing further happened until the morning of June 10, 1954, when Estabrook
again asked for her resignation, stating that he had conferred with Mrs. Crosby and
that he had concluded that Cook "was not qualified to do the work." Estabrook
said that, in the alternative, she could remain only until August 1, 1954, if she chose.
Cook decided to leave, stating that she did not wish to stay until that date if she
was not wanted. I find that she was in fact discharged on June 10, 1954, by Estabrook.
This conversation constituted a final act on his part, for the alternative of working
until August 1, as Estabrook posed it, left no option to Cook but to accept termina-
tion on the latter date for the same reason expressed by Estabrook on June 10, 1954.
If the reason was discriminatory on June 10, 1954, Cook was not required to continue
for some weeks under this discriminatory cloud with no avenue of escape open to
her. N. L R. B. v. Newton Brothers Lumber Co., 214 F. 2d 472 (C. A. 5). The
following day, June 11, Cook was replaced by Tombe, a bookkeeper discharged in
May by Security Fund for incompetence, including being a "sloppy" typist, as
Earhart testified.
Respondent's primary contention herein is that the installation of a bookkeeping
machine substantially reduced Cook's work. It is true that a bookkeeping machine
was installed in the office of Local 206 in mid-April 1954. In fact, similar machines
were installed throughout the Teamsters Building and there is no evidence that this
mechanical change rendered any other girls in the building superfluous. Prior to
the installation of the machine, the work was divided between Mrs. Crosby and
Cook. The former did the bookkeeping, wrote out the checks, sent out contract
notices to employers, and handled Estabrook's dictation and correspondence. Cook's
duties were to wait on the window and receive dues payments paid in person by
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1031
some of the large membership of 2,750 in this Local. She also handled the mail,
and this included the receipt of dues payments by mail. Her duties, prior to the
installation of the bookkeeping machine, required her to make out a receipt for the
dues payment and post it on a ledger card; all items from the receipt book were also
recorded by her in the daybook. This posting took from one-half to two-thirds of
her time. She also had the responsibility of keeping addresses and mailing lists for
two publications up to date, these being the Teamsters paper and the International
magazine. In addition, she maintained the records of initiations and withdrawal
cards issued to departing members.
After the installation of the machine, some of Cook's duties were eliminated. The
machine did the actual posting, although Cook still had to punch and operate it.
While the record discloses that the installation of the machine reduced Cook's duties
in some degree, the record will not support a finding that its installation was a leading
cause in bringing about her termination.
As demonstrated, Estabrook had been attempting to induce Cook to resign as far
back as August 1953 and again in October of that year. The presence of the machine
obviously could not have been a factor in his engaging in such conduct at that time.
Although Estabrook testified that the installation of the machine was under con-
sideration for 6 to 8 months previously, the fact is that he tried to bring about the
discharge of Cook long prior to its installation. Precisely why he was reluctant to
discharge her outright, the record does not disclose, whether because of her tenure,
competence, or the fact that her father and Estabrook had long been friends. More-
over, in her terminal conversation with Estabrook on June 10, 1954, Cook had in-
formed him that she had done the work customarily done by Mrs. Crosby when the
latter was on vacation, thus demonstrating her versatility in the office. Estabrook
did not comment on this. Nor was Mrs. Crosby, obviously well qualified to testify in
the matter, called as a witness, although presumably available.
Respondent raises another reason herein, namely, the claim that Cook was out of
practice on typing and shorthand and that, as a result, she did not perform these
operations in the office. The record does disclose that when Cook was hired, Esta-
brook was on notice from Cook that she was out of practice in taking dictation.
Estabrook had offered on several occasions to pay her expenses to night school so
that she could brush up on her shorthand, but Cook declined, stating, as was ap-
parently the fact, that there was not enough work of this nature in the office to war-
rant her doing so; Cook pointed out to Estabrook that Mrs. Crosby handled all the
dictation. Indeed, Cook testified that Estabrook last took up the question of night
school with her approximately 2 years prior to the date of her testimony herein on
September 16, 1954. She was positive that there was no such conversation during
the year preceding the date of her discharge. Estabrook claimed that there had been
such a conversation after the installation of the bookkeeping machine came under
consideration.
Here, as well, Estabrook's testimony is not accepted. In addition to placing re-
liance on Cook's demeanor in crediting her, a consideration of the testimony of Esta-
brook serves only to further buttress Cook. He testified concerning an inquiry he
allegedly made of Mary Ermence when he hired Tombe as a replacement for Cook
and claimed that Ermence said that Tombe could do the work. Ermence, credited
elsewhere, denied that he ever made any inquiry about Tombe. In addition, when
being questioned as to why the girls working for Local 206 chose Local 223 in 1953
as a bargaining representative, at a time when he, Estabrook passed out the cards,
Estabrook attributed this to the reason that Secretary Hildreth of Local 223 was
the best looking man in the building; however, Hildredth did not become an official
of Local 223 until February 1954.
Noteworthy here as well is the fact that Estabrook on the following day, June 11,
hired Tombe for Cook's job. Yet Earhart, her prior employer in Security Fund, who
had discharged her late in May 1954, had concluded not only that she was incom-
petent, but that her work was "sloppy," specifically so characterizing her typing. In
fact, Earhart testified that she took no dictation and did not do "a great deal" of
typing for Security Fund. But Earhart, as he testified, was contacted by Estabrook,
who asked him about her qualifications and "indicated that she would be put to work
in the building." There is nothing in his testimony to indicate that Earhart was any-
thing but truthful with Estabrook on this occasion. Estabrook claimed that Ermence
and Earhart both said she would be able to handle the work he had for her, but, as
indicated, I credit Ermence's testimony that the topic was not raised by Estabrook with
her.
Estabrook claimed that Tombe was doing substantially the same work that Cook
had done, but that she had taken over some of Mrs. Crosby's work, involving oc-
379288-56-vol. 113-66
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casional dictation, running the mimeograph machine, cutting stencils, and preparing
contracts. He estimated that no more than 50 percent of Mrs. Crosby's time was
taken up with dictation. It is significant that there is no evidence that Cook was not
qualified to handle at least the last three of the 4 categories mentioned by Estabrook.
As to the other category, Estabrook testified that Mrs. Crosby assigned Tombe such
dictation and typing that she could not handle herself, and that Crosby reported to
him that Tombe was working out well. However, as indicated, Mrs. Crosby did not
testify herein.. '
On balance, I am not impressed with these defenses of Respondent. In Cook,
Estabrook had an employee of 61/2 years' tenure, who received a number of salary
increases from Estabrook, and whom he admittedly had found to be "very ca-
pable. . . . Mrs. Cook was excellent in the job of taking dues and in her posting.
She did an excellent job." He added that she wrote an unusually fine hand. Why
then, with the advent of the bookkeeping machine, was so competent an employee'
discarded and replaced with one found unsatisfactory elsewhere in the building?-
The answer appears when note is taken of the fact that Estabrook had been at-
tempting to eliminate Cook from his employ long before the advent of the book=
keeping machine, and that his concern over her lack of shorthand was relatively
ancient history. Although Estabrook's attempts to force her resignation were pro-
tracted over a long period of time, and this factor is indeed somewhat puzzling, a•
preponderance of the evidence impels the conclusion that one must look to events
in 1953 for the cause of her discharge.
Cook was an employee of long tenure, who had received a number of wage in-
creases from Estabrook. There had been no criticism of her work whatsoever. Esta-
brooks' satisfaction with Cook took a marked change when the picket line incident
occurred in 1953. Immediately thereafter he did not speak to her for 2 weeks and
withheld a wage raise previously promised, although it was given to the other em-
ployees in the office. That her respecting of the picket line was the cause of his dis-
satisfaction, he made quite clear when, during August, not long after the incident, he
specifically asked her to resign, pointing out that it was her picket line activity that
had put him on the spot. In fact, he admitted herein that her conduct on this oc-
casion had embarrassed him and that he told her she had acted improperly. His
subsequent attempts to induce her to resign were nothing more than repetitions of his
earlier conduct, which was clearly related to her picket line activity.
I find, on a preponderance of the evidence, that this picket line activity was the
true cause for her discharge, because it reasonably indicated that Cook's loyalty to and
support of Local 223, the organization which Estabrook openly favored, was open
to serious question, and that the assigned reasons were not the true reasons for her
discharge. N. L. R. B. v. Vail Mfg. Co., 158 F. 2d 664, 6 (C. A. 7), cert. denied
334 U. S. 845. 1 find that by discharging June Cook on June 10, 1954, Respondent
Local 206 has discriminated with respect to her hire and tenure of employment,
thereby encouraging membership in Local 223 and discouraging membership in
Local 11, and violating Section 8 (a) (3) of the Act. I further find that her
discharge under the foregoing circumstances interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby
violating Section 8 (a) (1) thereof. See, Bausch & Lomb Optical Co. v. N. L. R. B.,
217 F. 2d 575 (C. A. 2).19
D. The refusal to bargain
1. The appropriate unit and majority representation therein
The complaint in Case No. 36-CA-648 alleges that Security Fund and Earhart
refused to bargain with Local I1 as the representative of its employees in an appro-
priate unit. It alleges that all office and clerical employees of Security Fund, consti-
tuting its entire complement of personnel, excluding supervisors, constitute a unit
appropriate for the purposes of collective bargaining. Although the answer of
Respondents generally denies the appropriateness of this unit, Respondent has posed
no active challenge to it on any ground. I find that the unit set forth in the com-
plaint is a unit of the type customarily found appropriate by the Board in analogous
10 Respondent points out that Manning, who also respected the picket line in the same
manner as Cook, was not discharged However, she was not an employee of Local 206
or of Estabrook. Moreover, the fact that all persons in the same category are not sub-
jected to discrimination does not constitute a defense to an act of discrimination
N. L. R. B v. Link Belt Co , 311 U S. 584, 602; N L. R. B v. W. C. Nabors Company,
196 F 2d 272 (C A. 5), cert. denied 344 U. S. 865; and Toledo Desk and Fixture Co.,
65 NLRB 1086, 1108.
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1033
cases and that it indeed constitutes a unit appropriate for. the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act . See Texas Prudential
Insurance Co., 109 NLRB 319.
The complaint further alleges that Local 11 represented the employees in the above-
described appropriate unit on and after July 14, 1954. Turning to the actual com-
position-of the unit, the parties in effect agree that as of July 14, there were 11 named
employees in, the unit. There is no problem as to 8 of the 11; the remaining 3
are Mary Ermence, Marian Henry, and Corinne Paullin. Ermence, as I have
found, was a supervisor and is therefore excluded from the unit.
Henry, as found, was discriminatorily discharged on August 13, 1954, and
therefore retained her status as an employee and is included in the unit. If the
Board should conclude that Ermence was in fact a rank-and-file employee during this
period, she, as well, is to be included in the unit for the same reason as Henry.
As to the third, Paullin, Earhart testified, on September 17, 1954, that Paullin had
been on a maternity leave-of-absence since July 15, 1954, that she had had her child,
and that she was due to return on September 20. It is clear, and I find, that at the time
material herein, namely July and August 1954, Paullin had a reasonable expectation
of continued employment and she is therefore to be included as an employee within
the unit. Earhart further testified, and I find, that there were no hirings between
July-14 and August 23. One other employee, Courtain, was hired at an undisclosed
date either several days before or several days after August 23. I find therefore,
that there were 10 employees, this figure including Henry and Paullin but excluding
Ermence, in the unit between July 14 and August 23, 1954.
As evidence of the majority representation of Local 11 in the appropriate unit,
the General Counsel introduced in evidence cards signed by 9 of the 10 employees
in the unit, not including Ermence, on dates between July 12 and 16 and the other
3 on August 2, 10, and 11. These cards were circulated in the building by Marian
Henry, as heretofore set forth, during this period. They appeared to be in order
and their authenticity was not challenged by Respondent, which did not object to
their receipt in evidence. One of them, it may be noted, was signed by Patricia
Schlaht at her home and she identified her signature.
While Security Fund has made no specific contention in this regard, it did adduce
testimony to the effect that a number of the employees of Security Fund were also
members of Local 223. This presumably was to establish that Security Fund
employees had signed dual designations , this serving to vitiate the designations of
Local 11. To accept such a view, however, would be to utterly disregard the unfair
labor practices heretofore found whereby Local 223 achieved its representation in the
building and specifically among the employees of Security Fund in 1953.
Secretary Hildreth, of Local 223, testified that all but 3 of the Security Fund
-employees were dues paying members of his organization; the 3 exceptions were
Ermence, Henry, and Heerman. It is significant, however, that none of the employees
working for Security Fund joined Local 223 subsequent to July 12, 1954, the
-earliest date that cards were signed for Local 11 in 1954, with the exception of Carter,
and she was the only one of the Security Fund employees who did not join Local 11.
I have heretofore set forth how Mary Ermence, as office manager of Security Fund
in 1953, had solicited membership for Local 223, passed out applications, picked up
-signed applications, uttered thinly veiled threats of economic reprisal for failure to
sign up with Teamsters, and promised the employees benefits for affiliating with
Teamsters, this conduct being violative of Section 8 (a) (1) and (2) of the Act.
As a result, Local 223, which in January 1953 had no representation in the building,
had by July of that year signed up all of the employees in the building but 2 or 3,
although the record discloses only the history of this activity at Security Fund and
Local 206. And, as Hildreth testified, those employees of Security Fund who
belonged to Local 223, save Carter, had belonged since an undetermined date in 1953.
In addition, as will later appear, Local 223 made its lone employee join in March 1954.
The record discloses that of those on the payroll in June 1953, only four, not
including Ermence, were employed as of July 14, 1954. They are Foster, Henry,
Wagner, and Schlaht. Of those, only Henry and Schlaht testified herein, the former
for the General Counsel and the latter for Respondents. Their testimony was in
-substantial agreement as to the unlawful method whereby they became affiliated with
Local 223 in 1953. And all four had voluntarily signed cards in 1954 for Local 11.
Moreover, the testimony of Ermence, well supported, amply demonstrates the
unlawful method she employed in 1953, as a supervisor to introduce all the employees
of Security Fund to representation by Local 223. Respondent offered no evidence
as to the circumstances under which any others in the unit were signed up in Local
223 and they did not testify herein. I conclude therefore, on the basis of a pre-
ponderance of the evidence and in fact the only substantial evidence before me,
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the membership of Local 223 was acquired in large measure if not entirely-
on the basis of unfair labor practices which Security Fund cannot plead in its defense..
Respondent has not attempted to "disentagle the consequences for which it was
responsible from those from which it was immune." N. L. R. B. V. Remington Rand,.
Inc., 94 F. 2d 862, 872 (C. A. 2); Franks Bros. Co. v. N. L. R. B., 321 U. S. 702,
and Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678.
Moreover, the fact that in the face of these unfair labor practices, the employees
of Security Fund did thereafter sign up with Local 11 and all of them but one,
as Henry testified, voluntarily paid dues prior to July 21, 1954, demonstrates that
their 1954 designations are entitled to considerable weight and that they have not
been detracted from or weakened.
I find therefore that as of July 16, 1954, Local 11 was the representative of 6
employees in the appropriate unit, a clear majority, and that this majority was in-
creased to 9 by additional signatures on August 2, 10, and 11. I further find that
on July 16, 1954, and at all material times thereafter, Local I1 was and is the ex-
clusive representative of the employees in the above-described appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of the
Act.
2. The refusal to bargain
There is no conflict as to what took place when Local 11 attempted to achieve
recognition in 1954 from Security Fund. On July 27, Local 11 had a clear majority
and Secretary-Treasurer James Beyer wrote to Earhart. He advised him that Local
11 represented a majority of the employees of Security Fund and asked him to
specify a mutually agreeable time and place for negotiations toward an agreement
between Security Fund and Local 11. Earhart promptly telephoned his counsel
herein, Richard Morris, advised him of this request, and mailed Morris a copy
of the letter. He also instructed Morris to reply to the letter and informed Morris
he would rely on his judgment in the matter.
Morris replied to Beyer on July 29, stating that the letter had been referred to
him by Earhart and said that Security Fund would recognize Local 11 at such time
as "the National Labor Relations should properly designate you as the bargaining
agent of an appropriate unit of the employees. . Morris testified that the re-
sponsibility for the text of this letter was his own, it being his practice and custom
to recommend to clients that they insist upon a Board certification before recogniz-
ing a labor organization as a collective-bargaining representative, this being done in
order to give the client more protection under the Act.
On August 18 Beyer wrote to Earhart again . The text is a follows:
This letter is to advise you that Office Employes International Union, Local
No. 11 herewith states that a proper bargaining unit of your operation is one
composed of all office personnel employed by you in or about the situs of the
Teamsters' Building at 1020 N. E. Third Avenue, Portland, 12, Oregon, ex-
clusive of those employes in supervisory status.
We further advise you that our Union, Office Employes International Union,
Local No. 11, represents a majority of all employees in such bargaining unit.
We herewith request that you recognize our Union as the bargaining agent
for all employees in said bargaining unit and further request that you reply
immediately to this letter advising that you recognize our Union as the bargain-
ing agent for all such employees in said bargaining unit.
We herewith offer to submit to you documented proof that our Union does
so represent and has been requested to bargain for a majority of your em-
ployees in such aforesaid designated bargaining unit and request that you enter
into negotiations for the purpose of arriving at a mutually satisfactory con-
tract regarding hours of labor, wages and other working conditions and that
you specify a time and place for such negotiations to be conducted.
On August 23 Morris replied to this letter stating that it, as well, had been re-
ferred to him. He stated, "You are again advised that if the National Labor Re-
lations Board should determine that you are the designated bargaining agent for an
appropriate unit of employees, you will be recognized by Mr. Earhart, Adminis-
trator, as such bargaining agent." As is apparent from the last exchange of letters,
Local 11 offered to prove its majority to Security Fund and Morris, in his reply,
did not challenge the majority representation of Local 11.
Conclusions
It is true that an employer entertaining a good-faith doubt as to the appropriateness
of a unit or the majority representation of a labor organization therein, may with-
hold recogntion from that labor organization until it has achieved a certification
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1035
through the processes of the Board . But such is not the case here simply because,
-as a matter of law, Respondent Security Fund cannot be found to have entertained
.a good-faith doubt of this nature.
Morris was the agent of Security Fund and he may not in equity disassociate him-
self from the unlawful conduct of his employer. His conclusion, as he testified, that
Local 11 might have been unlawfully assisted , related to certain alleged assistance
extended to Local 11 prior to the advent of Local 223 on the scene in 1953. It
has previously been demonstrated how Local 11 was ousted in all practical effect
from the Teamsters Building in 1953. Without passing upon this relatively ancient
matter , the fact is that this alleged unlawful assistance to Local 11 prior to 1953
was followed by unfair labor practices on the part of Security Fund which con-
tributed substantial assistance to Local 223 in 1953. These, in all logic, could
not help but dissipate any prior assistance given Local 11, assuming it to have been
such. Moreover, 1 year later, and subsequent to the illegal assistance given to Local
223, there was an almost unanimous designation of Local 11 by the employees of
Security Fund, as set forth above, which was entirely divorced from any employer
participation. Indeed, all but one of those who signed cards for Local 11 in 1954
voluntarily paid dues prior to July 21, 1954. This is more than can be said for
those who joined Local 223 in 1953 and thereafter paid dues in that organization.
What I deem to be of considerable weight herein, is the anomalous situation that
would result were the unfair labor practices of Security Fund, committed by
Earhart, to be disregarded. An acceptance of the position of counsel for Security
Fund would require Local 11 to proceed to an election in the face of concurrent
unfair labor practices violative of Section 8 (a) (1), (2), (3), and (4) of the
Act; these were directed to the dissipation of its majority and to its very elimination
from the scene. It is particularly significant that 'these concurrent unfair labor
practices by Earhart were committed shortly after receiving the initial request from
Local 11 and less than 1 week before Morris' second reply to Local 11 and con-
sisted of the discharge of 2 employees under subpena at a Board hearing, Henry
and Ermence, both found to be violative of the Act.
It would be difficult to think of conduct more likely to influence other employees
,of Security Fund from appearing at a subsequent representation hearing, or more likely
to restrain those employees from registering their true sympathies on the issue of union
representation at the polls. And in all of this, it must be remembered that Security
Fund and its counsel did not dispute the majority representation of Local 11 and in
fact ignored its offer to prove this majority to the satisfaction of Security Fund.
While I do not doubt that Morris personally acted in good faith, equity requires that
the onus of wrongdoing fall upon the perpetrator thereof rather than on the innocent
victim. N. L. R. B. v. Remington-Rand, Inc., 94 F. 2d 862, 872 (C. A. 2). The
simple fact is that Security Fund is assessable with the conduct of its two agents, Ear-
-hart and Morris. Safeway Stores, Incorporated, 110 NLRB 1718. While one put off
the majority representative and ignored its offer to prove its majority representation,
the other engaged in unfair labor practices demonstrating marked hostility to the
principles of collective bargaining , designed to undermine the majority of Local 11,
and demonstrating an utter disregard of the processes of the Board. The Board
and the courts have long recognized the inequity of requiring employees to register
their views at the polls under such circumstances.
A court has stated in analogous circumstances, "It is true that the union upon meet-
ing such refusal to bargain first adopted -the course of filing a representation petition
for certification by the Board under Section 9 of the Act. Later this representation
petition was dismissed at the union's own request. But the right of employees to bar-
gain collectively through an exclusive bargaining representative is not conditioned
upon an antecedent certification by the Board where, as here, the majority status
of the union is clearly established otherwise, and the employer has no bona fide doubt
,of such majority status, but seeks to delay bargaining negotiations while resorting to
various coercive tactics designed to dissipate the union majority support. . . ."
N. L. R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1) 2O
In view of the foregoing findings, I find that Respondent Security Fund and Re-
spondent Earhart in denying recognition to Local 11 on July 29, 1954, and thereafter,
as the representative of its employees in an appropriate unit, have refused to bargain
with Local 11 within the meaning of Section 8 (a) (5) of the Act, and by such conduct
have interfered with, restrained, and coerced their employees in the exercise of the
rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.
N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79 (C. A. 9), affd. 346 U. S. 482.
20 Although the instant record is not clear on the matter, it appears that Local 11 simi-
tlarly filed and withdrew a representation petition during this period.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Court in the last-cited case stated, in a similar situation, "We think that the evi-
dence abundantly supports the Board's finding that the respondent did not withhold
its recognition of the union because of a good faith doubt of the Union's majority, and
that its conduct generally was motivated by a desire to gain time in which to destroy
the Union's majority." See also N. L. R. B. v. W. T. Grant Company, 208 F. 2d 710 ,
(C: A. 4); N. L. R. B. v. Samuel Kobritz, 193 F. 2d 8 (C. A. 1); N. L. R. B. v. Clear-
field Cheese Co., Inc., 213 F. 2d 70 (C. A. 3); N. L. R. B. v. Top Mode Manufacturing
Co., 203 F. 2d 403 (C. A. 3); N. L. R. B. v. Everett Van Kleeck and Company, Inc.,
189 F. 2d 516 (C. A. 2); N. L. R. B. v. Poultry Enterprises, Inc:, 207 F. 2d 522 (C.
A. 5); N. L. R. B. v. Southeastern Rubber Mfg. Co., Inc., 213 F. 2d 11 (C. A. 5);
N. L. R. B. v. Stewart Oil Co., 207 F. 2d 8 (C. A. 5); Joy Silk Mills v. N. L. R. B.,
185 F. 2d 732 (C. A., D. C.); Safeway Stores, Inc., 99 NLRB 48; and Squirrel Brand
Co., 96 NLRB 179.
E. Other unfair labor practices
1. By Local 223
The complaint in Cases Nos. 36-CA-637, 638, and 639 has one other allegation
which, as is apparent, is of a novel nature. It alleges that Teamsters Local 223, in its
capacity as an employer, has dominated and contributed unlawful support to itself
in its other capacity as a labor organization, thereby violating Section 8 (a) (1) and
(2) of the Act. Stated otherwise this involves a situation of a dual personality and
alleges that Local 223 as an employer had compelled its own employee to join Local
223 and abandon Local 11. The complaint further alleges that Respondent Inter-
national violated the same sections of the Act by this conduct; it appears to premise
responsibility of the International upon the fact that it has had Local 223 under trustee-
ship for many years and still has. Local 223 has but one employee, Edith Manning,
a combined secretary and bookkeeper who regularly devotes only a portion of her
workweek to that organization; the remainder of her time is devoted to work for
three other Teamsters locals in the building which are not involved herein. I find,
nevertheless, that Manning was a regular employee of Local 223 within the meaning
of the Act.
Manning's uncontroverted testimony is that, in March 1954, Secretary Hildreth of
Local 223 approached her and asked if she had any objection to becoming a member
of Local 223, claiming that she was the only girl in the building who did not belong.
Manning replied that "if that was necessary, I would join Local 223." She added that
she would remain a member of Local 11 until she acquired a withdrawal card from
that organization. Hildreth replied that she "might call and ask for a withdrawal
card." Manning thereafter took steps to join Local 223 and also took steps to with-
draw from Local 11. I find that this conversation between Hildreth and Manning, in
the position of employer and employee respectively, when viewed in its proper per-
spective, constituted an instruction by Hildreth to Manning to join Local 223 and to,
withdraw from Local 11. Although this is the only act relied upon herein by the
General Counsel, in view of the fact that Local 223 had but the one employee I do
not view the situation as similar to othets where, in view of unlawful acts being
isolated, a remedial order is regarded by the Board as not warranted.
I find that by the foregoing conduct Local 223 has interfered with, restrained, and'
coerced its only employee in the exercise of the right to be represented by a bargaining
representative of her own choice. I further find, in view of this, dichotomy of Local
223 playing two roles insofar as its own employees are concerned, that Local 223 has
in its capacity as an employer contributed unlawful support to itself in its capacity as
a labor organization and has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act. I deem it unneces-
sary to pass on whether by the foregoing conduct Local 223 has dominated itself,
assuming that to be possible.
A court has stated that "collective bargaining becomes a delusion and a snare if
the employer, either directly or indirectly, is allowed to sit on both'sides of the bar-
gaining table; and, with the great advantage that he holds as the master of pay and
promotions, he will be on both sides of the table if he is allowed to take any part
whatever in the choice of bargaining representatives by the employees." American
Enka Corp. v. N. L. R. B., 119 F. 2d 60 (C. A. 4). I find that the foregoing conduct
by Local 223 was violative of Section 8 (a) (1) and (2) of the Act. See N. L. R. B.
v. Coca-Cola Bottling Co. of Stockton, 212 F. 2d 465 (C. A. 9); and N. L. R. B. v.
Stow Mfg. Co., 217 F. 2d 900 (C. A. 2).
The record amply, demonstrates that International Representative Sweeney was in
complete control of the affairs of Local 223 and in fact had appointed Hildreth to his
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1037
job in February- 1954. Accordingly, I find that the International, by virtue of its
trusteeship of Local 223, has also violated Section 8 ( a) (1) and (2) of the Act.
-Thurston Motor Lines, Inc., 110 NLRB 748. -
2. By the International and International Representative Sweeney
The complaint in Case No. 36-CA-648 alleges that in July 1954 Respondent In-
ternational and Respondent Sweeney attempted to dissuade employees from honoring
Board subpenas in Case No. 36-CA-410, to dissuade them from testifying in the case,
and induced them to withhold information when testifying and to perjure themselves,
thereby violating Section 8 (a) (1) of the Act. As set forth above, Mary Ermence,
an employee of Security Fund, was under subpena by the General Counsel to appear
at the present hearing on July 21, 1954; she ultimately did appear on July 21 and 22
and testified at a later date, in part, concerning certain events in 1953 involving
Sweeney.
As previously found, Ermence, a supervisory employee of Security Fund in 1953,
was asked by Sweeney to ascertain whether the employees of Security Fund wished
to join a Teamsters' organization. In addition, in May 1953 Sweeney asked Ermence
to distribute applications for membership in Teamsters and Ermence agreed to do
so. Later that month, Sweeney brought her the applications and instructed her to
distribute them to girls she was "sure of." Ermence did so, collected the signed appli-
cations, and'returned them to Sweeney. Thereafter the girls and Ermence were ini-
tiated into the Teamsters organization in the presence of Sweeney.
Turning to the merits of the allegation under consideration, about 1 week prior to
the first day of the present hearing, Sweeney held a private conversation with Ermence
and discussed her prospective testimony herein. Sweeney asked her who had given
her the 1953 applications for Teamsters. Ermence replied that Sweeney had.
Sweeney denied it, but when Ermence stuck to her story, he finally admitted that he
had. Sweeney suggested to Ermence that she need not so testify on the witness stand.
Ermence replied that she would not perjure herself on the stand. Sweeney stated that
"employers" frequently lied on the stand, but Ermence refused to change her story.
Sweeney asked her to cooperate by going on a long trip. Ermence refused, pointing
out that her family commitments prevented such a step. Sweeney then suggested
that she testify that she, Ermence, had asked Sweeney for the applications, that he
then invited her to pick them up on his desk, and that she did so. Ermence protested
that this was also contrary to fact; as heretofore found, Sweeney had brought her the
applications and received the signed ones after she carried out his instructions. The
talk ended on this note.2i
I find that by the foregoing conduct Sweeney attempted to induce Ermence to
change her testimony concerning the application blanks he had given her and pro-
posed that she take a trip in order to avoid testifying at this hearing. I find that this
conduct, directed toward a prospective witness under subpena at a Board hearing, con-
stituted interference with, restraint, and coercion by Respondent International and
Respondent. Sweeney of employees in the exercise of the rights guaranteed by Section
7 of the Act and was violative of Section 8 (a) (1) thereof. See Tri County Em-
ployers Association, et al., 103 NLRB 653, 673, and Amory Garment Company, Inc.,
80 NLRB 182, 199.
Sweeney was involved in another episode with prospective witness Barnes ap-
proximately 1 day prior to the hearing on July 21, 1954. Barnes, who was under
subpena by the General Counsel along with Ermence and others, testified, and I so
find, that she had been given an application by Sweeney in May or June 1953. On
the indicated occasion in 1954, Sweeney, who had been advised by his counsel that
Barnes would testify that Sweeney had given her the application blank for Teamsters,
'informed Barnes that her prospective testimony in the matter was false. Although
•I have credited Barnes as to what had actually taken place, I see no basis for finding
an unfair labor practice predicated upon Sweeney's remarks to Barnes in 1954. I
therefore base no adverse finding on this incident.22
--, 8i The foregoing findings are based upon the testimony of Ermence. I have heretofore
set forth and considered in detail the conflict between the testimony of Ermence and that
iof'Sweeney as to this episode It would be cumulative to repeat it here save to state that
for the reasons previously indicated I credit Ermence herein as elsewhere
-'2i The record does not disclose any basis for Sweeney's desire to disassociate himself
from the distribution of the applications for Local 223.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connec-
tion with the operations of Respondents set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the various Respondents have engaged in a number of unfair
labor practices, I shall recommend that they cease and desist therefrom and that they
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent Teamsters Security Administration Fund and
Respondent William C. Earhart, Administrator, have refused to bargain with Office
Employes International Union, Local No. 11, as the exclusive representative of the
employees of Teamsters Security Administration Fund in an appropriate unit. It will
accordingly be recommended that they, upon request, bargain collectively with Local
No. 11 as the exclusive representative of their employees with respect to rates of pay,
wages, hours, and other terms and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a written and signed contract.
It has been found that Teamsters Security Administration Fund and Earhart have
discriminated with respect to the hire and tenure of employment of Marian Henry
and Mary Ermence on August 13 and 16, 1954, respectively; that Teamsters Build-
ing Association, Inc., has discriminated with respect to the hire and tenure of employ-
ment of Virginia Olstad on July 29 and Irene Morcom Barnes on or about July 29,
1954; that Joint Council of Drivers, No. 37, has discriminated with respect to the
hire and tenure of employment of Irene Morcom Barnes on August 13, 1954; and
that Warehousemen Local No. 206, has discriminated with respect to the hire and
tenure of employment of June Cook on June 10, 1954. I shall therefore recommend
that each of the above-named Respondents offer its respective employees full and
immediate reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights or privileges. See The Chase National
Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It
will further be recommended that each Respondent make its respective employee or
employees whole for any loss of pay suffered by reason of the discrimination against
them. Said loss of pay, based upon earnings which each would normally have
earned from the date of the discrimination to the date of a proper offer of reinstate-
ment, plus net earnings, shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. See N. L. R. B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.33
It has been found that various of Respondents have unlawfully assisted Local 223
and it will be recommended that they respectively cease and desist from such con-
duct. The General Counsel has urged that they also be ordered to refund dues paid
by the employees of these Respondents to Local 223. There is, however, no evidence
that an involuntary checkoff of dues was enforced or that employees were coerced
into the payment of dues. Accordingly, refunds of these,payments are not ordered.
Milco Undergarment Co., Inc., 106 NLRB 767, enfd. 212 F. 2d 801 (C. A. 3);
and Standard Transformer Co., 97 NLRB 669.
The unfair labor practices found above on the part of Respondents and the will-
ingness of Respondents to resort to strongly unlawful methods to counteract an
attempt by employees to achieve self-organization through a labor organization of
their own choosing manifest a fundamental and extreme antipathy to the objectives
of the Act and warrant an inference that the commission of other unfair labor
practices may be anticipated in the future. It will therefore be recommended that
Respondents be ordered to cease and desist from in any manner interfering with,
restraining, or coercing employees of the Teamsters Building in the exercise of the
rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
x' While some mention was made that Cook and 0lstad had not obtained subsequent
employment, the record is vague and the issue of subsequent losses of earnings was not
litigated before me. I-Tence, no consideration has been given herein to the matter which,
in any event, is one for the compliance stage of the case
OREGON TEAMSTERS' SECURITY PLAN OFFICE 1039
CONCLUSIONS OF LAW
1. Teamsters Security Administration Fund, William C. Earhart, Administrator;
Joint Council of Drivers, No. 37; Teamsters Building Association, Inc.; Local No.
223, Grocery, Meat, Motorcycle and Miscellaneous Drivers; and Warehousemen
Local No. 206 constitute employers within the meaning of Section 2 (2) of the Act
with respect to their own respective employees.
2. Office Employes International Union, Local No. 11, and Local No. 223,
Grocery, Meat, Motorcycle and Miscellaneous Drivers constitute labor organiza-
tions within the meaning of Section 2 (5) of the Act.
3. All employees of Teamsters Security Administration Fund, Portland, Oregon,
and its administrator, William C. Earhart, excluding supervisors, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
4. Office Employes International Union, Local No. 11, was on July 16, 1954, and
at all times thereafter has been , the exclusive representative of the employees in the
above-described appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with Office Employes International Union,
Local No. 11, on July 29, 1954, and thereafter as the exclusive representative of its
employees in an appropriate unit, Respondent Teamsters Security Administration
Fund and Respondent William C. Earhart, Administrator, have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Marian
Henry on August 13, 1954, Teamsters Security Administration Fund and William C.
Earhart, Administrator, have engaged in unfair labor practices within the meaning of
Section 8 (a) (1), (2), (3), and (4) of the Act.
7. By discriminating in regard to the hire and tenure of employment of Mary
Ermence on August 16, 1954, Teamsters Security Administration Fund and William
C. Earhart, Administrator, have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (I) of the Act.
8. By discriminating in regard to the hire and tenure of employment of Virginia
Olstad on July 29, 1954, Teamsters Building Association, Inc., has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3),
and (4) of the Act.
9. By discriminating in regard to the hire and tenure of employment of Irene
Morcom Barnes on or about July 29, 1954, Teamsters Building Association, Inc.,
has engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2),
(3), and (4) of the Act.
10. By discriminating in regard to the hire and tenure of employment of June
Cook on June 10, 1954, Warehousemen Local No. 206 has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
11. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act, Teamsters Security Administration Fund;
William C. Earhart, Administrator; Warehousemen Local No. 206; Local No. 223,
Grocery, Meat, Motorcycle and Miscellaneous Drivers; Joint Council of Drivers, No.
37; and Teamsters Building Association, Inc., have engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
12. By contributing unlawful support to Local No. 223, Grocery, Meat, Motor-
cycle and Miscellaneous Drivers, in its capacity as a labor organization; Teamsters
Security Administration Fund; William C. Earhart, Administrator; Warehousemen
Local No. 206; Local No. 223, Grocery, Meat, Motorcycle and Miscellaneous Drivers,
in its capacity as an employer; and Joint Council of Drivers, No. 37, have engaged
in unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
13. By seeking to have a prospective witness under subpena at a Board proceeding
change her testimony and evade testifying, Respondent International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and'Helpers of America, AFL, and Respond-
ent John J. Sweeney have engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
14. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]